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https://www.courtlistener.com/api/rest/v3/opinions/1569878/ | 57 F.2d 860 (1932)
HANAGAN
v.
UNITED STATES.
No. 4637.
Circuit Court of Appeals, Seventh Circuit.
March 31, 1932.
Samuel V. Jinkins, of Danville, Ill., for appellant.
Paul F. Jones, U. S. Atty., and John W. Speakman, Asst. U. S. Atty., both of Danville, Ill., and William Wolff Smith, Sp. Counsel, Veterans' Administration, and A. *861 Hinderliter, Atty., Veterans' Administration, both of Washington, D. C., for the United States.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
PER CURIAM.
It is too plain for discussion that, if the record discloses substantial evidence to support the finding and judgment of the trial court, it cannot be disturbed on appeal. It appears that, while in the service in France, Hanagan was severely wounded just above the left knee. He was treated in various hospitals and has been in hospitals or soldiers' homes most of the time since his injury. The kneejoint has become ankylosed. In course of time a false joint formed just above the knee, which gives him some movement of the leg below that joint.
For a considerable time he used crutches to get about, and afterwards a cane, but for quite a good many years last past he has walked without a cane, save that when it is icy, and sometimes when he suffers from rheumatism in that leg or in his back, he uses a cane. On several occasions the leg seemed to give way in walking. The evidence indicates quite conclusively that, except as stated, he has for years been sound and well mentally and physically, and there is substantial evidence in the record to indicate that appellant is in every way qualified to undertake and perform such work as it might reasonably be expected a man with one leg can do.
It does not appear that since the injury he has done or attempted to do any kind of gainful work. While working quite regularly would tend to indicate a want of totality in his disability, refraining from work does not necessarily indicate the existence of total disability. That Hanagan cannot resume his former occupation of mining is very evident; and, while he appears to be a man of limited education, there is nothing in the record that reflects upon his reasonable intelligence, or that necessarily requires the conclusion that he is incapable of performing other gainful work without making use of his injured leg. The government long maintained a free service for rehabilitating veterans of the war. It is not apparent why appellant has not sought to avail himself of such opportunity, or to make reasonable effort to do something for himself. What his motive may be in thus completely resigning himself to doing nothing the evidence does not disclose.
Notwithstanding appellant's great service and sacrifice, and the evident permanent injury to his leg, this case involves no matter of sentiment, but only of contract. It can scarcely be denied that there is in the record substantial evidence indicating that this man is capable of undertaking and continuously performing such work as a one-legged man can do, and therefore he was not and is not totally disabled as the contract provides must be the case to warrant recovery upon the certificate.
There being substantial evidence to support the judgment, a reviewing court is not at liberty to disturb it.
The judgment must be, and is, affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646820/ | 9 So.3d 619 (2009)
KISER
v.
STATE.
No. 1D07-4679.
District Court of Appeal of Florida, First District.
May 5, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569372/ | 29 So. 3d 922 (2009)
Richard L. DURR
v.
STATE of Alabama.
CR-08-0133.
Court of Criminal Appeals of Alabama.
August 7, 2009.
Rebecca Henry McCorkel and Derek Evan Yarbrough, Dothan, for appellant.
Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
KELLUM, Judge.
The appellant, Richard L. Durr, pleaded guilty to one count of trafficking in marijuana and one count of trafficking in cocaine, violations of § 13A-12-231, Ala. Code 1975. The circuit court sentenced Durr to concurrent terms of life imprisonment; it also ordered Durr to pay various fines and statutory assessments.[1]
*923 On November 16, 2007, a Houston County grand jury indicted Durr on one count of trafficking in marijuana, and on February 20, 2008, another Houston County grand jury indicted Durr on one count of trafficking in cocaine. Durr pleaded guilty on April 21, 2008, to both counts of trafficking as alleged in the two indictments. Durr's sentencing hearing was continued until September 2008 in anticipation that Durr would assist the Houston County Sheriff's Department with an on-going narcotics investigation, pursuant to Durr's plea agreement with the State. On September 22, 2008, the circuit court sentenced Durr to concurrent terms of life imprisonment on each conviction. Durr subsequently filed a motion to withdraw his guilty pleas, or, in the alternative, for a new trial; the circuit court denied the motion. Durr appealed.
Durr argues that the circuit court abused its discretion when it denied his motion to withdraw his guilty pleas. Durr contends that his guilty pleas were not knowingly, voluntarily, and intelligently entered because, he says, the circuit court did not properly advise Durr pursuant to Rule 14.4, Ala. R.Crim. P., during his guilty-plea colloquy. Specifically, Durr alleges that the circuit court failed to advise him of the maximum and minimum sentencing range applicable to his convictions, how his sentence could be enhanced based on his prior felony convictions, and the provisions governing whether a sentence may run consecutively to or concurrently with another sentence. Furthermore, Durr points out that a signed Ireland[2] form was not included in the record.
Rule 14.4(a), Ala. R.Crim. P., provides, in relevant part:
"(a) ... In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
"(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
"....
"(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
"(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences."
Rule 14.4(d), Ala. R.Crim. P., states: "The court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in [the Explanation of Rights Form, also known as the Ireland form]."
It is well-established precedent that the circuit court must notify a defendant *924 of the correct sentencing range when the defendant pleads guilty.
"`The Alabama Supreme Court and this Court "have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea." Ex parte Rivers, 597 So. 2d 1308, 1309 (Ala.1991). It is well settled, moreover, that "if the appellant's sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute." Elrod v. State, 629 So. 2d 58, 59 (Ala.Cr.App.1993), citing Rivers. Accord, White v. State, 616 So. 2d 399 (Ala.Cr.App.1993); Looney v. State, 563 So. 2d 3, 4 (Ala.Cr.App.1989); Smith v. State, 494 So. 2d 182 (Ala.Cr. App.1986).'"
Kennedy v. State, 698 So. 2d 1174, 1177 (Ala.Crim.App.1997) (quoting Aaron v. State, 673 So. 2d 849, 849-50 (Ala.Crim. App.1995) (emphasis added in Kennedy)).
Furthermore, this Court has stated:
"`[T]he Alabama Supreme Court held that "a defendant, prior to pleading guilty, must be advised of the maximum and minimum potential punishment for his crime" by the trial court in order to sustain a ruling that the defendant voluntarily entered a guilty plea. See, Gordon v. State, 692 So. 2d 869 (Ala.Cr. App.1996); Pritchett v. State, 686 So. 2d 1300 (Ala.Cr.App.1996); Knight v. State, 55 Ala.App. 565, 317 So. 2d 532 (1975); Moore v. State, 54 Ala.App. 463, 309 So. 2d 500 (1975). This holding is supported by Boykin [v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)] and Rule 14.4, Ala. R.Crim. P. The rule that the trial judge conduct a colloquy with the defendant before accepting a guilty plea ensures that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.'"
Jones v. State, 727 So. 2d 889, 891 (Ala. Crim.App.1998) (quoting Heard v. State, 687 So. 2d 212, 213 (Ala.Crim.App.1996)).
The record reflects that, during the guilty-plea colloquy, the following discussion took place:
"MR. MAXWELL [prosecutor]: Judge, what we are going to do for a proffer of the Court is he has two trafficking cases that he is pleading guilty to. He has two prior felony convictions, which would make the only sentence, I believe, to be life.
"And what we are asking the Court to do is this, is to take the pleas on the trafficking cases today and set a sentencing hearing for sixty days down the road.
"....
"THE COURT: Mr. Durr, do you understand these two cases of trafficking in CC-07-1503 and CC-08-115, and do you understand those charges?
"[DURR]: Yes, sir.
"THE COURT: Do you understand the range of punishment, which we've gone over; is that correct?
"[DURR]: Yes sir.
"THE COURT: Do you understand by pleading guilty In this case you waive your right to a jury trial? Do you understand that?
"[DURR]: Yes, sir.
"THE COURT: And are you pleading guilty voluntarily and freely?
"[DURR]: Yes, sir.
"THE COURT: Did anyone force you or threaten you or coerce you in any manner to get you to plead guilty?
"[DURR]: No, sir.
*925 "THE COURT: Anyone promise you any reward or inducements?
"[DURR]: No, sir.
"THE COURT: And do you understand the rights that you would have if you went to trial? Has your attorney explained those to you?
"MR. YARBROUGH [defense counsel]: Yes, sir, he understands it.
"THE COURT: And you all are going to do an Explanation of Rights and Plea of Guilty form, I understand?
"MR. YARBROUGH: Yes, sir, I'll do that, and we'll file it with the Court.
"THE COURT: And what are the facts?
"...
"[Prosecutor recited the facts.]
"THE COURT: Okay. Mr. Durr, are those facts true and correct, or do you dispute any [of] those facts?
"[DURR]: Yes, sir.
"THE COURT: They are true?
"[DURR]: Yes, sir.
"THE COURT: And how do you plead, guilty or not guilty?
"[DURR]: Guilty."
(R. 3-9; emphasis added.)
Before Durr entered his plea of guilty, the circuit court failed to inform Durr regarding, or to ascertain whether Durr understood, the mandatory minimum and maximum sentences provided under Alabama law, including any sentence enhancements, as well as whether his sentence would run consecutively or concurrently. Furthermore, the circuit court did not ascertain on the record that Durr had read and understood the explanation of rights on an Ireland form. In fact, the exchange between the circuit court and defense counsel indicated that an Ireland form had not been executed at the time of the guilty-plea colloquy. See Brown v. State, 712 So. 2d 1112, 1114 (Ala.Crim.App.1997).
Based on the foregoing, we hold that Durr's guilty plea was involuntary because the circuit court failed to comply with Rule 14.4(a) or (d). Accordingly, the judgment of the circuit court is reversed, and this cause is remanded to the Houston Circuit Court so that Durr may have the opportunity to withdraw his guilty plea and to enter another plea after he has been informed of the applicable sentencing range, including potential enhancements, and whether his sentence will run consecutively or concurrently with another sentence.
REVERSED AND REMANDED.
WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.
NOTES
[1] Our examination of the record indicates that the fines imposed by the circuit court were less than the mandatory fines provided for in § 13A-12-231, Ala.Code 1975. Likewise, the circuit court failed to order that Durr pay all statutorily mandated assessments. However, it appears from the colloquy that a plea agreement existed between the State and Durr. Because no copy of the agreement was included in the record on appeal, the exact terms of the agreement are not known to this Court. The State may elect to forgo the application of mandatory fines and other enhancements including application of the Habitual Felony Offender Act. If so, this Court may not order the trial court to impose these fines. See, e.g., Ex parte Johnson, 669 So. 2d 205 (Ala. 1995). If, in fact, the waiver of the application of the mandatory fines and other enhancements was part of the plea agreement, we note that it should be explicitly set out in the plea agreement.
[2] Ireland v. State, 47 Ala.App. 65, 250 So. 2d 602 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584607/ | 233 P.3d 889 (2010)
168 Wash.2d 1036-43
KALTREIDER
v.
LAKE CHELAN COMMUNITY HOSP.
No. 84144-6.
Supreme Court of Washington, Department II.
June 2, 2010.
Disposition of Petition for Review Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569203/ | 29 So. 3d 1147 (2010)
Michael CAMPBELL, Appellant/Cross-Appellee,
v.
STATE of Florida, Appellee/Cross-Appellant.
Nos. 1D08-0601, 1D08-0870.
District Court of Appeal of Florida, First District.
January 29, 2010.
Rehearing Denied March 10, 2010.
*1148 Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Office of the Attorney General, Tallahassee; William N. Meggs, State Attorney, Office of the State Attorney, Tallahassee, for State of Florida.
Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Joel T. Remland, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Michael Campbell.
PER CURIAM.
The defendant, Michael Campbell, appeals from his conviction of burglary of a dwelling with a person assaulted and simple battery. The State has cross-appealed, arguing that the trial court incorrectly concluded that the Prison Releasee Reoffender (PRR) Act did not require that the defendant receive a life sentence for the burglary conviction. We find no merit in the defendant's jury instruction issue raised on direct appeal, but we reverse and remand on the PRR issue raised on cross-appeal.
Campbell was charged with two counts of sexual battery with a deadly weapon on a person twelve years of age or older, in violation of sections 784.03(2), 775.087, 794.011(3) and (4)(b), and 794.0115(2)(a), Florida Statutes; one count of burglary of a dwelling with a person assaulted, in violation of sections 784.03(2) and 810.02(2)(a) and (b), Florida Statutes; and one count of aggravated battery with a deadly weapon causing great bodily harm, in violation of sections 784.03(2), 784.045(1)(a)1 and 2, and 775.087, Florida Statutes.
The State alleged that the defendant accosted the victim as she was exiting her apartment, pushed her inside, and attacked and sexually assaulted her. The burglary count alleged in pertinent part that the defendant "did unlawfully enter or remain in [the victim's dwelling] with intent to commit the offense of sexual assault, assault, and/or battery or some offense therein, and in the course of committing the offense: did make an assault or battery upon a person, [the victim], and/or became armed within the structure with a dangerous weapon." The jury found the defendant guilty as charged of burglary of a dwelling with person assaulted. It acquitted him on the two counts of sexual battery but found him guilty of the lesser included offense of battery.
At the sentencing hearing, the defendant argued that he was subject only to a fifteen-year sentence under the PRR Act, based on the Fourth District's opinion in Tumblin v. State, 965 So. 2d 354 (Fla. 4th DCA 2007). He argued that, although burglary of a dwelling qualifies for PRR sentencing, the enhancement based on assault or battery does not qualify under Tumblin and State v. Hearns, 961 So. 2d 211 (Fla.2007). Therefore, he contended, the only PRR sentence that could be imposed was fifteen years for burglary of a dwelling, but not for burglary of a dwelling with an assault or battery.
The State countered that the PRR statute specifically includes burglary of a dwelling as a qualifying offense, and burglary of a dwelling with a person assaulted is a type of burglary of a dwelling. Therefore, the State maintained, the defendant should be subject to a life PRR sentence.
The trial court agreed with the defendant that burglary of a dwelling with a person assaulted was not a qualifying offense *1149 under the PRR statute, because it was not specifically listed in the statute. It further found that, under the reasoning expressed in Hearns, the offense did not meet the definition of a forcible felony under the catch-all provision of the statute. Therefore, the court concluded that it was required to sentence the defendant as a PRR to only fifteen years on the burglary charge. On the felony battery count, the trial court imposed a concurrent five-year sentence.
The PRR statute in effect at the time of the defendant's offense, section 775.082, Florida Statutes (2005), provides in pertinent part:
(9)(a)1. "Prison releasee reoffender" means any defendant who commits, or attempts to commit:
. . .
o. Any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an unoccupied structure;
. . .
within 3 years after being released from a state correctional facility . . . following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.
§ 775.082(9)(a)(1)(o)-(q), Fla. Stat. (2005) (emphasis added).
Subsection 775.082(9)(a)(1)(o), which provides that forcible felonies qualify as PRR offenses, is sometimes referred to as the "catch-all provision." As explained below, although there has been some focus in the case law on the fact that burglary of a dwelling with an assault or battery is not a forcible felony under this provision, there is actually no need to resort to the catch-all provision in determining whether this crime is a qualifying PRR offense.
The first rule of statutory construction is to consider the plain meaning of statute. See Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla.2006). If the statute is clear and unambiguous, "courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent." Borden at 595 (quoting Daniels v. Fla. Dep't of Health, 898 So. 2d 61, 64 (Fla.2005)).
As set forth above, the PRR statute expressly lists burglary of a dwelling as a qualifying offense for PRR sentencing. See § 775.082(9)(a)(1)(q), Fla. Stat. (2006). It further provides that the sentencing court must look to the degree of the qualifying offense to determine the length of PRR sentence. See § 775.082(9)(a)(3), Fla. Stat. (2006). For a first-degree felony punishable by life, such as burglary of a dwelling with an assault, the PRR statute provides that the defendant must be sentenced to a term of life imprisonment. See §§ 775.082(9)(b) and 810.02(2)(a), Fla. Stat.
The burglary statute provides,
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault or battery upon any person . . .
§ 810.02(2)(a), Fla. Stat.
Reading subsections (9)(a)(1)(q) and (9)(a)(3) of the PRR statute together with subsection (2)(a) of the burglary statute, and giving them their plain meaning, reveals that burglary of a dwelling with an assault or battery is punishable by a life sentence under the PRR statute.
This conclusion is supported not only by the plain language of the applicable statutes, but also by the basic principle that a court should not interpret a statute in such a way is to yield an illogical result. The *1150 defendant does not deny that the PRR statute specifically lists burglary of a dwelling as a qualifying offense for enhancing a sentence. Nonetheless, he urges this Court to construe it in a way that excludes the greater offense of burglary of a dwelling with an assault or battery. The latter is a more serious crime than the former. It would be illogical to construe the PRR statute in a way that allows an enhanced sentence for simple burglary of a dwelling, but not for a greater degree of that same crime.
Burglary of a dwelling is an enumerated offense. Burglary of a dwelling with an assault or battery is simply a greater degree of burglary. The legislature acknowledged in subsection 775.082(9)(a)(3) that varying degrees of qualifying offenses may exist and, accordingly, it provided for varying sentences in that subsection. Burglary of a dwelling with an assault or battery falls squarely within this statutory scheme. As the Fifth District observed in Souza v. State, 889 So. 2d 952, 956 (Fla. 5th DCA 2004),
. . . [A] number of the crimes listed in the PRR Act as qualifying offenses are described in their broadest sense. Murder, for example, is listed as one of the qualifying offenses. There are, of course, several degrees of murder and a number of different methods of committing that crime set forth in the statutes, yet the PRR Act does not differentiate, for example between second and third degree murder. See § 782.04, Florida Statutes (2003). It simply says, murder. That the description of murder is generic does not prevent a defendant from being sentenced as a prison releasee reoffender for having committed that offense. See e.g., Miller v. State, 772 So. 2d 611 (Fla. 1st DCA 2000).
Souza, 889 So.2d at 956.
Applying this logic, the Souza court held that DUI manslaughter is a qualifying PRR offense, because it is a varying degree of the enumerated offense of manslaughter. The same analysis applies here. Burglary of a dwelling is one of the qualifying offenses, described in its broadest sense in the statute. Thus burglary of a dwelling with an assault or battery is simply a more serious version of the enumerated offense.
The defendant relies on Tumblin and Gorham v. State, 988 So. 2d 152 (Fla. 4th DCA 2008). As in the present case, Tumblin was convicted of burglary of a dwelling with an assault or battery. Tumblin argued in a 3.800(a) motion that his PRR sentence was illegal, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and State v. Overfelt, 457 So. 2d 1385 (Fla.1984), because the facts required to support the enhanced sentence were not submitted to the jury. The jury did not make a specific finding that the dwelling was occupied.
The Tumblin court pointed out that the defendant's crime in that case was committed before the PRR statute was amended in response to State v. Huggins, 802 So. 2d 276 (Fla.2001) to include burglary of an unoccupied dwelling. See Tumblin, 965 So.2d at 355. The trial court there concluded that there was no need for the jury to find that the place burglarized was an occupied dwelling, because the catch-all provision of the PRR statute for forcible felonies applied. The Fourth District therefore analyzed whether the offense qualified as a forcible felony under the catch-all provision. It looked to the Hearns case to hold that it was error for Tumblin to be sentenced as a PRR, where the jury failed to make a finding that the dwelling was occupied. It observed that only burglary of a dwelling was a qualifying PRR offense.
Tumblin is inapposite here, because the presence of burglary of a dwelling as an *1151 enumerated qualifying offense makes it unnecessary to engage in an analysis of whether burglary of a dwelling with an assault is a forcible felony under the catch-all provision. While the crime may not be a forcible felony, it is a greater degree of a specifically listed qualifying offense. Therefore, it is itself a qualifying offense under the PRR statute.
Gorham v. State is likewise inapposite. Gorham was convicted of burglary of a conveyance with assault or battery. The Gorham court held that it was error to sentence the defendant as a PRR for that crime, because burglary of a conveyance was not an enumerated offense, and burglary of a conveyance with an assault or battery could not qualify under the catch-all provision, under the supreme court's ruling in Hearns. The Fourth District noted in Gorham that the PRR statute explicitly named only burglary of a dwelling, burglary of an occupied structure, and armed burglary as qualifying offenses, but not burglary of a conveyance. Because the legislature excluded this specific offense, the court concluded that it did not intend to include it, under the tenet of statutory construction, expressio unius est exclusio alterius. See Gorham, 988 So.2d at 154. As with Tumblin, the analysis and offense at issue in Gorham make it inapposite here.
Gorham and a number of other cases refer to the analysis in State v. Hearns. The supreme court in Hearns held that assault and battery do not qualify as forcible felonies under the catch-all provision of the PRR statute. However, to determine whether burglary of a dwelling with an assault or battery qualifies as a PRR offense, there is no need to resort to the catch-all forcible felony provision, or to look to the Hearns analysis, because burglary of a dwelling is an expressly enumerated offense in subsection (9)(a)(1)(q) of the statute.
We acknowledge that the defendant's argument is supported by the language of the opinion in Williams v. State, 2 So. 3d 984 (Fla. 2d DCA 2008). There the court stated that the defendant could not receive a life sentence under the PRR statute for burglary of a dwelling with a person assaulted, because the crime did not fall within the catch-all provision for forcible felonies. However, it is important to note that the court in Williams did not reverse the defendant's conviction, because the alleged sentencing error was not preserved. Instead, the court affirmed without prejudice to the defendant's right to file an appropriate postconviction motion. See Williams, 2 So.3d at 984. If the court had decided the issue on the merits it might have considered the fact that burglary of a dwelling is an enumerated offense.[1] For all these reasons, we conclude that the trial court erred in sentencing the defendant to only 15 years for burglary of a dwelling with an assault. Therefore, we reverse and remand for resentencing as to this issue. On remand, the trial court is instructed to sentence the defendant as a prison releasee reoffender to a sentence of life imprisonment on the burglary count. We find no merit to the issue the defendant raises on direct appeal and therefore we affirm as to that issue.
Affirmed in part and reversed in part.
VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.
NOTES
[1] We disagree with the statement in Williams regarding the applicability of the PRR statute, but it is not appropriate to certify conflict with the Second District Court of Appeal, because there is no conflict in the decisions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569164/ | 29 So. 3d 669 (2010)
STATE of Louisiana
v.
Gregory TRUVIA.
No. 2009-KA-0504.
Court of Appeal of Louisiana, Fourth Circuit.
January 13, 2010.
*670 Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Andrew M. Pickett, *671 Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Appellee.
Mary Constance Hanes, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
(Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
JAMES F. McKAY III, Judge.
STATEMENT OF THE CASE
The defendant Gregory Truvia was charged by grand jury indictment on May 31, 2007, with first degree murder, a violation of La. R.S. 14:30. The defendant pleaded not guilty and not guilty by reason of insanity at his June 13, 2007 arraignment. He was found competent to proceed on April 8, 2008. The State amended the indictment on September 25, 2008 to reflect the charge of second degree murder. On December 10, 2008, the two-day trial ended with the defendant being found guilty as charged by a twelve-person jury. On January 22, 2009, the defendant was sentenced to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence.
FACTS
The defendant was charged with and convicted of second degree murder for the April 8, 2007 killing of his mother, Artherine Williams.
One of the defendant's assignments of error on appeal is that the evidence is insufficient to support his conviction for second degree murder, because he proved by a preponderance of evidence that he was insane at the time of the commission of the crime.
New Orleans Police Department Senior 911 Dispatcher Andrea Taylor identified an audiotape of a 911 call, which was played for the jury.
Jamie Pichon testified that on April 8, 2007, she was living in a Federal Emergency Management Agency trailer on the campus of Southern University of New Orleans. Ms. Pichon woke up that morning to a loud moaning noise. She looked outside of her trailer to see the man who lived next door, dragging what she believed was a moaning person or an animal. The man dragged the object into his trailer. Ms. Pichon text-messaged her mother to telephone 911, because she was afraid if she did so the man would hear her.
Forensic pathologist Dr. Richard Tracy autopsied the victim. She suffered minor injuries scattered over the body and serious injuries to her face. She had bruises, swollen bruises, swollen black eyes, ragged cuts of the kind one gets from a club-like object, and sharply incised cut edges with the absence of much of the tissue from the area. The cause of death was blunt force tears and sharply incised injuries to her face. The victim's tongue had been torn almost completely out, and the blood loss from that injury was the biggest contributor to her death.
New Orleans Police Department Officer Nakeisha Barnes and her partner, Officer Gregory Gavins, responded to a call at approximately 4:00 a.m. on April 8, 2007, at the SUNO trailer site on Pelopidas Street. The officers knocked on the door of the defendant's trailer. The defendant appeared shirtless and covered in blood. The defendant stepped out onto the trailer staircase after being ordered several times to do so. He refused commands to put his hands up. The defendant stumbled coming down the steps and fell to the ground. He resisted being handcuffed by Officer Gavins. Officer Barnes attempted to assist, but the defendant turned and began coming in the officer's direction. She emptied a can of chemical spray at defendant, but it had no effect on the defendant *672 at all. She estimated the struggle with defendant lasted seven minutes, and he was not subdued until other units responded. The victim was sitting upright in the trailer in a slumped over position in a pool of blood. She was unresponsive. Officer Barnes identified photographs of the crime scene.
United States Secret Service Agent Greg Gavins testified that on April 8, 2007, he was a New Orleans Police Officer and working that night with Officer Barnes. He recalled that the victim was nude, sitting in the trailer with her head slumped down, facing away from the front door. Agent Gavins' testimony essentially tracked that of Officer Barnes with regard to the officers' interaction with defendant. Agent Gavins said he too exhausted his can of pepper spray on the defendant and that it did not appear to have an effect on him. He and the defendant fell while struggling, and Agent Gavins was able to get one handcuff on him. Inside the trailer, Agent Gavins observed various pieces of flesh on the floor and pieces of teeth on the sofa. The agent confirmed on cross examination that the defendant made no attempt to elude the officers or run from them.
New Orleans Police Homicide Detective Harold Wischan investigated the homicide. He observed what appeared to be drag marks coming from a ditch behind the trailer towards defendant's trailer. He observed articles of female clothing on the steps leading to the trailer. The victim was sitting upright in a pool of blood, with her shoulders rolled forward and her head hanging forward. A fire extinguisher with blood on it was inside the trailer. Detective Wischan identified photographs and physical evidence recovered from the scene.
Howard Williams, the defendant's brother, testified that the victim was sixty-seven or sixty-eight years old at the time she was killed. She had a stroke a few months before her death. The defendant provided her with assistance after that stroke.
Earl Truvia, another of the defendant's brothers, testified that their mother and the defendant always had a beautiful relationship. The victim had been living in Texas and had only come to New Orleans on April 7, 2007, the day before she was killed. She came because she was concerned about the defendant's situation. The defendant had been living in the trailer for around three weeks. Earl took the defendant from Texas. The defendant spent the night at Earl's house, and then Earl brought him to the trailer. He would visit the defendant occasionally, and Earl said everything was okay until he received a telephone call from the defendant on April 5th or 6th, and he told Earl he did not want to live. Earl went to the defendant's trailer and talked with him that night. Earl and his wife once took the defendant to University Hospital because the defendant said he had a stinging feeling running through his body and complained that he was hearing voices. They waited at the hospital for three hours, but left before the defendant was examined, after the defendant said he was all right.
Earl stated on cross examination that the defendant was normal when he was living in Texas with their mother, and he changed only after living in the trailer in New Orleans. Earl also admitted that he, Earl, had been removed from the family dynamics for twenty-seven years prior to 2003. Earl said that on the night before the killing, when he left the defendant and their mother, which was around 11:00 p.m., defendant was "okay."
Dr. Sara Deland, a forensic psychiatrist, testified that when she first met with the defendant for the first time in early June 2007, he was "overtly psychotic." He primarily *673 had thought disorganization, and he reported that he was hearing voices, which Dr. Deland confirmed was consistent with someone overtly psychotic. She noted that the defendant was kind of disheveled and mainly stared at the floor or off into space, making very poor eye contact. The defendant was not taking any psychiatric medication at that time, but she thought he needed to be. She stated that the defendant appeared to be much better when she saw him a second time after he had been placed on anti-psychotic medication. He appeared even better on her third visit with him. She only saw him for forty-five minutes on the first visit, because he was having trouble focusing and responding. The subsequent visits were from between one and two hours.
Dr. Deland reviewed the defendant's arrest record, medical records from three hospitals and Orleans Parish Prison, and a limited report from the Seafarer's Union about the defendant's past employment. She also spoke with all of his brothers and sisters, and a couple of longtime family friends. She noted that in February 2007, the defendant visited Delgado Clinic, complaining that he was stinging all over his body and worrying that he might have syphilis. Records from Delgado indicated he did not have any kind of sexually transmitted disease. When the defendant went to a hospital in Dallas right before he returned to New Orleans, he also complained of stinging all over his body and that he had syphilis. She said he did not have syphilis that time either, and that "to this day" the defendant continues to believe he has syphilis.
Dr. Deland testified that the defendant described a jolt of electricity that went through his body in Dallas, and that was how he knew he had some type of sexually transmitted disease. Dr. Deland stated that she had heard things like that before from psychotic patients. She said Orleans Parish Prison records showed that the defendant was kept in five-point restraints for two days, which, she said, was a serious matter. He reported to the psychiatric nurse at Parish Prison that he had been hearing some voices in the trailer before he was arrested. He was not hearing voices on the day the doctors at the prison saw him, and he was given a diagnosis of adjustment disorder with depressed mood, with a note of a major depression with psychotic features. Dr. Deland explained that in some people, when their depression is extreme, they have psychotic symptoms that go along with it, such as voices that tell them they are no good and to kill themselves. The person has a belief that he or she is a bad person and that they are going to die. She noted that in later notes from Parish Prison defendant reported that the voices had started up again, and significant improvement was noted after they gave him anti-psychotic medication. Dr. Deland stated that the defendant was in Southeast Louisiana State Hospital for approximately six months when he was sixteen years old, his first report of psychiatric problems. The defendant related that he was treated there with Haldol and Thorazine, which she said were both anti-psychotic medications.
Dr. Deland stated that she diagnosed the defendant with something called psychotic disorder not otherwise specified. She said that basically meant the defendant has some psychotic symptoms. She suspected that the defendant suffered from schizophrenia, but that she would want to see him over a longer period of time to make that diagnosis. Dr. Deland was asked whether, with reasonable medical certainty, because of the defendant's symptoms and his mental defect at the time of the offense, the defendant was not able to distinguish the difference between *674 right and wrong. She replied in the affirmative.
Dr. Deland conceded on cross examination that the defendant having had sex with street people on a regular basis could have made him suspect that he had a sexually transmitted disease. But, she noted that the defendant believed it even after being told several times that he did not have any such disease. She conceded that marijuana was detected in the defendant's blood at University Hospital two to three hours after he was arrested for the crime. However, Dr. Deland stated that it was her opinion the defendant had a psychotic disorder in addition to using any illegal substances. Dr. Deland conceded that the defendant could have been depressed and suicidal because of what he did to his mother. She also conceded that drugs, anger, rage, or revenge could cause someone to behave in a violent manner. Dr. Deland was asked about the defendant reportedly crying during the killing of his mother, and whether that indicated knowledge, intent or awareness. She said that was possible.
Dr. Deland confirmed on cross examination that blood tests done on the defendant at University Hospital after his arrest showed no barbiturates, phenosodiapans, cocaine, opiates, amphetamines or and PCP. Dr. Deland was questioned on redirect examination about the effect of a marijuana cigarette laced with formaldehyde (embalming fluid), and she conceded that its effects would be about the same as PCPa short-term break with reality and psychotic symptoms, problems with perception, extreme paranoia and agitation and violence.
Before Richard Richoux, M.D. and Ralph Salcedo, M.D.the two physicians composing the court-ordered sanity commission testifieddefense counsel objected to both their testimony and their report on the ground that he did not receive their report until the first day of trial. The trial court denied the motion, noting testimony that the delay was caused by the delay in the delivery of defense expert Dr. Deland's report.
Forensic psychiatrist Dr. Richoux testified that he and Dr. Salcedo first examined defendant on February 7, 2008, to determine his competency to proceed. They examined him on May 8, 2008, to determine his state of mind at the time of the offense. Dr. Richoux identified two reports by himself and Dr. Salcedo, one addressing the defendant's competency to proceed and the other addressing the defendant's state of mind at the time of the offense.
As to the defendant's competency to proceed and assist with his defense, Drs. Richoux and Salcedo found no evidence that defendant was suffering from any clear-cut mental disorder. They ruled out a psychotic disorder, noting that at the time they examined him he was on anti-psychotic medication. Dr. Richoux said either there had been psychotic symptoms and they were being controlled or had been put into remission with the medication, or there had been no psychotic symptoms to begin with. The doctors also included marijuana and cocaine use in their diagnostic impressions, with institutional remission, meaning that because the defendant was institutionalized he presumably could not get drugs and was not using them. The doctors found the defendant demonstrated a clear understanding of the legal proceedings.
As to the issue of sanity at the time of the commission of the offense, Drs. Richoux and Salcedo reviewed the defendant's rap sheet, New Orleans Police Department records, the defendant's medical records from Orleans Parish Prison and Delgado Clinic, and the report by defense *675 expert Dr. Sara Deland. Dr. Richoux said there were some inconsistencies between what the defendant told them during the first examination and the second examination, indicating some untruthfulness on the part of the defendant. Dr. Richoux noted that the police report stated that the defendant's brother Earl had essentially reported that when he dropped their mother off at defendant's trailer at 11:00 p.m., approximately five hours before the murder, the defendant was in good spirits and showed no signs of being distraught in any way. He said this time frame was of great significance in determining the defendant's state of mind at the time of the offense. Dr. Richoux said that if an individual develops psychotic symptoms within a period of five hours, the vast majority of the time that does not have to do with a mental illness, but drug intoxication. He said that typical forms of mental illness such as schizophrenia and other forms of psychoses that have nothing to with drugs develop much more gradually over a period of time. Dr. Richoux stated that one possibility was that the defendant was in a ragenothing to do with psychoses. Dr. Richoux stated that the defendant did not begin taking anti-psychotic medication after killing his mother until he had been in Parish Prison for two months. He noted several notes by psychiatric staff at the prison indicating no evidence of psychoses during that period of time.
Dr. Richoux was shown a medical record from Parish Prison that reflected "chronic illness, psychoses, NOS." He said "NOS" meant "psychoses not otherwise specified." Id. This meant that the writer believed the defendant had psychoses, but did not know from what cause. Dr. Richoux said the defendant was placed in five-point restraints within a few days after his incarceration because he was voicing suicidal thoughts. Dr. Richoux listed a number of drugs he said have the ability to produce psychotic symptoms: LSD, PCP, ecstasy, marijuana cigarettes dipped in formaldehyde, and sometimes cocaine. He was aware that there was no detectible level of PCP, barbiturates, penzadiapines, cocaine, opiates or amphetamines in his system at the time of the crime. He noted that there was marijuana in the defendant's system, but admitted that marijuana by itself generally would not lead one to engage in the activity the defendant allegedly engaged in. Dr. Richoux admitted he did not see the defendant prior to him beginning to take anti-psychotic drugs.
Drs. Richoux and Salcedo did the examinations of the defendant together, and the exams lasted approximately forty minutes. Dr. Richoux said that he did not interview any of the defendant's family members nor anyone else who might have had an opportunity to observe the defendant. He also said that he had read in other documents that the defendant's brother Earl had taken him to the hospital the night before the killing because the defendant was hearing voices and feeling a tingling all over his body. Dr. Richoux said it was "extremely, extremely unlikely" that that night before the killing was the beginning of a schizophrenic incident. Dr. Richoux also said that as best as he could determine, the defendant apparently was taking the anti-psychotic medication from at least June 2007 until May 2008, when he and Dr. Salcedo examined the defendant for sanity at the time of the offense.
On redirect examination Dr. Richoux spoke about a marijuana cigarette laced with formaldehyde, called a "clickum." He said the defendant was not tested for the presence of formaldehyde, and he was not sure if it could be tested for in any reliable way. He stated that a clickum frequently produces psychotic symptoms, and that he had seen at least one hundred people psychotic as a result of smoking clickums. *676 Commenting on the defendant's reported crying during the time of the offense, Dr. Richoux stated that could be an implication that this person is upset by his actions and therefore probably understands that what he is doing or did was wrong. He disagreed with Dr. Deland's conclusion that there was a functional mental illness that caused the defendant to be insane at the time of the offense. It was stipulated that if Dr. Salcedo, an expert forensic psychologist, were called to testify his opinions and testimony would be consistent with Dr. Richoux's.
ERRORS PATENT
A review of the record reveals no patent errors.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues that the evidence was insufficient to sustain the defendant's conviction, in that viewing all the evidence in a light most favorable to the prosecution, no rational trier of fact could conclude beyond a reasonable doubt that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.
This Court set forth the applicable law on the insanity defense in State v. Currie, 2000-2284 (La.App. 4 Cir. 2/13/02), 812 So. 2d 128, as follows:
In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La. R.S. 15:432. To rebut the presumption of sanity and avoid criminal responsibility, defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted of criminal responsibility, defendant must show he suffered a mental disease or mental defect which prevented him from distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14; State v. Williams, 346 So. 2d 181 (La.1977). The determination of sanity is a factual matter. All the evidence, including expert and lay testimony, along with the defendant's conduct and action, should be reserved for the fact finder to establish whether the defendant has proven by a preponderance of the evidence that he was insane at the time of the offense. State v. Bibb, 626 So. 2d 913 (La.App. 5th Cir. 1993), writ denied, 93-3127 (La.9/16/94); 642 So. 2d 188; State v. Claibon, 395 So. 2d 770 (La.1981). Lay testimony pertaining to defendant's actions, both before and after the crime, may provide the fact finder with a rational basis for rejecting unanimous medical opinion that the defendant was legally insane at the time of the offense. State v. Peters, supra, 94-0283 (La.10/17/94); 643 So. 2d 1222; State v. Claibon, supra.
In reviewing a claim for insufficiency of evidence in an action where an affirmative defense of insanity is raised, this court, applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. Peters, 94-0283 (La.10/17/94); 643 So. 2d 1222; State v. Nealy, 450 So. 2d 634 (La.1984); State v. Price, 403 So. 2d 660 (La.1981); State v. Claibon, supra; State v. Roy, 395 So. 2d 664 (La.1981).
Currie, 2000-2284, pp. 16-17, 812 So.2d at 137-138, quoting State v. Silman, 95-0154, p. 7 (La.11/27/95), 663 So. 2d 27, 32.
*677 The following rules also apply in accessing the sufficiency of the evidence:
A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So. 2d 27, 35. A reviewing court may impinge on the fact finding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So. 2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.
State v. Macon, 2006-481, pp. 7-8 (La.6/1/07), 957 So. 2d 1280, 1285-1286.
The defendant does not dispute that the two members of the sanity commission appointed by the trial court, forensic psychiatrist Dr. Richard Richoux and forensic psychologist Dr. Ralph Salcedo, found no evidence of any mental disease or defect that prevented the defendant from distinguishing between right and wrong with regard to defendant's killing of his mother. The defendant's expert witness, forensic psychiatrist Dr. Sara Deland, answered in the affirmative when asked during direct examination whether, with reasonable medical certainty, because of the defendant's symptoms and his mental defect at the time of the offense, he was not able to distinguish the difference between right from wrong. Dr. Richouxand Dr. Salcedo, by the effect of defense counsel's stipulation to his testimonydisagreed with Dr. Deland on this point.
The defendant's argument in this assignment of error is essentially directed to bolstering the weight of Dr. Deland's expert testimony and her credibility, while attacking the weight of the testimony by Drs. Richoux and Salcedo and attempting to undercut their credibility. However, viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.
There is no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues that the trial court erred in refusing to permit Earl Truvia, the defendant's brother, to testify about the defendant's demeanor on the night of the incident, thus violating his right to present a defense.
During the direct examination of Earl Truvia, defense counsel asked:
Let me ask you, when you left at about eleven o'clock the night before your mother's death, did Gregory at that point [sic] was his demeanor [sic] or was there anything about him that seemed unusual or strange?
The prosecutor objected. Defense counsel stated "That he observed," meaning what Earl Truvia had observed. Id. The trial court then sustained the objection. There was no valid ground for the objection. Earl Truvia had already testified without objection to defendant's behavioral changes when he moved into the trailer, and to specific instances of defendant's behavior. The testimony sought would have been relevant to the issue of defendant's state of mind at the time of the offense. It would not have constituted hearsay. It would have been permissible opinion testimony by a lay witness that was rationally based on the perception of the witness and helpful to a clear understanding of the determination of fact in issue. La. C.E. art. 701.
*678 During the prosecutor's cross examination of Earl Truvia, moments after the foregoing objection by the State was sustained, the following colloquy occurred with regard to the witness's testimony on direct examination about his concern for the defendant's behavior after he moved into the trailer:
Q But you weren't concerned enough? In other words, you left him alone with your mother. So, you weren't concerned enough to make sure that he was okay ?
A The concern was when I left him. I stayed with him a period of time where he told me he was okay. So, that duration that I spent with him, that was enough for me to have the concern that he was okay.
In addition, the expert opinions of Dr. Richoux and Dr. Salcedo took into account what Earl Truvia said to police after the killing, with Dr. Richoux relating that Earl told police that the defendant was in good spirits and showed no sign of being distraught in any way.
A criminal defendant has the constitutional right to present a defense. U.S. Const. Amend. 6; La. Const. Art. 1 § 16; Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So. 2d 198, 201. "It is difficult to imagine rights more inextricably linked to our concept of a fair trial [than the right to present a defense]." Van Winkle, 94-0947, p. 5, 658 So.2d at 202. Evidentiary rules may not supersede a defendant's fundamental right to present a defense. Id.; State v. Thompson, XXXX-XXXX, p. 4 (La.App. 4 Cir. 4/8/09), 10 So. 3d 851, 853. Nevertheless, confrontation errors are subject to the harmless error analysis. Thompson, XXXX-XXXX, p. 4, 10 So.3d at 853, citing State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So. 2d 801, 817. In a harmless error review, "the question is not whether, in a trial that occurred without error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." State v. Vance, XXXX-XXXX, p. 10 (La.App. 4 Cir. 6/30/04), 879 So. 2d 862, 869, citing State v. Johnson, 94-1379, p. 14 (La.11/27/95), 664 So. 2d 94, 100.
Defense counsel's question to Earl Truvia was whether Earl had noticed "anything about [defendant] that seemed unusual or strange" when Earl left defendant and their mother at 11:00 p.m. on the night before the early-morning killing. Moments after that question, Earl essentially testified on cross examination that defendant was okay when he left him; it is not disputed that Earl left him at approximately 11:00 p.m. This testimony by Earl was consistent with what he told police after the killing, described by Dr. Richoux as that Earl felt the defendant was in good spirits and showed no sign of being distraught in any way. Dr. Richoux testified that he expressly relied on what Earl Truvia said to police after the killing in reaching his conclusion, and that what Earl had said was very important to his conclusion that the defendant was not insane at the time of the offense. Dr. Richoux testified that if an individual develops psychotic symptoms within a period of five hours, the vast majority of the time that does not have to do with a mental illness, but drug intoxication.
While it is not known exactly what Earl Truvia would have testified to in answer to defense counsel's question which was objected to by the prosecutor, even if he had answered that he noticed something strange or unusual when he left defendant at 11:00 p.m., that would have been inconsistent with his subsequent testimony on cross examination that defendant was okay *679 when he left him. It would also have been inconsistent with his statement to police after the killing.
It can be noted that defense counsel failed to proffer what Earl Truvia's answer might have been to the question objected to by the State. Nor does the defendant suggest in his appellate brief what Earl Truvia might have said in answer to that question.
Considering all of the facts and circumstances, the guilty verdict rendered in this case was surely unattributable to any error by the trial court in sustaining the State's objection at issue here. Therefore, any error by the trial court in sustaining the objection was harmless error.
There is no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues that the trial court erred in denying his motion to continue the trial, such motion being made on the first day of trial.
Defense counsel moved for a continuance in writing on the first day of trial when he had not received a copy of the sanity report by the members of the courtappointed sanity commission, Dr. Richoux and Dr. Salcedo. The trial court pointed out that the defendant's prior defense counsel had requested that Drs. Richoux and Salcedo defer their sanity report until after they had read the report by defense expert Dr. Sara Deland, and that the defense kept putting off the production of Dr. Deland's report. That delayed Drs. Richoux and Salcedo completing their report. Thus, the trial court denied the motion to continue. Defense counsel received the report by Drs. Richoux and Salcedo later during the first day of trial. Dr. Richoux was the last witness to testify at the trial, on the second day of the trial. Dr. Salcedo did not actually testify, but instead defense counsel stipulated to his testimony after Dr. Richoux testified.
La.C.Cr.P. art. 645(B) states that the report of the sanity commission "shall be" be filed within thirty days of after the order of appointment. However, "[t]he time for filing may be extended by the court." Id.
A trial court's decision to deny or grant a continuance is within its broad discretion and will not be disturbed absent a clear showing of abuse; the decision depends on the circumstances of each case and should not be disturbed absent a showing of specific prejudice. State v. Randle, 98-1670, p. 8 (La.App. 4 Cir. 12/22/99), 750 So. 2d 353, 358.
The defendant shows no prejudice from the denial of his trial counsel's motion to continue. Defense counsel received the sanity commission report the day before Dr. Richoux, a member of the sanity commission, testified at trial. Defense counsel's cross examination of Dr. Richoux was not lacking. It is not disputed by the defendant that the trial court correctly stated that the defendant's prior counsel had requested that the sanity commission members delay preparation of their report until they read Dr. Deland's report, or that defense counsel delayed producing Dr. Deland's report.
Considering these facts and circumstances, it cannot be said that the trial court erred in denying defense counsel's motion to continue.
There is no merit to this assignment of error.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569475/ | 304 S.W.2d 439 (1957)
H. E. CROW et al., Appellants,
v.
BURNET INDEPENDENT SCHOOL DISTRICT et al., Appellees.
No. 10507.
Court of Civil Appeals of Texas, Austin.
July 17, 1957.
Rehearing Denied August 7, 1957.
*440 James A. Steele, Hammond & Hammond, Burnet, L. Hamilton Lowe, Austin, for appellants.
J. C. Hinsley, Austin, Bryce A. Taylor, Burnet, for appellees.
HUGHES and GRAY, Justices.
A plea to the jurisdiction of the Trial Court having been sustained judgment of dismissal was rendered without a trial on the merits. We must, therefore, examine the pleadings of appellants, accepting as true their allegations and determine therefrom and the law applicable thereto the validity of the Court's action in sustaining a plea to the jurisdiction.
Briefly this is a suit against the Burnet Independent School District, Pioneer Abstract and Title Company and others by persons[1] owning real and personal property within such District and subject to taxation by it for the purpose of enjoining the execution of a contract made between the District and the Pioneer Abstract and Title Company[2] on the ground, among others, that such contract is void because it is an attempt on the part of the District to authorize deficit spending for the reason that no funds are or will be available to the District for the payment of its monetary obligations under the contract in accordance with its terms.
The jurisdictional plea was to the effect that the matters pleaded by appellants were "peculiarly within the jurisdiction and discretion of the Board of Trustees of the Burnet Independent School District and are matters of which this court or any other court cannot take jurisdiction until after the plaintiffs or other aggrieved parties have taken administrative appeals to higher school authorities as provided by the Statutes of the State of Texas and have exhausted such appeals, * * *"
It was stipulated that appellants had not appealed from the action of the District in the premises to any higher school authorities.
Appellants' petition is lengthy and is somewhat complicated but it is sufficient for our purposes to say that it fully pleads lack of current funds with which to pay the Abstract Company for the services contracted for and that execution of the contract would result in deficit spending, the petition particularly alleging that the school district would not have funds available during the 1957-1958 fiscal year to pay the $6,600 to the Abstract Company as contracted.
Appellees say in their brief that
"* * * this proceeding has been changed from one `to restrain the enforcement and carrying out of a purported contract * * * on the ground that the contract is void,' to `a suit to restrain the illegal expenditure of *441 School funds under a void contract.' The question here is not whether a suit to restrain expenditure of School funds under a void contract may be maintained prior to resort to School authorities for redress, as claimed by appellants, but whether, in the state of appellants' pleadings below, a suit to restrain the enforcement of a contract that would otherwise be valid can be maintained on the inconclusive allegations there would not be future revenues that could be applied to the payment of the cost of such contract or current revenues that could be so applied, where no effort had been made by the plaintiffs in such suit to take appeals to higher school authorities from action of district trustees in making such contract."
We do not quite understand the meaning of the word "inconclusive" as used by appellees in the above paragraph. If it is meant that the allegations referred to must be proved upon trial, then we understand. If, however, it is meant that we or the Court below need not accept such allegations in passing upon the plea to the jurisdiction then we do not understand this to be a correct statement of law. 11 Tex.Jur. p. 720; Hale v. McMurrey, Tex.Civ.App., Beaumont, 22 S.W.2d 499, writ ref. This case involved a school controversy dismissed by the Trial Court for want of jurisdiction on the theory that administrative recourse had not been pursued. This judgment was reversed because the petition alleged facts which "if true" showed the school authorities to be acting without "power or authority."
It is our opinion that the Trial Court erred in sustaining the plea to the jurisdiction. We will refer to the decisions supporting this conclusion after we have discussed the authorities cited by appellees in support of the judgment. These cases are, as we read the brief: Hinojosa v. San Isidro Independent School District, Tex.Civ.App., San Antonio, 273 S.W.2d 656, Mission Independent School District v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 161 A.L.R. 877, and State ex rel. Nevills v. Sanderson, Tex.Civ.App., Waco, 88 S.W.2d 1069, 1070.
Sanderson was in the nature of quo warranto to remove from office a common school district trustee on the alleged grounds that he had not paid his poll tax and was unable to read or write English intelligibly. The Court, Justice Alexander writing, pointed out that our statutes gave to the county school superintendent the specific authority to determine, in the first instance, whether an elected trustee is qualified to act and in sustaining a judgment dismissing the suit for failure of the petition to allege that resort had been made to proper school authorities said:
"It is a well-established rule that in all matters pertaining to the administration of school laws involving questions of fact as distinguished from pure questions of law resort must first be had to the school authorities and the method of appeal there provided for exhausted before the courts will entertain jurisdiction of a complaint with reference to such matters. * * * His appointment was not wholly void, but its validity depended on a question of factwhether he could read and write and whether he had paid his poll tax. The duty of first determining these questions of fact was placed with the county superintendent, and, until his jurisdiction had been invoked and a ruling had thereon, the courts were without jurisdiction to act in the premises."
Warren v. Sanger Ind. School District, 116 Tex. 183, 288 S.W. 159, later noticed, and other authorities are cited in support of such statement.
Diserens was a suit by the school district to enjoin a teacher from breaching the negative provision in her contract not to teach elsewhere during its duration. No prior appeal to school agencies was made. The Court [144 Tex. 107, 188 S.W.2d 570], *442 after quoting from the opinion of Justice Alexander, supra, said "No circumstances have been suggested, nor any do we perceive, which bring this controversy within that class of cases where resort to school authorities for administrative relief is required before application may be made to the courts." Warren v. Sanger, supra, and other authorities are cited.
This case was tried upon an agreed statement of facts.
Hinojosa was a suit by an employee of the school district against the district for damages for wrongful discharge. A plea in abatement was sustained on the ground that resort had not been first made to school authorities. In affirming the Court of Civil Appeals said [273 S.W.2d 658]:
"The question of whether or not appellant was rightfully dismissed from his position with the school district obviously involves a question of fact. It was therefore necessary that appellant appeal to the proper school authorities before filing a suit in the district court. Bruce v. Stilwell, 5 Cir., 206 F.2d 554."
Earlier in its opinion the Court had said:
"It appears well settled that prior to 1949, an employee of a school district, whose contract of employment was allegedly wrongfully terminated, was required to apply to the school authorities for relief before filing his suit in the district court. Bear v. Donna Independent School District, Tex.Civ.App., 74 S.W.2d 179; Moore., etc. v. Frio County Board of School Trustees, Tex. Civ.App., 90 S.W.2d 288; Heaberlin v. Joaquin Ind. School District, Tex. Civ.App., 95 S.W.2d 1339."
The three cases cited are all school teacher cases. As to teachers Art. 2749, V.A.C.S., provides that school trustees "shall have the power to employ and dismiss teachers; but in case of dismissal, teachers shall have the right of appeal to the county and State Superintendents." The appeals mentioned are mandatory before resort can be made to the courts. Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120.
From Bruce v. Stilwell, cited by the Court in Hinojosa, we quote [206 F.2d 556]:
"It is undoubtedly true that the laws of Texas provide in certain instances that orders and proceedings of the local board can only be questioned by appeal to higher school authorities. But when the Board of Trustees acts without authority of law in such a manner as to deny colored students the advantages accorded to others in like situation and this is established, as here, by admitted facts, the injured persons' right of access to the courts is absolute and complete. Cf. Carter v. School Board of Arlington County, 4 Cir., 182 F.2d 531; State Line Consolidated School Dist. No. 6 of Parmer County v. Farwell [Independent] School Dist., Tex.Com. App., 48 S.W.2d 616.
"The rule is well-established in Texas that in all matters pertaining to the administration of school laws involving pure questions of law as contradistinguished from questions of fact immediate resort to the courts is proper. Mission Independent School District v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 161 A.L.R. 877; Wilson v. Abilene Independent School District, Tex.Civ. App., 190 S.W.2d 406; State ex rel. Nevills v. Sanderson, Tex.Civ.App., 88 S.W.2d 1069. Here, the question becomes one of law for the court since the allegations of the complaint as to discrimination, which are denied in the answer, must be taken as true on the motion to dismiss. Hilliard v. Brown, 5 Cir., 170 F.2d 397. We hold that the trial court erred in dismissing the complaint."
Whether the Court in Hinojosa was correct in holding that a discharged nonteacher school employee must pursue the remedy *443 outlined for discharged teachers we need not discuss.[3] In our suit we have no discharged employee of any kind.
The point appellees undertake to make under the above decisions which they cite is reflected by the following quotations from their brief:
"It is obvious, from a reading of plaintiffs' petition, as we have already observed on pages 3 to 5 inclusive, above this Brief, that this case involved numerous questions of fact for the determination of the question whether the contract involved would in fact create a deficiency or whether the school district did, or would, have the necessary funds to pay the Abstract Company the $6,600.00 contracted."
"But, appellants do not cite a single case which holds that it is not necessary to appeal to school authorities before resorting to the courts where the question of validity of a contract and the payment of funds under it during the balance of 5 or 6 months of one fiscal year and the entire succeeding fiscal year depend on so many different questions of fact as to how the trustees of the school district will exercise their discretion during the next year and a half. * * *
"Therefore, from any angle, this is a case involving the determination of questions of fact which must first be appealed to higher school authorities before resort to the courts, * * *"
It seems to us that the courts have needlessly labored over the dividing line between school controversies which must first be carried through school channels and those which need not if the controlling formula is simply to ascertain whether the controversy is presented on an agreed statement of facts. If it is, appellees say the courts have immediate jurisdiction; if not they say administrative remedies must first be exhausted. A complaining party could never be sure until after suit was filed whether the defendant would admit or deny the complaint. Jurisdiction of the court would turn, not upon the allegations of the petition but upon the form of the answer.
As much as we might desire this simplicity in the law we believe, and hold, that it is the nature of the controversy which is decisive of this question and not the mere existence of a factual issue.
Before discussing the authorities which, in our opinion, announce the correct rule to be applied here, we pause to say that the contract in suit is void, regardless of its per se validity, unless current funds are available to the school district for payment of the money contracted to be paid when due. See Aldine case cited in Footnote 3 and authorities therein cited.
The leading case is Warren v. Sanger Independent School District, 116 Tex. 183, 288 S.W. 159, 160. That was a case in which the Trial Court dismissed a suit for want of jurisdiction:
"* * * merely because the complainants had not first applied to the school authorities of the state for such relief, the threatened wrong being the disbursement of current school funds in payment of a debt covering a deficiency in the maintenance of the schools for a previous year."
In holding such action erroneous the Court said:
"Undoubtedly, the court had the power to grant the writ, unless the statutes regulating the public schools have conferred the exclusive right primarily upon the school authorities. * * *
*444 "It has been uniformly held that the resort to the school authorities must first be made before the courts will be authorized to hear any complaint as to a matter properly belonging to the administration of the school laws. It is a condition precedent to the exercise of the jurisdiction of the civil courts. * * * But, in the very nature of things, such exclusive prior jurisdiction pertains only to such matters as are by law placed under the supervision of the school authorities. An examination of the cases recognizing this prior jurisdiction will show that they are instances of that character. It is only as to matters committed to the school authorities that they have a right to decide at all. Of course, jurisdiction carries with it the right to decide wrong as well as right. The test is the power to hear and decide one way or the other. To attempt to hear and decide in favor of a matter that is expressly forbidden by law is not the exercise of jurisdiction at all. The attempt is futile and the pronouncement void. The act of defendant trustees, however commendable the spirit in which it was done, creating the debt here sought to be paid, was void. It was contrary to the express provisions of law (Rev.Civ.Stat.1925) art. 2749 (2823, 2824), forbidding trustees to create a deficiency debt against the district in the employment of teachers. The debt as against the district being void, there was nothing for the school authorities to pass upon. There was no room for the exercise of any sort of discretion. They could, in no event, have decided in favor of the application of the 1925 taxes to the payment of the deficiency created in a previous year. Being void and not a subject for decision, the school authorities had no jurisdiction whatever. The wrongs complained of being clearly within the jurisdiction of the district court, it rightfully granted the writ in the first place, but wrongfully thereafter dismissed the cause."
We quote appellees' explanation of this case:
"However, this case is readily distinguishable from our present case. That case involved an effort in 1925 to use 1925 taxes to pay a debt for teachers salaries incurred in 1924, there being no funds left from such year with which to pay the debt, the case being decided in 1926. At that late date, it was clearly a deficiency, with no funds. Nothing could be done to change that situation. The facts had happened. They could not be changed. There was no room to exercise discretion. There was no fact determination to be made."
Whatever merit there may be in appellees' effort to distinguish this case we are bound by the law as declared by the Supreme Court and not by what it may have said but did not say. We consider Warren v. Sanger to be the law, to be good law, to be in point and to be decisive of this case.
Many other similar cases could be cited. We are content to cite the following:
In Johnson v. City of Dallas, Tex.Civ. App., Dallas, 291 S.W. 972, 973, writ dismissed, the Court, in a school case, stated the problem in this language:
"In determining the question of jurisdiction, we are not concerned as to the reasonableness or unreasonableness of the vaccination order complained of, the question for us is, Was the subject within the jurisdiction of the board of education of the city; that is, did it have the power to hear and determine the matter one way or another? If yea, then it is clear appellants should have exhausted their legal remedy by pursuing the method of appeal provided by statute before resorting to the courts. Warren v. Sanger Ind. School Dist. [116 Tex. 183] 288 S.W. 159."
In City of Dallas v. Mosely, Tex.Civ. App., Dallas, 286 S.W. 497, 499, affirmed, Tex.Com.App., 17 S.W.2d 36, the Court *445 made an excellent statement of the law as we understand it and which is applicable to this case as pleaded:
"The petition in the instant case does not charge an abuse of discretion that could be legally exercised by the board of education, but charges that doing of acts beyond its power and concerning which it had no discretion, and that, in furtherance of such unlawful acts, it is diverting public money, coming into its possession for a special purpose. We do not believe it was the intention of the Legislature in the above-quoted enactment to close the door of the courts to taxpayers in cases of misapplication of public school money by public officers, charged with its proper expenditure, until the slow processes of appeal have been perfected to the state superintendent of public instruction and the state board of education, who are not vested with judicial powers. We think the appeal authorized by the said statute is from purely administrative matters in the conduct of the schools by boards of education."
This Court in Chastain v. Mauldin, Tex.Civ.App., 32 S.W.2d 235, 237, speaking through its then Chief Justice McClendon, clearly, succinctly and correctly defined the general authority of administrative officials of our school laws and the limitations upon such authority as follows:
"We have reached the conclusion that the court has jurisdiction and the relief was improperly denied. Generally speaking, the administration of the public school laws of this state are finally vested in the superintendent of public instruction, and where questions involving the proper administration of those laws are involved the courts are without jurisdiction until after appeal to the state superintendent. (Citing authority.)
"There are, however, certain exceptions to this general rule, which have been applied in the following classes of cases:
"First. Those involving the constitutionality of some statute under which a school board purports to act. (Citing authorities.)
"Second. Those in which no statutory authority is given for the act sought to be enjoined. (Citing authority.)
"Third. Those in which property or funds belonging to the school district are about to be diverted from their proper use or purpose. (Citing authorities.)"
See also Adams v. Miles, Tex.Civ.App., San Antonio, 300 S.W. 211, 214, reversed Tex.Com.App., 35 S.W.2d 123; County Board of School Trustees of Limestone County v. Wilson, Tex.Civ.App., Waco, 15 S.W.2d 144, writ dismissed; County Board of School Trustees of Young County v. Bullock Common School District, Tex. Civ.App., Fort Worth, 37 S.W.2d 829, affirmed Tex.Com.App., 55 S.W.2d 538.
We cannot add to the force of these authorities or to their clarity of expression. They bespeak error in the action of the Trial Court and for such error its judgment is reversed and this cause is remanded.
We have collaborated in the preparation of this opinion, Chief Justice ARCHER having indicated a desire to dissent.
ARCHER, Chief Justice.
I do dissent.
This is a suit brought by the plaintiffs, tax-paying citizens residing in the Burnet Independent School District located in Burnet and Llano Counties, Texas, seeking to restrain the enforcement and carrying out of a purported contract between the District and the Pioneer Abstract & Title Company, alleged to be owned by Frank True, on the ground that such contract is void and unless *446 restrained will result in the unlawful expenditure of public funds of the District created by taxes on plaintiffs' property. Said contract purports to obligate the District to pay to said Abstract Company the sum of $6,600 on September 10, 1957, in consideration of certain services to be performed by it.
A temporary restraining order was issued by the District Court in Burnet County and was continued in effect by order of March 20, 1957, until April 3, 1957, by agreement of the parties.
The defendants filed a plea to the jurisdiction. This plea was sustained and judgment was rendered on April 3, 1957, dismissing the case and refusing to hear the application for temporary injunction.
The appeal is based on two points assigned as error and are as follows:
"1. The error of the Trial Court in dismissing the cause for want of jurisdiction.
"2. The error of the Trial Court in refusing to hear the application for temporary injunction."
The appellants contend that the contract under attack is void, because (1) no funds to be derived from current revenues of the District are, or will be, available to pay the obligation, and therefore creates a debt in violation of the provisions of Article 2749, V.A.C.S., and (2) there is no discretion vested in the school authorities by law, but admitting that if there is such discretion vested in the school authorities that the judgment of dismissal is right.
Appellees claim that their sworn plea to the jurisdiction expressly challenges the jurisdiction of the Trial Court, on the ground that the matters involved in plaintiffs' petition are matters which are peculiarly within the jurisdiction of the school authorities, and as such, cannot be considered by the court until after administrative appeals to higher school authorities have been exhausted.
Since this appeal is from an order dismissing the cause for want of jurisdiction the determination of this action by the Trial Court turns on a construction of the First Amended Petition, the Plea to the Jurisdiction, and the Judgment.
The petition alleges the existence of a bonded debt, with an unpaid balance of $202,600, constituting a fixed obligation which must be paid from local taxes, and that the budget provides for payments on this balance of approximately $14,000 annually.
Further allegations are that there remains an outstanding indebtedness of $39,251.68, originally created for operational and maintenance costs in past years where there were deficits; that in order to pay said debts currently the trustees have set aside from local taxes collected each year an amount sufficient to pay such debts, that the payments for the year 1956-1957 being $12,000 on principal and $2,000 on interest, and future income has been budgeted from local taxes to pay the balance of said indebtedness; that in addition to such above items there are fixed obligations for maintenances and operational costs, etc., which exceed the revenues from taxes collected from the school district for the years 1956-1957 and 1957-1958, including current and delinquent taxes; plaintiffs alleged that despite the existing deficit in funds that on February 18, 1957, the trustees, without authority of law and in disregard to their duty, made and entered into the following contract:
"The State of Texas:
County of Burnet:
"This contract made and entered into by and between Pioneer Abstract & Title Company, hereinafter called `Pioneer' and the Burnet Independent School District, hereinafter called *447 `School'; both of Burnet County, Texas, Witnesseth:
"For and in consideration of the certain sum below stated, Pioneer agrees to do and perform for the School the following services:
"1. To transcribe, upon forms furnished by school, the names and addresses of property owners of all property within the bounds of the school district.
"2. To show on said forms, a sample of the general form of which is attached, information concerning (a) approximate acreage of rural tracts and perimeter of urban tracts; (b) size of pertinent structures located thereon; (c) types and quantities of acreage or rural lands as shown on attached card; (d) type of construction of pertinent structures; (e) location of property; (f) photograph of pertinent structures.
"3. To furnish copy of ownership map of Burnet County School District.
"4. To complete above work by August 17, 1957, so that information will be available to School Assessor-Collector for use during school year, 1957-1958. A penalty of $30.00 per day shall be imposed by the school for use of additional time; no premium shall be paid Pioneer for completion of this phase of the contract ahead of time.
"5. To assist School Assessor-Collector in placing on said cards value extensions from representative values furnished by school.
"6. To file, according to property description, all cards in permanent filing cabinets to be furnished by school.
"7. To work with and assist the Assessor-Collector and to appear as a witness for the board of equalization in their work for the school year 1957-1958.
"School agrees to furnish at their own cost, filing cabinets and forms, on September 10, 1957, school agrees to pay Pioneer the sum of $6,600.00 in cash as full and final consideration for the services above stated which shall have then been rendered and which are then yet to be rendered, in accordance with this contract, by Pioneer.
"School further agrees not to sell nor permit the use of the system to any other taxing agency within the county.
"Pioneer agrees to furnish above stated information from its records and from an inspection on the ground. But it is hereby agreed by the school that Pioneer shall not be held liable because of error or omission; and Pioneer agrees to use due skill and diligence in performing such services and to correct all errors of omissions discovered within the first period of rendition following completion.
"It is agreed between the parties that Pioneer can assign its portion of said contract to any person, persons or organizations acceptable to the school.
"Executed in duplicate this 18th day of February, 1957.
"Burnet Independent School
District
By G. B. Carson
"Pioneer Abstract & Title
Company
By Frank True
"Attest:
"Edgar Seidensticker
"(School Dist. Seal)"
The petition further alleges that no funds are available from the tax collection for the tax year 1957, and no funds are or will be available for the scholastic year 1956-1957, or 1957-1958, to be used to pay *448 the debts and operating costs of the school; that the trustees had no legal authority to create a debt that cannot be liquidated by the application of available local tax funds of the District of the scholastic year in which such debt is created; that at the time the contract was entered into, it was apparent from the School District records that a deficit existed which would preclude the District from paying the amount set out in the contract from the available funds of the School District for the scholastic year 1956-1957 or 1957-1958, and that such contract is without sanction of law and is absolutely void.
Allegations were made that the contract was void in that it provides for the employment of private people to evaluate the taxable property, before an assessor-collector has been appointed and assessment made, and thereby usurp the powers of the assessor-collector of taxes of the District.
The School District and the named individuals defendants answered the petition and say that the making of the contract and its performance are matters peculiarly within the jurisdiction and discretion of the Board of Trustees of the District, and that the Court could not take jurisdiction until after the plaintiffs have taken administrative appeals to higher school authorities as provided by the statutes, and that such appeals have not been taken.
The appellees denied all and singular the allegations made by appellants.
The crux of this litigation is the necessity or lack of necessity to take appeals to higher school authorities in accordance with the statutes.
On a hearing of the cause, it having been stipulated that the plaintiffs had not taken and prosecuted any appeals from the action of the defendants, in the making of the contract, to any higher school authorities before filing their petition here, the Court sustained the plea to the jurisdiction and dismissed the cause.
I believe that the appellees, the Board of Trustees of the School District, had the authority to make the contract and had the power to appoint a tax assessor-collector for the School District. Contracts of the nature of the one involved herein have been sustained by our courts.
Arts. 2779, 2795, V.A.C.S.; Cherokee County v. Odom, 118 Tex. 288, 15 S.W.2d 538; Crosby v. P. L. Marquess & Co., Tex. Civ.App., 226 S.W.2d 461, er. ref., N.R.E.: Sheffield v. Sheppard, 120 Tex. 583, 39 S.W.2d 1111.
The case is one in which an injunction is sought to restrain the enforcement and carrying out of a purported contract on the ground that the contract is void.
This Court is not called on, under appellants' pleadings, to decide if a suit to restrain the illegal expenditure of school funds under a void contract, that resort must be had to higher school authorities prior to the institution of legal procedure in the courts. We are concerned with the question, under the state of appellants' pleadings if a suit to restrain the enforcement of a contract, that would otherwise be valid, can be maintained on the inconclusive allegations that there would not be future revenues that could be applied to the payment of the cost of such contract or current revenues that could be so applied, where no effort had been made by the plaintiffs in such suit to take appeals to higher school authorities from action of District Trustees in making such contract.
Appellants admit that "If discretion in such matters is vested in the school authorities, the judgment of dismissal is right." and do not question the general rule of law that exhaustion of administrative remedies before resort to court is a necessity and that the rule was not substantially changed by the Gilmer-Aiken law, Arts. 2654-1 to 2654-7, inclusive, Arts. 2922-11 to 2922-22, inclusive, and Art. 7083a, V.A.C.S., and such admission is grounded on the case of Hinojosa v. San Isidro Independent School Dist., Tex.Civ.App., 273 S.W.2d 656, no *449 writ, in which it was held that the question of whether or not appellant was rightfully dismissed, etc., was one of fact, and that it was therefore necessary to appeal to the proper school authorities before filing suit in the District Court.
Several questions of fact are involved in the determination of the question of whether the contract involved would in fact create a deficiency or whether the School District did, or would have the funds to pay the $6,600 contracted to be paid; and was such sum to be paid from funds of 1956-1957 or 1957-1958, and if the budget for 1956-1957 could be rearranged to provide for payment out of such funds; would the tax rate and assessment for 1957 assure funds sufficient in 1957-1958 to pay the sum set out in the contract, since the tax rate had not been fixed, or the assessed values of property for taxation for 1957 been fixed, and the budget not having been made; or if the trustees had concluded that the items herein mentioned and set out in paragraph 10 of the petition would be illegal and decided not to make such payments, in which event the item of $6,600 in the contract could be paid in lieu of the $12,000 mentioned in paragraph 10 of plaintiffs' petition, and was there an abuse of discretion in making the contract, or in determining to have a School District assessor-collector instead of using the county assessors-collectors, or what contingencies between the date of the contract and August 31, 1957, might provide a surplus in the funds for the current fiscal year.
It is apparent that there are numerous fact questions to be determined before it could be said that the contract was void, I therefore believe that the Trial Court was correct in entering the order herein complained of.
Mission Independent School Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 161 A.L.R. 877, State ex rel. Nevills v. Sanderson, Tex.Civ.App., 88 S.W.2d 1069.
Appellants cite several cases and quote to some extent from such cases. The first is Warren v. Sanger Independent School Dist., 116 Tex. 183, 288 S.W. 159, but this case is distinguishable from the instant case. There was involved in the Sanger case an effort in 1925 to use 1925 taxes to pay a debt for teachers' salaries incurred in 1924, there being no funds left from the year 1924, and such claim was a deficiency, with no funds, and in such a condition there was no need to exercise discretion or any fact determination to be made.
In the present case the order sustaining the plea and dismissing the cause was rendered when the fiscal year still had five months to run, and it was possible, as has herein been noted, that the Board would have had the money or could have so rearranged its budget for the current fiscal year as to provide the money to pay the sum provided in the contract; and too, it would have been possible and feasible that the funds to be provided for the fiscal year 1957-1958, since no tax rate had been fixed and no assessments for taxes made and no budget for 1957-1958 approved. It would have been proper, and will be proper and lawful to pay the sum provided in the contract from the funds from the 1957-1958 fiscal year.
Crosby v. P. L. Marquess & Co., supra; Teague Independent School Dist. v. Mason, Tex.Civ.App., 233 S.W.2d 176, er. ref.
In Aldine Independent School Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578, the Supreme Court stated the suit was to recover seven months salary claimed to be due for the balance of the term of the district assessor-collector after his discharge where there were no available funds out of which the claim could have been paid. Then too, the record showed that the claimant had exhausted his remedies provided for appeals and hearing as provided by the statutes.
Chastain v. Mauldin, Tex.Civ.App., 32 S.W.2d 235.
A holding that the contract is void will result in School Districts being unable to secure professional and outside assistance *450 in efforts to obtain a more adequate and uniform system of valuations and collection of taxes so greatly needed by schools to operate in a manner to meet the needs of the school children.
I would affirm the judgment of the Trial Court.
NOTES
[1] Plaintiffs below were H. E. Crow, Sam Field, Eppa Debo, M. P. Hahn and T. F. Cox. Defendants in addition to the School District and the Abstract Company were Edgar Seidensticker, Jake Straham, Thomas C. Warren, Raymond Jones, Ramsey Clinton, Ed Young, Gratton B. Carson and Frank True.
[2] This contract required the Abstract Company to compile certain data regarding the property within the School District for use during the school year 1957-1958 and to assist the School Assessor-Collector during such year and to perform incidental duties for the sum of $6,600 to be paid September 10, 1957.
[3] In Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578, a discharged school district tax assessor-collector appealed first to school authorities before filing suit in court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569689/ | 57 F.2d 980 (1932)
BURNET, Commissioner of Internal Revenue,
v.
RIGGS NAT. BANK.
No. 3246.
Circuit Court of Appeals, Fourth Circuit.
April 12, 1932.
Charles E. Lowery, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., and C. M. Charest, General Counsel, Bureau of Internal Revenue, and Eugene Meachem, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for petitioner.
Paul F. Myers, of Washington, D. C. (Wm. M. Williams, E. B. Quiggle, and Williams, Myers & Quiggle, all of Washington, D. C., on the brief), for respondent.
Before NORTHCOTT and SOPER, Circuit Judges, and HAYES, District Judge.
NORTHCOTT, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals (17 B. T. A. 615), and involves income taxes for the period June 10 to December 31, 1922, in the amount of *981 $6,682.98. The petition is filed by the Commissioner of Internal Revenue, the Board having found in favor of the taxpayer.
The facts, as found by the Board, and as admitted by petitioner, are as follows:
"The petitioner is a corporation organized under the National Banking Act, with principal office at 1503 Pennsylvania Avenue, N. W., Washington, D. C.
"A bank known as the Central Savings Bank started to do business in Washington, D. C., about August 1, 1917. On July 1, 1920, it was succeeded by the Hamilton Savings Bank. Under neither of these names was this institution successful. During 1921 there were substantial withdrawals of deposits including the deposits of the directors and officers and their families. During the period July 22 to July 28, 1921, the accounts of this savings bank were examined by a Federal bank examiner, this examination disclosing substantial impairment of its capital. Under date of September 1, 1921, the savings bank was notified by the Comptroller of the Currency that its capital was impaired to the extent of $34,193. Under date of November 3, 1921, the Comptroller of the Currency again notified the board of directors of the savings bank that its capital was impaired to the extent of $47,589. The directors of the savings bank were instructed to take immediate steps to remedy the situation.
"On or about September, 1921, the Comptroller of the Currency urged and solicited the Riggs National Bank to take over the Hamilton Savings Bank as a matter of good public policy. He represented to the officers of the Riggs National Bank that the condition of the savings bank was bad; that a run on the bank was imminent, that the bank would have to be closed if a run occurred and that other banks of the city might become involved. Responding to the solicitation of the Comptroller of the Currency, the Riggs National Bank, in the latter part of 1921 and the first part of January, 1922, purchased, through persons identified with the bank, all of the outstanding capital stock of the Hamilton Savings Bank and paid therefor $305,560.
"After the purchase of the stock of the savings bank the Riggs Bank found the condition of the savings bank to be much worse than had been anticipated at the time of the purchase of the stock.
"Before the affairs of the savings bank were fully liquidated, the Comptroller of the Currency determined that the capital of the savings bank was impaired to the extent of $96,096.99.
"The Riggs Bank caused the savings bank to be nationalized on or about May 10, 1922. On or about June 10, 1922, the savings bank, as nationalized, was merged with the Riggs Bank under Act of Congress of November 7, 1918, and the petitioner surrendered the shares of capital stock of said savings bank and received in return therefor all of its assets. The value of the assets of the savings bank at the time of its liquidation on June 10, 1922, was $210,610.93. The difference between the cost of the stock of the savings bank ($305,560) and the value of the assets received upon its liquidation ($210,610.93) in the amount of $94,949.07, was written off the books of the Riggs Bank as a loss.
"The Hamilton Savings Bank had no good will.
"In determining the tax liability of the petitioner the Commissioner divided the year 1922 into two periods, viz: (1) the period from January 1, 1922, to June 10, 1922, during which time he determined the Riggs National Bank and the Hamilton Savings Bank to be affiliated corporations and determined their taxable income upon the basis of a consolidated return for such period; and (2) the period from June 10, 1922, to December 31, 1922, during which time there was no affiliation. During this latter period the taxable income and tax liability of the petitioner were determined by the Commissioner upon the basis of its income without respect to affiliation.
"During the period of affiliation the Hamilton Savings Bank had an operating deficit of $41,485.22. In determining the consolidated net income subject to tax during the period ended June 10, 1922, the Commissioner offset such loss against the operating income of the Riggs Bank. The Riggs Bank claimed as a deduction for the period from June 10, 1922, to December 31, 1922, the amount of $53,463.85 ($94,949.07 less $41,485.22). The Commissioner refused to allow such deduction and computed the deficiency accordingly."
The sole question presented is whether a corporation realizes a loss which may be deducted in its income and profits tax returns under the Revenue Act of 1921 when it receives the total assets of a subsidiary corporation with which it has been affiliated and surrenders the total capital stock of such subsidiary. The corporation owned all the stock of its subsidiary.
*982 The statutes and regulations involved are sections 201, 202, 234, and 240 of the Revenue Act of 1921, c. 136, 42 Stat. 227, and articles 631, 636, and 1545 of Treasury Regulations 62, and read in part as follows:
"Sec. 201. * * * (b) For the purposes of this Act every distribution is made out of earnings or profits, and from the most recently accumulated earnings or profits, to the extent of such earnings or profits accumulated since February 28, 1913; but any earnings or profits accumulated or increase in value of property accrued prior to March 1, 1913, may be distributed exempt from the tax, after the earnings and profits accumulated since February 28, 1913, have been distributed. If any such tax-free distribution has been made the distributee shall not be allowed as a deduction from gross income any loss sustained from the sale or other disposition of his stock or shares unless, and then only to the extent that, the basis provided in section 202 exceeds the sum of (1) the amount realized from the sale or other disposition of such stock or shares, and (2) the aggregate amount of such distributions received by him thereon.
"(c) Any distribution (whether in cash or other property) made by a corporation to its shareholders or members otherwise than out of (1) earnings or profits accumulated since February 28, 1913, or (2) earnings or profits accumulated or increase in value of property accrued prior to March 1, 1913, shall be applied against and reduce the basis provided in section 202 for the purpose of ascertaining the gain derived or the loss sustained from the sale or other disposition of the stock or shares by the distributee. * * *
"Sec. 202. (a) That the basis for ascertaining the gain derived or loss sustained from a sale or other disposition of property, real, personal, or mixed, acquired after February 28, 1913, shall be the cost of such property. * * *
"Sec. 234. (a) That in computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions: * * *
"(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise. * * *
"Sec. 240. (a) That corporations which are affiliated within the meaning of this section may, for any taxable year beginning on or after January 1, 1922, make separate returns or, under regulations prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income for the purpose of this title, in which case the taxes thereunder shall be computed and determined upon the basis of such return. If return is made on either of such bases, all returns thereafter made shall be upon the same basis unless permission to change the basis is granted by the Commissioner.
"(b) In any case in which a tax is assessed upon the basis of a consolidated return, the total tax shall be computed in the first instance as a unit and shall then be assessed upon the respective affiliated corporations in such proportions as may be agreed upon among them, or, in the absence of any such agreement, then on the basis of the net income properly assignable to each. There shall be allowed in computing the income tax only one specific credit computed as provided in subdivision (b) of section 236."
Treasury Regulations 62:
"Art. 631. Affiliated corporations. Consolidated returns are based upon the principle of levying the tax according to the true net income and invested capital of a single enterprise, even though the business is operated through more than one corporation. Where one corporation owns or controls the capital stock of another corporation or other corporations, or where the stock of two or more corporations is owned by the same interests, a situation results which is closely analogous to that of a business maintaining one or more branch establishments. In the latter case, because of the direct ownership of the property, the invested capital and net income of the branch form a part of the invested capital and net income of the entire organization."
"Art. 636. Consolidated net income of affiliated corporations. Subject to the provisions covering the determination of taxable net income of separate corporations, and subject further to the elimination of inter-company transactions (whether or not resulting in any profit or loss to the separate corporations), the consolidated taxable net income shall be the combined net income of the several corporations consolidated. Only one specific credit of $2,000, as provided in section 236 (b) and article 591, shall be allowed the consolidated group, and this only in case the net income of the group does not exceed $25,000; but if such net income is more than $25,000, the tax imposed by section 230 shall not exceed the tax which would be payable if the $2,000 were allowed, plus the amount of the net income in excess of $25,000. In respect of the statement of gross income and deductions and the several schedules required under Form 1120, a corporation filing a consolidated *983 return is required to prepare and file such statements and schedules in columnar form to the end that the details of the items of gross income and deductions for each corporation included in the consolidation may be readily audited."
"Art. 1545. Distributions in liquidation. Where a corporation distributes all of its property in complete liquidation or dissolution, the gain realized by the stockholder from the transaction, computed under section 202, is taxable as a dividend to the extent that it is paid out of earnings or profits of the corporation accumulated since February 28, 1913. If the amount received by the stockholder in liquidation is less than the cost or other basis of the stock, a deductible loss is sustained."
Here the Riggs Bank, at the solicitation of the Comptroller of the Currency, entered into a transaction seeking to accomplish a much to be desired end. The purpose was worthy and the action to be commended. In the transaction it is admitted that respondent lost the sum of $94,949.07. Of this amount $41,485.22 was offset against the operating income of respondent for the first part of the year 1922, leaving a loss balance of $53,463.85. Certainly, at some time, the Riggs Bank is entitled to offset this balance against operating income. There was a settlement, a complete liquidation, on June 10, 1922, when respondent surrendered stock for which it had paid $305,560, and received in return the assets of the Savings Bank of the value in cash or the equivalent of $210,610.93. Had respondent made a profit on the transaction as shown at the time of liquidation it would unquestionably have had to pay a tax on that profit, and it must follow that it should be allowed to deduct the loss in making up its tax return. There can be no better time to calculate a profit or a loss than as of the date of liquidation.
The separate corporate entities of the Savings Bank and the Riggs National Bank are not to be entirely ignored in considering this question, even though the entire stock of the one was owned by the other and they were affiliated. Cleveland Trust Co., Trustee, v. Consolidated Gas Electric Light & Power Co. et al., 55 F.(2d) 211 (decided by this court on January 12, 1932), and authorities there cited; Swift & Co. v. United States (Ct. Cl.) 38 F.(2d) 365; Sweets Co. of America, Inc., v. Commissioner of Internal Revenue (C. C. A.) 40 F.(2d) 436.
Under Article 1545 of Treasury Regulation, above quoted, this amount of $53,463.85 was a "deductible loss sustained" as shown by and at the time of liquidation. This position is sustained by the reasoning of Judge Swan in the case of Remington Rand, Inc., v. Commissioner of Internal Revenue (C. C. A.) 33 F.(2d) 77, and the authorities there cited by him. See, also, Aluminum Goods Manufacturing Co. v. Commissioner, 56 F.(2d) 568, decided by the Circuit Court of Appeals for the Seventh Circuit on February 25, 1932.
It is contended on behalf of the petitioner that the Riggs Bank in no way changed its financial situation in surrendering the stock on June 10, 1922, and taking over the assets of the Savings Bank, assets that it already owned, in fact, through its ownership of the entire stock of the Savings Bank. That by this transaction it gained or lost nothing. From the standpoint of tax assessment we cannot agree with this conclusion. From the moment the Riggs Bank purchased all of the stock of the Savings Bank it might be said with equal reason that its financial position was not changed, yet, it certainly could not be allowed to claim a loss as of the time of the purchase. The loss may have occurred then, but no one knew it nor could have known it. Nor was the amount of the loss or even the fact that there was a loss at all definitely ascertainable until the final liquidation. The transaction might have resulted in a gain to the Riggs Bank, a gain upon which it would have been taxed. In view of all this it cannot be successfully contended that the respondent should not be allowed to include this loss in its returns at some time. What better time than the date of liquidation?
While Congress, in the passage of the tax laws, has always endeavored, as far as possible, to eliminate claims for fictitious losses, there is no reason that laws passed with this end in view should be given a distorted meaning that would hold a real loss, such as was here suffered, to be a fictitious one.
That part of respondent's loss not included in its return for the first part of the year 1922 was properly included in its return for the remainder of that year.
On the other hand, we are convinced that the Board of Tax Appeals was right in refusing to allow the claim of the Riggs Bank for the entire loss as at the time of the liquidation, because of the fact that a part of this loss had been deducted by the bank in its return for the first part of the year 1922. To allow the entire loss as of June 10, 1922, would have resulted in respondent receiving credit twice for a part of the loss. David M. *984 Goodrich v. Williams H. Edwards, 255 U.S. 527, 41 S. Ct. 390, 65 L. Ed. 758; United States v. Ludey, 274 U.S. 295, 47 S. Ct. 608, 71 L. Ed. 1054.
Double credits equally with double taxation are to be avoided where possible in construing laws passed by Congress.
The decision of the Board of Tax Appeals is accordingly affirmed in its entirety.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569692/ | 304 S.W.2d 820 (1957)
Albert E. TAYLOR, Appellant,
v.
Leon H. VESTAL, Louise S. Vestal and Roberta Johnson, Respondents.
No. 45582.
Supreme Court of Missouri. Division No. 1.
July 8, 1957.
Rehearing Denied September 9, 1957.
Walter R. James, R. Kenneth Elliott, North Kansas City, for appellant.
Alan F. Wherritt, William J. Turpin, Liberty, for respondents Vestals.
Joseph N. Miniace, Kansas City, for respondent, Roberta Johnson.
VAN OSDOL, Commissioner.
Plaintiff, Albert E. Taylor, a real estate broker, instituted this action on claims *821 stated in two counts. In Count I, plaintiff sought recovery of $1,500 alleged to be the amount defendants, Leon H. Vestal and Louise S. Vestal, had agreed to pay plaintiff as commission for the procurance of a purchaser of the Vestals' Party Line Farm in Clay County. It was alleged that plaintiff procured a purchaser, defendant Roberta Johnson, who was ready, willing and able to purchase the farm on terms satisfactory to the Vestals. In Count II, plaintiff sought recovery of $1,500 actual and $10,000 punitive damages against the three defendants, the Vestals and Roberta Johnson. In Count II, it was alleged that, although plaintiff had procured the purchaser as stated in Count I, the three defendants maliciously and wrongfully conspired to defraud plaintiff of his contractual rights and commission as a broker. The trial court submitted the issues of Count I to the jury and a verdict was returned in favor of plaintiff and against defendants, the Vestals, in the amount of $1,425; but, thereafter, the trial court sustained defendant Vestals' motion for judgment in accordance with their motion for a directed verdict and in the alternative sustained their motion for a new trial on specified grounds, including the specified ground that the evidence was insufficient in tending to show plaintiff was "the procuring cause" of the sale. At the conclusion of the evidence the trial court had sustained the motion of the three defendants for a directed verdict as to Count II. Plaintiff has appealed.
Plaintiff-appellant contends the trial court erred in rendering judgment for defendants. The supporting questions presented are (1) was there substantial evidence that plaintiff real estate broker was the procuring cause of the sale of Party Line Farm by defendants, the Vestals, to defendant Roberta Johnson; and, if so, (2) did defendants conspire together, or did one of them separately, with the design to defeat plaintiff's contractual rights, maliciously, wrongfully and fraudulently act in the consummation of the sale by direct negotiations in avoidance of or to defeat plaintiff's right to a commission.
In early December, 1954, the Vestals had listed their Party Line Farm of twenty-two acres with plaintiff, a real estate broker with offices in North Kansas City. The listing was not exclusive. The Vestals were anxious to sell their farm. They had had it listed since early in 1953 with every available real estate broker they could find in North Kansas City. They asked $31,500 for the property; but they had received offers through brokers, other than plaintiff, in lesser amounts which they were unwilling to accept.
There was evidence introduced tending to show that in December, 1954, one John L. Stucker, a contractor, or builder, was looking for an acre of land or a lot on which to build a house of a new type construction. He telephoned plaintiff Taylor and inquired concerning locations of plots which could be bought at a reasonable price, explaining "what I had in mind." Although Stucker testified he was going to purchase the property himself, it seems he had insufficient cash or credit to buy the land and build, and so he sought to interest defendant Roberta Johnson in his project with the idea that she might purchase the land and "finance" Stucker's building project thereon.
Defendant (Mrs.) Roberta Johnson is the proprietor of a motel. She also owns "income" property in Kansas City. She has been a widow for fifteen years. In her real estate transactions, according to her testimony, she theretofore had sought the advice of a real estate agent of her own choice. She has a daughter who, at the time, lived in California. Before buying Party Line Farm, Mrs. Johnson sought the advice of one Field, a real estate agent. Field advised her to buy. There was evidence that Field was paid $500 by the Vestals "to take care of stamps, title guaranties, abstract, lawyer fees and closing." Stucker, plaintiff's witness, was not Mrs. Johnson's partner, and he had no authority to buy property *822 for her. He testified he did have authority to "`birddog'" for a piece of ground suitable for his building project and report back to her. Mrs. Johnson testified Stucker and she had "talked it over * * * he was to look. That was, of course, his idea, because he * * * wanted me to help him out."
Mrs. Johnson testified that she went with Stucker to look at Party Line Farm in December, 1954; however, Stucker testified that plaintiff showed him the farm in late January or early February, 1955; and that plaintiff and plaintiff's associate, Wilson, had again accompanied him to see the farm in middle February. Neither plaintiff nor anyone in his employ ever showed Party Line Farm to Mrs. Johnson. Stucker had said to plaintiff that he had a party, Mrs. Johnson, who was interested and asked plaintiff's permission to show her the land in plaintiff's absence. Stucker testified that as soon as he had "found" Party Line Farm, he had told Mrs. Johnson that he thought he had found land in the right location for his building project, and reasonably priced; and had asked her to look at the property. Stucker had made an appointment with plaintiff to meet him and Mrs. Johnson at the farm, but Mrs. Johnson "couldn't go." To the best of Stucker's knowledge, he had told Mrs. Johnson that plaintiff "would be there." Later, about February 20th, Stucker and Mrs. Johnson visited the farm, although plaintiff did not accompany them. This was the first time Mrs. Johnson had met defendant Leon H. Vestal. Mrs. Johnson seemed interested, and she and defendant Leon discussed the property, and a price less than $31,500.
Soon after February 20th, Stucker went to Phoenix to visit a brother who was ill. Upon Stucker's return, about March 1st, he advised plaintiff that Mrs. Johnson "was interested." He also made an appointment for plaintiff to come out to the Johnson motel "with the contract"; but, when Stucker arrived at the motel, Mrs. Johnson said she had decided not to go ahead with the purchase, and he called plaintiff and told him not to come. It is apparent that at this time Stucker abandoned the idea of any association with Mrs. Johnson in the purchase of the farm, and he sought to interest the Vestals in an exchange of the farm for a residence property belonging to him in Kansas City. Defendant Leon inspected the Stucker property and rejected the proposed "trade in."
Sometime after the visit of Stucker and Mrs. Johnson at Party Line Farm, defendant Leon, according to his testimony, inquired of plaintiff by telephone "what happened to the woman that Mr. Stucker had previously brought out. He (plaintiff) said that she was not at the time interested; that Mr. Stucker had set up an appointment; that she had told Mr. Stucker that she wasn't interested; that somehow she had got to talking to lawyers or someone and `when it gets in their hands,' he said, `there's nothing you can do.'" Defendant Leon thought this conversation was on January 10th; although, as stated, it seems it must have been after Mrs. Johnson's visit to the farm about February 20th. Defendant Louise S. Vestal testified that Mrs. Johnson and her daughter (from California) came to see the farm in the middle to the latter part of February. Mrs. Johnson seemed interested, "but it was her daughter mostly I think that was interested." Plaintiff testified that, in the telephone conversation, "Mr. Vestal said (to plaintiff) that Mrs. Johnson seemed to be very interested. * * * Mr. Vestal related to me that Mrs. Johnson and her daughter had been out to the farm * * * Mr. Vestal told me that the lady and her daughter had been out to the Party Line Farm and that they'd seemed very interested in the place and he asked me if I knew when Mr. Stucker would be back in town, and I did not. Mr. Stucker had gone to his brother, his brother had been ill and he'd gone out there." This was "around the first of March," according to plaintiff. There is the clear inference from the whole record that plaintiff did nothing in the interest of his principals in the furtherance *823 of negotiations of a sale after his telephone conversation with defendant Leon.
Subsequently, March 15th, the Vestals entered into a contract to sell Mrs. Johnson the farm for $28,500, and the sale was consummated April 22nd. Defendant Leon had called Mrs. Johnson March 14th. He told her that he had "dropped the price" to $28,500; that he had another bona fide offer through a broker (other than plaintiff); and that if she was interested to make a decision by five o'clock that afternoon. "Mrs. Johnson came out (on March 15th) with a real estate man (Field) of her choosing. We agreed and entered into a contract to sell, and she to buy."
In considering the questions presented herein for review, we have examined the evidence with the view of ascertaining if there was substantial evidence supporting the issues of plaintiff's claims. But, in this connection, we believe the evidence demands that we should also have in mind the principles that a party is bound by his own testimony unless corrected or explained (Steele v. Kansas City Southern R. Co., 265 Mo. 97, 175 S.W. 177); and that a party having the burden of proof on an essential issue is bound by the uncontradicted testimony of his own witnesses, unless there are facts from which the jury may draw a contrary inference. Barnum v. Hutchens Metal Products, Inc., Mo.Sup., 255 S.W.2d 807.
In this case the evidence shows that plaintiff was engaged as a broker to sell the Vestals' Party Line Farm. His engagement was not exclusive. He had shown the farm to Stucker, who, plaintiff was advised, was looking for real estate on which to build. The parties involvedStucker, the Vestals, Mrs. Johnson and plaintiff Taylorknew or were advised that Stucker and Mrs. Johnson were acting in contemplation of some joint adventure in the possible furtherance of Stucker's building operations. There was substantial evidence that Mrs. Johnson knew Stucker was negotiating with the Vestals through plaintiff-broker. There also was substantial evidence that the Vestals knew plaintiff, as a broker, was negotiating with Stucker, and that Mrs. Johnson was interested through Stucker. Defendant Leon testified that he "knew that Mrs. Johnson was produced by Mr. Stucker. There is an indirect connection." Hence, it could be said plaintiff had interested Mrs. Johnson, but indirectly through Stucker. As we have said, plaintiff had not interviewed Mrs. Johnson.
Here we say we have not found any factual basis in the record for an inference that Mrs. Johnson personally or in collusion with the Vestals interfered with the agential relationship between the Vestals and plaintiff. It is true she engaged one Field, a real estate agent, to advise her concerning a purchase. But we do not wish to say it is wrongful for an interested prospective purchaser to independently seek the advice and counsel of another than the broker engaged by the (vendor) principal.
Sometime in late February or early March plaintiff was told by Stucker that Mrs. Johnson had said she had decided not to go ahead with the purchase. Obviously, this complete break in the negotiations pertained to Mrs. Johnson as a purchaser in association with Stucker. But merely because she had rejected the deal in some prospective association with Stucker, it is not to be inferred that she could not have been interested and procured by plaintiff as a purchaser of the land for herself, exclusive of any association or business relationship with Stucker. She again visited the farm (with her daughter) once, perhaps twice, in late February or in early March. She and, especially, her daughter were "very interested."
"If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or if, after procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular *824 individual and all negotiations in that direction are completely broken off and terminated, he will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed." 8 Am.Jur., Brokers, § 144, p. 1069; and cases collated 12 A.L.R. 2d 1360, at page 1367, and 27 A.L.R. 2d 1348, pp. 1402-1405.
At this point we note the evidence testimony of plaintiff (and of defendant Leon)established a fact which we think decisive in defeating plaintiff's right of recovery of commission, and an insurmountable factual barrier to the establishment of any conspiracy between the Vestals and Mrs. Johnson or conduct on the part of the Vestals or either of them with a design of depriving plaintiff of his contractual right to a commission. Defendant Leon definitely told plaintiff "around the first of March," according to plaintiff's own testimony, of the visits of Mrs. Johnson and her daughter, and that they were "very interested." According to the testimony of defendant Leon, plaintiff indicated that Mrs. Johnson had been talking to "`someone'" and "`there's nothing you can do.'" Anyhow, as we have said, there is the indisputable inference from the record that plaintiff did not make any effort to interview Mrs. Johnson or in any way pursue negotiations to the end of inducing her to purchase. In view of the advice of the Vestals to plaintiff-broker, we believe it should not be urged that the Vestals were not justified, or were acting individually, or collusively with Mrs. Johnson, in fraud or bad faith, when, after such advice and plaintiff's inaction and apparent abandonment of all effort to procure Mrs. Johnson as a purchaser, the Vestals acted directly in resuming negotiations with her and thus, themselves, brought about a sale.
In Real Estate Enterprises v. Collins, Mo. App., 256 S.W.2d 286, 288, the plaintiff, Enterprises, had the exclusive agency to sell during a term ending August 9, 1949. Sometime in May, June or July of that year, plaintiff had attempted but was unable to induce the Carraras to buy at the list price, $35,000, and plaintiff ceased advertising the property. There was some evidence that plaintiff's salesmen had said plaintiff had "`given it up as a bad deal.'" Meanwhile, perhaps in September, defendants, the Collinses, had called on the Carraras and renewed their interest in the property, and sold the property to them in late October. It is of import to note that the Carraras had been induced by plaintiff to become interested in the property during the term of the contract of agency and, if the interest thus induced by plaintiff during the term of the agency had been the procuring cause of the sale to the Carraras, plaintiff would have been entitled to its commission, although the sale might not have been fully consummated until after the termination of the agency. Plaintiff's case was submitted to the jury; and the jury returned a verdict for defendants. In reviewing the case upon appeal, the St. Louis Court of Appeals considered the evidence and ruled that the trial court should have peremptorily directed a verdict for defendants. It was said that, in the situation disclosed by the record, there was no evidence of fraud or bad faith on the part of defendants Collins. The prospective purchasers had informed plaintiff's salesman that they were not interested, and the subsequent sale by defendants was due, not to the negotiations of plaintiff during the term of the agency, but to defendants' efforts after the term had expired. The reviewing court further said that for one's services to be the procuring cause of a sale, "it is essential that his initial efforts in calling attention to the property shall have set in motion a series of events which, without a break in their continuity, and without interruption in the negotiations, eventually culminated in the sale. But where there is a definite break in the continuity of the negotiations amounting to an abandonment of the deal, and new forces thereafter enter which bring about a renewal of the negotiations *825 and themselves become the effective cause of the sale, the initial efforts may not then be regarded as the proximate procuring cause so as to be the foundation on which to predicate a right to a commission." See now and compare Barnum v. Hutchens Metal Products, Inc., supra, 255 S.W.2d 807.
In Taussig, Day & Co. v. Poleman, 360 Mo. 470, 228 S.W.2d 722, cited by plaintiff-appellant, there was evidence reasonably supporting the conclusion that plaintiffs, brokers, developed the deal, brought it to defendant's attention and carried on negotiations and other activities requested by defendant to the point where the owners were willing to sell at a price defendant finally accepted. There was no complete break in the protracted negotiations but each party to the deal had been trying to "wait out" the other. Plaintiffs' service was the procuring cause of the deal. In reviewing the case, this court quoted from 8 Am.Jur., Brokers, § 190, pp. 1101-1102, stating the rule applicable where a sale is brought about through a broker as the procuring cause, as follows, "The rule is well established that if property is placed in the hands of a real-estate broker for sale at a certain price or upon certain terms, and a sale is brought about through the broker as a procuring cause, he is entitled to commissions on the sale even though the final negotiations are conducted through the owner, who in order to make a sale accepts a price less than that stipulated to the broker or terms more liberal than those the latter was authorized to accept. This rule applies where the broker sends his customer direct to the owner who carries on the negotiations himself." See also Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453; Morgan v. Keller, 194 Mo. 663, 92 S.W. 75; Bell v. Kaiser, 50 Mo. 150. It is of more interest to us here to notice that the section of American Jurisprudence from which this court quoted, in reviewing the Taussing case, continues as follows, "If, however, the negotiations between parties brought together by a broker are unproductive and the parties in good faith withdraw therefrom and abandon the proposed purchase and sale, a subsequent renewal of negotiations followed by a sale at a less price does not entitle the broker to the commissions, as he cannot be said to be the procuring cause of the sale."
We hold the trial court did not err in sustaining defendants' motions for judgment and for a directed verdict on the claims as stated in Counts I and II, and in entering judgment for defendants. Barnum v. Hutchens Metal Products, Inc., supra; Real Estate Enterprises v. Collins, supra; 8 Am. Jur., Brokers, § 144, supra; Restatement of the Law of Agency, § 448, Illus. 3, p. 1053.
The judgment for defendants should be affirmed.
It is so ordered.
COIL and HOLMAN, CC., concur.
PER CURIAM.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569173/ | 35 F. Supp. 553 (1940)
MORRISON-KNUDSEN CO., Inc., et al.
v.
STATE BOARD OF EQUALIZATION OF WYOMING et al.
No. 2709-Civ.
District Court, D. Wyoming.
November 13, 1940.
C. A. Brimmer, of Rawlins, Wyo., and C. R. Ellery and A. G. McClintock, both of Cheyenne, Wyo., for plaintiffs.
Ewing T. Kerr, Atty. Gen., of Wyoming, Harold I. Bacheller, Deputy Atty. Gen., and Arthur Kline, Asst. Atty. Gen., for defendants.
KENNEDY, District Judge.
This is a suit in which the plaintiffs seek relief from alleged illegal taxes assessed by the defendant Board under the provisions of the State Sales and Use Tax statutes of the State of Wyoming. The relief sought is based upon two distinct phases claimed to give this court jurisdiction. The first phase or cause of action is founded on the Federal Declaratory Judgment statute, 28 U.S.C.A. § 400, and the second is for conventional relief *554 in equity authorized by 28 U.S.C.A. § 41 (1). Following former court decisions, Rule 57, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, grants the right to invoke the Declaratory Judgment Act even though there may exist another adequate remedy, and under Rule 8(a) relief in the alternative or of several different types may be demanded. It must follow therefore that the plaintiffs have the undoubted right to invoke that statute in the instant case for the purpose at least of having this court determine its jurisdiction thereunder.
However much this court may regret that the controversy concerns the construction of State statutes involving the validity and collection of State taxes which under Federal policy should whenever possible be relegated to the State courts, yet this does not lessen the responsibility of the Federal courts of discharging their full duty in construing Federal statutes when the matter is squarely presented to them.
The Federal Declaratory Judgment Act, 28 U.S.C.A. § 400, became a law in 1934. After its enactment this province of the Federal courts' jurisdiction was frequently invoked. A great number of cases involved the construction of both Federal and State tax statutes. The Federal courts almost unanimously decided that their jurisdiction included the right to declare upon all tax statutes, both Federal and State, regardless of the fact that the statutes of 1867 prohibited the granting of injunctions by Federal courts against the collection of Federal taxes. These decisions were based upon the theory that the Congress by the adoption of the Declaratory Judgment Act there was constituted a new field of jurisdiction for the Federal courts which was novel and independent of the general fields of jurisdiction which had theretofore been granted and that the statute applied alike to all sorts of controversies whether involving tax statutes or otherwise. Among the numerous cases relied upon for this conclusion may be cited the following: Nashville, Chattanooga & St. Louis Railway v. Wallace, Comptroller, etc., 288 U.S. 249, 53 S. Ct. 345, 77 L. Ed. 730, 87 A.L.R. 1191; Black et al. v. Little et al., D.C., 8 F. Supp. 867; Penn et al. v. Glenn, D.C., 10 F. Supp. 483; Fosgate Co. v. Kirkland, D.C., 19 F. Supp. 152; United Artists Corporation v. James, D.C., 23 F. Supp. 353; Gully v. Interstate Natural Gas Co., 5 Cir., 82 F.2d 145, certiorari denied, 298 U.S. 688, 56 S. Ct. 958, 80 L. Ed. 1407; United States Fidelity & Guaranty Co. v. Koch, 3 Cir., 102 F.2d 288.
In the last-cited case, Circuit Judge Clark says, at page 290 of 102 F.2d: "Professor Borchard, the `father' of the declaratory judgment in the United States, correctly, as we think, maintains: `Declaratory relief is neither legal nor equitable, but sui generis. It has the advantage of escaping the technicalities associated with equitable and extraordinary remedies, thus enabling the substantive goal to be reached in the speediest and most inexpensive form.'"
In the Gully case, supra, Circuit Judge Hutcheson, speaking for the Fifth Circuit Court of Appeals, discussed the Declaratory Judgment statute in a manner which is worthy of brief quotation from the text found on page 149 of 82 F.2d:
"We think, too, the court was right in the view it took on final hearing, that the supplementary bill for declaratory judgment was properly brought, and that the case was one for such a judgment. For while it may not be doubted that the Federal Declaratory Judgment Act is a purely remedial statute, and does not purport to, nor does it, add to the content of the jurisdiction of the national courts, it certainly does purport in cases where federal jurisdiction is present, to effect and we think it does, effect thoroughgoing, remedial changes, by adding to the coercive or warlike remedies in those courts by way of prevention and of reparation, the more pacific and more prophylactic one of a declaration of rights. When, then, an actual controversy exists, of which, if coercive relief could be granted in it the federal courts would have jurisdiction, they may take jurisdiction under this statute, of the controversy to grant the relief of declaration, either before or after the stage of relief by coercion has been reached. [Citing cases.]
"We are aware that the statute has been given a more restrictive cast. Columbia Nat. Life Ins. Co. v. Foulke, D.C.W.D. Mo., 13 F. Supp. 350. We are not in accord with this view. We see no reason why the statute should not, we think it should, be given the prophylactic scope to which its language, in the light of its purpose, extends, under its disputants as to whose rights there is actual controversy, *555 may obtain a binding judicial declaration as to them, before damage has actually been suffered, and without having to make the showing of irreparable injury and the law's inadequacy required for the granting of ordinary preventive relief in equity. Though before the enactment of statutes of this kind declaratory relief was not of a general wideness, it is neither new nor strange in character. It has been granted numbers of times in construing instruments to give directions to trustees and others obliged to carry out written but doubtful directions. The purpose of the statute is, we think, wise and beneficent. It will, if applied in accordance with its terms, effect a profound, a far-reaching, a greatly to be desired procedural reform. We see no sound reason for limiting it.
It should be borne in mind that many, if not all of these cases, concern taxing statutes. It is quite evident, therefore, that the jurisdiction of the courts under the Federal Declaratory Judgment Act had become firmly established. This gave executive bureaus grave concern as is evidenced by the appearance, for example, in the Agricultural Adjustment Act of a denial to the Federal courts of jurisdiction over the taxing portions of that Act in declaratory judgment suits. Likewise, in 1935 the Congress adopted an amendment to the Declaratory Judgment Act itself which eliminated invocation of the statute with respect to Federal taxes. Following this and in 1937, came the amendment to the general statute defining the jurisdiction of Federal District Courts known as the Johnson Act, 28 U.S.C.A. § 41(1), which restricted the power of those courts to enjoin, suspend, or restrain assessment levies or collection of any tax imposed by or pursuant to the laws of any State where a plain, speedy and efficient remedy may be had at law or in equity in the courts of such State. This amendment placed more restriction upon the Federal courts with respect to State taxing statutes than had theretofore been indulged for the reason that previously the Federal courts had repeatedly exercised their function in equity of restraining the collection of State taxes when otherwise jurisdictional grounds were present.
The defendants now contend that this amendment must be read into and become a part of the Federal Declaratory Judgment Act so as to deny the jurisdiction of the Federal courts in causes seeking to have determined the constitutionality of State taxing statutes. I have been unable to bring myself to the conclusion that this view conforms to approved statutory construction. The history of the legislation points to the contrary. When the amendment of 1935 to the Declaratory Judgment Act became a law the history in the courts was before the Congress that the Act had been invoked in State taxing statutes and yet Congress saw fit to include a prohibition with respect to Federal taxes only. Again, in 1937 with the same history before the Congress in connection with the amendment to the general jurisdiction of the district courts over State taxing matters, it evidently saw no reason to include any prohibition against the use of the Declaratory Judgment Act, but limited the jurisdiction by injunction of those courts to cases in which there was no plain, speedy and efficient remedy at law or in equity in the State courts. As it appears to me, these two incidents make it plain that the Congress did not desire or intend to change or limit the jurisdiction of the Federal courts under the Declaratory Judgment Act in regard to State taxing statutes or the law in the one place or the other would have been so written.
It is true that counsel for defendants cite a case, Collier Advertising Service v. City of New York, D.C., 32 F. Supp. 870, in which the Judge expressed the view that the Johnson Act should be read into the Declaratory Judgment statute because otherwise the practical effect would be to nullify the Johnson Act. However, I know of no rule of statutory construction which would justify such a conclusion. When statutes are clear and unambiguous they must be construed as they read, and as has been so repeatedly said by the courts, that any other theory of construction would be legislation by the courts and outside their province. The conclusion is reached that the Johnson Act cannot be held to apply in its provisions to the Declaratory Judgment Act, and the Court has therefore arrived at the point where this court decides that it has jurisdiction of the suit under the Declaratory Judgment Act and that it is both the Court's right and duty to consider and rule upon the constitutionality of the challenged State statutes.
*556 It is not in dispute here that there is a controversy existing in which taxes were assessed against the plaintiffs under the State Sales and Use Tax Statutes and that a demand was made by the defendant Board for the payment of taxes in excess of the sum of $14,000; that plaintiffs protested against the assessment of such taxes on account of their illegality and filed their petition for a hearing with the Board; and that the Board refused such hearing upon the ground that under the statutes the plaintiffs had not paid the tax at the time said hearing was demanded. The plaintiffs refused to pay the tax and brought this suit. This makes an actual controversy bringing the suit within the scope of the Declaratory Judgment Act because the requisite amount is involved and the diversity of citizenship between the plaintiffs and the defendants is not in question. The general complaint on the part of the plaintiffs is that under both statutes the Board has not legally assessed the taxes because property not taxable has been assessed and that the laws in regard to exemptions from taxation have not been followed, together, of course, with the claim that the statute is in contravention of due process.
The Sales Tax Act of Wyoming is found in Chapter 74 of the Session Laws of 1935 and the Use Tax law in Chapter 118 of the Session Laws of 1937. So far as is now necessary to consider, these statutes provide for the assessment of the taxes in the usual form by the Board and the demand for the payment with the right to the taxpayer to demand a hearing before the Board if the tax has been paid. Provision has been made for an appeal from the Board's decision for trial de novo in the District Court and to the Supreme Court of the State, if desired. The courts have therefore the right to pass upon and adjudicate the legality of the tax. Provision for refunding by the Board is also made in the event any of the tax shall be held to be erroneously assessed and collected. It is provided that in the event of delinquency the Board may seize any real or personal property of the taxpayer and sell the same to make the assessed tax. The Board is required to deposit the collections from taxes in an approved bank and after such collections have been cleared through the bank with the exception of the amount of refunds made, they shall be transferred to the State Treasurer who shall place them in the designated fund to be distributed in the manner provided in the Act. It is further provided that no order or injunction shall be granted by any court or judge to enjoin the collection of any tax except upon the ground that the assessment was in violation of the Constitution of the United States or of the State of Wyoming.
The principle of law involved here seems to be the question of constitutional due process. Here, a hearing is afforded only in the event the taxpayer pays the tax, which in itself is not unusual or unconstitutional, but, as we interpret the cases, in all tax matters the taxpayer is entitled to a hearing before the tax becomes irrevocably fixed and in any event if the execution of the statute requires the prepayment of the tax before the hearing, then there must be an adequate remedy by which the taxpayer can legally enforce the recovery of his money in the event the tax is found to be erroneously assessed. I find no provision in these statutes by which the taxpayer is entitled as a matter of legal right to recover the tax which may have been found to have been erroneously assessed, except that authority given to the Board to refund erroneously assessed taxes, apparently depending upon the Board's election or caprice in regard to such refunding. No provision seems to have been made either for a suit on behalf of the taxpayer to recover the erroneously assessed tax or any designated or appropriated fund earmarked and set aside for such refunding process.
Counsel for defendants contend that several cases under the Acts have gone as far as the Supreme Court in which that Court has ruled favorably to the taxpayer, but none of the cases called to my attention carries with it any order or judgment by the Supreme Court which gives the taxpayer a judgment for a designated sum with a right of recovery against anybody. Seemingly in all these cases the court has confined itself to the matter of determining the validity of the tax and leaving it to the wish or desire of the Board to conform to a court finding by making restitution. No method is devised by which the funds collected by the Board through these assessments is set aside by mass appropriation for the purpose of making refunds, and if the taxes collected have been paid over to the State Treasurer no provision is made by which that official may be compelled to make restitution. As an illustration, a case is presented which went to *557 the Supreme Court where the tax had been prepaid and the Supreme Court subsequently nullified the tax to the extent of some $62,000. The court was of course precluded from awarding any judgment against any official for a recovery. Responding, however, to at least a moral obligation to refund the tax, the Board proceeded to make monthly payments of such illegal taxes to the taxpayer out of funds collected by them until the tax was paid, covering a period of several months, and likewise a period of more than two years from the time the tax was paid until its refunding had been completed, without any allowance of interest. The failure to provide for interest allowance on illegal taxes paid in itself has been held by some courts to constitute an invasion of the taxpayer's rights. This treatment of the taxpayer would not of course be so severe if the Act had not "hog-tied" the State courts from restraining the collection of taxes except in cases where the taxing Act had been declared unconstitutional. If the unconstitutionality of the Act should be sought in a State court there would still be no right to restrain the collection of the tax until the court after due deliberation had affirmatively declared that there was a violation of the constitutional right of the taxpayer. In the meantime the defendant Board could have sold the taxpayer out through the distraint and sale provisions.
I take it to be the law that there is a lack of due process and the inherent right of the taxpayer had been invaded when he is required to pay the tax before a hearing is had and before the tax becomes irrevocably fixed, unless there is some provision legal and enforceable in its effect by which he is entitled to be restored to his former position. A few of the cited cases adhering to this line of reasoning are: Hopkins v. Southern California Telephone Co., 275 U.S. 393, 48 S. Ct. 180, 72 L. Ed. 329; Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972; Bohler v. Callaway, 267 U.S. 479, 45 S. Ct. 431, 69 L. Ed. 745; Procter & Gamble Distributing Co. v. Sherman, D.C., 2 F.2d 165; United Artists Corporation v. James, D.C., 23 F. Supp. 353; Central of Georgia R. R. Co. v. Wright, 207 U.S. 127, 28 S. Ct. 47, 52 L. Ed. 134, 12 Ann. Cas. 463; Montana-Dakota Power Co. v. Weeks, D.C., 8 F. Supp. 935.
These and many other cases discuss various phases of taxing statutes which are applicable to the principles adopted in the suit at bar but it would unduly extend this memorandum to review them here.
It is interesting to note that from the similarity by comparison of the Wyoming Act to the California Act, the former was modeled after the latter but did not carry into its provisions the safeguards provided for the taxpayer. This is illustrated by the discussion of the court found in the case of Nevada-California Electric Corp. v. Corbett, D.C., 22 F. Supp. 951. It is apparent that in the California Act the entire tax fund is appropriated and earmarked for the purpose of the payment of refunds and therefore any judgment for the recovery of illegal taxes would be enforceable against the official by whom they are collected. Just why this seemingly logical and just provision was not carried into the Wyoming legislation is not apparent. It may have been that the California statute was followed before the amendments incorporated the above principles. It is sincerely to be hoped that the Wyoming statutes were not enacted for the purpose of being arbitrarily enforced without giving the taxpayer his day in court and without an opportunity to be relieved of illegal taxation and with no remedy to at least partially restore him to his position before the illegal tax was collected.
It has been suggested in the brief of defendants' counsel that Sections 89-4201 and 89-4203 of the Wyoming Revised Statutes of 1931 apply to Sales and Use Tax statutes and afford relief for the recovery of taxes paid and found to have been erroneously assessed, but a cursory reading of these statutes in the context where found, clearly indicates that they apply only to the general property tax statutes. At least that seems at the present time to be the natural construction and the Supreme Court of the State has not construed them so as to make these remedies applicable to the Sales and Use Tax statutes. Furthermore, the Sale and Use Tax statutes themselves pretend to cover the method by which illegally assessed taxes are refunded.
As previously indicated, it is preferable as far as possible to allow the courts of the State to interpret the statutes relating to local taxation. We know that illegal taxes may be assessed under a valid statute, and this determination should be made by the State courts if possible as each decision *558 becomes a guide for taxpayers, taxing officials and courts themselves. It is entirely probable that certain features of the Acts under discussion relating to the assessment of Sales or Use taxes are entirely constitutional under which such taxes may be determined and collected from the taxpayer, and it is also probable that somewhere in the State statutes reposes the right on behalf of the State Board to recover these taxes by direct suit, as in so doing the taxpayer would have a hearing to which he is entitled and would be compelled to pay the tax only after having had such a hearing where the matter of recovery by him of illegally imposed and paid taxes would not be involved. Provisional remedies might be invoked for the State's protection where necessary.
The conclusion is, that this court will go only so far as to declare that the provisions of the Acts in question which require a prepayment of the tax before a hearing is allowed and the tax becomes irrevocably fixed, coupled with the absence of any provision to legally compel the refund of a determined illegally assessed tax make the statutes here invoked invalid and in violation of the plaintiffs' constitutional rights under the facts set up in this particular case.
The Court will go no farther than a consideration of the case under the Federal Declaratory Judgment Act and has made no particular examination of the case with respect to that portion of it which seeks to invoke the jurisdiction of this court to decide the case upon its merits.
Such findings and conclusions as may be appropriate within the scope of the foregoing opinion may be submitted by counsel for plaintiffs, in collaboration with defendants' counsel, together with a declaration in the nature of a judgment, on or before November 30, 1940. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569213/ | 574 S.W.2d 127 (1978)
John Luke DANIELS, Appellant,
v.
The STATE of Texas, Appellee.
No. 55673.
Court of Criminal Appeals of Texas, Panel No. 2.
December 13, 1978.
*128 James M. Murphy, Dallas, for appellant.
Henry M. Wade, Dist. Atty., William M. Lamb, C. Wayne Huff and Paul D. Macaluso, Asst. Dist. Attys., Dallas, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
OPINION
DALLY, Judge.
This is an appeal from a conviction for the possession of cocaine; the punishment is imprisonment for twenty years.
Although the appellant timely offered a specially requested charge that was sufficient to apprise the court of the omission of a circumstantial evidence charge, the trial court did not submit a charge instructing the jury on the law of circumstantial evidence. In one of several grounds of error the appellant asserts that the failure to instruct the jury on the law of circumstantial evidence was reversible error. We agree.
The conviction is for possession of a minute quantity of cocaine which the officers found in a plastic bag in the kitchen cabinet on the premises occupied by the appellant and his wife. The expert witness testified that a qualitative analysis proved the powdered substance he found in the plastic bag included lidocaine, methapyriline, and cocaine. This witness further testified the cocaine was neither a quantity that could be quantitatively measured nor a quantity for which a pharmacological effect could be obtained.
The minimum quantity of marihuana that will sustain a conviction for its possession is a usable quantity, Controlled Substances Act, Sec. 4.05(a), but the minimum quantity of any other controlled substance that will sustain a conviction for its possession is not specified. Controlled Substances Act, Sec. 4.04(a); see also Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977).
However, when the quantity of a substance possessed is so small that it cannot be quantitatively measured there must be evidence other than its mere possession to prove that the defendant knew the substance in his possession was a controlled substance. See Reyes v. State, supra; Cantu v. State, supra. Reyes sold a substance which he represented to be heroin and his conviction was upheld even though only a trace of heroin was found in the substance. His representation that the substance was heroin was held to be evidence of a knowing possession of the trace of heroin. Although he possessed only traces of heroin, Cantu was found to have a knowing possession of heroin because he pled guilty to the offense and admitted under oath that he knowingly and intentionally possessed heroin. On his plea of guilty we held the evidence was sufficient to meet the requirements of Art. 1.15, V.A.C.C.P.
The quantity of cocaine possessed by the appellant was so small that it could not be quantitatively measured by the most sensitive and sophisticated equipment used in the Dallas Crime Laboratory. The quantity was so small that in itself it was insufficient to show the appellant knew the substance he possessed was cocaine. However, the State, arguing in support of the sufficiency of the evidence in answer to another ground of error says that there is in this *129 case, just as there was in Reyes v. State, supra, and Cantu v. State, supra, other evidence to show that the appellant knowingly possessed the cocaine. Other controlled substances, narcotic paraphernalia, and methapyriline, which is an agent sometimes used to "cut" cocaine, were all found on the same premises as the cocaine. The possession of these items furnishes circumstantial evidence which it was necessary for the jury to believe for its verdict to have sufficient support in the evidence. Since the State does not rely on direct evidence to show that the appellant knowingly possessed the cocaine but necessarily must rely on inferences drawn from the other evidence it necessarily follows that it was error to refuse to instruct the jury on the law of circumstantial evidence. The main fact to be proved rests purely and entirely on circumstantial evidence. See Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1977).
The judgment is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/846845/ | 711 N.W.2d 308 (2006)
474 Mich. 1067
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Bruce Alan HOWARD, Defendant-Appellant.
Docket No. 129160(25), COA No. 259953.
Supreme Court of Michigan.
February 27, 2006.
On order of the Court, the motion for reconsideration of this Court's order of November 29, 2005 is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000029/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SARA FLOYD POWELL,
Plaintiff-Appellee,
v.
JOHN F. FLOYD; GORDON FARMS,
INCORPORATED; MULLIKAN VAULT
COMPANY, No. 97-2686
Defendants-Appellants,
and
RICHARD GORDON FLOYD; LOUISE
CAMPBELL,
Intervenors-Defendants.
SARA FLOYD POWELL,
Plaintiff-Appellant,
v.
JOHN F. FLOYD; GORDON FARMS,
INCORPORATED; MULLIKAN VAULT
COMPANY, No. 97-2748
Defendants-Appellees,
and
RICHARD GORDON FLOYD; LOUISE
CAMPBELL,
Intervenors-Defendants.
SARA FLOYD POWELL,
Plaintiff-Appellee,
v.
JOHN F. FLOYD; GORDON FARMS,
INCORPORATED; MULLIKAN VAULT
COMPANY, No. 98-1382
Defendants-Appellants,
and
RICHARD GORDON FLOYD; LOUISE
CAMPBELL,
Intervenors-Defendants.
SARA FLOYD POWELL,
Plaintiff-Appellant,
v.
JOHN F. FLOYD; GORDON FARMS,
INCORPORATED; MULLIKAN VAULT
COMPANY, No. 98-1429
Defendants-Appellees,
and
RICHARD GORDON FLOYD; LOUISE
CAMPBELL,
Intervenors-Defendants.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
William M. Catoe, Jr., Magistrate Judge.
(CA-96-2063-7-20AK)
Argued: May 7, 1999
Decided: October 12, 1999
2
Before MURNAGHAN and LUTTIG, Circuit Judges, and
WILLIAMS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed in part and reversed in part by unpublished per curiam opin-
ion.
_________________________________________________________________
COUNSEL
ARGUED: Robert L. Widener, MCNAIR LAW FIRM, P.A., Colum-
bia, South Carolina, for Appellants. David Lynn Freeman, WYCHE,
BURGESS, FREEMAN & PARHAM, P.A., Greenville, South Caro-
lina, for Appellee. ON BRIEF: Charles Porter, Celeste T. Jones,
MCNAIR LAW FIRM, P.A., Columbia, South Carolina, for Appel-
lants. Gregory J. English, WYCHE, BURGESS, FREEMAN &
PARHAM, P.A., Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John Floyd, the majority stockholder in two closely held, family
owned corporations, appeals from a judgment ordering him to pur-
chase his sister's (Sarah Floyd Powell's) shares at a price exceeding
$2,000,000.1 Floyd lodges three major objections to the magistrate
_________________________________________________________________
1 Pursuant to a partial settlement agreement, Floyd has paid more than
$1,000,000 of the judgment amount, and the parties are now litigating
over the remaining money in the instant appeal.
3
judge's decision:2 (1) the magistrate judge erred in refusing to allow
Floyd to reduce the amount paid to Powell by the amount of money
he would owe in capital gains taxes if he had otherwise disposed of
the stock; (2) the magistrate judge erred in declining to apply the doc-
trines of laches and unclean hands; and (3) the magistrate judge erred
in awarding Powell her attorney's fees. For her part, Powell raises
several challenges, which principally include the refusal to calculate
her attorney's fee award and director's fees as expenses to be
deducted from the derivative award in determining the taxes on that
award.
I.
John Gordon Floyd ("John"), the father of Floyd and Powell,
started Gordon Farms, a corporation organized under subchapter C of
the Internal Revenue Code,3 in 1959. John also created Mullikan4
Vault, a corporation organized under subchapter"S" of the Internal
Revenue Code.5 After John's death in 1969, Floyd, Powell and their
brother Richard Floyd ("Richard") each inherited a one-third share of
the corporations. In addition to giving the corporations to his children,
John's estate created two testamentary trusts for his wife's (Louise
Floyd Campbell's) benefit.
In 1976, the family asked Floyd to leave graduate school and man-
age the corporations. He has managed them ever since. In 1982, Gor-
don Farms' board of directors6 decided to pay Floyd a combined
compensation package of $70,000. Powell was to receive $15,000 per
year in director's fees. That same year, the board approved a $4,000
per month payment to Louise. Louise later resigned from the board.
_________________________________________________________________
2 The parties consented to the disposition of this diversity matter by the
magistrate court pursuant to 28 U.S.C. § 636(c)(1) (1994).
3 See 26 U.S.C. §§ 301-386 (1994).
4 In some of the corporation's financial statements and internal docu-
ments, its name is spelled "Mullikin." However, in the briefs presented
to the court, the name is spelled "Mullikan." Throughout the opinion
here, we will use the latter spelling.
5 See 26 U.S.C. §§ 1361-1379 (1994).
6 Apparently, the same individuals served on Mullikan Vault's board as
well.
4
Powell and Richard, as members of the board of directors, helped
Floyd manage the corporations into the early 1990's. In 1992, how-
ever, Richard sold his interests to Floyd for $1,140,000. Floyd agreed
to repay Richard with annual installment payments of $100,000 for
thirty years. As a result of the sale, Floyd owned two-thirds of the
stock in each corporation, and Powell owned one-third of the stock.
After John's death, the corporations suffered from mismanage-
ment. In the early 1970's, before Floyd began managing the corpora-
tions, Gordon Farms had financial trouble. It borrowed $631,477 from
one of the testamentary trusts and still owed that trust more than
$585,000 at the beginning of the litigation.
Floyd's tenure as president has been marked by internal disarray.
Only one shareholders' meeting has been held since 1987.7 Many of
the records of important votes and transactions are incomplete or non-
existent. While the corporations have not become insolvent, the mag-
istrate court found that Mullikan Vault had no value.
Moreover, Floyd often took advantage of his position as president
of the corporations. Floyd's salary increased from $70,000 to $90,000
in 1988, although there were neither board meetings held to vote on
the matter nor any other sign of approval by the board or shareholders.8
Similarly, he was paid $140,000 in 1994 and 1996, although there are
no records of votes approving the salary increase. Despite his agree-
ment in 1979 to draw no salary from Mullikan Vault, Floyd drew a
salary from that corporation in 1995 and 1996. In 1995, Floyd drew
$11,677 in salary and $12,000 in management fees. In 1996, he was
paid a $28,000 salary. As with his other salary increases, no records
show the board's or shareholders' approval.
Floyd also caused the corporations to expend funds for his personal
endeavors. In 1977, the board agreed to pay Floyd's membership dues
_________________________________________________________________
7 Powell was elected treasurer at the 1987 meeting. The other meeting
took place in January 1993.
8 Under South Carolina law, the board is not required to hold formal
meetings before making decisions, particularly where the directors own
all of the stock and are cooperating with each other. See Alderman v.
Alderman, 181 S.E. 897, 906 (S.C. 1935).
5
in three local clubs and to provide him with an automobile.9 However,
since 1986, the corporations have paid for far more than that. Gordon
Farms' records show that it purchased a vehicle for one of Floyd's
sons, made approximately $66,000 in payments on Floyd's yacht,
donated several more thousands to charities that Floyd supports, paid
for Floyd's medical bills and other miscellaneous expenses. More-
over, Floyd borrowed approximately $440,000 from Gordon Farms.
At trial, Floyd could not produce any documentary or other evidence
that those expenditures were approved by the board or the sharehold-
ers.
In the meantime, Powell had considered suing Floyd several times.
She believed that as early as 1990, Floyd was attempting to "squeeze"
her out. She thought that Floyd intentionally failed to share important
information about the companies' operation with her, such as plans
for developing some of Gordon Farms' property. Thus, in 1993, she
hired an accountant to perform a comprehensive review of both cor-
porations' records. That review revealed some -- but not all -- of the
conduct at issue in the instant litigation. Powell claimed that she
chose not to sue immediately out of respect for her family and a
desire not to disrupt the family businesses.
Powell then sought to negotiate a settlement with Floyd that would
permit her to exit the company. After negotiations failed, she filed the
instant lawsuit. She sought dissolution of the corporations, or, alterna-
tively, a buyout of her shares. In particular, Powell sought an arrange-
ment that would give her a portion of the companies' real estate and
would not result in any tax liability for her. After a trial held March
31 - April 3, 1997, a magistrate judge concluded that Floyd had
breached his fiduciary duties to the corporations and ordered Floyd to
reimburse them for his excessive expenditures. The judge also
ordered Floyd to buy Powell's shares. The judge then ordered the par-
ties to structure the buyout. On January 21, 1998, after months of con-
tentious negotiations and various motions, the magistrate judge set the
buyout at $2,331,675.00. Both parties appeal.
_________________________________________________________________
9 The clubs are the Sertoma Club, the Piedmont Club, and the Country
Club of Spartanburg. Gordon Farms' records also show that it purchased
a 1994 Ford Explorer for $27,000 for Floyd's use.
6
II.
As the instant case is a diversity matter -- Powell is a North Caro-
lina resident while Floyd and the corporations are South Carolina resi-
dents -- the rule of Erie v. Tompkins, 304 U.S. 64, 78 (1938),
requires us to apply South Carolina law.
Floyd first complains that the magistrate judge erred in refusing to
deduct from the net asset value an amount equal to the amount the
corporation would have to pay in capital gains taxes if it were liqui-
dated or otherwise transferred.10 He contends that because the taxes
will eventually have to be paid, any valuation should consider them.
He further contends that the changes occurring in the Tax Code in
1986 support such deductions as well. On the other hand, Powell con-
tends that Floyd waived the argument by failing to present it at the
initial hearing.
We conclude that Floyd did not waive the argument. While parties
generally waive an argument when they fail to raise it in a timely
manner, a trial court's exercise of its discretion to hear the argument
anyway may preserve it for appellate review. See Holland v. Big
River Minerals Corp., ___ F.3d ___, 1999 WL 417472 at *6 (4th Cir.
June 23, 1999). Here, the magistrate judge noted that Floyd did not
raise this particular tax issue at trial, but considered the argument after
the trial. Since the trial court decided to hear Floyd's argument, Floyd
has preserved the issue for our review.
That said, Floyd's argument is unavailing. Floyd principally relies
on the recent Second Circuit case Eisenberg v. Commissioner of
Internal Revenue, 155 F.3d 50, 53 (2d Cir. 1998). In that case, the
sole shareholder in a corporation decided to give her children her
shares in that corporation. Before making the gift, Eisenberg deducted
the capital gains taxes as they would have been paid if the company
were being liquidated or otherwise transferred. See id. at 52. The tax
court concluded that the deductions were improper. See id.
_________________________________________________________________
10 The issue Floyd raises here is an issue of law, which we review de
novo. See St. Paul Fire & Marine Ins. Co. , 86 F.3d 332, 334 (4th Cir.
1996).
7
However, the Second Circuit reversed, holding that the rationale
for prohibiting that deduction was the General Utilities doctrine,
under which C-Corporations were not taxed on unrealized gain.11 See
id. at 54. Congress has abrogated that doctrine. See Tax Reform Act
of 1986, Pub. L. No. 99-514, § 631, 100 Stat. 2085, 2269 (codified
as amended in scattered sections of 26 U.S.C.). Because of that abro-
gation, the Second Circuit held that the deduction was appropriate
because Eisenberg's corporation no longer could avoid taxation at the
corporate level. See Eisenberg, 155 F.3d at 56.
Although Congress has abrogated the General Utilities doctrine,
Floyd will not prevail. That Gordon Farms eventually must recognize
the gain does not necessarily require that Floyd deduct the taxes
before providing a final valuation of Powell's shares. The Eisenberg
court noted that gain recognition can be deferred indefinitely where
the corporation retains its property and continues leasing it to third
parties.12 See 155 F.3d at 56, n.14. That is precisely what Floyd was
attempting to do with the tracts of land Gordon Farms owns. To the
extent that the recognition can be deferred, we should not effectively
impose the tax burden on Powell.13
_________________________________________________________________
11 As the court notes, the Supreme Court held in General Utilities &
Operating Co. v. Helvering, 296 U.S. 200, 206 (1935), that corporations
did not recognize gains on distributions of appreciated property. See
Eisenberg, 155 F.3d at 54. As a result of the holding in General Utilities,
courts disapproved corporate attempts to take a capital gains deduction
when valuing their shares because corporations could avoid taxation alto-
gether by simply liquidating and distributing their assets. See Eisenberg,
155 F.3d at 54.
12 Indeed, the corporation at issue in that case also leased its property
to third parties. See 155 F.3d at 52. The court simply concluded, without
citation to authority, that because the taxes eventually must be paid, they
were not sufficiently speculative to avoid consideration. We simply dis-
agree with that assessment where the corporation not only will not be liq-
uidated in the foreseeable future, but also can defer the recognition of the
gain indefinitely. Moreover, the particular facts of this case only rein-
force that view.
13 Essentially, the issue here boils down to who will bear the tax bur-
den. That is, our holding simply leaves the tax burden on the corporation
to pay when it finally must recognize the gain.
8
Floyd next complains that the magistrate judge should have applied
the doctrines of laches and unclean hands to dispose of Powell's
claims. He points to Powell's previous complaints about some of the
activities at the heart of the instant action as evidence that Powell
should have sued earlier than she did. Moreover, he argues that her
occasional use of corporate property renders her hands "unclean."
Since actions brought under S.C. Code Ann. § 33-14-300 to dissolve
corporations are equitable, see McDuffie v. O'Neal, 476 S.E.2d 702,
708 (S.C. App. 1996), equitable doctrines such as those advanced by
Floyd may bar Powell's recovery.
Floyd first contends that the laches doctrine should bar Powell's
recovery. The laches defense is grounded in the maxim that "[e]quity
aids the vigilant, not those who slumber on their rights." Hemingway
v. Mention, 89 S.E.2d 369, 372 (S.C. 1955) (citation omitted). It
applies where the plaintiff unreasonably delays the pursuit of his or
her rights and the defendant is injured or prejudiced thereby. See
Gibbs v. Kimbrell, 428 S.E.2d 725, 730 (S.C. App. 1993). It is a fact-
sensitive inquiry, and, in South Carolina, is generally left to the trial
court's discretion. See id. Likewise, we review the decision to apply
the doctrine for an abuse of that discretion. See Skippy, Inc. v. CPC
Int'l, Inc., 674 F.2d 209, 212 (4th Cir. 1982).
Although Powell had general awareness of some of the activities
giving rise to the claims she asserts, the magistrate judge did not
abuse his discretion in declining to apply laches. First, Powell's delay
was caused, in some part, by her desire to negotiate an exit from the
corporations rather than bring suit. She decided to sue only after the
negotiations dissolved. Thus, she was not sleeping on her rights but
only trying to protect them without litigation. Second, in addition to
the instances of self-dealing Powell learned about through the 1993
audit, Floyd engaged in other wrongful practices that Powell knew
nothing about until the instant litigation. For example, Powell's 1993
audit would not have revealed the salaries Floyd drew from Mullikan
Vault in 1995 and 1996, the plans for development in 1995 that Pow-
ell learned about through newspaper accounts well after the negotia-
tions or the extent to which Floyd used corporate funds to supply his
children with cars and other amenities. As a result, we cannot con-
clude that Powell unreasonably delayed filing her claims.
9
Even if Powell did delay in filing her claims, the laches defense
still does not bar them here. Delay alone is insufficient to prevail on
a laches defense. See Gibbs v. Kimbrell, 428 S.E.2d 725, 730 (S.C.
App. 1993). Rather, the defendant must suffer some prejudice in order
to bar the plaintiff's claim. See id. A defendant has not been preju-
diced by the delay if the delay merely has permitted him to enjoy a
wrongfully obtained benefit for a longer period of time. See Provident
Life and Accident Ins. Co. v. Driver, 451 S.E.2d 924, 929 (S.C. App.
1994). Here, the only "prejudice" to Floyd was that he continued to
misuse corporate funds for his benefit for a longer period of time.
Because that is insufficient injury to constitute prejudice, the laches
defense does not apply.
Floyd's unclean hands argument is unavailing and merits little dis-
cussion. That doctrine is rooted in the time-honored maxim that "he
who seeks equity should come with clean hands." See Hemingway v.
Mention, 89 S.E. 2d 369, 372 (S.C. 1955). Thus, a plaintiff who has
engaged in wrongdoing or impropriety in the transaction giving rise
to the litigation cannot avail herself of equitable relief. See Wilson v.
Landstrom, 315 S.E.2d 130, 134 (S.C. App. 1984).
The magistrate judge did not err in refusing to preclude Powell
from obtaining relief. The record shows that any misappropriations on
Powell's part were minor in scope. For example, Floyd complains that
Powell approved some of the political donations and even helped
make one of them. The record shows that she did approve of one such
donation. Proof of approval of a single political donation is insuffi-
cient to establish that she approved of all such donations made. We
must remember that as a general matter, the defendant seeking appli-
cation of the unclean hands doctrine must demonstrate that he has
been injured by the plaintiff's conduct. See Arnold v. City of
Spartanburg, 23 S.E.2d 735, 738 (S.C. 1943). In light of the conduct
Floyd complains of, no such demonstration has been made here.
At any rate, Floyd is in no position to complain about unclean
hands. The law clearly requires that the matter to which defendant
seeks to apply the unclean hands doctrine must be one about which
"he can in good conscience complain in equity." Arnold, 23 S.E.2d at
738. The magistrate judge's factual findings detail Floyd's consistent
and pervasive abuse of the corporations. Phone calls and political
10
donations are the least of those indiscretions. In other words, Floyd
cannot "in good conscience complain in equity" about any of Powell's
conduct. Arnold, 23 S.E.2d at 738. Therefore, the magistrate judge
correctly rejected Floyd's attempt to apply the unclean hands doc-
trine.
Finally, Floyd complains that the magistrate judge erred in award-
ing Powell her attorney's fees. Floyd's principal contention is that
Powell was not entitled to her fees because she was the only person
who benefitted from her suit. Therefore, he argues, her suit more
closely resembles an individual, rather than a derivative, action.
Generally, South Carolina does not permit a party to recover his
attorney's fees absent a contractual or statutory mandate. See Weeks
v. McMillan, 353 S.E.2d 289, 292-93 (S.C. App. 1987). However, a
shareholder who brings a derivative suit may recover her attorney's
fees. See, e.g., S.C. CODE ANN. § 33-7-400, Official Cmt. 1(i) (Law.
Co-op. 1990). Those recoveries may be based, as here, on an applica-
tion of the common fund theory. That theory permits such recoveries
because the suit benefits all of the shareholders and the individual
shareholder maintaining it should not have to bear the costs alone. See
Weeks, 353 S.E.2d at 293; Mills v. Electric Auto-Lite Co., 396 U.S.
375, 394 (1970) (explaining the rationale for the common fund the-
ory). South Carolina's courts have applied the common fund doctrine
to award attorney's fees in derivative actions. See, e.g., Segall, 236
S.E.2d at 318; Weeks v. McMillan, 353 S.E.2d 289, 293 (S.C. App.
1987) (noting that the Segall court appeared to apply the common
fund theory).
While Floyd correctly notes that he and Powell are the only
remaining shareholders in the corporations, we have not found -- nor
have the parties pointed to any -- authority suggesting that South
Carolina's courts would not award attorney's fees where only a very
small number of shareholders would benefit from the derivative
action. Moreover, focusing only on the small number of shareholders
neglects the benefits of derivative suits. For example, the accounting
brought about by the instant suit will help the corporations run much
more efficiently. The records of both companies were in disarray, and
many votes on important matters were not even recorded. No share-
holders' meetings had been held for years. Floyd was engaged in self-
11
dealing on a grand scale. Even if Floyd were not ordered to purchase
Powell's shares, the exposure and correction of those problems
greatly benefit both corporations. Those benefits not only increase the
value of Powell's shares, but also the value of Floyd's shares.
Finally, we reject Floyd's contention that the magistrate judge's
decision was based solely on his misconduct rather than on the com-
mon fund theory. Floyd correctly points out that under South Carolina
law, a losing party's misconduct is insufficient in itself to provide a
basis for an attorney's fee award. See Weeks, 353 S.E.2d at 292-93.
However, that was not the basis of the award here. To be sure, the
magistrate judge specifically cited Floyd's wrongful behavior as mak-
ing the suit necessary. However, the court expressly found Powell's
suit to be a "fund creating action," see J.A. at 514, and in any event,
shareholder suits generally involve allegations of misconduct by cor-
porate officers. Therefore, we find that the magistrate judge did not
err in awarding Powell her attorney's fees.
III.
Powell also raises several points on appeal, but we find it necessary
to discuss only two. In the Order dated January 21, 1998, the magis-
trate judge found that neither the $241,000 in attorney's fees and costs
awarded to the plaintiff, nor the $137,161 in past director's fees
awarded to the plaintiff, should be deducted from the derivative
award before taxes are calculated. We affirm that portion of the ruling
which excludes the attorney's fees related to the buyout and the direc-
tor's fees from a pretax deduction from the derivative award. We
reverse, however, that portion of the ruling which excludes the attor-
ney's fees related to the derivative action from a pretax deduction.
Powell contends that the magistrate judge should have calculated
the attorney's fees as a pretax deduction pursuant to 26 U.S.C.
§ 162(a) (1994). Section 162 permits deductions of "all the ordinary
and necessary expenses paid or incurred during the taxable year in
carrying on any trade or business." Id. Floyd supported the pretax
deduction below, but argues that Powell is estopped from raising the
issue now because she opposed the deduction below.
Powell is not estopped. The doctrine of estoppel applies only to
matters of fact. See Folio v. City of Clarksburg , 134 F.3d 1211, 1217-
12
18 (4th Cir. 1998). The question of whether it is proper to deduct the
costs and attorney's fees before the taxes are calculated is a legal
question, as Floyd admits. See Appellant's Br. at 14. Moreover, the
record shows that Powell did support the deduction of the attorney's
fees prior to calculating the taxes. She took that position as an alterna-
tive to her primary position that Floyd himself should be responsible
for paying the taxes, not Gordon Farms. Because she supported the
pre-calculation deduction below, the doctrine of estoppel does not
apply.
Although Powell is not estopped from raising this issue, the con-
clusion she reaches is not entirely correct. We find that only a portion
of the fees should be deducted from the derivative recovery.
Powell urges us to permit the deduction based in part on Graham
v. Commissioner, 326 F.2d 878, 879-80 (4th Cir. 1964). In that case,
we concluded that the taxpayer's expenditures on the settlement of
and the legal expenses resulting from a suit against a member of its
board of directors were "ordinary and necessary" expenses within the
meaning of 26 U.S.C. § 212. See id. As we noted in that case, the
terms "ordinary and necessary" have the same meaning in § 162 as
they do in § 212.14 See id. at 879.
Other circuits have allowed such deductions under§ 162 and § 212
as well. For example, in Larchfield v. United States, 373 F.2d 159,
166 (2d Cir. 1966), the Second Circuit permitted a corporation, pursu-
ant to § 162, to deduct the attorney's fees and expenses it paid to a
complaining shareholder in a derivative suit. See id. Likewise, the
Third Circuit permitted the deduction of attorney's fees and costs by
a corporate shareholder who brought a derivative suit to recover from
the directors the misappropriated assets of the company it partly
_________________________________________________________________
14 Indeed, we noted that the two sections were very similar, with the
principal difference being that § 162 requires that the expenditure be
made in the course of "carrying on a trade or business." 326 F.2d at 879.
Here, however, there is no debate that the attorney's fees are directly
related to Powell's business. The only debate is whether the expenditures
are "ordinary and necessary." Thus, cases interpreting the "ordinary and
necessary" language in § 212 are helpful here.
13
owned. See Newark Morning Ledger Co. v. United States, 539 F.2d
929, 933-34 (3d Cir. 1976).
A recurring theme in the courts' permission of these deductions is
that the complaining shareholders sought the recovery of corporate
assets and the reversal of fraudulent transactions by corporate officers
rather than the disposition of capital assets. In finding that the expen-
ditures were "ordinary and necessary," we said in Graham that the
suit arose from the taxpayer's attempt to influence the policies of his
corporation. See id. at 880. The Second Circuit specifically noted that
Larchfield did not bring the suit to perfect or defend title in property.
See Larchfield, 373 F.2d at 167. The Third Circuit, in looking to the
origin of the claim, stated that the shareholder simply sought to pre-
vent the destruction of corporate assets rather than to gain a benefit,
and specifically noted that neither the price paid for the stock, the
value received for the stock, nor a planned disposition of corporate
assets was at issue in the case. See Newark Morning Ledger Co., 539
F.2d at 934.
Based on the foregoing authority, we conclude that in the instant
case a deduction should be allowed for legal expenses related to the
derivative action. We therefore reverse the magistrate's ruling that
instructs otherwise.
The expenses related to the buyout, however, are not deductible.
Unlike the derivative suit, the buyout award does not effect the recov-
ery of corporate assets fraudulently diverted nor does it rein in some
usurpation of corporate power. Rather, it is a transaction that involves
the disposition of a capital asset -- Powell's stock.
Arguments that the buyout request arose from the misconduct are
not persuasive, either. Certainly, Powell could have brought a deriva-
tive suit without requesting a buyout. Conversely, she could have
obtained relief without proving any misconduct on Floyd's part. See,
e.g., S.C. CODE ANN.§ 33-14-300(2)(i) (Law. Co-op. 1990) (stating
that corporate dissolution is available if corporate management is
deadlocked and irreparable injury to the corporations will result if
there is no relief); Hendley v. Lee, 676 F. Supp. 1317, 1324-25
(D.S.C. 1987)(ordering the buyout of a shareholder in a close corpo-
ration where no misconduct was even alleged). In a case also involv-
14
ing misconduct by a corporate officer, the Sixth Circuit disallowed
the deduction of the taxpayer's attorney's fees incurred while analyz-
ing her brother's offer to purchase her interest in their jointly owned
close corporation. See Brown v. United States , 526 F.2d 135, 137-39
(6th Cir. 1975). We find that persuasive here. Therefore, the expenses
related to the buyout are not deductible from the derivative recovery.
We therefore affirm the magistrate judge's ruling to that effect.
The magistrate judge also did not err in refusing to deduct the
director's fees from the derivative award. Under section 162(a)(1), an
individual or corporation may deduct "a reasonable allowance for sal-
aries and other compensation for personal services actually rendered"
as an ordinary and necessary business expense. See 26 U.S.C.
§ 162(a)(1). The parties do not dispute that the director's fees due
Powell are reasonable or that they are compensation for services she
actually performed (i.e., in her role as director). Thus, upon paying
the fees, Gordon Farms is entitled to deduct them as an "ordinary and
necessary" business expense.
However, the fact that Gordon Farms may lawfully deduct the fees
does not require the conclusion that it must deduct them from the
derivative award as a matter of law. Deductions under the tax code
are from the taxpayer's gross income. See 26 U.S.C. § 63; 26 U.S.C.
§ 161. Gross income is more expansive than any one specific source
of income (e.g., the derivative award); it includes "all income from
whatever source derived." 26 U.S.C. § 61. 15 Thus, the director's fees
need not be deducted from any one source of funds, but are deducted
from the taxpayer's (Gordon Farms') overall income.
Moreover, the deduction for director's fees from the specific source
of funds at issue here (the derivative award) makes even less sense.
The director's fees do not represent any part of the derivative recov-
ery -- i.e., the money wrongfully taken from Gordon Farms and Mul-
likan Vault. Rather, Gordon Farms owes the fees to Powell pursuant
to the board's separate, longstanding agreement. Thus, the director's
fees are irrelevant to the final amount of the derivative award due the
_________________________________________________________________
15 Despite the broad definition of"gross income," the tax code specifi-
cally excludes several types of revenue. See, e.g., 26 U.S.C. § 101 (cer-
tain death benefits); 26 U.S.C. § 102 (gifts and inheritances).
15
corporation. As a result, the magistrate judge did not err in refusing
to permit the deduction of the director's fees from the derivative
award.
Having reviewed the record, we find that the magistrate court did
not err in ruling as it did in all other challenged matters. Therefore,
those decisions are affirmed.
AFFIRMED IN PART AND REVERSED IN PART
16 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646834/ | 9 So.3d 873 (2009)
Donna Danete TYSON
v.
THOMPSON HOME HEALTH.
No. 2009-C-0889.
Supreme Court of Louisiana.
June 5, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569212/ | 37 F.2d 499 (1930)
In re BEN BOLDT, JR., FLORAL CO.
OREGON LUMBER CO.
v.
TERASAKI et al.
No. 56.
Circuit Court of Appeals, Tenth Circuit.
January 4, 1930.
*500 C. E. Wampler, of Denver, Colo. (Rees D. Rees, of Denver, Colo., on the brief), for appellant.
Percy Robinson, of Denver, Colo. (Lewis B. Johnson, of Denver, Colo., on the brief), for appellees Terasaki and Jiro Kaii.
Benjamin Griffith, of Denver, Colo., for appellee Stearns-Roger Manufacturing Company.
Before LEWIS, PHILLIPS and McDERMOTT, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from an order of the District Court in proceedings to review an order of the referee, in the bankruptcy proceedings of the Ben Boldt, Jr., Floral Company, allowing the claims and fixing the priority of liens of certain creditors against the assets of the bankrupt estate.
On April 8, 1927, the bankrupt and the appellees, Terasaki and Kaii, entered into a written contract whereby the bankrupt agreed to buy and Terasaki and Kaii agreed to sell a three acre tract of land in Adams county, Colorado, together with certain rights-of-way leading thereto, and certain improvements thereon consisting of one dwelling house, one greenhouse, one pump-house and pump, one boiler and heating apparatus, two water tanks and other greenhouse equipment. The contract provided that the purchase price of $4,000 should be paid as follows: $500 in cash, on the date of the contract; $1,250 three months from such date, and $2,250 two years from such date. The contract further provided that the sellers should retain the legal title to the property until full payment of the purchase price and that upon such payment they should convey the property to the bankrupt by warranty deed. By further provisions of the contract, time was made the essence thereof and the sellers were given the right, in case of default, upon thirty days' notice, to declare a forfeiture; to retain the payments made, as liquidated damages, and to repossess the property. This contract was duly recorded April 13, 1927.
The bankrupt went into possession of the property, under the contract, and made certain repairs and improvements. These consisted of repainting and reglazing the greenhouse, installing a new pipe system, repairing the water system, building a new eight-room dwelling house, and a cement house over the water tank, installing a new boiler and heating system, repairing the existing dwelling house and placing new benches for growing flowers in the greenhouse.
The appellant, the Oregon Lumber Company, furnished materials for the new house, the old house, the cement house, and the greenhouse, and filed a claim of lien upon the three acre tract of land and all the improvements thereon, for $2,231.90, on account of such materials.
The appellee, the Stearns-Roger Manufacturing Company, furnished the materials for, and installed the new boiler and heating equipment for the greenhouse, and filed a claim of lien for $1,965 against such improvements, as an entire structure.
The appellees, Terasaki and Kaii, abandoned a prior claim of forfeiture of their contract of sale and filed a claim of lien for *501 $3,500, with interest from April 8, 1927, at 6% per annum, on account of the unpaid purchase price under such contract, and asserted a lien therefor against the property.
The order appealed from gave Terasaki and Kaii a lien against the property as it existed April 13, 1927, prior to the mechanics' liens, for the unpaid purchase price due under their contract; gave the lumber company a lien against the three acre tract as a unit, and affirmed an order of the referee, which gave the manufacturing company a lien, under the provisions of section 6444, C. L. Colo. 1921, against the boiler and heating plant as an entire structure or improvement, and permitted it to remove the same.
The applicable Colorado statutes read as follows:
Section 6444, C. L. Colo. 1921.
"The liens granted by this act shall extend to and cover so much of the lands whereon such building, structure or improvement shall be made as may be necessary for the convenient use and occupation of such building, structure or improvement, and the same shall be subject to such liens; and in case any such building shall occupy two or more lots or other sub-divisions of land, such several lots or other sub-divisions, shall be deemed one lot for the purposes of this act, and the same rule shall hold in cases of any other such improvements that shall be practically indivisible, and shall attach to all machinery and other fixtures used in connection with any such lands, buildings, mills, structures or improvements. When the lien is for work done or material furnished for any entire structure, erection or improvement, such lien shall attach to such building, erection or improvement for or upon which such work was done, or materials furnished, in preference to any prior lien or encumbrance, or mortgage upon the land upon which the same is erected, or put, and any person enforcing such lien may have such building, erection or improvement sold under execution and the purchaser at any such sale may remove the same within thirty days after such sale. * * *"
Section 6446, C. L. Colo. 1921.
"Any building * * * and every structure or other improvement * * * constructed, altered, added to, removed to or repaired, either in whole or in part, upon or in any land, with the knowledge of the owner or reputed owner of such land, or of any person having or claiming an interest therein, otherwise than under a bona fide prior, recorded mortgage, deed of trust or other incumbrance, or prior lienor, shall be held to have been erected, constructed, altered, removed, repaired, or done at the instance and request of such owner or person, but so far only as to subject his interest to a lien therefor as in this section provided; and such interest so owned or claimed shall be subject to any lien given by the provisions of this act, unless such owner or person, shall, within five days after he shall have obtained notice of the erection, construction, alteration, removal, addition, repair or other improvement, aforesaid, give notice that his interests shall not be subject to any lien for the same, by serving a written or printed notice to that effect, personally, upon all persons performing labor or furnishing skill, materials, machinery or other fixtures therefor, or shall, within five days after he shall have obtained the notice aforesaid, or notice of the intended erection, construction, alteration, removal, addition, repair or other improvement aforesaid, give such notice as aforesaid by posting and keeping posted a written or printed notice to the effect aforesaid, in some conspicuous place upon said land or upon the building or other improvement situate thereon. * * *"
Section 6447, C. L. Colo. 1921.
"All liens, established by virtue of this act shall relate back to the time of the commencement of work under the contract between the owner and the first contractor, or, if said contract be not in writing, then such liens shall relate back to and take effect as of the time of the commencement of the work upon the structure or improvement, and shall have priority over any and every lien or encumbrance subsequently intervening, or which may have been created prior thereto, but which was not then recorded, and of which, the lienor, under this act, did not have actual notice. Nothing herein contained, however, shall be construed as impairing any valid encumbrance upon any such land, duly made and recorded prior to the signing of such contract, or the commencement of work upon such improvement or structure. * * *"
Counsel for the lumber company contend that Terasaki and Kaii, because of their ownership of the legal title, were persons "having * * * an interest" in the land, rather than persons having a "recorded mortgage * * * or other incumbrance" thereon, under the provisions of section 6446, supra; that they failed to give the five days' notice, after knowledge of the improvements, as required by section 6446, supra; and that, therefore, the mechanic's lien of the lumber company is prior to the lien of Terasaki and Kaii.
*502 A court of bankruptcy is a court of equity and is governed by the principles and rules of equity jurisprudence. Larson v. First State Bank of Vienna (C. C. A. 8) 21 F.(2d) 936, 938; Barks v. Kleyne (C. C. A. 8) 15 F.(2d) 153, 154; Hirschfield v. Bryant (C. C. A. 8) 14 F.(2d) 931, 932.
A binding contract for the sale and purchase of land, under which payments on the purchase price are to be made in the future, vests an equitable title to the land in the purchaser from the date of the execution of the contract. Royal Ins. Co. v. Drury, 150 Md. 211, 132 A. 635, 639, 45 A. L. R. 582; City Guaranty Bank v. Boxley, 132 Okl. 183, 270 P. 69, 72; Retsloff v. Smith, 79 Cal. App. 443, 249 P. 886, 887; Strahan v. Haynes (Ariz.) 262 P. 995, 999; Rappoport v. Crawford, 99 N. J. Eq. 669, 134 A. 120, 121; Baker v. Rushford, 91 Vt. 495, 101 A. 769, 770; Persico v. Guernsey, 129 Misc. Rep. 190, 220 N. Y. S. 689, 692; Mark v. Liverpool & London & Globe Ins. Co., 159 Minn. 315, 198 N.W. 1003, 38 A. L. R. 310; Shraiberg v. Hanson, 138 Minn. 80, 163 N.W. 1032, 1033.
Under such a contract, the vendor is trustee of the legal title for the purchaser and the vendee is trustee of the purchase money for the vendor. Orange Cove Water Co. v. Sampson, 78 Cal. App. 334, 248 P. 526, 530; Summers v. Midland Co., 167 Minn. 453, 209 N.W. 323, 324, 46 A. L. R. 816; Steiff v. Tait (D. C. Md.) 26 F.(2d) 489, 491; Strahan v. Haynes, supra; Ins. Co. v. Drury, supra; Rappoport v. Crawford, supra; Persico v. Guernsey, supra; Spratt v. Greenfield Co., 279 Pa. 437, 124 A. 126; Thompson Yards, Inc., v. Bunde, 50 N. D. 408, 196 N.W. 312, 313, 30 A. L. R. 538; Pomeroy's Eq. Juris. (4th Ed.) vol. 3, § 1160.
The vendor retains the legal title, but only as security for the purchase price. Retsloff v. Smith, supra; Water Co. v. Sampson, supra; Summers v. Midland Co., supra; Baker v. Rushford, supra; Spratt v. Greenfield Co., supra; Mark v. Ins. Co., supra; Thompson Yards, Inc., v. Bunde, supra; Shraiberg v. Hanson, supra; 39 Cyc. pp. 1302-1304; Pomeroy's Eq. Juris. (4th Ed.) vol. 3, §§ 1260, 1261, 1262, 1263.
It is our conclusion that, under the contract of sale, Terasaki and Kaii hold the legal title to the property, as trustees for the bankrupt, to secure the unpaid purchase price and are entitled to assert their lien therefor in a court of bankruptcy, which is a court of equity; and that such lien is a bona fide prior recorded encumbrance, under the provisions of section 6446, supra.
Counsel for the lumber company further contend that if the contract is an encumbrance, within the meaning of such statute, then certain of the materials were purchased by the bankrupt prior to the recordation of such contract. This contention is contrary to the finding of the referee, which has been approved and confirmed by the District Judge. Such a finding will not be disturbed unless clearly against the weight of the evidence. Schlafly v. United States (C. C. A. 8) 4 F.(2d) 195, 198; Commercial Nat. Bk. of Independence, Kan., v. Stock Yards Loan Co. (C. C. A. 8) 16 F.(2d) 911, 913; Reiss v. Reardon (C. C. A. 8) 18 F. (2d) 200, 202; Youngblood v. Magnolia Pet. Co. (C. C. A. 10) 35 F.(2d) 578, 579. We have examined the record and are of the opinion that the finding, that the contract of sale was recorded prior to the inception of the claim of lien, is in accord with the weight of the evidence.
Counsel for the lumber company further contend that the boiler and heating plant was not an entire structure or improvement, within the meaning of section 6444, supra. The Supreme Court of Colorado construed the meaning of "entire structure, erection or improvement," as used in section 6444, supra, in the case of Atkinson v. Colorado Title & Trust Co., 59 Colo. 528, 151 P. 457, 461, as follows:
"The phrase `for an entire structure' is not used to designate a completed from an incompleted building, but to distinguish new structures, not before existing, from betterments, repairs, improvements, and the like on previously constructed or existing improvements."
See, also, Church v. Smithea, 4 Colo. App. 175, 35 P. 267.
It seems clear to us that the boiler and heating plant plainly fall within the phrase, "betterments, repairs, improvements, * * * on previously constructed or existing improvements," and not within the phrase, "new structure." They were an integral part of the greenhouse and took the place of an old heating plant. Therefore, the court erred in adjudging that the boiler and heating equipment constituted an entire structure.
It is our conclusion that the Stearns-Roger Manufacturing Company should have a lien for the unpaid purchase price on the entire tract of land and improvements of equal priority with the lien of the lumber *503 company and inferior to the lien of Terasaki and Kaii.
The order appealed from is modified accordingly and the costs of this appeal are adjudged one-half against the lumber company and one-half against the manufacturing company. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569231/ | 37 F.2d 846 (1930)
COPPERTHWAITE et al.
v.
UNITED STATES.
No. 5415.
Circuit Court of Appeals, Sixth Circuit.
February 4, 1930.
*847 Charles Fennell, of Lexington, Ky. (King Swope, of Lexington, Ky., on the brief), for appellants.
Sawyer A. Smith, of Covington, Ky., for the United States.
Before DENISON and HICKS, Circuit Judges, and HAHN, District Judge.
DENISON, Circuit Judge.
Appellants were convicted under both counts of an indictment, the first of which charged the purchase and sale of unstamped morphine in violation of the Harrison Anti-Narcotic Act (Sec. 692, Tit. 26, USCA), and the second of which charged, as of the same time and place, the buying and selling of the same amounts of morphine which they knew had been unlawfully imported into the United States, thus constituting an offense under the Narcotic Import Statute (Sec. 174, Tit. 21, USCA). They were sentenced to five years imprisonment under the first count and ten years under the second count the two terms to be concurrent.
The first objection is that the two statutes are so far repugnant that the later one (Harrison Act, 1914) repeals the earlier (Import Act, 1909), or, at least, that prosecutions under both, if based upon the same act or conduct, are inconsistent and election should have been compelled. We cannot sustain this objection. Cases are common where a single act is a violation of two statutes. Here there is no repugnancy. The Import Act is a customs law, the Harrison Act is a revenue law. When a single act is a violation of two laws, it may be penalized in each; but this conclusion leads to an inquiry as to double punishment. The same act may not be twice punished by the same sovereignty, merely because it violates two laws. Identity, as to double punishment as well as to double jeopardy, is shown if the same evidence necessary to prove either offense will also necessarily establish the other and this relation is reciprocal (and perhaps even if not reciprocal); in other words, can either be shown without disclosing the other? Reynolds v. U. S. (C. C. A. 6) 280 F. 1, 2; Miller v. U. S. (C. C. A.) 300 F. 529, 534. When thus tested, there was here double punishment. The entire proof in this case consisted of evidence that the defendants agreed to furnish and sell morphine to a purchaser and thereafter did have it (unstamped) in their possession and deliver it to him. By virtue of the presumption *848 declared in the Harrison Act, this possession tended to show the forbidden purchase; and the same possession also tended by virtue of the presumption declared in the Import Act to show unlawful importation and defendants' knowledge. In such case the government may punish for either offense, but we think the supporting evidence does not so materially vary as to justify two punishments, merely because two inferences are attached by different statutes to the same evidential basis.
However, this does not avail defendants if the conviction and sentence under count two are valid; hence, that must be examined. To what extent statutory presumption can be validly created has been the subject of much inquiry. The presumptions arising by these two statutes are so related and one so affected by rulings upon the other that both must be considered. They must be examined in the light of the restriction that they cannot be merely arbitrary, but the declared inference must have some rational basis; and of course they should be considered so as, if possible, to preserve their validity under this restriction.[1]
Looking first at the Harrison Act: The declaration is that possession of the unstamped package shall be evidence of "violation of this section," that is to say, evidence of some act which has been prohibited by this section. By this section several things have been prohibited, and as to some of them it is difficult to see any rational basis for this declared inference; but one of the things prohibited is the purchase, and certainly possession supports a reasonable inference of previous purchase by the possessor. To this extent, therefore, this provision of the Harrison Act presents no question now troublesome. Casey v. U. S., 276 U.S. 413, 418, 48 S. Ct. 373, 72 L. Ed. 632. The Narcotic Importation Act first denounces knowingly importing into the United States, contrary to law, any narcotic drug, and punishes one who receives or buys or sells "any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law," and then provides that the possession "of the narcotic drug" is sufficient evidence to authorize conviction, unless the possession is explained, etc. This means that the possession makes a prima facie showing of the three elements which, in a case like the present, are necessary to make out guilt: (a) That defendant had bought or received the drug; (b) that this particular drug, so possessed, had been unlawfully imported; and (c) that defendant knew it. At first thought, it might seem a reasonable construction of this statute that the statutory inference only took effect after the unlawful importation had been proved, and that the element which will be established by the inference is the element (c), defendant's knowledge. The clause refers to possession of "the narcotic drug," and the narcotic drug under consideration is that which has been unlawfully imported. Such construction would conform to some familiar canons, and would not challenge any constitutional principle. However, that construction cannot survive comparison with the Yee Hem Case, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904. The statute there involved was this same section, but while it was confined to opium (Sec. 2, Act of February 9, 1909 [35 Stat. 614]), and before its expansion to "any narcotic drug"; the only distinction in this respect being that it referred to possession of "such opium" instead of "the narcotic," and so the thought that the intent was to build the inference upon actual proof of importation was stronger than the same thought is in the present form of section 174 (21 USCA). This limiting construction was not presented to nor considered by the Supreme Court in the Yee Hem Case, but its conclusion was inconsistent with any such limitation, and the possible propriety of such construction was so obvious that we cannot assume the Supreme Court overlooked it. That court would be at liberty to say that its holding in this respect was sub silentio, and so not obligatory; we are not.
The rejection of the narrower and the adoption of the broader construction compel the decision of the constitutional question. Is the inference too arbitrary to be permitted? The recent decisions in Manley v. Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575, and Western & A. Railroad v. Henderson, 279 U.S. 639, 49 S. Ct. 445, 73 L. Ed. 884, indicate the limits beyond which even a prima facie inference may not be carried; but here again, remembering that a constitutional question must usually be treated in the aspect presented by the facts of the particular case rather than of facts which might exist in other cases, we find that the Yee Hem Case cannot be substantially distinguished.
The argument for distinction is that the importation of smoking opium was unconditionally forbidden, and hence that its importation must have been unlawful and every *849 possessor must know it; while crude opium may lawfully be and is imported into the United States and morphine may be and is manufactured in the United States in large quantities;[2] hence, as to morphine, the presumption that it was made abroad and unlawfully imported, to defendant's knowledge, is too arbitrary to be permitted. In reply it is said that smoking opium also might have been made in this country from lawfully imported crude opium; but this fact was not mentioned in the opinion nor apparently drawn to the attention of the court, and the possibility of such manufacture in this country from lawfully imported opium seems negligible. The claimed distinction is substantial enough so that we cannot take the decision as intended to cover all situations which might exist with reference to the possession of morphine; but we think the principle of the decision does reach the facts of the present case. The package here consisted of ten tins, each containing one ounce.[3] There was no evidence of particularly careful wrapping as against the moisture of a sea voyage, and no such marks or labels indicating foreign origin as have appeared in some cases.[4] Each tin was marked "1 oz. morphin. hydrochl," in English letters. Considering, however, the comparatively large amount in the ten-tin package, the improbability that such amount could have been diverted from lawful manufacture in this country without discovery, the fact that very little of the morphine made in this country is of the hydrochloric form,[5] and the absence from the cans of any stamps indicating the tax payment and markings required in domestic manufacture, we deem it a reasonable inference that this particular morphine was of foreign manufacture or packing and therefore had been unlawfully imported, and that it is not unfair to presume that any one handling it ought to draw this inference. Upon such a view of the evidence furnished by the packages themselves, the statutory inference is not unreasonable, and these defendants cannot be heard to say that under some circumstances it might be unconstitutional. See Hooper v. U. S. (C. C. A. 9) 16 F.(2d) 868, 869.
We assume that no raw opium is commercially "produced" in this country. This we have supposed to be common knowledge; and the official reports and literature in connection with the subject all seem to make that assumption. The use of the word "produce" in section 1 of the Harrison Anti-Narcotic Act (38 Stat. 785) does not seem necessarily to imply any production of raw opium in this country at this time. The office of that word in the act would seem to be satisfied by applying it to a possible future production or by applying it to the various derivatives made in this country and as to which it is appropriate. But see comment by Mr. Justice Holmes in the Jin Fuey Moy Case, 241 U. S. at page 401, 36 S. Ct. 658, 60 L. Ed. 1061.
The judgment is affirmed.
NOTES
[1] See note "Statutory Presumptions and Due Process of Law," 43 Harvard Law Rev. page 100.
[2] In 1927 the imports of opium were 2,274,228 oz.; domestic sales as opium by importers and manufacturers 934,250 oz.; and domestic sales as morphine (including morphine compounds) 2,686,665 oz. (from Report of Com'r of Prohibition, 1928).
[3] These tins were made a part of the bill of exceptions, but retained by the Narcotic Agent. He has now emptied one can, retaining its contents, and filed the empty can as an exhibit with the clerk. All the cans were identical.
[4] See Treasury Department Report "Traffic in Opium, etc.," for fiscal year 1898, pp. 10-20, and pp. 27-32.
[5] Same report, p. 11. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569216/ | 574 S.W.2d 25 (1978)
Richard P. EDWARDS, Respondent,
v.
George F. HEIDELBAUGH, Jr., Appellant.
No. 39803.
Missouri Court of Appeals, St. Louis District, Division Three.
October 24, 1978.
*26 Schlechter & Zerman, Allan H. Zerman, David V. Collignon, Clayton, for appellant.
Armstrong, Teasdale, Kramer & Vaughn, Frederick H. Mayer, St. Louis, for respondent.
REINHARD, Judge.
This is an appeal from a summary judgment entered in the trial court under Rule 74.04, V.A.M.R., in favor of the plaintiff and against the defendant as the result of defendant's personal guaranty of a promissory note. Judgment was entered in the amount of $30,008.00. On appeal defendant submits that the trial court erred in rendering summary judgment because there remains a genuine issue of fact as to the lack of consideration for his personal guaranty and therefore plaintiff was not entitled to a judgment as a matter of law.
From the record we learn that M.A.R. Promotions, Inc. (hereinafter called M.A.R.) was a corporation formed to promote and operate Mid-America Raceways in Wentzville, Missouri. Defendant was an officer and a major shareholder in M.A.R. In June of 1976, M.A.R. contacted plaintiff, who was doing business as Midwest EON, for the purpose of having plaintiff become a co-sponsor of a USAC champion stock car race which was to be held on July 4, 1976, in Wentzville. On June 22, 1976, M.A.R. executed a sponsorship agreement for the aforementioned race, which was to be called the "EON Bicentennial 250". Also on that date M.A.R., by its officers, executed a promissory note payable to plaintiff in the amount of $31,680.00. Plaintiff signed the sponsorship agreement on June 23, 1976. Also on June 23, 1976, a personal guaranty was given to plaintiff by defendant and another officer of M.A.R. which plaintiff alleges was to insure payment of the note.
The race was held as planned; however, it was not a financial success. On July 6, 1976, M.A.R. made a payment of $4,400.00 to plaintiff. No further payments were made. Plaintiff then filed suit against defendant based on the personal guaranty.
Plaintiff's petition alleged that M.A.R., for value received, executed and delivered to plaintiff a promissory note in the amount of $31,680.00 payable on demand and if no demand is made then payable on July 6, 1976. The petition further alleged that there has been credited on the note a payment in the sum of $4,400.00. The petition also alleged that the note provided for 10% attorney fees if placed in the hands of an attorney for collection, which it alleged was done. The petition further alleged that "On or about June 23, 1976, contemporaneous with the execution of the promissory note attached hereto as Exhibit `A', and in consideration thereof, defendant George E. [sic] Heidelbaugh, Jr., signed a guaranty, a copy of which is attached hereto, marked as Exhibit `B;' [sic] and incorporated herein." The petition further alleged that the unpaid balance including the attorney fees is $30,008.00, and that plaintiff has made demand upon defendant for the payment of said sum and defendant has refused to pay.
The transcript does not contain defendant's original answer but his first amended answer, filed subsequent to the motion for summary judgment, denies generally most of the allegations in the petition and states "that with regards [sic] to Paragraph 6 of the Plaintiff's Petition there is a total lack of consideration to support the alleged guaranty."
The principles of law governing the appellate review of summary judgments are quite settled. In ruling on a motion for summary judgment, the trial court and the *27 appellate court must scrutinize the record in the light most favorable to the parties against whom the motion was filed and the judgment was rendered, and to accord to such parties the benefit of every doubt. Phegley v. Porter-DeWitt Construction Co., 501 S.W.2d 859, 863 (Mo.App.1973); Pagan v. City of Kennett, 427 S.W.2d 251, 252 (Mo.App.1968). A summary judgment may only be rendered where it is made manifest by the pleadings, deposition and admissions on file, together with any affidavits, that there is no genuine issue of material fact. Rule 74.04(c); Phegley, supra at 863. A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts. Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo. 1965), cert. den., 381 U.S. 929, 85 S. Ct. 1569, 14 L. Ed. 2d 688. The burden rests upon the movant (in this case upon the plaintiff) to show by "unassailable proof" that there is no genuine issue of fact. Rule 74.04(h); Phegley, supra at 863.
Plaintiff's motion for summary judgment relied upon the pleadings, deposition, answers to interrogatories and admissions on file. Defendant did not respond to the motion, but argues that there remains a genuine issue of fact as to the lack of consideration for his personal guaranty, and therefore that plaintiff was not entitled to a judgment as a matter of law. The only issue raised was whether the guaranty was executed contemporaneously with the contract and therefore whether there was the necessary consideration to support the guaranty.
A guaranty is a separate independent contract and requires consideration. A contract of guaranty when executed contemporaneously with the original contract may be considered part of the original contract and hence, may be supported by the same consideration. Tri-State Lumber & Shingle Co. v. Proctor, 233 Mo.App. 1207, 128 S.W.2d 1116, 1121 (1939); Great Western Printing Co. v. Belcher, 127 Mo.App. 133, 104 S.W. 894, 895 (1907). As stated in Great Western Printing Co., supra, 104 S.W. at 895, "the word `guaranty' implies, when it does not appear to the contrary, that the entire matter was one concurrent act and the contract of guaranty was a part of the original agreement, supported by the same consideration."
Examination of defendant's deposition, and his responses to plaintiff's request for admissions and plaintiff's interrogatories propounded to defendant reveals the following. Defendant admits the execution of the note on June 22, 1976 by the officers of M.A.R. He further admits the execution of the contract between M.A.R. and Edwards wherein Edwards was to provide the funds for the race, and in conjunction M.A.R. was to execute the note.[1] He also admits that the corporation signed the contract on June 22, 1976, the same day it signed the note, and that Edwards signed the contract on June 23, 1976. Further, defendant admits that the guaranty was executed and dated June 23, 1976, the same day as the contract, and that the only amount paid on said note was the sum of $4,400.00. Defendant raises no issue as to the validity of the note, nor does he contest that the amount of the judgment is proper. The question raised is whether there was "unassailable proof", as required by Rule 74.04(h), that the guaranty was executed contemporaneously with the contract. We find there to be such proof in this case.
The personal guaranty given by defendant to Edwards was signed on June 23, 1976, the day after the note was executed and the same day upon which the contract was completed. There was a single contract between the parties relating to this single 4th of July race. Furthermore the guaranty was a continuing one relating to all past and future debts. Coupled with this is defendant's statements in his deposition that he had provided plaintiff with personal financial statements, although he did not specify exactly when these statements were given, and that he had discussed the guaranty sometime prior to signing it. Another factor is defendant's position *28 as a major stockholder in M.A.R. so that any contract created between Edwards and M.A.R. would be to his benefit. It is clear that the guaranty was a significant part of this entire contractual arrangement between M.A.R. and EON. Thus it appears from the record that the entire matter was a single transaction concerning the same subject matter, that the signing of the note, contract and guaranty were legally contemporaneous, and therefore that the contract and note themselves constituted adequate consideration for the guaranty. That the guaranty was executed the day after the note was executed does not preclude a finding that the guaranty was executed contemporaneously with the note and contract. See Centennial State Bank v. S. E. K. Construction Co., Inc., 518 S.W.2d 143, 150 (Mo. App.1974).
Defendant denies that the guaranty was given contemporaneously with the note, and that a material issue of fact is presented in this regard. However, defendant's mere denial in the face of the deposition, interrogatories and admissions offered by plaintiff is not enough. In Missouri, when a party to litigation is confronted by a proper motion for summary judgment under Rule 74.04, supported by interrogatories and admissions as well as pleadings, that party cannot sit idly by, rely on his pleadings of denial or ultimate facts, or argue that he has evidence for trial that will disclose issues of fact. Rather he must come forward with "specific facts" which demonstrate that a material issue does in fact exist. First National Bank of Liberty v. Latimer, 486 S.W.2d 262, 266 (Mo.1972). Otherwise he is vulnerable to the "harsh and drastic" remedy of summary judgment. Kroh Brothers Dev. Co. v. State Line Eighty-Nine, Inc., 506 S.W.2d 4, 12 (Mo. App.1974); Rule 74.04(e).
Applying this principle, we find that defendant has failed to come forward with specific facts tending to show that the contract, note and guaranty were not contemporaneous. Defendant's testimony in his deposition that he did not remember when the guaranty was signed was not a specific fact sufficient to create a material issue of fact, particularly in light of his admission in his interrogatories that the guaranty was first signed on June 23, 1976. Defendant has failed to meet his burden of rebuttal and is left helpless to the remedy of summary judgment.
Accordingly, the judgment of the trial court is affirmed.
GUNN, P. J., and KELLY, J., concur.
NOTES
[1] We note here that the contract made no mention of a guaranty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569219/ | 574 S.W.2d 505 (1978)
Barbara EDWARDS, Appellant,
v.
STATE FARM INSURANCE COMPANY, Respondent.
No. KCD 29724.
Missouri Court of Appeals, Kansas City District.
November 27, 1978.
H. George Lafferty, Jr., Kansas City, for appellant; Lafferty, Horowitz & Shurin, Kansas City, of counsel.
Sheridan, Sanders & Simpson, P. C., G. Michael Fatall, Paul L. Redfearn, III, Kansas City, for respondent.
Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
ANDREW JACKSON HIGGINS, Special Judge, Presiding.
Appeal from summary judgment of dismissal of plaintiff's petition on contract of uninsured motorist insurance, filed five years and twenty-six days after the cause of action arose. The question is whether the tort action limitation of five years applies to bar this suit by an insured against her insurer for injuries received in a collision with an uninsured motorist. Reversed.
On December 16, 1971, Barbara Edwards was injured and damaged when her automobile was struck from the rear by an automobile driven by one Robert Rich Gardner at Interstate Highway 70 and 13th Street entry ramp in Kansas City, Missouri.
On January 11, 1977, she filed suit against State Farm Insurance Company under her policy of uninsured motorist coverage. She alleged: The collision of December 16, 1971, was caused by the negligence of Robert Rich Gardner, and she was injured as a result of his negligence. Robert Rich Gardner was an uninsured motorist who removed to Illinois and hid himself so that normal service of process could not be had upon him despite due diligence to locate him. She possessed a valid automobile insurance policy issued by State Farm which afforded her uninsured motorist coverage, and she was in compliance with all conditions precedent of the policy. Her insurance *506 company, without reasonable cause, refused her demand under the contract for compensation for her injuries, and she was thus entitled to recover actual damages, damages for wrongful refusal of compensation, and attorneys' fees.
On February 18, 1977, State Farm Insurance Company filed answer. It denied the allegations of plaintiff's petition and raised a defense of contributory negligence. It also moved for summary judgment on ground plaintiff's action was barred by the statute of limitations.
The court sustained defendant's motion for summary judgment, found plaintiff's action barred by the five-year statute of limitations, and entered judgment for defendant and against plaintiff.
Under the uninsured motor vehicle coverage of plaintiff's policy of automobile insurance, defendant, in standard form, agreed:
"To pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by the accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured * * * is legally entitled to recover such damages, and if so, the amount thereof shall be made by agreement between the insured * * * and the company or, if they fail to agree, and the insured so demands, by arbitration."
Section 516.120 RSMo requires that an action for injury to the person, not arising on contract, shall be commenced within five years. Section 516.110 provides that an action on a written contract for payment of money shall be commenced within ten years.
An action on the uninsured motorist provision of an automobile insurance policy is an action in contract, Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606 (Mo.App. 1963); Reese v. Preferred Risk Mutual Ins. Co., 457 S.W.2d 205 (Mo.App.1970); and is governed by the ten-year statute of limitations, Section 516.110, RSMo 1969; Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 4 (Mo.App.1975).
Appellant thus contends that her action against her insurance company was timely filed January 11, 1977, because it arose December 16, 1971, and she had ten years from that date in which to file.
Respondent, to escape effect of the foregoing, relies principally on Crenshaw v. Great Central Ins. Co., supra, and argues that plaintiff did not file suit against the uninsured motorist within five years from the date of the collision with him; that her tort claim against him was thus barred; that she was thus unable to establish she was "legally entitled" to recover damages against the uninsured motorist at the time she filed suit against her insurer and was, therefore, precluded from recovery from her insurance company.
Missouri has recognized that it is not necessary for an insured to obtain a judgment against or to sue the uninsured motorist prior to enforcement of rights against his own insurance company, Hill v. Seaboard Fire & Marine Ins. Co., supra; Reese v. Preferred Risk Mutual Ins. Co., supra. The insured must, however, show that the uninsured motorist would have been liable to the insured. Byrn v. American Universal Ins. Co., 548 S.W.2d 186, 188[2] (Mo.App. 1977).
While there have been cases[1] in Missouri dealing, in their circumstances, with *507 whether the insured is "legally entitled to recover," the precise question in this case is one of first impression in Missouri. Accordingly, it is appropriate to consider cases from other jurisdictions which hold, as found in Crenshaw v. Great Central Ins. Co., supra, l.c. 5, "that in a suit [for personal injuries] against the insurer under a policy of automobile insurance containing an uninsured motorist provision the statute of limitations applicable to contract actions applies, and that the general statute of limitations relating to tort actions is inapplicable."[2]
In Detroit Automobile Inter-Insurance Exch. v. Hafendorfer, 38 Mich.App. 709, 197 N.W.2d 155 (1972), the insurer brought a declaratory judgment action, contending that defendant-insured's claim under uninsured motorist coverage was barred by the three-year tort statute of limitations. The trial court agreed and barred insured's action. The court of appeals, faced with the same question of first impression, considered cases[3] from other jurisdictions and determined that insured's action was timely filed within the six-year contract statute of limitations. The court's rationale was that "whatever claim that defendant insured may validly possess against plaintiff insurer arises solely out of a breach of a specific provision of a contract issued by plaintiff [insurer] to defendant [insured]. It was not the tortious action of plaintiff insurer that gave rise to the claim based on the uninsured motorist clause of the insurance policy in this case. While it is true that a claim by defendant [insured] against the uninsured motorist in this case would be barred by the three-year statute of limitations, plaintiff insurer is not representing the uninsured motorist in this case, as pointed out in Sahloff, but rather itself, on its own contract. Moreover, defendant insured has not fabricated a contract claim, here, in order to accomplish indirectly what he could not do directly. Just as we must look to the real nature of the claim to determine whether a contractual action is, at base, an action for injury to person or property, we must also look to the real nature of this claim to determine whether a claim possessing personal injury aspects is, at root, an action for breach of contract." 197 N.W.2d l.c. 159.
Schulz v. Allstate Insurance Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968), an action for damages arising from an automobile collision by an insured against his insurer on uninsured motorist coverage, was dismissed by the trial court on the bar of two-year statute of limitations for actions for bodily injury. The appellate court, in agreement with New York courts and Booth v. Fireman's Fund Ins. Co., 253 La. 521, 218 So. 2d 580 (1968), in reversal, rejected an argument "that since the tortfeasor himself could now raise the two-year statute *508 of limitations, the injured party no longer could legally recover damages from such tortfeasor, and this being true, not by virtue of any statute of limitations but by virtue of the terms of the contract itself, no recovery can now be made from the insurance company," and held "such statute of limitations is a personal protection to the party causing the injury and in no way affects the legal obligation of the insurance company to pay, pursuant to its contract, monies which the insured could legally recover from the tortfeasor assuming otherwise the financial and procedural ability to so recover." 244 N.E.2d l.c. 550.
In Booth v. Fireman's Fund Ins. Co., supra, an action for damages resulting from collision with an uninsured motorist by insureds against their insurer under uninsured motorist coverage was held to be ex contractu subject only to a plea of proscription of ten years, and not ex delicto for purposes of application of one-year proscription. The insurer argued that "legally entitled to recover [from owners or operators of uninsured vehicles]" required an insured to establish every element of a cause of action in tort including timely filing within the tort statute of limitations. The court, citing DeLuca v. Motor Vehicle Accident & Indemn. Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966), and Hill v. Seaboard Fire & Marine Ins. Co., supra, rejected such argument and interpreted "legally entitled to recover" to mean "that the plaintiff [insured] must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages." 218 So.2d l.c. 583. See also Reese v. Preferred Risk Mutual Ins. Co., supra, 457 S.W.2d l.c. 208.
Respondent argues also that if an insured be allowed ten years in which to file directly against his insured, then whenever a claim is filed after five years, the insurer would be denied subrogation against the uninsured motorist, and would suffer the hardship of trial five years or more after the facts arose. This argument has been answered, Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 171 N.W.2d 914 (1969), l.c. 918-919: "This is another phase of the [already rejected] argument that the insurer stands in the shoes of the uninsured motorist and therefore should have all his rights. The insurer has not so contracted in the uninsured motorist endorsement. * * * the action by an insured against his insurer under the uninsured motorist endorsement is an action on the policy and sounds in contract although in order to recover the insured must prove the negligence of an uninsured motorist. * * *
"It is true an insurer * * * is put to some disadvantage when it can no longer pursue subrogation against an uninsured motorist. However, such hardship does not go to the nature of the cause of action and consequently does not determine what statute of limitations should apply. The application of any statute of limitations generally creates a hardship but it is a hardship because someone delayed doing what he might have done. * * * this argument overrates the importance of subrogation because an insured motorist tends to be financially irresponsible and a subrogation right against such a person is not worth very much."
The quoted cases, together with the others cited at footnote 2, are persuasive in answer to the question in this case, and are consistent with the purpose of Missouri's uninsured motorist statute, Section 379.203 RSMo Supp.1975, which is to provide the person injured by an uninsured motorist with protection he would have had if the negligent motorist had been insured under a standard liability policy. Brake v. MFA Mutual Ins. Co., 525 S.W.2d 109, 112 (Mo. App.1975); Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 151 (Mo.App.1972).
Judgment reversed; cause remanded.
All concur.
NOTES
[1] See: Crenshaw v. Great Central Ins. Co., supra, where action against the insurer to recover under uninsured motorist provision for wrongful death of insured, commenced three years and four months after death of insured in motor vehicle collision, was barred by two-year statute of limitations applicable to wrongful death actions, for the reason that "compliance with the requirement that an action for wrongful death be commenced within two years is a necessary condition attached to the right to suenot merely a statute of limitations in the ordinary sense." 527 S.W.2d l.c. 4.
Byrn v. American Universal Ins. Co., supra, where inability to show compliance with Iowa guest statute was a substantive impediment to recovery by Missouri resident under uninsured motorist provision when uninsured motorist was a resident of Iowa and the casualty occurred in Iowa.
Noland v. Farmers Ins. Exchange, 413 S.W.2d 530 (Mo.App.1967), where plaintiff's husband was the uninsured motorist, and the rule that neither spouse may maintain a civil suit against the other, during coverture, based on a tort occurring during coverture, was a substantive impediment to recovery from the insurance company under uninsured motorist provision.
State ex rel. Miller's Mut. Ins. Assoc. v. Sanders, 538 S.W.2d 708 (Mo.banc 1976), where cause of action for recovery under uninsured motorist coverage accrued where the collision with uninsured motorist occurred, and improper venue was a substantive impediment to the suit.
[2] Transnational Ins. Co. v. Simmons, 19 Ariz. App. 354, 507 P.2d 693 (1973); Detroit Automobile Inter-Ins. Exch. v. Hafendorfer, 38 Mich. App. 709, 197 N.W.2d 155 (1972); Pickering v. American Employers Ins. Co., 109 R.I. 143, 282 A.2d 584 (1971); Turlay v. Farmers Ins. Exch., 259 Or. 612, 488 P.2d 406 (1971); Booth v. Fireman's Fund Ins. Co., 253 La. 521, 218 So. 2d 580 (1968); Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 171 N.W.2d 914 (1969); DeLuca v. Motor Vehicle Acc. Indemnification Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Schleif v. Hardware Dealer's Mut. Fire Ins. Co., 218 Tenn. 489, 404 S.W.2d 490 (1966).
[3] Schleif v. Hardware Dealer's Mut. Fire Ins. Co., supra; Sahloff v. Western Casualty & Surety Co., supra; Booth v. Fireman's Fund Ins. Co., supra; Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584591/ | 233 P.3d 314 (2010)
STATE
v.
SPENCE.
No. 101775.
Court of Appeals of Kansas.
July 2, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569284/ | 37 F.2d 5 (1930)
TIN DECORATING CO. OF BALTIMORE
v.
METAL PACKAGE CORPORATION.
No. 63.
Circuit Court of Appeals, Second Circuit.
January 13, 1930.
J. Granville Meyers, of New York City (Charles Neave, Thomas J. Johnston, J. Granville Meyers, and Charles S. Jones, all of New York City, of counsel), for appellant.
Kenyon & Kenyon, of New York City (Wm. Houston Kenyon, Theodore S. Kenyon, Frederick B. Townsend, and Virgil C. Kline, all of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The plaintiff, as assignee, brought this suit to recover for infringement of the George reissue patent, No. 14,393, November 13, 1917, for a machine for hinge wiring, and of Hermani patent, No. 1,267,409, May 28, 1918, for apparatus for applying hinge pintles for box part blanks.
The George Reissue Patent.
The kind of hinges with which this patent has to do are commonly and extensively used in tin container boxes having an attached swinging cover, as is often seen on tobacco boxes and those used for aspirin and other similar products. They consist of a small wire, called the "pintle," with each of its ends inserted in, and held by, ears punched out of the box, over which suitable projections on the cover are bent, to hold the box and cover together, and make possible the hinge or swinging motion necessary to opening and closing the box. This patent relates only to preparing the pintle and putting its ends into the ears on the box. Claims 1, 2, 6, 16, 18, 19, 23, 24, 25, and 28 are relied on, and of these claims 1, 2, 6, 16, 18, and 24 are typical. The defendant contends that the patent is invalid, for the reason that George was not the original and sole inventor, and that, if valid, it has an implied license or shop right to use the machines in its business. It seems best to consider first the validity of the patent.
*6 Formerly George and a Mr. Bruns, who is now president of the defendant, were friends and fellow workmen in the employ of the American Stopper Company. Bruns left that employment, and was largely instrumental in forming and operating the defendant corporation which manufactures tin boxes. George remained with the Stopper Company until he was employed by Bruns in December, 1910, to serve as a foreman in the defendant's factory in charge of operations which included the insertion of the pintles in the boxes. These were all put in by hand after they had been cut to proper length, and the ears in the box blanks pressed out for their reception. Before coming to the defendant, George had conceived the idea that a machine could be constructed to do this work, and in his spare time had made a rough wooden model to show how he thought the machine should be made. He told Bruns what he thought could be done and about the model he had made.
Bruns was immediately interested, and George, after showing and explaining the model to him, permitted him to take it, upon the understanding that he would not show it to any one outside, except an engineer of the E. W. Bliss Company, which manufactured machines of the kind used by the defendant. Bruns showed the model to his chief engineer, Mr. Gueritey, and then had Mr. Klocke, the chief engineer of the Bliss Company, come to see it. George explained the model to them. Klocke did not testify in this case, but it fairly appears from the testimony of Gueritey and others that neither he nor Klocke were impressed with the means George had chosen for putting in the pintle by machinery. Klocke said he could adapt a standard Bliss press to do the work. After Gueritey and Klocke had inspected the model, George took it away, and from that time until he subsequently left the employ of the defendant, in January, 1914, there is no evidence that George had anything further to do about the construction of a machine from his model, or that the model was ever seen again by any one but George.
The defendant, shortly after George had explained his model to Klocke, ordered a pintle inserting machine to be made by the Bliss Company. Klocke then conferred with a Mr. Schultz, the designing engineer of that company, and turned the work over to him. He made drawings, showed them to Klocke, who sketched in a hook device, and the machine was made by putting the new features on a Bliss power press No. 8. It was then tested, found to work satisfactorily, and delivered to the defendant. The order for the machine was entered May 15, 1912; it was delivered to the defendant on the 13th of the following September, and paid for by the defendant. It was then put into use under the supervision of George, who testified that it worked well, without any alterations being made, so far as he knew. Gueritey testified, however, of changes which he had to, and did, make to overcome defects which came to light in volume production. George, of course, saw the machine at work under his charge, and must have become entirely familiar with it, as it was at first constructed, or as altered, before he left the employ of the defendant in 1914. Up to then, he had done nothing about securing a patent, and had made no claim upon the defendant on the ground that the Bliss machine was his sole invention, and that he should be paid for it. He testified that Bruns had promised to pay him if a machine made from his model proved satisfactory, and that Bruns had through an agent offered to pay him at first $50 and later $100, both of which offers were refused.
After George left in 1914, he applied to the Bliss Company for drawings of the machine they had built and delivered to the defendant. His request was referred to Bruns, who refused to permit them to comply with it. George then made over his first model, so that it represented in all essential respects the machine the Bliss Company had made and the defendant had been using, and delivered this new model to his attorneys for use in securing his original patent, which was No. 1,117,030, November 10, 1914. His application for it was filed March 11, 1914.
In 1916, the plaintiff purchased the patent, after notifying Bruns of its intention so to do, and being satisfied that the defendant claimed no interest in it which would prevent the plaintiff securing a good title. Bruns, in this way, learned for the first time that George had secured a patent. In due course the application for reissue was made, and the patent in suit granted.
From the foregoing it is seen that the George reissue patent covers the Bliss machine as it was constructed, and as altered, if it was altered, after it was put into use. That is, of course, claimed by the plaintiff, and not seriously disputed by the defendant. It is certain that this machine was in use commercially in the defendant's factory as early as September, 1912, approximately 18 months before the original George patent was applied for in March, 1914.
*7 In view of this unquestioned prior public knowledge and use, the prima facie value of George's application date has been overcome, and it is necessary for the plaintiff to carry back to an actual date of invention before such public use in September, 1912. Clark Thread Co. v. Willimantic Linen Co., 140 U.S. 481, 11 S. Ct. 846, 35 L. Ed. 521; New England Motor Co. v. B. F. Sturtevant Co. (C. C. A.) 150 F. 131; Barber v. Otis Co. (C. C. A.) 271 F. 171. To do this, the plaintiff was able to produce no other evidence than that of George, corroborated only by what he testified were parts of his original model. Such corroboration, however, was seeming rather than real, for the parts are not themselves indicative of their date, and were shown to have been in the original model only by the testimony of George. When George made his patent model after leaving the defendant's employ, he dismantled the original and destroyed all of it, except certain portions which he used in making the new one.
It is claimed that the similarity of a hook device for getting the pintle into the second ear in the box blank, as shown in a part of the model testified by George to have been in the original, is so like the sketch made by Klocke on a drawing prepared by Schultz before the Bliss machine was made that Klocke must have copied from the George model in making the sketch. While Klocke did not testify, there is nothing to show that he was not equally available as a witness to either party. He was not in the employ of either, and never had been, so far as the record shows. Before the proofs were closed the defendant was not successful in an attempt to secure a delay for his production. There is no presumption, from the failure of either party to produce Klocke, that his testimony would have supported the claims of one party rather than the other. Atchison, T. & S. F. Ry. Co. v. Phipps (C. C. A.) 125 F. 478; Erie R. Co. v. Kane (C. C. A.) 118 F. 223.
It is significant that, with the George original model available for use in making the machine, Klocke did not take it to the Bliss factory, and Schultz never saw it. There was no reason whatever for Klocke sketching from memory, when the model could have been obtained for the asking, nor was there any reason for Schultz designing in the dark, so far as the model was concerned, if the model would have helped at all in designing the Bliss machine. It is equally significant that George, who had his original model at the time he left the defendant's employ, did not use it when applying for his patent. If that model did show the essential features of the machine patented, it seems strange that he would have made any attempt to obtain the Bliss drawings, and more strange that he would have gone to the trouble of making a new model. It is certainly more probable that he made the new model, because he incorporated into it the additional features which appeared in the Bliss machine and were not present in the original model.
Schultz testified that he designed the Bliss machine according to his own ideas. Gueritey testified that he made necessary alterations in it before its utility in production was established. The Bliss machine is the machine of the George patent. In view of all this, the plaintiff has failed to show more than that the patent is for a machine embodying the ideas of at least two of four men, George, Klocke, Schultz, and Gueritey. Since the plaintiff must show that George's claimed invention antedated the Bliss machine, and has to rely wholly on the unsupported testimony of George, weakened as already indicated, we are forced to the conclusion that the burden of proof in this respect has not been discharged. The most that can be said for George is that he originated the idea of putting in pintles by machinery, and contributed with one or more of the others to the invention. This was not enough to prove George the first and sole inventor. Clark Thread Co. v. Willimantic Linen Co., supra; Symington Co. v. National Co., 250 U.S. 383, 39 S. Ct. 542, 63 L. Ed. 1045; Deering v. Winona Harvester Works, 155 U.S. 286, 15 S. Ct. 118, 39 L. Ed. 153; Corrington v. Westinghouse Air Brake Co. (C. C. A.) 178 F. 711.
Accordingly, the patent to George as the sole inventor is invalid. McKinnon Chain Co. v. American Chain Co. (C. C. A.) 268 F. 353; George v. Perkins (C. C. A.) 1 F. (2d) 978; Smart v. Wright (C. C. A.) 227 F. 84. This makes it unnecessary to consider any of the other defenses.
The Hermani Patent.
The claims relied on are Nos. 3, 5, 6, 9, 10, 11, 14, and 50.
This patent covers the means of feeding the blank box parts to that point in the machine where the ears are formed, and then on to the pintle-inserting device. There is no claim of novelty in the ear-forming mechanism itself, or in the pintle insertion, which was covered by the earlier George Patent that we have already held invalid. The *8 Hermani device put into related timed operation in one machine the formation of the ears on blank parts and the insertion of the pintle, by taking the blanks on a flat conveyor and carrying them by an intermittent movement to the station where the ears were made, and then on to where the pintle was put in. Both operations, after the machine had placed blanks at both stations, were performed at the same time, but on different blanks. It made the work entirely automatic, from the time the blanks were placed upon the conveyor.
The defendant's machine claimed to infringe is that of the Marcell patent, No. 1,557,539, October 13, 1925. In the Marcell machine, the automatic feeding in timed relation is done by using, instead of a flat conveyor, a rather complicated revolving wheel or disc, which brings the blank parts to their proper stations successively, and allows them to remain at rest long enough for the ears to be punched out and for the pintles to be placed in position. When the machine is filled, both processes are likewise performed at the same time on different blanks. This brief statement indicates that the defendant's machine has little in common with the machine of the Hermani patent, except identity of result. The means of accomplishment are quite dissimilar, although both have an automatic feed to the ear-forming station, to the pintle insertion station, and out of the machine.
A glance at the prior art shows that the novelty in Hermani must lie only in the specific means he has employed to bring old processes together in one machine, and put them to work automatically with a feeding mechanism. Automatic feeding is very old. One method is disclosed in the Trask patent, No. 869,998, November 5, 1907; one in Denmead, No. 949,756, February 22, 1910; one in McConachy, No. 1,149,201 August 10, 1915; while in Rais, No. 68,529, September 3, 1867, revolving discs very like the defendant's are used.
In Hermani the blank box parts, after being put on the flat conveyor, are taken to the working stations by an intricate process which develops what was called in the testimony a "sort of fourway movement," and there acted upon to produce the ears and insert the pintle. The working stations themselves do not move; while, in the defendant's machine, the blank parts are taken by the revolving disc to predetermined points, where they are held while the stations are moved to them and the work done. In view of the old processes it has at most but brought together to get results in a new way, the validity of the Hermani patent, in its escape from the claim of mere aggregation, is dependent upon its being held closely to its method of combination of the old separate parts.
As so limited, it is not infringed by the defendant's machine. Compare Grinnell Washing Mach. Co. v. E. E. Johnson Co., 247 U.S. 426, 38 S. Ct. 547, 62 L. Ed. 1196; Gould & Eberhardt v. Cincinnati Shaper Co. (C. C. A.) 194 F. 680.
Decree affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569289/ | 29 So. 3d 582 (2009)
Richard VANEK Jr.
v.
Gwendolyn Weiss SEEBER, Joel Scott and Real Estate Partners Inc. d/b/a ReMax Real Estate Partners Inc.
No. 2009 CA 0066.
Court of Appeal of Louisiana, First Circuit.
October 27, 2009.
*583 C. Michael Winters and David L. Haik, Metairie, LA, for Plaintiff/Appellant Richard Vanek, Jr.
H. Bruce Shreves, M. Claire Durio, New Orleans, LA, for Defendant/Appellee Gwendolyn Weiss Seeber.
Jack A. Ricci, Gary J. Giepert, New Orleans, LA, for Defendants/Appellees Joel Scott and Real Estate Partners, Inc. d/b/a ReMax Real Estate Partners, Inc.
Before DOWNING GAIDRY and McCLENDON, JJ.
*584 GAIDRY, J.
In this case, a homebuyer appeals a trial court judgment dismissing his redhibition suit with prejudice. We affirm.
Plaintiff, Richard Vanek, Jr., entered into an agreement to purchase a house from defendant, Gwendolyn Weiss Seeber. In this real estate transaction, Vanek was represented by his real estate agent, Lorna Evans, and Seeber was represented by her real estate agent, Joel Scott.[1] A property disclosure form was provided by Seeber to Vanek which disclosed no defects in the roof. The purchase agreement between the parties contained the following property inspection clause:
PURCHASER ACKNOWLEDGES THAT THE PRICE OF THE PROPERTY WAS NEGOTIATED BASED UPON THE PROPERTY'S PRESENT CONDITION; ACCORDINGLY, SELLER IS NOT OBLIGATED TO MAKE REPAIRS TO THE PROPERTY, UNLESS OTHERWISE STATED HEREIN, AND PURCHASER HAS NO RIGHT TO DEMAND ANY REPAIRS, INCLUDING REPAIRS REQUIRED BY LENDER. THE SELLER IS RESPONSIBLE FOR MAINTAINING THE PROPERTY IN SUBSTANTIALLY THE SAME OR BETTER CONDITION AS IT WAS WHEN THE PURCHASE AGREEMENT WAS FULLY EXECUTED. PURCHASER shall have an inspection period of ten (10) calendar days, commencing the first day after acceptance of this agreement wherein, PURCHASER may, at his expense, have any inspections made by experts or others of his choosing. Such inspections may include, but are not limited to, inspections of or for termites and other wood destroying insects, and/or damage from same, molds, and fungi hazards, and analysis of synthetic stucco, appliances, structures, roof, heating, cooling, electrical, plumbing systems, square footage, existing leases (if applicable) and any items addressed in Seller's Property Disclosure Document. SELLER agrees to provide the utilities for inspections. Upon completion of such inspections, PURCHASER must provide SELLER (or SELLER'S DESIGNATED AGENT) with a copy of all inspection reports which subsequently becomes the property of the seller. If PURCHASER is not satisfied with the present condition of the property as reflected in the inspection reports, PURCHASER (1) may elect, in writing, to terminate the Agreement to Purchase, or (2) must indicate in writing the deficiencies and desired remedies and SELLER will have 72 hours to respond in writing as to his willingness to remedy those deficiencies. Should SELLER refuse to remedy any or all of the deficiencies listed by the PURCHASER, then PURCHASER shall have 24 hours from the date of SELLER'S written response or 24 hours from the date that SELLER'S response was due, whichever is earlier, to: (1) accept SELLER'S response to PURCHASER'S written requests or (2) accept the property in its present condition, or (3) to elect to terminate the Agreement to Purchase. PURCHASER'S response shall be in writing. Upon PURCHASER'S failure to respond by the time specified or Purchaser's electing, in writing, to terminate the Agreement to Purchase, the Agreement shall be ipso facto Null and Void (except for return of deposit) and ALL PARTIES AGREE TO SIGN A CANCELLATION *585 WITHIN 24 HOURS ENTITLING THE PURCHASER(S) TO THE RETURN OF HIS DEPOSIT IN FULL, AND NEITHER PARTY SHALL THEREAFTER HAVE ANY FURTHER OBLIGATION TO THE OTHER. FAILURE BY EITHER PARTY TO SIGN THIS CANCELLATION SHALL NOT PROHIBIT EITHER PARTY FROM MAKING OR ACCEPTING OFFERS FROM OTHER PARTIES. FAILURE TO MAKE INSPECTIONS OR TO GIVE WRITTEN RESPONSE TO THE SELLER (OR SELLER'S DESIGNATED AGENT) WITHIN THE INSPECTION PERIOD SHALL BE DEEMED AS ACCEPTANCE BY PURCHASER OF THE PROPERTY'S PRESENT CONDITION. PURCHASER shall have the right to reinspect the property within five (5) days prior to the Act of Sale, or occupancy, whichever will occur first in order to determine if the property is in the same or better condition as it was at the initial inspection(s).
Vanek selected a home inspector, Paul Dileo, who was suggested to him by Evans. The Home Inspection Report provided by Dileo to Vanek states the following with regard to the roof inspection:
The roof inspection is an opinion of the general condition of the roofing material. The inspector does not offer any warranty as to whether the roof leaks or may be subject to future leakage. The only way to determine the water tightness of a roof is to observe it during a prolonged period of heavy rainfall.
Vanek did not get onto the roof with Dileo during the inspection. The inspection report contains the following findings about the roof:
The roof cover is aging. Some typical indicators of aging (such as surface cracking, loss of granulation, shingles missing, and raised seams) were visible. The wear is consistent over the entire surface.
[The] ventilation system appears to be marginal.
The chimney appears to be in fair condition for a home of this age. It appears to be flashed properly and is secure to the structure. The cap shows normal signs of weathering and soot.... The Chimney appears to be rusting.
Tree branches touching roof need removal.
Chimney and gas vent are rusting and needs [sic] paint.
Evidence of roof repairs.
Missing shingles.
ROOF APPEARS TO BE IN THE LAST PART OF ITS LIFE. ROOF APPEARS TO BE MARGINAL.
Dileo's inspection of the fireplace noted signs of leaks around the chimney flashing. No obvious leaks were noted during the inspection of the attic. Dileo's report also stated that minor indications of elevated humidity levels were found inside the residence and noted that such humidity may be trapped within the residence by inadequate ventilation, ultimately condensating and resulting in the development of molds, mildew and fungi. Dileo noted leaking window frames and "some high moisture mildew" in a few windows.
After going over the inspection report with Dileo and Evans and being informed that, under the terms of the inspection clause, he could either back out of the purchase agreement or request certain concessions from Seeber as a result of the problems found during the inspection, Vanek filled out a Property Inspection Response form. In this response, he requested that Seeber reduce the price of the house by $4,000.00 due to the roof being in *586 the "last stage of life." Seeber declined to take $4,000.00 less, but instead offered to lower the price by $2,000.00. Vanek accepted this offer.
The Act of Sale signed by the parties contained the following bolded language:
It is expressly agreed that the immovable property herein conveyed and all improvements and component parts, plumbing, electrical systems, mechanical equipment, heating and air conditioning systems, built-in-appliances, and all other items located hereon are conveyed by Seller and accepted by Purchase [sic] "AS IS, WHERE IS," without any warranties of any kind whatsoever, even as to the metes and bounds, zoning, operation, or suitability of such properties for the use intended by the Purchaser, without regard to the presence of apparent or hidden defects and with the Purchaser's full and complete waiver of any and all rights for the return of all or any part of the purchase price by reason of such defects.
Purchaser acknowledges and declares that neither the Seller nor any party, whomsoever, acting or purporting to act in any capacity whatsoever on behalf of the seller has made any direct, indirect, explicit or implied statement, representation or declaration, whether by written or oral statement or otherwise, and upon which Purchaser has relied, concerning the existence or nonexistence of any quality, characteristic or condition or the property herein conveyed. Purchaser has had full, complete and unlimited access to the property herein conveyed for all tests and inspections which Purchaser, in Purchaser's sole discretion, deems sufficiently diligent for the protection of Purchaser's interest.
Purchaser expressly waives the warranty of fitness and the warranty against redhibitory vices and defects, whether apparent or latent, imposed by Louisiana Civil Code Articles 2520 through 2548, inclusive, and any other applicable state or federal law and the jurisprudence thereunder.
Purchaser also waives any right Purchaser may have in redhibition or to a reduction of the purchase price pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive, in connection with the property hereby conveyed to Purchaser by Seller. By Purchaser's signature, Purchaser expressly acknowledges all such waivers, and Purchaser's exercise of Purchaser's right to waive warranty pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive.
---------------------------
Richard Jason Vanek
After the Act of Sale, Vanek did not replace the missing shingles, remove the tree branches touching the roof, or address any other concerns raised in Dileo's inspection report. Within a few weeks of the sale, during a rainstorm, Vanek discovered leaks in the roof. Upon further investigation, Vanek found that the leaks were running through the inside of the walls and had damaged the floors and walls. He also discovered mold growing on the insulation. In addition to replacing the roof, Vanek replaced sheetrock, paneling, insulation, electrical wiring, and flooring.
Vanek filed the instant suit in redhibition against Seeber and Scott, as well as Real Estate Partners, Inc. d/b/a ReMax Real Estate Partners, Inc., seeking recission of the sale or a significant reduction of the purchase price, as well as damages, including reimbursement of personal expenses *587 and labor,[2] and an unspecified amount for anxiety and mental distress incurred by the required renovations. Vanek claimed that Scott and ReMax were liable in solido with Seeber because Scott, Seeber's sister, was aware of the roof problems and misrepresented the condition of the roof to Vanek.
A bench trial was held at which Seeber, Vanek, and Scott testified. Several of Seeber's former neighbors and her sons also testified concerning whether or not Seeber and Scott were aware of roof problems prior to the sale. The court ultimately found that there was insufficient evidence regarding Scott's knowledge, but that Seeber was probably aware of defects in the roof which she failed to note on the disclosure form. However, the court found that once the inspection report showed the roof system to be a problem, a reasonably prudent person under the circumstances "would have certainly made further inspections than the plaintiff did in this case." The court found Vanek to have acted unreasonably as a purchaser when, instead of undertaking further investigation into the extent of the roof problem, he asked for a $4,000.00 reduction, accepted a $2,000.00 reduction, and signed the sale document agreeing to purchase the property "as is, where is" with a full waiver of redhibition. The court noted that under Louisiana Civil Code article 2521, a seller owes no warranty for defects that were known to the buyer at the time of the sale or that should have been discovered by a reasonably prudent buyer. In dismissing Vanek's petition, the trial court stated that although it appeared that Seeber knew the roof had problems and failed to disclose it on the disclosure form, "Once that inspection report showed what it did and the buyer did what he did, I don't believe you can come in by claiming damages [based] on a disclosure form to get by what the law on redhibitory vices and [defects] states."
Vanek appealed, assigning the following trial court errors:
1. The trial court erred in failing to find that Vanek's consent to the waiver of redhibition was vitiated by Seeber's fraud.
2. The trial court erred in finding that Vanek could have discovered the defects upon a simple inspection.
3. The trial court erred in failing to award damages to Vanek in redhibition where the seller had knowledge of, but failed to disclose, a hidden defect.
4. The trial court erred in failing to find fraud or negligent misrepresentation by Seeber and Scott.
5. The trial court erred in failing to award damages against Seeber and Scott for their failure to disclose.
DISCUSSION
Louisiana Civil Code article 2520 provides that a seller warrants the buyer against redhibitory defects in the thing sold. However, the seller owes no warranty for defects that were either known to the buyer at the time of the sale, or discoverable by a reasonably prudent buyer. La. C.C. art. 2521.
A seller and buyer may agree to exclude the warranty against redhibitory defects; however, the terms of the exclusion must be clear and unambiguous and must be brought to the attention of the buyer. La. C.C. art. 2548. The bolded language contained in the Act of Sale signed by Seeber was sufficient to waive redhibition. However, *588 Vanek alleges that his consent to this waiver was vitiated by Seeber's fraud. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art. 1953. Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. La. C.C. art. 1954. The fraud alleged by Vanek was Seeber's failure to disclose knowledge of a roof defect on the property disclosure form. However, prior to Vanek agreeing to waive redhibition, he acquired knowledge of problems with the roof through Dileo's inspection that contradicted Seeber's answers on the disclosure form, and rather than investigating further, used the existence of the roof problems to negotiate a decrease in the purchase price. Once he moved in and began to experience leaks, he climbed onto the roof and observed some roof defects which were easily discoverable. He also hired a second inspector to check out the roof problems more closely after the roof began leaking, and this inspector discovered more roof problems. Considering the knowledge possessed by Vanek at the time he executed the waiver of redhibition, and the fact that he could have ascertained the truth by behaving as a reasonably prudent purchaser, it is simply not plausible that he relied on Seeber's statement on the property disclosure form that there were no roof defects in waiving redhibition. In fact, the language of the waiver explicitly stated that Vanek was not relying on any representations made by any person in waiving redhibition and purchasing the property as is. This assignment of error is without merit.
Vanek's next argument is that he could not have discovered the defects upon a simple inspection as the court suggested. While Vanek could not see the damage to the interior of the walls, he could certainly have discovered the defects in the house by behaving as a reasonably prudent purchaser. Vanek testified at trial that when he climbed up on the roof to investigate after the leaks started, he could see evidence of roof problems for himself. Also, Vanek stated that he noticed a hump in the flooring prior to purchasing the house, which ultimately turned out to be swollen wood from water damage. Vanek asked Dileo what the hump might be, and Dileo stated that he had no idea, and despite the fact that the inspection clause provided that Vanek had the right to conduct inspections of the structure, Vanek did not inquire further. It was only after the leaking started that he pulled back the carpet and discovered the swollen wood. Finally, armed with the knowledge concerning the roof given to him by Dileo, Vanek could have hired a second roof inspector to determine the full extent of the roof problems. As Vanek could have discovered the defects by behaving as a reasonably prudent purchaser, the defects are not redhibitory in nature. There is no merit to this assignment of error.
Likewise, Vanek's third assignment of error, that the trial court should have awarded damages for Seeber's failure to disclose a hidden defect must fail because, as the trial court determined, and we agree, the defect was not hidden because it could have been discovered by a reasonably prudent purchaser.
Vanek's final arguments are that the court erred in failing to find that Seeber and Scott committed fraud or negligent misrepresentation by failing to disclose roof problems of which they were aware and in failing to award damages for that misrepresentation. First, as noted by the trial court, the evidence of Scott's knowledge of roof defects was minimal. The *589 court made a credibility call and chose to believe Scott's testimony that she had no knowledge of the roof problems, and we find no manifest error in that finding. As for his claims against Seeber, as discussed above, Vanek was aware of problems with the roof, failed to investigate further, and expressly stated in the Act of Sale that he was not relying on any statements made by anyone in purchasing the property "as is" with a full waiver of redhibition. It is not plausible that he relied upon Seeber's statement concerning the roofs condition in total disregard of all of the other information before him concerning the roof when purchasing the property. The trial court did not err in declining to award damages under these circumstances.
DECREE
The judgment of the trial court dismissing plaintiffs claims with prejudice is affirmed. Costs of this appeal are to be borne by plaintiff, Richard Vanek, Jr.
AFFIRMED.
NOTES
[1] Joel Scott is Gwendolyn Weiss Seeber's sister.
[2] Included in the expenses for which Vanek sought reimbursement was the replacement of the roof. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569306/ | 29 So. 3d 95 (2010)
Bill STANLEY, Appellant
v.
BOYD TUNICA, INC. d/b/a Sam's Town Hotel and Gambling Hall, Appellee.
No. 2009-CA-00281-COA.
Court of Appeals of Mississippi.
February 2, 2010.
*96 Dana J. Swan, Clarksdale, attorney for appellant.
Richard C. Williams, Jr., attorney for appellee.
Before KING, C.J., ISHEE and MAXWELL, JJ.
MAXWELL, J., for the Court:
¶ 1. The Tunica County Circuit Court granted summary judgment to Boyd Tunica, Inc. d/b/a Sam's Town Hotel and Gambling Hall (Boyd) in this premises-liability case. The lawsuit was filed after Bill Stanley, a hotel guest at Sam's Town Casino, slipped on the hotel shower mat. Stanley appeals claiming summary judgment was improper and asserts a genuine issue of material fact exists regarding Boyd's notice of a dangerous condition in the bathroom. Finding no genuine issue of material fact, we affirm.
FACTS
¶ 2. On June 9, 2002, Bill and Joann Stanley visited Sam's Town Casino in Robinsonville, Mississippi. After checking into their room, the couple spent most of the night in the casino. The next afternoon, Joann awoke and showered. She claims she noticed the shower was slippery but did not lose her balance or have to use the rubber bathmat.
¶ 3. Stanley decided to shower before dinner. He claims he stepped on the rubber shower mat in the bathtub, and that the mat twisted or slipped, causing him to fall. He received treatment for his injuries, and Boyd investigated the incident. At Stanley's direction, Joann completed and signed a "Guest Accident Report."
¶ 4. Stanley filed suit on May 31, 2005, alleging he had suffered injuries to his arm and head caused by Boyd's negligence. Boyd admitted Stanley was a business invitee of the hotel but denied breaching any duty owed to Stanley. Boyd moved for *97 summary judgment, which was granted by the circuit court.
STANDARD OF REVIEW
¶ 5. We review the circuit court's granting of summary judgment de novo. Byrne v. Wal-Mart Stores, Inc., 877 So. 2d 462, 464 (¶ 3) (Miss.Ct.App.2003) (citing Young v. Wendy's Int'l, Inc., 840 So. 2d 782, 783 (¶ 3) (Miss.Ct.App.2003)). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. at 464-65 (¶ 3) (quoting Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So. 2d 722, 725 (¶ 9) (Miss.Ct.App.2001)); M.R.C.P. 56(c). We view the evidence in the light most favorable to the non-movant. Byrne, 877 So.2d at 465 (¶ 3) (citing Young, 840 So.2d at 784 (¶ 7)).
¶ 6. "To survive summary judgment, the non-moving party must offer `significant probative evidence demonstrating the existence of a triable issue of fact.'" Id. (quoting Young, 840 So.2d at 784 (¶ 5)). When a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).
DISCUSSION
¶ 7. Stanley claims the circuit court erred by granting summary judgment in Boyd's favor. He contends a material issue of fact exists regarding Boyd's notice of an alleged dangerous condition in the bathroom. Stanley argues he is not required to prove notice because Boyd was in exclusive control of the room.
A. Premises LiabilityBusiness Invitee
¶ 8. In Mississippi, business owners have a duty to invitees to exercise reasonable care to keep the business premises in a "reasonably safe condition." Jacox v. Circus Circus Miss., Inc., 908 So. 2d 181, 184 (¶ 7) (Miss.Ct.App.2005) (citing Jerry Lee's Grocery, Inc. v. Thompson, 528 So. 2d 293, 295 (Miss.1988)). However, "[s]trict liability is not imposed on [business owners] in premises[-]liability cases." Martin v. Rankin Circle Apartments, 941 So. 2d 854, 864 (¶ 45) (Miss.Ct.App.2006) (citing Corley v. Evans, 835 So. 2d 30, 41 (¶¶ 32-33) (Miss.2003)). And business operators are not insurers against all injuries. Jacox, 908 So.2d at 184 (¶ 7) (citing Munford, Inc. v. Fleming, 597 So. 2d 1282, 1284 (Miss.1992)). Furthermore, mere proof "of the occurrence of a fall on a floor within [the] business premises is insufficient to show negligence on the part of the proprietor." Byrne, 877 So.2d at 465 (¶ 6) (quoting Sears, Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917 (Miss.1966)).
¶ 9. Rather, in order to succeed on his premises-liability claim, Stanley must show either: "(1) a negligent act by the defendant caused the plaintiff's injury; or, (2)[the] defendant had actual knowledge of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant." Id. at (¶ 5) (citing Downs v. Choo, 656 So. 2d 84, 86 (Miss.1995)).
¶ 10. All three types of premises-liability claims require a showing of a dangerous condition. In other words, a "property owner cannot be found liable for the plaintiff's injury where no dangerous condition *98 exists." Delmont v. Harrison County Sch. Dist., 944 So. 2d 131, 133 (¶ 5) (Miss.Ct.App.2006).
¶ 11. In granting summary judgment on behalf of Boyd, the circuit judge found Stanley presented no evidence of a dangerous condition or that Boyd had any knowledge of a dangerous condition in the hotel bathroom. The circuit judge also found Stanley presented no evidence of other falls of this nature in the hotel and that Boyd was not in exclusive control of the shower mat. He also held that the doctrine of res ipsa loquitur was inapplicable.
¶ 12. After reviewing the record, we agree with the circuit court that Stanley offered no proof of a negligent act on the part of Boyd or that Boyd had actual knowledge of a dangerous condition. Further, because Stanley fails to offer any scintilla of evidence of a dangerous condition, he is unable to prove constructive notice based upon the amount of time the alleged condition existed. See Jacox, 908 So.2d at 185 (¶ 8).
B. Res Ipsa Loquitur
¶ 13. The circuit judge also correctly pointed out that Boyd was not in exclusive control of the bathroom. The Stanleys had control of the room immediately prior to the fall, and Joann admitted using the shower only a short time before Stanley. Thus, the doctrine of res ipsa loquitur is inapplicable as a matter of law. See id. at 184 (¶ 7) (citing Sears, 185 So.2d at 917) (Mere proof "of a fall on a floor within a business is insufficient to show negligence on the part of the proprietor... and the doctrine of res ipsa loquitur is inapplicable in cases of this kind.").
¶ 14. Stanley bore the burden to show Boyd's negligence, or failure to warn, caused his injury. Though Stanley presented no evidence to support his allegations, Boyd responded with proof of the bathmat's quality as well as the results from tests that showed the bathmat was in good condition with no abnormalities.
¶ 15. Taking all evidence in the light most favorable to Stanley, we find no genuine issue of material fact in dispute. Accordingly, we affirm the circuit court's grant of summary judgment in Boyd's favor.
¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541813/ | 76 B.R. 781 (1987)
In re DOUGLAS HEREFORD RANCH, INC., a corporation, Paul O. Douglas, Constance F. Douglas, Cleone E. Douglas, Debtors.
Bankruptcy Nos. 485-00568, 485-00575, 485-00677 and 485-00574.
United States Bankruptcy Court, D. Montana.
March 11, 1987.
*782 ORDER CONFIRMING PLAN OF REORGANIZATION
JOHN L. PETERSON, Bankruptcy Judge.
Hearing was held on January 20, 1987, on confirmation of the Debtors' Chapter 11 Plan of Reorganization. No ballots had been filed by creditors either accepting or rejecting the Plan by the date of the hearing.
The Plan has four classes of creditors as follows:
Class I Secured - Metropolitan Life Insurance Company - $200,000.00
Class II Secured - Farmers and Merchants Bank - 392,939.73
Class III Unsecured
Insider - Cleone E. Douglas - 100,000.00
Class IV Unsecured and Class V Unsecured - 3,208.76
___________
$696,148.49
The Plan and Disclosure Statement show that the Class I creditor is not impaired, while all other classes are impaired under the Plan. The Plan further shows the Class II creditor, Farmers and Merchant Bank, will be paid the total of its debt over 12 years at 8½% interest per year, based on a 30 year amortization schedule with a balloon payment of $289,158.00 in the twelfth year. After the confirmation hearing, Farmers and Merchants Bank and the Debtors filed a Stipulation regarding modification and acceptance of Amended Plan of Reorganization. That agreement and plan modification provides in essence that the Bank shall be paid the full amount of its obligation in the sum of $392,939.73, amortized over 30 years at 8½% per annum with a balloon payment on the 50th quarter after confirmation of the Plan. Other provisions of the agreement provide for maintenance of the herd level, deferring payment to the insider Cleone Douglas until the Bank is paid in full and retention of the Bank's lien on the Debtors' collateral during the term of the Plan. As a result of the agreement, Farmers and Merchants Bank has withdrawn its objection to the Plan and votes now to affirmatively accept the modified Plan.
The Debtors are engaged in farming and ranching in Northeastern Montana. The corporation Hereford Ranch, Inc. is owned by the Debtors Paul, Constance and Cleone Douglas, who are also personal guarantors of the Farmers Bank note. The Debtors fix the value of their assets as follows:
Real property consisting of 2240 acres of
grazing land and 640 acres farm land - $362,400.00
Cash on hand - 50,000.00
Furniture - 5,000.00
Farm machinery - 84,580.00
Vehicles - 23,220.00
Livestock - 107,450.00
___________
$632,650.00
A dispute had existed between the Debtors and the Bank as to value of the real property. The Bank presented expert testimony of a land appraiser which fixed the value of the real estate and improvements at $426,000.00, based on comparable sales. The Debtors rebutted one aspect of the appraisal dealing with the value of tame pasture, land which the Debtors want reduced by $12,000.00. However, the matter of valuation is now unimportant due to the agreement between the parties.
The Debtors project net income from normal operations of $59,320.00, which is sufficient to fund the Plan. In addition to normal income of $121,680.00, the Debtors in the next two years will receive about $47,000.00 *783 from the sale of grass seed. Such additional payments are also available to fund the Plan, so that over a 12 year period, the Debtors would have available cash reserves of $805,840.00 to pay its secured and unsecured creditors. As proposed, the Plan is therefore feasible.
The most significant problem with the Plan prior to agreement with Farmers and Merchant Bank dealt with Section 1129(a)(10). The Debtors request cram down under 1129(b), which means it must satisfy the conditions of 1129(a)(10), which reads:
"If a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan has accepted the plan, determined without including any acceptance of the plan by any insider."
The Debtors acknowledged before the agreement that no impaired class cast a ballot in favor of the Plan, but yet argue that since an impaired class did not vote to reject the Plan, such class is deemed to have accepted the Plan, and therefore the 1129(a)(10) condition is met. The overwhelming case authority is to the contrary, particularly since Section 1129(a)(10) was changed in 1984 by the Bankruptcy Amendments and Federal Judgeship Act of 1984, P.L. 98-353. Prior to the 1984 amendments, some courts held that classes who were deemed to have accepted the Plan under section 1126 satisfied 1129(a)(10). It is clear the amendment was made by Congress so that the original intent of the 1978 Code would be followed by requiring one impaired class must affirmatively vote in favor of the Plan. Cases which so hold are: In Re Barrington Oaks General Partnership and Starcrest Properties Ltd., 15 B.R. 952, 967-70 (Bankr.Utah 1981); In Re Pine Lake Village Apartment Co., 19 B.R. 819, 829 (Bankr.S.D.N.Y. 1982); In Re Polytherm Industries, 33 B.R. 823, 838 (W.D.Wis.1983); In Re Lloyd, 31 B.R. 283, 285 (Bankr.W.D.Ky. 1983); In Re Economy Cast Stone Co., 16 B.R. 647, 651 (Bankr.E.D.Va.1981); In Re S & W Enterprises, 37 B.R. 153 (Bankr.N. D.Ill.1984); In Re Masnorth, 28 B.R. 892 (Bankr.N.D.Ga.1983); In Re Russell, 44 B.R. 452, 453 (Bankr.E.D.N.C.1984); In Re Marston Enterprises, 13 B.R. 514, 520 (Bankr.E.D.N.Y.1981). Representative of the theory of each of the above cases is the language from In Re Pine Lake Village Apts., supra, which held:
"At least one affirmatively accepting class is required; a deemed accepted class will not suffice."
See also 5 Collier on Bankruptcy, pp. 1129-31 (15th Ed.), stating:
"Thus, the only aspect of Section 1129(a)(10) which is perfectly clear is that a plan cannot be confirmed if each class is impaired and no single class accepts the plan."
Accordingly, since the Debtors have now secured an affirmative vote by an impaired creditor in favor of the modified Plan, Section 1129(a)(10) is satisfied.
It is the duty of the Court under Chapter 11 to determine independently that the Plan has met all of the requirements necessary for confirmation. In Re Martin, 66 B.R. 921, 925 (Bankr.Mont.1986). I conclude the Plan as to impaired creditors meets the requirements of Section 1129(a) [except (c)(8)] and the requirements of Section 1129(b). The Plan does not unfairly discriminate against any creditor and is fair and equitable. It meets the so-called absolute priority rule under 1129(b) because all classes of senior creditors will be paid in full before any junior class or owner receives any property under the Plan. In Re Martin, supra, at 927.
I conclude after notice and hearing:
1. That the Plan complies with the applicable provisions of Chapter 11 of the Code;
2. That the proponents of the Plan comply with the applicable provisions of the Code;
3. That the Plan has been proposed in good faith and not by any means forbidden by law;
4. (A) That any payments made or promised by the Debtors for services or costs and expenses in connection with the case, or in connection with the Plan and *784 incident to the case, have been disclosed to the court;
(B) Any such payment made before confirmation is reasonable;
5. (A) Debtors have disclosed the identity and affiliations of any individual proposed to serve, after confirmation of the Plan, as a director, officer, or voting trustee of the Debtors, and appointment to or continuance in such office of such individual, is consistent with the interest of creditors and equity security holders and with public policy;
(B) That Debtors' Plan discloses the identity of any insider that will be employed or retained by the reorganized Debtors and the nature of cooperation of such insider;
6. With respect to each class:
(A) Each holder of a claim or interest of such class has accepted the Plan or will receive or retain under the Plan an account of such claim or interest property of a value, as of the effective date of the Plan, that is not less than the amount that such holder would so receive or retain if the Debtors were liquidated under Chapter 7; or
(B) Under Section 1129(b)(2) of the Code, each holder of a claim of such class will receive or retain under the Plan an account of such claim property of a value as of the effective date of the Plan, that is not less than the value of such creditor's interest in the estate's interest in the property that secures such claims;
7. With respect to each class, such class has accepted the Plan and the Plan provides that:
(A) With respect to a claim of a kind specified in Sections 507(a)(1) or 507(a)(2) of the Code, on the effective date of the Plan, the holder of the claim will receive on account of such claim cash equal to the allowed amount of such claim.
(B) With respect to a class of claims of a kind specified in sections 507(a)(3), 507(a)(4), or 507(a)(5) of the Code, each holder of a claim of such class will receive, if such class has accepted the Plan, deferred cash payments of value, as of the effective date of the Plan, equal to the allowed amount of such claim; or, if such class has not accepted the Plan, cash on the effective date of the Plan equal to the allowed amount of such claim; or
(C) With respect to a claim of the kind in Section 507(a)(6) of the Code, the holder of such claim will receive on account of such claim deferred cash payments, over a period not exceeding 6 years after the date of assessment of such claim, of a value, as of the effective date of the Plan, equal to the allowed amount of such claim; or
(D) With respect to each class of secured creditors who are impaired under the Plan and have not accepted the Plan, the Plan does not discriminate unfairly and is fair and equitable with respect to each class and the Plan complies with Section 1129(b)(2)(A) of the Code;
8. At least one class of claims has accepted the Plan, determined without including any acceptance of the Plan by an insider holding a claim of such class;
9. No regulatory commission with jurisdiction is involved in the Plan.
10. Confirmation of the Plan is not likely to be followed by the liquidation, or the need for further financial reorganization of the Debtors or any successor debtor under the Plan, unless such liquidation is proposed in the Plan.
IT IS ORDERED Debtors' Chapter 11 Plan of Reorganization is confirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569355/ | 574 S.W.2d 427 (1978)
In the Matter of John ALPERS, Jr., Respondent.
No. 60261.
Supreme Court of Missouri, En Banc.
December 18, 1978.
Lane L. Harlan, Timothy C. Harlan, Boonville, for informant.
William E. Gladden, Houston, for respondent.
SIMEONE, Judge.
This is a disbarment proceeding instituted by the Advisory Committee under Rule 5. The proceeding was instituted on July 5, 1977 by the filing of an information against the respondent John Alpers, Jr. of Cabool, Missouri. The information alleged that the respondent did "wrongfully, unethically and unprofessionally, and in violation of his duties as a lawyer, engage in . . . professional misconduct. . . ." The acts of misconduct alleged were in several counts. Three of the counts related to unprofessional conduct relating to the neglect of three decedents' estates and another count (Count V) alleged that respondent failed to take the necessary action to collect a judgment obtained in Texas after being *428 employed to do so. Count IV was a general charge relating to the failure to complete the proper administration of several estates. No specifics were alleged and as to this count a motion to dismiss was sustained. The respondent denied the allegations. On order of this court, the Honorable Herbert K. Moss was appointed master to hear evidence. A hearing was held on January 24 and 25, 1978. The master made detailed findings of fact and conclusions of law and recommended public censure.
There is no need to state each and every fact and detail in the processing of the three estates and the failure to take the necessary action to collect the Texas judgment. Suffice it to say that the master found the respondent violated DR6-101(A)(3) of Rule 4 in each of the three estate cases and the Texas judgment case and DR7-101(A)(2) in the latter case.
There was substantial evidence to support these findings. The respondent in each of the three estate cases did not carefully follow the statutes relating to the probate of estates and was delinquent and neglectful in failing to file inventories, or seek extensions, and other violations.[1] There was no fraud or defalcations in the administration of the estates. Neglect in several of the cases could well be construed to be the partial fault of one or more of the administrators rather than the respondent. But there is no doubt that there was substantial evidence that the respondent was neglectful and dilatory in the handling of the estates and did not act in a manner of a professional attorney.
As to the Texas judgment respondent admitted that he should have replied to the numerous letters of the forwarding Texas attorney but failed to do so. He gave no particular explanation except that he had had domestic problems over the past few years which are now resolved and he has custody of two of his children. The master found that the respondent feels he is now a "more stable person with a better outlook on life after his divorce." Under oath, he stated he is willing to and will apply himself diligently to represent his clients. The master recommended public censure.
In view of this lengthy record which shows that the respondent was neglectful of legal matters entrusted to him in violation of DR6-101(A)(3) and in the failing to carry out a contract of employment in violation of DR7-101(A)(2), we believe that a proper disposition would be to suspend the respondent from the practice of law as hereinafter specified. The neglect of the respondent in the processing of these three estates, while not altogether of his doing, was of sufficient magnitude to require more than a public censure. It is the duty of a lawyer to act with competence and proper care and to represent a client zealously. The respondent here fell below the standards of a competent and efficient attorney.
Neglect of duty to clients is sufficient for disciplinary action. In re Eldredge, 530 S.W.2d 221 (Mo. banc 1975) failure to file brief in criminal case and other neglect relating to client; In re Pendergast, 525 S.W.2d 341 (Mo. banc 1975) failure to handle divorce and adoption proceedings. See Annot., 96 A.L.R. 2d 823, 870-874 (1964).
Discipline of an attorney may be effected by disbarment, suspension or censure. Disbarment is an extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. To disbar it should be clear that he is one who should never be at bar; otherwise suspension is preferable. In re Sullivan, 494 S.W.2d 329, 334 (Mo. banc 1973). The respondent here has been city attorney for a number of years and has been at the bar since 1959. He has expressed his willingness, *429 and the master so found, to diligently represent his clients. The master found no acts of fraud on the part of the respondent. In such circumstances suspension will serve the ends of justice. In view of this proceeding the respondent is admonished that in the event he does not carry out his willingness to diligently represent his clients and fully complete any matter that may yet have to be accomplished in the administration of these estates, more severe measures may well have to be undertaken.
The Petitioner Advisory Committee contends the master erred in excluding evidence pertaining to the status of other estates being handled by the respondent. These were not specifically charged in the informationthe allegation being a general one. Rule 5.15 provides that the information shall set forth in brief form the specific act or acts of misconduct charged. That was not done. The master did not err. If respondent is to be disciplined for those additional occurrences, a separate proceeding specifically inquiring into those matters would be necessary.
It is ordered that respondent be suspended indefinitely from the practice of law with leave to apply for reinstatement after the expiration of ninety days from the date of rendition of this decision upon a showing that he is a person of good moral character and fully qualified to be licensed as a member of the Bar.
All concur.
NOTES
[1] One of the estate cases was handled in a strange manner. A person had been declared an incompetent in 1964 and died in 1966. Although the person had died the estate was distributed through the incompetency proceeding rather than a probate proceeding. This was done years after the person had died. Not all of the irregularities were the fault of the respondent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569364/ | 29 So. 3d 1120 (2010)
DOSS
v.
STATE.
No. 1D09-1214.
District Court of Appeal of Florida, First District.
February 25, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569350/ | 29 So. 3d 703 (2010)
Billy Ray WOODARD
v.
TOWN OF COLFAX.
No. 09-892.
Court of Appeal of Louisiana, Third Circuit.
February 3, 2010.
Joseph Yuri Beck, Hunter & Morton, Alexandria, LA, for Claimant/Appellee, Billy Ray Woodard.
*704 Randall B. Keiser, D. Heath Trahan, Keiser Law Firm, Alexandria, LA, for Defendant/Appellant, Town of Colfax.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
PICKETT, J.
The defendant, Town of Colfax (Colfax) appeals a ruling by a Workers' Compensation Judge (WCJ) finding that the claimant, Billy Woodard, suffered a disabling accident in the course and scope of his employment with Colfax and awarding the claimant the following: (a) supplemental earnings benefits, with a zero earnings capacity, beginning on the date Mr. Woodard discontinued working at the City of Colfax in July of 2007, until September 27, 2007, and (b) temporary total disability beginning on September 27, 2007, and continuing through present. The WCJ also ordered Colfax to authorize and pay for the discogram and repeat lumbar MRI recommended by Dr. George R. Williams and, if the he believes that the further testing continues to support the recommended surgery, that Colfax shall approve the lumbar surgery he recommended. In addition the claimant was awarded penalties, attorney's fees and interest and costs.
On appeal Colfax alleges that the WCJ erred in the following: (1) in finding the claimant is disabled, (2) in finding that more diagnostic testing is necessary, (3) in finding that, depending on the tests results, that surgery may be necessary (at the defendant's expense), and (4) in awarding penalties and attorney's fees.
The claimant answered the appeal seeking an increase in attorney's fees at the trial level and additional attorney's fees for the defense of this appeal. The defendant filed a motion seeking to have the claimant's answer to appeal dismissed as untimely. We affirm the ruling of the Workers' Compensation Judge and dismiss the claimant's answer to appeal as untimely.
FACTS
It was stipulated that on January 30, 2007, the claimant injured his low back lifting a storm grate during his employment with the Town of Colfax's Street Department. The following day, the town referred Mr. Woodard to Dr. Jay Piland, the town physician. Dr. Piland treated Mr. Woodard conservatively, for what he diagnosed as a lumbar strain, for the next seven months. Treatment included rest, medication and epidural steriod injections. According to Mr. Williams, his condition worsened during that time, with his back pain extending into his left leg, down to his foot. Mr. Woodard testified that medication failed to totally relieve his pain. An MRI performed during this time period revealed a bulging disc at L4/L5 and, depending on what doctor one queried, several other abnormalities.
Toward the end of July, Mr. Woodard and his supervisor, Derrian Sapp, had a disagreement over the claimant's working conditions and over his stopping at his house to get medicine. As a result, Mr. Sapp sent Mr. Woodard home on July 26, 2007, and Mr. Woodard was fired the next day.
Mr. Woodard's condition did not improve and on September 27, 2007, he consulted Dr. Ray Williams, an orthopaedic specialist in Opelousas, who is now Mr. Woodard's treating physician. Dr. Williams examined Mr. Woodard and read the MRI which had been previously done. In his opinion the MRI revealed "congenital stenosis at L3/L4 and L4/L5 with small disc protrusion and annular tear." He agreed with Dr. Piland that Mr. Woodard could not work and started him on physical *705 therapy and home stretching exercises. These treatments did not help.
The claimant was then referred to Dr. Frazer Gaar for a second medical opinion. Dr. Gaar examined Mr. Woodard on October 29, 2007. In his opinion, Mr. Woodard was suffering from a vascular necrosis of both hips, but he was close to maximum medical improvement from his back injury with a residual impairment rating of 5%. Dr. Gaar opined that surgery was not necessary and recommended that Mr. Woodard undergo a Functional Capacity Evaluation (FCE). On November 8, 2007, Mr. Woodard returned to Dr. Williams, who agreed with Dr. Gaar about the FCE and ordered the test. In February 2008, Dr. Williams, recommended decompression and fusion at the L4/L5 level.
Next, Mr. Woodard was referred to Dr. Gregory Gidman at the Acadiana Center for Orthopedic and Occupational Medicine for an Independent Medical Examination (IME). Dr. Gidman performed the exam on April 1, 2008, and concluded Mr. Woodard had only sustained a lumbosacral strain (he did agree that Mr. Woodard suffered from bilateral avascular necrosis). He also reviewed the MRI done in May of 2007, and opined the following:
There is no desiccation. The disc spaces are well preserved at all levels. At L4-5, there is a mild bulging with a small protrusion to the left. The L5-S1 level shows some mild facet arthropathy. There is no herniation or acute changes at any level.
This was the most conservative interpretation of Mr. Woodard's MRI by any health care professional. In fact, Dr. Gidman opined that "the examinee's MRI findings are compatible with his age and the labor he has done for years." Dr. Gidman concluded that Mr. Woodard's only "pathological disease" is bilateral avascular necrosis not related to his accident. He further stated that in his opinion Mr. Woodard had reached MMI; that he has a 3-5% whole body impairment; and that could resume work at medium level activities as established by his FCE.
Next, Mr. Woodard was referred to Dr. Mark F. McDonnell, a spine specialist in Lafayette for another opinion on May 21, 2008. Dr. McDonnell diagnosed Mr. Woodard with "post traumatic axial pain syndrome of the lumbar spine." In his recommendations, Dr. McDonnell states:
3. . . . I believe that the low back pathology is related to some type of lumbar disc injury. Decompression alone is not going to help him.
4. I would recommend that the patient have a pre-operative discogram of the lumbar spine. The MRI report suggests that L3-4 is normal. It appears, therefore that at least the L3-4, L4-5 and L5-S1 discs should be tested. In addition there is a question whether the L5-S1 disc is normal. If in fact it is normal, then the facet findings on the MRI at L5-S1 could possibly be observed. Of course, they would image better on a post discography CT scan, and a decompression of the foramen and lateral recesses at L5-S1 may be required.
5. If the discogram does show a good study with a normal control, and if it shows only concordant pain with annular tear at L4-5, then I would agree with a posterior instrumentation fusion at L4-5 assuming that the agrees to quit smoking.
In sum, two physicians, Drs. Gaar and Gidman, did not believe that Mr. Woodard was in need of further medical treatment, especially surgery, while the other three physicians who examined and/or treated Mr. Woodard, Drs. Piland, McDonnell and Williams all agreed that he had sustained a *706 work related injury to his lower back which required further medical treatment, i.e. testing and some type of surgery.
LAW AND DISCUSSION
In Monceaux v. R & R Construction, Inc., 05-533, pp. 5-7 (La.App. 3 Cir. 12/30/05), 919 So. 2d 795, 798-801, writs denied, 06-585 (La.5/5/06), 927 So. 2d 325, 06-636 (La.5/5/06), 927 So. 2d 317, we reviewed the standard of review and the claimant's burden of proof in a workers' compensation case:
In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So. 2d 112, 117, the supreme court discussed the standard of review in workers' compensation cases:
In worker's compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC's findings of fact is the "manifest error-clearly wrong" standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La. App. 1 Cir. 11/7/97), 704 So. 2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So. 2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 2003), 865 So. 2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La. App. 4 Cir. 4/24/02), 817 So. 2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So. 2d 874).
Recently, this court addressed a claimant's burden in proving the he/she suffered a work-related accident:
In order to recover workers' compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a "personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031(A). An "accident" is defined as an "unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. 23:1021(1).
The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So. 2d 357, 361 (La.1992), expounded on what proof will satisfy an employee's burden in proving a work-related injury:
A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So. 2d 1146 (La.1979); *707 Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So. 2d 350 (La. 1991)]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness's uncontradicted testimony, although the witness is a party, absent "circumstances casting suspicion on the reliability of this testimony." West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So. 2d 1381, 1383 (La. 1987). The trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So. 2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So. 2d 1200 (La.1988) (collecting cases).
As stated in Rosell v. ESCO, 549 So. 2d 840, 844-45 (La.1989) (citations omitted):
When findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896 So. 2d 269, 271-72.
In his reasons for his ruling, the WCJ stated:
In Mr. Woodard's case, there is absolutely no showing by the Town of Colfax that it ever had available for Mr. Woodard a job that ever met any restrictions placed upon him by Dr. Piland. Mr. Woodard has shown by a preponderance of clear and convincing evidence based upon the objective findings in the medical testing and the opinions suggested in the medical records of the examining physicians other than [Drs.] Gaar and Gidman that he is unable to work and he is entitled to temporary/total disability benefits.
After examining the record in its entirety, including both lay and professional testimony, and the documentary evidence, we cannot say that the WCJ was manifestly erroneous in his findings regarding Mr. Woodard's disability and his need for further testing and treatment.
Inasmuch as Colfax had notice of Mr. Woodard's injury and knowledge that he was under a doctor's treatment and on medication, we find no error in the award of penalties and attorney's fees.
*708 As to Mr. Woodard's answer to appeal, we agree with the appellant, the answer was filed untimely. Hence, we will not consider the arguments raise therein.
Accordingly, for the reasons stated above, we affirm the judgment of the WCJ. We dismiss the answer to appeal as untimely. All costs of this appeal are taxed against the appellant, Town of Colfax.
AFFIRMED.
AMY, J., concurs in part and dissents in part, and assigns written reasons.
AMY, J., concurring in part and dissenting in part.
I agree with the majority that an affirmation is required as to the findings of disability, diagnostic testing, and penalties and attorney fees. However, I find merit in the employer's assignment of error which questions that portion of the judgment ordering that: "If the treating physician believes that the further testing continues to support the recommended surgery, the City of Colfax shall approve the lumbar surgery recommended by Dr. Williams." In my opinion, this order was premature as the testing had not yet been completed and pre-judged what may be medically necessary. Accordingly, I would reverse the judgment in this limited regard, leaving future events to determine the necessity of such issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569365/ | 37 F.2d 550 (1930)
WACHOVIA BANK & TRUST CO.
v.
INDEPENDENCE INDEMNITY CO.
No. 2897.
Circuit Court of Appeals, Fourth Circuit.
January 14, 1930.
W. M. Hendren, of Winston-Salem, N. C., for appellant.
F. P. Hobgood, Jr., of Greensboro, N. C., for appellee.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
WADDILL, Circuit Judge.
This is an appeal from a judgment of the District Court of the United States for the Middle District of North Carolina, at Winston-Salem, rendered in an action by the receiver of a defunct bank, appellant here, to recover on a bond insuring the fidelity of its president, which action was dismissed upon a directed verdict. The facts are as follows:
On April 26, 1926, the Merchants' Bank & Trust Company was closed by the banking department of the Corporation Commission of North Carolina, and on June 16, 1926, the Wachovia Bank & Trust Company was named as permanent receiver. Pursuant to an order of court, in October, 1926, the receiver arranged for an audit of the Merchants' Bank & Trust Company, and in the month of December, 1926, received information from the auditors indicating misappropriation, misapplications, and embezzlement of sums of money by Thomas Maslin, the president of the bank. Receivership affairs were under the general supervision of R. G. Stockton, one of the trust officers of the Wachovia Bank & Trust Company, the details being looked after by Thomas H. Haskins, one of its auditors.
Concurrent with the appointment of the receiver, the banking department of the Corporation Commission of the state delivered to the receiver all of the books, records, and papers of the bank, which had come into its possession, and included among such records was a package of fidelity bonds, some written with the National Surety Company, and some with the appellee indemnity company. Among these fidelity bonds so coming into the possession of the receiver were two on Thomas Maslin, one dated November 16, 1921, and one dated November 24, 1925, both in the National Surety Company. The bonds with the appellee company covered two employees of the bank, Bertha Long and C. R. Masten.
*551 J. S. Dunn was the Winston-Salem agent of the National Surety Company, save for the period from November, 1924, to November, 1925, when he gave up that agency and accepted the agency of the appellee company, which agency was in turn surrendered in the fall of 1925, when he resumed the agency of the National Surety Company. Within a day or two after the receiver took charge of the bank, Thomas Haskins took all of the fidelity bonds of which he had any knowledge to J. S. Dunn, with the request that he check them and advise Haskins those that were in force and those that had been superseded. Dunn did this, returning the bonds, indicating one of the National Surety Company's bonds as being in force, and one as superseded. At the trial the witness Haskins testified that he said nothing to Mr. Dunn at this time about a bond on Maslin in the appellee company, as at that time he did not know anything about Mr. Dunn's connection with the appellee company, and Mr. Dunn did not mention it.
After the receiver was advised of the misappropriations of Maslin, acting upon the assumption that the National Surety Company was the only company with which the bank had any fidelity bonds on Maslin, it filed a claim, in December, 1926, with the National Surety Company for reimbursement in the full amount of the misappropriations, etc., as shown by the audit. Pursuant to an understanding with Mr. Pond, representative of the National Surety Company, instead of undertaking to set out the various items in the claim filed, there was delivered to him, in support of the claim, a copy of the audit. On September 19, 1927, the National Surety Company wrote a letter to counsel for the receiver, advising that it had discovered that during the period of November 16, 1924, to November 16, 1925, it was not surety on Maslin's fidelity bond. This was the first knowledge receiver had of the existence of the bond in suit. Mr. Haskins went to see Mr. Dunn for verification, and was then advised that for the period of November, 1924, to November, 1925, the appellee company was on Maslin's bond. Thereupon the receiver, on September 29, 1927, nine months after the discovery of the defalcations, gave notice to the appellee company of the loss and its claim. No trace of the bond in suit was ever found among the books and papers of the bank.
The bond sued on contained the following provision, among others:
"Provided, however, and upon the following express conditions:
"First That the employer shall within a reasonable time and at all events not later than thirty days after discovery of loss hereunder, notify the surety thereof at its home office."
The appellee, Independence Indemnity Company, defendant below, denied liability on the bond sued on because of failure to notify in accordance with the provision of the bond, whereupon the receiver, appellant here, brought suit. At the conclusion of all the evidence, the trial court, upon motion of the defendant surety company, directed a verdict in favor of defendant, and entered judgment thereon, from which this appeal is taken. Error is assigned to the action of the trial court in sustaining objections of defendant to certain evidence, in directing a verdict in favor of defendant, and in entering and signing a judgment for the defendant, dismissing the action.
A careful consideration of the assignments of error will readily show them all to be without merit. The first assignment is to the court's refusal to admit certain testimony relating to the financial condition of the president of the defunct bank, and for the faithful conduct of whom the appellee bonding company executed the fidelity bond sued on. The issue under consideration was, whether liability existed in favor of the plaintiff under the bond in suit, for the alleged liability, or shortage in the accounts of the bank's ex-president, and not whether he was solvent or insolvent generally. Bond, doubtless, might have been executed under which the proposed inquiry would have been pertinent, for instance, where the conditions under which liability existed were severable or uncertain, or where the meaning of the undertaking was ambiguous or indefinite. Thompson v. Phenix Ins. Co., 136 U.S. 287, 10 S. Ct. 1019, 34 L. Ed. 408; National Surety Co. v. Long (C. C. A.) 125 F. 887. But here, under the express terms and conditions upon which liability existed, and was sought to be enforced, the inquiries were wholly irrelevant and immaterial.
The second assignment of error relates to the merits of the case and the conditions upon which the right of recovery is predicated. It is made plain, upon the mere reading of the bond, and in as few words as possible, that liability should exist only upon the express condition: "First That the employer shall within a reasonable time and at all events not later than thirty days after discovery of loss hereunder, notify the surety thereof at its home office." Indisputably the *552 loss arose under the bond, and for the full face value thereof, of $10,000, and the question to be determined is: Was proper notice given by the insured of the loss arising under the bond? Manifestly and indisputably, so far as the facts are concerned, it was not. Maslin's defalcation was known early in December, 1926, and notice thereof was not given to the surety company appellee, until September 29, 1927, some 9 months thereafter. This action, in failing to give notice of the defalcation of Maslin, within a proper time, was inexcusable, and the failure so to do within 30 days from the date of the discovery of loss is conclusive of the right of the plaintiff to recover upon the bond in suit. In this case, the right of recovery is dependent upon the condition precedent so expressly stated upon the face of the bond, viz. that notice of the defalcation should be given within a reasonable time, and at all events not later than 30 days after the discovery of the defalcation and loss.
Authorities treating of the general subject under consideration will be found almost without limit, and they have been cited and commented upon, from the viewpoints of opposing counsel, with much ability and force. Only a few of them, however, need be cited here, as this case falls within a narrow compass, under its own facts and circumstances. National Surety Co. v. Long (C. C. A.) 125 F. 887; New Amsterdam Casualty Co. v. Central Nat. Fire Ins. Co. (C. C. A.) 4 F. (2d) 203; Maryland Casualty Co. v. Bank of England (C. C. A.) 2 F.(2d) 793; Thompson v. Phenix Ins. Co., 136 U.S. 287, 10 S. Ct. 1019, 34 L. Ed. 408; Imperial Fire Ins. Co. v. County of Coos, 151 U.S. 452, 14 S. Ct. 379, 38 L. Ed. 231; American Surety Co. v. Pauly, 170 U.S. 133, 18 S. Ct. 552, 42 L. Ed. 977; Guarantee Co. of North America v. Mechanics' Sav. Bank & Trust Co., 183 U.S. 402, 22 S. Ct. 124, 46 L. Ed. 253.
In New Amsterdam Casualty Co. v. Central Nat. Fire Ins. Co. (C. C. A.) 4 F.(2d) 203, 204, supra, the surety bond contained this provision: "Provided, however, * * * that the obligee, upon learning of any act which may be made the basis of any claim hereunder, written notice thereof shall be mailed to the surety * * * within thirty days after so learning of any such act." Notice was not given within the required time and the court held this failure fatal. The contention of the obligee was that it had exercised due care to give the notice and that that was all the law required. As to this, the court, quoting from National Surety Co. v. Long (C. C. A.) 125 F. 887, supra, said:
"The care or negligence with which an obligor, who fails, seeks to perform his contract, is no defense to an action for damages for his failure. The only test of the right to recover in such an action is the existence of the breach of the covenant. * * * The very purpose of a promise or of a covenant is to relieve the obligee of all inquiry relative to the care or negligence with which the obligor acts in its fulfillment, and to impose upon the latter the absolute obligation to perform it."
In Maryland Casualty Co. v. Bank of England (C. C. A.) 2 F.(2d) 793, 796, supra, the defense was that there had been a breach of one of the conditions of the surety bond in suit. This was denominated in the bond, as in the instant case, an "express condition" and related to certain "monthly comparisons" which the obligee covenanted to, and failed to make. The court said: "As the bond expressly provided that it should fail if these monthly comparisons were not made and as they were not made, the bank cannot recover."
The evidence in this case demonstrates that the appellant was not entitled to recover, and hence that the trial court was correct in its rulings, and in instructing judgment in appellee's favor thereon, as it was also in entering its judgment dismissing the appellant's case. The judgment of the trial court is affirmed, with costs to the appellee.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569399/ | 37 F.2d 34 (1930)
CORN EXCHANGE BANK
v.
UNITED STATES.
No. 49.
Circuit Court of Appeals, Second Circuit.
January 6, 1930.
Laughlin, Gerard, Bowers & Halpin, of New York City (Spotwood D. Bowers and Stewart W. Bowers, both of New York City, of counsel), for appellant.
Charles H. Tuttle, U. S. Atty., of New York City (Walter H. Schulman, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
MANTON, Circuit Judge.
During the year 1918, the appellant made loans to the Brooklyn Rapid Transit Corporation. Interest on the loans was accrued on the appellant's books, kept on an accrual basis. The Brooklyn Rapid Transit Corporation went into receivership on December 31, 1918, before the close of the business day. The bank received knowledge thereof the same day. The then accrued interest amounted to $14,014.67. The taxpayer's return for the year was made on an accrual basis; a tax was paid on this interest under duress. The court below gave judgment for the appellee, holding that, since appellant kept its books on an accrual basis, the interest item must be treated as taxable income unless otherwise properly deductible. The collector ruled that the interest item was not found to be worthless and charged off the books of the appellant during the taxable year.
The appellant contends that, as the income tax return was made for the taxable year ending December 31, 1918, and a receivership of the Brooklyn Rapid Transit Corporation had taken place, and this fact was known to the bank before the close of that day, it was improper to accrue, as income for the year, interest on an obligation of the corporation known to be in receiver's control and from whom it was known it could not expect to receive interest. When a tax is lawfully imposed on income not actually received, it is upon the basis of a reasonable expectancy of its receipt, but a taxpayer should not be required to pay a tax when it is reasonably certain that such alleged accrued income will not be received and when, in point of fact, it never was received. A taxpayer, even though keeping his books upon an accrual basis, should not be required to pay a tax on an accrued income unless it is good and collectable, and, where it is of doubtful collectability or it is reasonably certain it will not be collected, it would be an injustice to the taxpayer to insist upon taxation. Edwards v. Keith (C. C. A.) 231 F. 110; United States v. Frost, 25 Fed. Cas. 1221, No. 15172; Spencer v. Lowe (C. C. A.) 198 F. 961.
A taxpayer cannot be charged to have realized an income unless there exists reason for believing that the income is likely to be paid or can be collected. Such has been the ruling of the Board of Tax Appeals. Turner's Falls Power & Electric Co. v. Commissioner of Internal Revenue, 15 B. T. A. 983; Great Northern Ry. Co. v. Commissioner of Internal Revenue, 8 B. T. A. 225. Certainly the interest account could not be collected in due course after the receivership. Receivership gave notice that the account might not be collected, and, if collected, it might be reduced *35 and very much delayed. It therefore may not be treated as accrued income. It is not necessary that there be equally as strong evidence as warrants writing off an account as a loss, as in the case of a bad debt. It is sufficient, in asking for a deduction of accrued income, to be able to state that in all probability the income will not be received. The government should not tax under the claim of income, that which is not received during the taxable year and in all probability will not be paid within a reasonable time thereafter. When and if such income is received, it must be returned as such for the year received.
Bookkeeping entries which do not correctly reflect income do not estop the taxpayer from questioning the taxation. Doyle v. Mitchell Bros. Co., 247 U.S. 179, 38 S. Ct. 467, 62 L. Ed. 1054; Haugh & Keenan Storage & Transfer Co. v. Heiner (D. C.) 20 F. (2d) 921; In re Sheinman (D. C.) 14 F.(2d) 323, 325; American Can Co. v. Bowers (D. C.) 33 F.(2d) 187; Douglas v. Edwards (C. C. A.) 298 F. 229; Forty Fort Coal Co. v. Kirkendall (D. C.) 233 F. 704.
Judgment reversed.
AUGUSTUS N. HAND, Circuit Judge (concurring).
At the end of 1918 the Brooklyn Rapid Transit Corporation was placed in the hands of a receiver. In about five years there was a reorganization, as a result of which there was a payment of $7,757.12 upon the $14,016.67 due the plaintiff on December 31, 1918, on account of unpaid interest. Hardly any better proof could be made of the practical worthlessness in the year 1918 of the item of $14,016.67, which plaintiff had entered on its books, than that it represented an unsecured claim for accrued interest against a company which went into the hands of a receiver; that the claim was subordinate to the prior payment of principal in full; that ultimate realization of any part of it involved, as a practical matter, the hazards of a receivership and a reorganization; and that the worth in 1918 of the $7,757.12 paid in 1923 on account of the claim was the equivalent of only about 43 per cent. thereof finally obtained almost by chance after years of delay and uncertainty. After such evidence, if the government wished to show that this claim had any market value in the year 1918, it should have offered some testimony, instead of resting on the plaintiff's case. In Sherman & Bryan v. Blair (C. C. A.) 35 F.(2d) 713, we held that a debt partially worthless was within the classification of "losses sustained during the taxable year and not compensated for by insurance or otherwise," which might be deducted under section 234 (a) (4) of the Revenue Act of 1918 (40 Stat. 1078), to the extent that it was worthless. If subdivision (4) applies, the item may be deducted as a loss.
It may, however, be said that section 234 (a) (4) cannot apply if the claim for interest became wholly worthless in 1918, and that recourse in that case would have to be had to subdivision (5) of section 234 (a), which allows deduction of "debts ascertained to be worthless and charged off within the taxable year." Subdivision (5), supra, has never been authoritatively held to be exclusive of subdivision (4), but, even if subdivision (5) alone applies to the case of debts which were once good and were later ascertained to be worthless, it can hardly affect this case. When a receivership of a large railroad system followed within less than six months after the loan here was made, and the claim for interest only yielded a little after years of delay, the reasonable inference is that the claim never had any substantial value. Consequently it was not income for the year 1918, and was no more assessable as such than the accruals upon the same loan during the years succeeding the receivership, which do not seem to have been claimed as taxable income.
If A loaned $100,000 to B, and the latter was a hopeless insolvent, but A did not know it, can it be thought that A would create taxable income by mistakenly entering interest upon the loan upon his books? What the government is permitted by the Constitution to tax is real and not supposed income. The only difference between the assumed case and the present is that here the receivership followed instead of preceded the loan. But the circumstances gave rise to the inference that the interest was of no substantial worth. It was for the government to meet this presumption if it had proof to the contrary. Should the item of interest be shown on a new trial to have had some value in 1918, to that extent and to that extent only it was subject to tax for that year. Any excess tax paid would be recoverable.
I concur with the view that the judgment should be reversed.
SWAN, Circuit Judge (dissenting).
In my opinion taxpayers who report upon an accrual basis are obliged to return as gross income interest earned during the year and accrued upon their books, and are permitted only such deductions from gross income as the revenue law specifies. Sections 233, 234, Revenue Act of 1918 (40 Stat. 1077). The *36 interest which had accrued up to the appointment of the receiver was a debt owing to the bank, and it was neither ascertained to be worthless nor charged off during the year. Indeed, it was not in fact worthless. The interest accrued before receivership was a provable claim and entitled to receive the same rate of dividend as the principal of the loan, whatever that might be. No one doubted that some substantial dividend would ultimately be paid. To allow a taxpayer reporting upon an accrual basis to appraise the debts which he has entered on his books as constituting accrued income, according to his opinion at the end of the year of the financial responsibility of the several debtors, returning some items at face value and others at a percentage of their face, while still others are omitted altogether as worthless, would be inconsistent with accounting principles, and is not, in my judgment, what Congress intended by authorizing the keeping of books and the making of returns on a basis other than that of actual receipts and disbursements. See United States v. Anderson, 269 U.S. 422, 46 S. Ct. 131, 70 L. Ed. 347. Accordingly, I think the judgment should be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569400/ | 985 F. Supp. 385 (1997)
Elizabeth CRISONINO, Plaintiff,
v.
NEW YORK CITY HOUSING AUTHORITY, Ruben Franco, David Burney, and Kenneth Eisenstat, Defendants.
No. 96 Civ. 9742(HB).
United States District Court, S.D. New York.
November 18, 1997.
*386 *387 *388 John A. Beranbaum, New York City, for Elizabeth Crisonino.
Jennifier Kay Brown, U.S. Atty.'s Office, Southern Dist. of New York, New York City, for U.S.
OPINION AND ORDER
BAER, District Judge.
Defendants move for summary judgment on plaintiff's federal claims and for dismissal of the pendant state-law claims. For the reasons discussed below the motion is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff Elizabeth Crisonino was employed as an architect by defendant New York City Housing Authority ("NYCHA") from January 23, 1995 until her termination on January 19, 1996. She was called to jury duty in this Court on or about November 20, 1995 and was chosen to serve on a criminal trial expected to last two months. Plaintiff notified NYCHA of her jury duty and sought to comply with the agency's requirements so as to ensure that she would continue to receive her paycheck in a timely manner. While the plaintiff had disagreements with her superior Mr. Eisenstat in the past, the saga underlying this lawsuit appears to have begun on January 4, 1996, when her paycheck was withheld. Apparently, there was some misunderstanding between the parties as to the procedures to be followed. As a result, on January 12, 1996 a memo was prepared to suspend plaintiff from the active payroll. On January 16, 1996, the next business day, the payroll suspension was rescinded. Two days later, plaintiff submitted reimbursement checks to NYCHA.[1]
The following day, January 19, 1996, proved fateful. On that date, plaintiff entered the office of defendant Kenneth Eisenstat, the Assistant Director for Operations at NYCHA, and asked for her paycheck. There is no dispute that Eisenstat refused to give plaintiff her check because he believed she had not yet properly reimbursed the agency. Compare Eisenstat Aff. ¶ 4; Crisonino Aff. ¶ 23. What follows is the subject of much dispute. According to plaintiff, Eisenstat called her a "dumb bitch" and she left. Later, when she returned to his office intent on picking up her paycheck, she was again refused and, after she used a profanity, plaintiff alleges that Eisenstat stood up, walked around his desk and shoved her so hard that she fell backward and hit the floor, sustaining injuries from which she has yet to fully recover. According to Eisenstat, when plaintiff returned to his office she interrupted a meeting he was having, demanded her check, swore at him, and began walking toward him, at which time he stood up and was struck in the chest by the plaintiff, who grabbed his shirt and began kicking him. Several co-workers who had witnessed some or all of the confrontation managed to separate the two. Plaintiff was immediately suspended from her duties and later that day she was fired.
After being terminated from her employment, plaintiff filed criminal charges against Eisenstat. The initial charge was Assault in the Third Degree. See Penal Law § 120.00. charge was later reduced to Harassment in the Second Degree. See Penal Law § 240.26(1). Plaintiff also filed a complaint against Eisenstat and his supervisor, defendant David Burney, with NYCHA's Inspector General. The complaint, alleging sexual harassment and that plaintiff had been discriminated against on the basis of her sex, was apparently transferred to the agency's Department of Equal Opportunity ("DEO"). DEO conducted an investigation and concluded that plaintiff's allegations were unfounded.
Plaintiff also filed this lawsuit, in which she asserts the following causes of action against the defendants: (i) violation of the Jury Duty *389 Act, 28 U.S.C. § 1875;[2] (ii) violation of the Gender Motivated Violence Act, 42 U.S.C. § 13981; (iii) violation of her equal protection rights, presumably pursuant to 42 U.S.C. § 1983; (iv) violation of her right to privacy and substantive due process, also presumably pursuant to 42 U.S.C. § 1983; (v) violation of Title VII, 42 U.S.C. §§ 1981A, 2000e et seq.; and (vi) various state and city law claims. Defendants have moved for summary judgment on the enumerated federal claims and for dismissal of the state law claims.
DISCUSSION
Summary judgment can be granted only where there is no material issue of fact. It is beyond peradventure that whether Mr. Eisenstat called plaintiff a "dumb bitch" and shoved her to the ground, as she claims, or whether she attacked him, as he claims, is a material issue of fact. Defendants have submitted four affidavits supporting Eisenstat's account of the incident: Eisenstat's and those of three eyewitness, all of whom claim plaintiff grabbed Eisenstat's shirt and began kicking him. See Eisenstat Aff. ¶¶ 11, 12; Wilkerson Aff. ¶ 15; Positino Aff. ¶ 9; Burney Aff. ¶ 3.[3] Plaintiff relies on her version of the event. Crisonino Aff. ¶ 27. Although defendants' affidavits outnumber plaintiff's, summary judgment is not a numbers game and in this instance requires an assessment of credibility by a jury, not the Court. In ruling on a motion for summary judgment, the Court is bound to assume that the incident occurred as described by plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986) (availability of summary judgment does not authorize "trial on affidavits"). With that in mind, I examine the sufficiency of each of plaintiff's federal causes of action.
I. Title VII
Plaintiff asserts that defendant NYCHA[4] violated her rights under Title VII by creating a sexually hostile work environment.[5] "A hostile work environment exists `when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of employment.'" Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993)), petition for cert. filed, 66 U.S.L.W. 3283 (1997). Although "isolated, minor episodes of harassment do not merit relief under Title VII," the Court of Appeals has noted that "even a single episode of harassment, if severe enough, can establish a hostile work environment." Id. at 631 n. 4; see also Tomka v. Seiler, 66 F.3d 1295, 1305 (2d Cir.1995) ("even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII") (emphasis added).
Plaintiff here alleges a single incident of assault. Whether this assault can form the basis for any hostile work environment charge is a close question. Plaintiff relies on the fact that Eisenstat touched her "above the breast" when he pushed her and the fact that he referred to her as a "dumb bitch" earlier in the morning to show that the assault was sexual in nature. Defendants argue that a single stray remark is insufficient to establish gender animus. The cases on which defendants rely are distinguishable, however, in that the remarks at issue there had no nexus to the complained-of action. *390 See Arroyo v. New York State Ins. Dep't, No. 91 Civ. 4200(MBM), 1995 WL 611326 (S.D.N.Y. Oct. 18, 1995), aff'd, 104 F.3d 349 (2d Cir.1996); O'Connor v. Viacom, Inc., No. 93 Civ. 2399(LMM), 1996 WL 194299 (S.D.N.Y. April 23, 1996), aff'd, 104 F.3d 356 (2d Cir.1996). By contrast, the remark at issue here was closely followed by the alleged assault. The Court of Appeals has recognized that "stray remarks" can suffice to establish a prima facie case in the appropriate circumstances. See Kirschner v. Office of the Comptroller, 973 F.2d 88, 93 (2d Cir. 1992). While this is a close question, it is a question for the jury. See Torres, 116 F.3d at 633 ("jury question as to whether [defendant's] conduct created a hostile work environment").
Having barely survived summary judgment with respect to whether the incident was sufficiently severe or sexually related so as to meet the requirements for a hostile work environment charge, let me turn to whether plaintiff has established facts that could make NYCHA liable for the conduct of its employees. Id. at 633-34. The Circuit has recently held that "an employer will be held liable for the harassment perpetrated by one of its supervisors" only in enumerated circumstances, including when "the employer provided no reasonable avenue for complaint." Id. at 634. Defendant contends that the fact that the DEO investigated plaintiff's complaint, albeit months after she was fired, constitutes a "reasonable avenue of complaint." I disagree. The mere existence of sexual harassment complaint procedures does not immunize defendant. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1180-81 (2d Cir.1996). "The question of whether an employer has provided a `reasonable avenue of complaint' is a question for the jury," id. at 1181, especially where, as here, plaintiff was discharged prior to any investigation whatsoever. Defendant's motion to dismiss plaintiff's Title VII hostile work environment claim against NYCHA is denied.
II. Section 1983
Plaintiff has also asserted two Section 1983 claims: one for violation of her equal protection rights (count three) and one for violation of her substantive due process right to bodily integrity (count four). Defendant has moved for summary judgment on both counts on various grounds. Plaintiff's allegations and defendants' motion must be assessed separately with respect to each defendant.
A. NYCHA
Any Section 1983 claims against NYCHA must be dismissed. To state a claim against a municipality or a municipal agency, plaintiff must allege either that the complained-of act was a result of a pattern or practice or that some other basis for liability other than respondeat superiorexists. See Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978). Plaintiff seek to hold NYCHA liable on the theory that defendant Franco's decision to suspend and terminate plaintiff's employment constitutes a decision by an official with policymaking authority and is therefore imputable to the agency. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 1299-1300, 89 L. Ed. 2d 452 (1986). This Court has recently rejected just such a claim. Ramos v. City of New York, No. 96 Civ. 3787(DLC), 1997 WL 410493 (S.D.N.Y. July 22, 1997) (NYCHA Board of Directors, and not Franco individually, has final policymaking authority). Plaintiff's attempt to impute Section 1983 liability to NYCHA therefore must fail and the Section 1983 claims against NYCHA are hereby dismissed.
B. Individual Defendants
Defendants seek the dismissal of the Section 1983 claims against the individual defendants on the basis that "plaintiff cannot demonstrate that the defendants' actions were based on an impermissible motive," Def. Br. at 11, relying on the same arguments made with respect to the Title VII claim. Having found that there is a question of fact as to whether Eisenstat's actions evinced a discriminatory intent, it follows that Burney's actions in immediately suspending plaintiff, and Burney's and Franco's actions in concurring in plaintiff's dismissal raise the same questions as to their intent. The motion with *391 respect to the Section 1983 claims against the individual defendants is denied.[6]
III. Gender Motivated Violence Act
Plaintiff also brings a claim under the civil enforcement provisions of the Gender-Motivated Violence Act ("GMVA" or the "Act"), 42 U.S.C. § 13981, enacted in 1994. Defendant moves to dismiss this claim on the grounds that (i) plaintiff has failed to state a claim and (ii) the Act is unconstitutional. This Circuit has not yet addressed this issue.
A. Failure to State a Claim
The GMVA provides that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender," 42 U.S.C. § 13981(b), and provides for a private cause of action for violations of that right, 42 U.S.C. § 13981(c). To state a claim under the GMVA, therefore, plaintiff must allege that (i) she was the victim of a gender-motivated crime and (ii) the crime was a crime of violence.[7]
1. Gender-Motivated Crime
The term "crime of violence motivated by gender" is defined in the Act as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." 42 U.S.C. § 13981(d)(1). The Act goes on to specify, however, that the Act is inapplicable to "random acts of violence unrelated to gender." 42 U.S.C. § 13981(e)(1). This is apparently an attempt to codify Congress' concern that the Act not provide a cause of action for all female victims of violence, regardless of the motive. See S.Rep. No. 103-138, at 49 (1993) ("The committee is not asserting that all crimes against women are gender-motivated.").
The Act's definition of gender-motivated crime is based on Title VII. Doe v. Hartz, 970 F. Supp. 1375, 1407 (N.D.Iowa 1997) (citing S.Rep. No. 103-138, at 52 (1993)); Brzonkala v. Virginia Polytechnic and State University, 935 F. Supp. 779, 784 (W.D.Va.1996) (citing S.Rep. No. 102-197, at 50 (1991)). Congress explained that "[p]roof of `gender motivation' under [VAWA's civil rights provision] should proceed in the same ways proof of race or sex discrimination proceeds under other civil rights laws." S.Rep. No. 103-138, at 52 (1993). The Court must therefore draw from Title VII caselaw in deciding this motion. See id. at 53 ("This body of case law will provide substantial guidance to the trier of fact in assessing whether the requisite discrimination was present."). As amici note, the appropriate determination as to whether a particular act of violence is gender motivated is to be made based on the "totality of circumstances." Amici Br. at 17-20 (citing cases).
Intentor "animus"in such cases is usually a question of fact. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). If for instance Eisenstat called plaintiff a "dumb bitch" and later shoved her to the ground, this would allow a reasonable jury to conclude that his actions were committed because of plaintiff's gender and were due, at least in part, to an animus based on her gender. Accordingly, plaintiff has adequately pled the first element of a GMVA claim.
*392 2. Crime of Violence
The GMVA defines "crime of violence" as an act that would constitute a felony under state or federal law. 42 U.S.C. § 13981(d)(2)(A).[8] Defendants contend that plaintiff has failed to allege that Eisenstat committed such a "crime of violence" for two reasons. First, defendants argue that because the criminal charges brought against Eisenstat did not charge a felony, his acts, do not constitute a "crime of violence." Second, defendants argue that in any event Eisenstat's conduct was not felonious and is therefore not actionable under the GMVA.
a. Criminal Charges
Defendants first point to the fact that the criminal charge ultimately filed against Eisenstat by the district attorney was harassment in the second degree, not a felony under New York law. Therefore, defendants argue, the complained-of conduct does not constitute a "crime of violence" under the Act and plaintiff's claim must be dismissed. The Court has not located any prior decisions addressing defendants' argument that when criminal charges are brought against a defendant, those charges are determinative of whether the defendant's acts constitute a "crime of violence" for purposes of the GMVA.
To the contrary, my examination of the plain language of the statute and its legislative history makes clear that the criminal charges filed against a defendant do not determine whether the predicate offense qualifies as a "crime of violence" under the Act. The statute itself provides that "[n]othing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section." 42 U.S.C. § 13981(e)(2). While this statement does not speak specifically of those cases in which prior criminal charges have been filed, it supports a conclusion that when such charges are filed they should not determine whether the predicate act qualifies as a "crime of violence." A holding to the contrary would lead to the result that in those cases in which no criminal charges are filed (presumably because the incident in question was not sufficiently serious) plaintiffs would be free to proceed with their GMVA claim, simply by alleging that the act constitutes a felony, while in some cases in which criminal charges were filed plaintiffs would be precluded from bringing a GMVA claim.
Such a result would place an effective "veto" power in the hands of local prosecutors: if they chose to charge defendants with misdemeanors rather than felonies, the victims of the violence would be precluded from bringing a GMVA claim. While prosecutors have the power to decline prosecution altogether, it was in large measure on that ground that the GMVA was passed and consequently it is unlikely indeed that Congress intended that plaintiffs such as Elizabeth Crisonino be subject to such decisions. See, e.g., H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted at 1994 U.S.C.C.A.N. 1839, 1853 ("bias and discrimination in the criminal justice system often deprives [sic] victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled"); S.Rep. No. 103-138, at 49 (1993) ("Study after study has concluded that crimes disproportionately affecting women are often treated less seriously than comparable crimes affecting men."). The Court therefore rejects defendants' argument that because Eisenstat was eventually charged *393 with a crime not constituting a felony plaintiff cannot, as a matter of law, state a GMVA claim. The determination of whether the predicate act constitutes a "crime of violence" under the Act is a question for the Court or the jury, as appropriate. While the nature of the charges brought against a defendant may inform the Court's decision as to whether plaintiff has stated a claim, those charges alone are not determinative of whether a defendant's actions constitute a "crime of violence" under the Act.[9]
b. Felonious Conduct
Defendants also argue that, regardless of the charges brought against Eisenstat, his actions simply do not constitute a felony under New York or federal law. Viewing the allegations in the light most favorable to the plaintiff, defendants are plainly wrong. Under New York law, "[a] person is guilty of assault in the second degree when: [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or a third person." N.Y. Penal Law § 120.05(1). "Serious physical injury" is defined as "physical injury ... which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." N.Y. Penal Law § 10.00. Assault in the second degree is a class D felony under New York law.[10]
Plaintiff alleges in her complaint that "Eisenstat violently pushed [her] to the ground, causing injuries to her chest, head, neck, shoulder and arm." Compl. 1 25. She has also submitted an affidavit in opposition to defendants' motion in which she states that as a result of her injuries she could not engage in manual drafting (an essential function of her job as an architect) until at least December 1996; that she avoided using her left arm because of pain until June 1997; that she still suffers sharp neck pains when she turns her head and that she suffered severe psychological trauma. Crisonino Aff. ¶¶ 40-43. She also submitted medical reports corroborating her claims. See Berenbaum Aff. Exhs. M-Q. Should a jury credit plaintiff's claims, it would certainly be entitled to conclude that Eisenstat's actions caused plaintiff "protracted impairment of health or protracted loss or impairment of the function of any bodily organ" as required by the statute. As noted above, New York law also requires that defendant have acted with intent to cause serious physical injury. Such a question is one of fact, inappropriate for resolution on summary judgment on this record. Having alleged facts sufficient to support a finding that Eisenstat's conduct constituted a felony, plaintiff is entitled to have a jury determine whether that is in fact the case. See Hartz, 970 F.Supp. at 1402 ("If the court finds as a matter of law that the crime [alleged] constitutes a crime of violence within the meaning of the [GMVA], then the jury will decide as a matter of fact whether the elements constituting a felony have in fact been proved in the particular case.").
B. Constitutionality[11]
Having determined that plaintiff states a valid claim under the GMVA, I turn to defendants' allegation that the Act is unconstitutional. The Court has located only five other opinions addressing the constitutionality of the Act's civil remedies provision: Anisimov v. Lake, 982 F. Supp. 531 (N.D.Ill. 1997); Seaton v. Seaton, 971 F. Supp. 1188 (E.D.Tenn.1997); Doe v. Hartz, 970 F. Supp. 1375 (N.D.Iowa 1997) ("Hartz"), reversed in part, vacated in part, 134 F.3d 1339 (8th *394 Cir.1998); Brzonkala v. Virginia Polytechnic and State University, 935 F. Supp. 779 (W.D.Va.1996), appeal pending, 132 F.3d 949 (4th Cir.1997); and Doe v. Doe, 929 F. Supp. 608 (D.Conn.1996) ("Doe").[12] All but Brzonkala upheld the GMVA as a valid exercise of Congress' Commerce Clause power.
In enacting the GMVA, Congress grounded its authority on two constitutional provisions, the Commerce Clause and Section 5 of the Fourteenth Amendment. See 42 U.S.C. § 13981(a).[13] The Commerce Clause grants Congress the authority to "regulate Commerce ... among the several States...." U.S. Const., art. I, § 8. Although by its terms it appears to allow only the regulation of commerce, its interpretation over the years has permitted a broad scope of Congressional authority. See United States v. Lopez, 514 U.S. 549, 553-58, 115 S. Ct. 1624, 1626-29, 131 L. Ed. 2d 626 (1995) (describing history of Commerce Clause jurisprudence). This expansive interpretation reached its height in the 1930's and 40's with the Supreme Court's "watershed" decisions in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937) (upholding National Labor Relations Act), United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85 L. Ed. 609 (1941) (upholding Fair Labor Standards Act), and Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942) (upholding application of amendments to Agricultural Adjustment Act of 1938 to homegrown wheat). See Lopez, 514 U.S. at 555-56, 115 S.Ct. at 1627-28. For half a century thereafter, Congress' authority to act pursuant to the Commerce Clause was not restricted.
1. Lopez
Two years ago, however, the Supreme Court reaffirmed that Congress' Commerce Clause authority is "subject to outer limits." Id. at 557, 115 S.Ct. at 1628-29. In Lopez the Court struck down the Gun-Free School Zones Act of 1990, holding that it exceeded Congress' authority to regulate commerce. In so doing, the Court also sent a signal to Congress and the lower courts that Congressional authority is indeed limited and that Congressional actions at the outer limits of that authority must be scrutinized to ensure that the federal system of government "adopted by the Framers to ensure protection of our fundamental liberties," id. at 552, 115 S.Ct. at 1626 (quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S. Ct. 2395, 2399-2400, 115 L. Ed. 2d 410 (1991)), is not rendered nugatory by a Congress with general police powers. See id. at 564, 115 S.Ct. at 1632.
Lopez also provides the lower courts with a framework to evaluate Congress' authority under the Commerce Clause. The Lopez Court reiterated the three categories of activity that Congress may regulate pursuant to the Commerce Clause: (1) the "use of channels of interstate commerce"; (2) the "instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) "those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Id. at 558-59, 115 S.Ct. at 1629-30 (citation omitted). Only the third category can provide the authority for enactment of the GMVA, and it is there that the Court's analysis must be focused. See Anisimov, 982 F.Supp. at 537 n. 3; Seaton, 971 F.Supp. at 1192; Hartz, 970 F.Supp. at 1415; Doe, 929 F.Supp. at 612; Brzonkala, 935 F.Supp. at 786.
*395 In assessing whether the Act at issue in Lopez was within Congress' power, the Court first reaffirmed that "the proper test requires an analysis of whether the regulated activity substantially affects' interstate commerce." Lopez, 514 U.S. at 559, 115 S.Ct. at 1630 (emphasis added). In conducting this analysis the Court applied a "rational basis" testi.e., it examined "whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce." Lopez, 514 U.S. at 557, 115 S.Ct. at 1629 (citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276-80, 101 S. Ct. 2352, 2360-62, 69 L. Ed. 2d 1 (1981)). In determining whether such a rational basis exists, the Court instructed that it makes an "independent evaluation" of constitutionality. Lopez, 514 U.S. at 562, 115 S.Ct. at 1631. Nevertheless, it acknowledged that it "of course consider[s] legislative findings, and indeed even congressional committee findings, regarding effect on interstate commerce." Id. There were, however, no such findings in Lopez and no "substantial effect was visible to the naked eye." Id. at 563, 115 S.Ct. at 1632. After reviewing the asserted "substantial effects" put forth by the government in defense of the statute, the Court concluded that the possession of guns near schools did not "substantially effect" interstate commerce.
2. Legislative Findings
The record in support of Congress' authority to enact the GMVA could not be more different rent than that facing the Lopez Court. Congress conducted four years of hearing and study before enacting the GMVA, Anisimov, 982 F.Supp. at 536-37; Seaton, 971 F.Supp. at 1192; Hartz, 970 F.Supp. at 1421; Doe, 929 F.Supp. at 611, and made voluminous legislative findings regarding the impact domestic and other gender-motivated violence has on the national economy and interstate commerce. Congress heard testimony from "law enforcement officials, anti-domestic violence organizations, rape crisis centers, psychiatrists, other mental health experts, physicians, law professors, ... state Attorneys General, and victims of domestic violence." Doe, 929 F.Supp. at 611. Some of the more compelling testimony and Congressional findings include:[14]
Domestic violence costs employers between $3 to $5 billion annually as a result of absenteeism. 139 Cong. Rec. H10349-01, at H10365 (Nov. 20, 1997) (statement of Sally Goldfarb, NOW Legal Defense and Education Fund).
"Gender-based violence bars its most likely targetswomenfrom full [participation] in the national economy." S.Rep. No. 103-138 at 54 (1993).
The nation spends $5 to $10 billion a year on health care, criminal justice and other costs related to domestic violence. Id. at 41.
"[A]lmost 50 percent of rape victims lose their jobs or are forced to quit in the aftermath of the crime." Id. at 54.
"As many as 50 percent of homeless women and children are fleeing domestic violence." S.Rep. No. 101-545, at 37 (1990).
Homicide is the leading cause of death for women in the workplace. S.Rep. No. 103-138, at 54 n. 70.
"[F]ear of gender-based violence ... deters women from taking jobs in certain areas or at certain hours that pose a significant risk of such violence." Id. at 54.
Following four years of hearings, Congress concluded that "[g]ender-based crimes and the fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer expending, all of which affect interstate commerce and the national economy." S.Rep. No. 103-138, at 54 (1993). See also H.R. Conf. Rep. 103-711, at 385 (1994) ("crimes of violence motivated by gender *396 have a substantial effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce"), reprinted at 1994 U.S.C.C.A.N. 1839, 1853.
"Clearly, just because Congress says that an activity affects interstate commerce does not make it so." Seaton, 971 F.Supp. at 1193; see also Doe, 929 F.Supp. at 614 ("whether a particular activity substantially affects interstate commerce is `ultimately a judicial rather than a legislative question'") (quoting Lopez, 514 U.S. at 557 n. 2, 115 S.Ct. at 1629 n. 2). The question of whether a regulated activity substantially affects interstate commerce "is necessarily one of degree." Lopez, 514 U.S. at 566, 115 S.Ct. at 1633. In light of the extensive legislative findings regarding the effect of gender-motivated violence, I find a rational basis for the conclusion by Congress that gender-motivated violence substantially affects interstate commerce. Anisimov, 982 F.Supp. at 538-39; Seaton, 971 F.Supp. at 1192-94; Hartz, 970 F.Supp. at 1422; Doe, 929 F.Supp. at 615; but see Brzonkala, 935 F.Supp. at 793.[15]
3. Reasonable Means to an End
Having determined that a rational basis exists for Congress' conclusion that gender-based violence substantially effects interstate commerce, the Court must next decide whether the GMVA is a reasonably adapted means to achieve Congress' end. Hodel, 452 U.S. at 276, 101 S.Ct. at 2360; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S. Ct. 348, 358, 13 L. Ed. 2d 258 (1964). Congress adopted the GMVA in part because of its assessment that the police, prosecutors and judges in the several states were not adequately protecting victims of domestic and other gender-motivated violence. Seaton, 971 F.Supp. at 1194. Congress "reviewed U.S. Justice Department statistics and studies of gender bias in state courts commissioned by seventeen state supreme courts" to reach this conclusion. Doe, 929 F.Supp. at 611. This review led Congress to conclude that "bias and discrimination in the criminal justice system often deprives victims of crimes of violence motivated by gender of equal protection of the laws and the redress to which they are entitled." H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted at 1994 U.S.C.C.A.N. 1839, 1853; see also Rep. No. 103-138, at 49 (1993) ("Traditional State law sources of protection have proved to be difficult avenues of redress for some of the most serious crimes against women.").[16] Whether Congress was right or wrong in this conclusion about the proffered inadequacies of state institutions, its decision to provide a private right of action in federal courts is certainly within its prerogative; i.e., it is a reasonable means to a legitimate end. Anisimov, 982 F.Supp. at 539-40; Seaton, *397 971 F.Supp. at 1194-95; Hartz, 970 F.Supp. at 1423; Doe, 929 F.Supp. at 616-17.
Finally, the Court notes that unlike the law at issue in Lopez, which the Supreme Court characterized as a "sharp break with the long-standing pattern of federal ... legislation," Lopez, 514 U.S. at 563, 115 S.Ct. at 1632 (quoting United States v. Lopez, 2 F.3d 1342, 1366 (5th Cir.1993)), the GMVA fits squarely within the tradition of federal civil rights legislation. Indeed, following the expansion of Congress' Commerce Clause power during the great depression, see supra at 393-94, the next great "constitutional moment"[17] in Commerce Clause jurisprudence came with the Civil Rights Movement in the 1960's. The Supreme Court upheld civil rights legislation then (and thereafter) under Congress' Commerce Clause power. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964); EEOC v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18 (1983). There is no reason to depart from that tradition now.
CONCLUSION
For the reasons discussed above, defendants' motion is GRANTED with respect to plaintiff's (i) Jury Duty Act claim, (ii) Title VII claim against the individual defendants, (iii) and Section 1983 claim against NYCHA, and DENIED in all other respects. The case remains on the Court's December 1997 trailing trial calendar.
SO ORDERED.
NOTES
[1] The Plaintiff was required to pay over to NYCHA the payments she received from the Court in order to receive her paycheck.
[2] Plaintiff has voluntarily dropped her Jury Duty claim and that claim is hereby dismissed.
[3] Burney admits that he did not see the beginning of the altercation and thus has no personal knowledge as to who started it. Burney Depo. at 80.
[4] Plaintiff clarified in her opposition papers that the Title VII claim is asserted against NYCHA only. Any Title VII claims against the individual defendants are dismissed.
[5] While defendants addressed plaintiff's claim as if it were based on discriminatory termination, rather than the allegedly hostile work environment created by the alleged assault, plaintiff's complaint clearly states that she is pursuing a claim based on "a sexually hostile environment". Compl. ¶ 74. Plaintiff does not appear to be pursuing a discriminatory termination claim.
[6] Defendants have not challenged, and the Court reaches no decision respecting, the sufficiency of plaintiff's constitutional allegations, i.e., whether the acts alleged rise to the level of a constitutional violation of equal protection or substantive due process. Such a decision will, in the first instance, be for the jury.
[7] One district court has stated that a third element must be pled: deprivation of the right to be free from crimes of violence motivated by gender. Doe v. Hartz, 970 F. Supp. 1375, 1393 (N.D.Iowa 1997). The Hartz court, however, noted that "this element appears tautologous." Id. That is, if one commits a crime of violence motivated by gender one has necessarily deprived another of the right to be free of gendermotivated crimes of violence. See 42 U.S.C. § 13981(b) ("[a]ll persons ... have the right to be free from crimes of violence motivated by gender"). The Hartz court went on to explain that this third element demonstrates that plaintiff need not establish any actual damagesdeprivation of the right is sufficient injury to state a claim. Id. The Court agrees that no actual damages need be pled by the plaintiff; the third element stated by the Hartz court, however, appears superfluous.
[8] The statute's definition of "crime of violence" requires that the offense "constitute a felony against the person or ... a felony against property if the conduct presents a serious risk of physical injury to another, and that [it] come within the meaning of State or Federal offenses described in section 16 of Title 18." 42 U.S.C. § 13981(d)(2)(A). Section 16 of Title 18 in turn defines "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Defendants do not argue that the alleged altercation does not constitute an offense against the person. Compare Hartz, 970 F.Supp. at 1400-04 (discussing how to determine if an alleged act constitutes an offense against the person). The Hartz court also noted, correctly, that the Act does not indicate whether the crime of violence must be a felony under state law, federal law, or either. Id. at 1397. Hartz concluded, as do I, that the term "felony" refers to a felony under applicable state or federal law.
[9] The Court is doubtful that the nature of the charge would be admissible before a jury, but does not reach this issue.
[10] Like federal law, New York defines a felony as an offense for which a term of imprisonment in excess of one year may be imposed. N.Y. Penal Law § 10.00(5). Compare 18 U.S.C. § 3559(a).
[11] The Court thanks Assistant United States Attorney Jennifer K. Brown, who filed a brief on behalf of the United States, and Julie Goldscheid, Andrea B. Williams, Martha F. Davis and Julie Levy, who filed a brief on behalf Amici Curiae NOW Legal Defense and Education Fund, Center for Battered Women's Legal Services, Center for Women Policy Studies, Equal Rights Advocates, Jewish Women International, National Coalition Against Domestic Violence, National Network to End Domestic Violence, New York State Coalition Against Sexual Assault and the Women's Law Project, in support of the Act's constitutionality. Both briefs were helpful to the Court in reviewing the Act's extensive legislative history and analyzing its constitutional implications.
[12] Other Courts have addressed the constitutionality of the Act's criminal provisions. See United States v. Gluzman, 953 F. Supp. 84 (S.D.N.Y. 1997) (upholding constitutionality under Congress' Commerce Clause power); United States v. Bailey, 112 F.3d 758 (4th Cir.1997) (same), cert. denied, ___ U.S. ___, 118 S. Ct. 240, 139 L. Ed. 2d 170 (1997); United States v. Wright, 965 F. Supp. 1307 (D.Neb.1997) (holding criminal statute is unconstitutional exercise of Congressional power under Commerce Clause). Because of the very different nature of the criminal provisions at issue in these cases, they are of limited value in determining the constitutionality of the civil remedy provisions at issue here.
[13] As the Court finds that the Act is a constitutional exercise of Congress' power pursuant to the Commerce Clause, it does not address whether it is also appropriate pursuant to Section 5 of the Fourteenth Amendment. See, e.g., Doe, 929 F.Supp. at 612 n. 5.
[14] Congress also made extensive findings regarding the scope of the gender-motivated violence problem. See Anisimov, 982 F.Supp. at 536-38. These findings included such shocking statistics as the fact that violence is the leading cause of injury to women ages 15-44; American women are three times as likely to be raped than European women; and three of four American women will be victims of violent crime sometime during their life. Id. Such findings, without more, do not establish that gender-motivated violence has a substantial effect on interstate commerce.
[15] Even the Brzonkala court acknowledged that gender-motivated violence affects the national economy, but held that "[s]howing that something affects the national economy does not suffice to show that it has a substantial effect on interstate commerce." Brzonkala, 935 F.Supp. at 792. Brzonkala cites no support for this distinction and this Court respectfully suggests it is mistaken. The appropriate inquiry focuses on the extent of the regulated activity's impact. If that effect is substantial, then Congress is within its power to regulate the activity, even if the activity affects the "national economy" as opposed to interstate commerce. See New York v. United States, 505 U.S. 144, 158, 112 S. Ct. 2408, 2418-19, 120 L. Ed. 2d 120 (1992) (activities that affect national economy are within Congress' power to regulate). Brzonkala posits that such a rule would give Congress plenary power to regulate everything, including insomnia, because all activities ultimately affect the national economy. Brzonkala, 935 F.Supp. at 792-93 (discussing annual costs of insomnia). Congress may indeed have the power to regulate activities relating to insomnia if a rational basis existed to conclude that such activities have a substantial effect on the national economy and interstate commerce. Brzonkala's parade of horribles cannot pass for constitutional analysis, which requires an assessment of the extent of the activity's impact. As noted above, it seems clear that a rational basis exists for Congress' conclusions in this regard. See also Seaton, 971 F.Supp. at 1193 (discussing Brzonkala's distinction between national economy and interstate commerce).
[16] The concern that traditional remedies are inadequate is applicable to federal court as well. Cf. Eagleston v. Guido, 41 F.3d 865 (2d Cir.1994) (affirming directed verdict for county in § 1943 action alleging equal protection violation based on county's policy regarding arrests in domestic violence cases), cert. denied, 516 U.S. 808, 116 S. Ct. 53, 133 L. Ed. 2d 18 (1995).
[17] The phrase is Bruce Ackerman's. See Bruce Ackerman, We the People: Foundations (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569972/ | 151 F. Supp. 906 (1957)
Januario GONCALVES-ROSA, 104-35 150th Street, Jamaica, Long Island, New York, Plaintiff,
v.
Edward J. SHAUGHNESSY, District Director, Immigration and Naturalization Service, Defendant.
Civil 120-100.
United States District Court S. D. New York.
June 10, 1957.
*907 Jack Greenberg, New York City, for plaintiff, J. J. Kilimnik, Philadelphia, Pa., of counsel.
Paul W. Williams, U. S. Atty., for the Southern Dist. of New York, New York City, for defendant, Charles J. Hartenstine, Jr., Sp. Asst. U. S. Atty., New York City, of counsel.
LEVET, District Judge.
This matter involves two motions. In the first motion the plaintiff seeks a temporary injunction against deportation by the defendant. In the second motion the defendant asks for dismissal of the complaint by way of summary judgment.
The complaint seeks a declaratory judgment in a review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. The defendant, Edward J. Shaughnessy, is the District Director of Immigration and Naturalization Service, whose headquarters are in the City of New York. Deportation proceedings were commenced against the plaintiff on October 18, 1956, upon the charge that he did not have in his possession a valid immigration visa or other valid entry document in lieu of a valid immigration visa and that he was within the class of aliens excludable under Section 241(a) (1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a) (1). On November 1, 1956, a hearing was held before a special inquiry officer, who found that plaintiff was deportable under the said section and thereupon ordered his deportation. Plaintiff's appeal from this order was dismissed by the Board of Immigration Appeals on February 21, 1957. Plaintiff claims that the hearing was conducted in violation of Section 242(b) (3) of the Immigration and Nationality Act of 1952, 8 U.S. C.A. § 1252(b) (3) in that the government presented no testimony in support of the charge; that the special inquiry officer used and admitted into evidence a warrant of arrest which was not identified; that he considered a passport in his decision, although he did not admit it into evidence; that by reason of plaintiff's refusal to testify on the ground that the answers to any questions propounded to him by the examining officer and special inquiry officer would tend to incriminate *908 him, the special inquiry officer inferred that the answers, if given, would have admitted the facts contained in the documents and that said inference was improper and contrary to the law; that plaintiff hereby has been denied due process of the law and that, therefore, the decision of the special inquiry officer was invalid and was not based upon reasonable, substantial and probative evidence.
At the hearing held before the special inquiry officer on November 1, 1956, the plaintiff herein, who was then the respondent, appeared with his counsel, Jacob J. Kilimnik, Esq. The plaintiff refused to state whether his signature appeared on the back of the Order to Show Cause, wherein it appears service was acknowledged. In declining to so answer, the plaintiff raised the Fifth Amendment. Counsel, however, at this point stated: "I don't object to the fact that the respondent received a copy of the Order to Show Cause." The officer received in evidence the Order to Show Cause, which was obviously in effect a complaint.
When shown an Immigration Warrant of Arrest and asked if he had received a copy on October 18, 1956, the respondent again declined to answer on like grounds. Since the warrant contained a certificate of service, the inquiry officer received it in evidence.
Counsel for respondent then objected to the proceedings on the ground that there is no specific authority for appointment of special inquiry officers by the Commissioner of Immigration or the Attorney General, and further that the person who conducted the inquiry had not been so appointed under the Administrative Procedure Act. Then the respondent refused to answer questions as to place of birth, date of birth, his Portuguese passport, his signature on Form I-217 (purported to be a sworn statement of respondent dated October 18, 1956), his height, color of eyes, scars, etc. (for identification purposes and comparison with an alleged picture in a passport), etc., on the ground that the answers would tend to incriminate him.
The special inquiry officer admitted the signed statement on Form I-217, dated October 18, 1956, which was sworn to before an immigration officer (Exhibit 3). The passport was also submitted to the officer. Comparison of the respondent with the description and picture in the passport and the description of the respondent in Form I-217, as well as the comparison of the signatures, led the officer to conclude that the respondent and the person referred to in the passport and Form I-217 were the same.
Since the respondent also refused to give information with respect to his arrival in the United States, an arrival record (Form I-419c) was offered and received (Exhibit 4). Counsel for respondent declined to ask any further questions.
The report of the special inquiry officer, among other things, stated:
"Discussion: The respondent is twenty-four years of age, an unmarried male, an alien, a native and citizen of Portugal. He has refused to answer any questions concerning his immigration status, claiming his privilege under the 5th Amendment. However, the evidence establishes the following facts. He arrived in the United States at the port of New York on September 3, 1956 (not September 4, 1956 as indicated in the Order to Show Cause) when he was admitted in transit destined to Costa Rica. At the time of his arrival he was in possession of Portuguese Passport #8995/56 issued July 4, 1956. At the time of his arrival the Immigration and Naturalization Service made a record relating to the respondent on Form I-419c which indicates that he was admitted in transit destined to Costa Rica. When questioned by an immigration officer at Buffalo, New York on October 18, 1956 he testified that at the time of his entry he was coming to New York to look for work and intended *909 to remain here the rest of his life.
"Section 291 of the Immigration and Nationality Act [8 U.S.C.A. § 1361] provides that in a deportation proceeding the burden of proof shall be upon the respondent to show the time, place and manner of his entry into the United States. Respondent has declined to offer any evidence or to answer any questions. Nevertheless, the evidence submitted by the Service establishes clearly that the respondent entered the United States on September 3, 1956 at the port of New York destined to Costa Rica, but at the time of such entry it was his intention to remain in the United States for the rest of his life. Accordingly, it is concluded that the evidence establishes the respondent's deportability on the grounds set forth in the Order to Show Cause.
"During the course of the hearing the respondent's counsel made several objections with respect to the authority of the Special Inquiry Officer and the regularity of these proceedings. Practically all of these objections have been made by him in other cases and since they have been ruled upon adversely to the aliens by the Board of Immigration Appeals and the Courts, it is not deemed necessary or appropriate to enter into a discussion of these objections here.
"The respondent has declined to make any application for discretionary relief. He has also declined to designate any foreign country to which he prefers to go in the event that an order for his deportation is executed."
After Findings of Fact consistent with this statement, the officer concluded:
"Conclusion of Law:
"The respondent is subject to deportation under Section 241(a) (1) of the Immigration and Nationality Act, in that, at time of entry he was within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, aliens who are immigrants not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document and not exempted from the possession thereof by said Act or regulations made thereunder, under Section 212 (a) (20) of the Act [8 U.S.C.A. § 1182(a) (20)].
"It Is Ordered that the respondent be deported from the United States in the manner provided by law on the charge contained in the Order to Show Cause."
Appeal was taken to the Board of Immigration Appeals. After argument, the appeal was dismissed on February 21, 1957. A warrant of deportation was thereupon duly issued. On or about May 7, 1957, the plaintiff instituted this action.
Plaintiff voluntarily made the sworn statement on October 18, 1956. By federal regulations, 8 C.F.R. 242.54(b), having the force and effect of law, 8 U.S.C.A. § 1103(a) (Section 103(a) of the Immigration and Nationality Act), the special inquiry officer may enter of record any statement, which is material and relevant to any issue in the case, previously made by the alien during any investigation, examination or hearing. Moreover, it has long been settled in this circuit that an alien's voluntary statements, understandingly made, as to alienage and purpose of entry into the United States may properly be received in evidence at a subsequent hearing in deportation proceedings in which he is represented by counsel and where he is given the opportunity to cross-examine witnesses and to offer additional testimony in his own behalf. See United States v. Lee Hee, 2 Cir., 1932, 60 F.2d 924.
The record further demonstrates that plaintiff was represented by counsel of his own choosing at the hearing and *910 that he was given a full opportunity to testify in his own behalf even though he declined to do so. Plaintiff, on the contrary, made no effort to rebut any portion of the statement, preferring to stand mute. This opportunity thus afforded him complied in all respects with the requirements set forth in Section 242(b) (3) of the Immigration and Nationality Act, 8 U.S.C.A. § 1252(b) (3) that in deportation proceedings an alien shall have a "reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government." Failure to avail himself of this reasonable opportunity does not render the deportation hearing unfair. Cf. United States ex rel. Impastato v. O'Rourke, 8 Cir., 1954, 211 F.2d 609, certiorari denied 1954, 348 U.S. 827, 75 S. Ct. 47, 99 L. Ed. 652.
The records were properly admissible. See United States ex rel. Impastato v. O'Rourke, supra, 211 F.2d at page 611; Williams v. Butterfield, D. C.E.D.Michigan, 1956, 145 F. Supp. 567; 7 Wigmore on Evidence, 3rd Ed., 1940, §§ 2128-2131; Vlisidis v. Holland (Mavrelos v. Holland), D.C.E.D.Pa., 1957, 150 F. Supp. 678.
Plaintiff was not deprived of due process in any respect. The conclusions of the special inquiry officer were fully justified. See Karadis v. Wyrsch, D.C.D.N. J., Civil No. 172-57, April 17, in which the present plaintiff's attorney was of counsel.
Deportation proceedings are civil rather than criminal. See United States ex rel. Bilokumsky v. Tod, 1923, 263 U.S. 149, 44 S. Ct. 54, 68 L. Ed. 221. Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692, is not applicable. Slochower, an employee of the New York City Board of Education, was ordered discharged not for refusing to answer relevant questions put to him by the tribunal which had the duty of deciding his fitness to remain as a teacher, but for refusing to answer questions put to him by a Congressional Committee. The United States Supreme Court struck down as unconstitutional a section of the New York City Charter which provided that whenever a City employee utilized his privilege against self-incrimination to avoid answering before a legislative committee a question relating to his official conduct, his employment shall terminate. See also Hyun v. Landon, 1956, 350 U.S. 990, 76 S. Ct. 541, 100 L. Ed. 856.
In the instant case, plaintiff's deportability has been established by his own admissions, which constitute substantive evidence. Schoeps v. Carmichael, 9 Cir., 1949, 177 F.2d 391, certiorari denied, 1950, 339 U.S. 914, 70 S. Ct. 566, 94 L. Ed. 1340. This evidence is sufficient to support the administrative finding of deportability, for in United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, at page 106, 47 S. Ct. 302, at page 304, 71 L. Ed. 560, the court said:
"* * * Upon a collateral review * * * it is sufficient that there was some evidence from which the conclusion of the administrative tribunal could be deduced and that it committed no error so flagrant as to convince a court of the essential unfairness of the trial. * * *"
The record is sufficient to comply with Title 8 U.S.C.A. § 1252(b) (4) insofar as it requires the decision of deportability to be based upon reasonable, substantial and probative evidence. It was not necessary for the special inquiry officer to draw any inference from plaintiff's refusal to testify during the hearing, even though it may be that inferences may be drawn from such refusal to testify. See United States ex rel. Zapp v. District Director of Immigration and Naturalization, 2 Cir., 1941, 120 F.2d 762. However, there is sufficient evidence in the record without such inference. This is not a case in which the plaintiff is being deprived of any rights because of his invocation of the 5th Amendment. There is sufficient documentary proof to warrant deportation, and merely because the plaintiff sought *911 to make no response should not be accepted as supporting his contention that he was deprived of his constitutional rights. As stated in Vlisidis v. Holland (Mavrelos v. Holland), supra [150 F. Supp. 682]: "Once the Government has established that the person sought to be deported is in fact an alien, the burden shifts to the alien to prove his right to remain in the United States, 8 U.S. C.A. § 1361; see United States ex rel. Tomasso v. Flynn, D.C.W.D.N.Y. 1927, 22 F.2d 174." The plaintiff has chosen to remain mute rather than attempt to sustain this burden. There was sufficient in the record from the documents to show that plaintiff was an alien.
Accordingly, plaintiff's motion for a temporary injunction pending the determination of this action is denied; the temporary stay contained in the Order to Show Cause of May 7, 1957, is vacated; and the defendant's motion for summary judgment dismissing the complaint is granted.
Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569385/ | 29 So. 3d 1086 (2010)
Javier Dejesus VENTURA, Petitioner,
v.
STATE of Florida, Respondent.
No. SC08-483.
Supreme Court of Florida.
February 18, 2010.
*1087 Carlos J. Martinez, Public Defender, Roy A. Hiemlich and Andrew Stanton, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, Angel L. Fleming and Rolando A. Soler, Assistant Attorneys General, Miami, FL, for Respondent.
PER CURIAM.
We have for review Ventura v. State, 973 So. 2d 634 (Fla. 3d DCA 2008), in which the Third District Court of Appeal affirmed the admissibility of a Department of Corrections release-date letter as a permissible means of establishing the defendant's status as a prison-releasee reoffender. See id. at 638. In the process, the Third District relied upon the reasoning and rule of law articulated in Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006) (en banc) (Yisrael I), disapproved in part, 993 So. 2d 952 (Fla.2008). See Ventura, 973 So.2d at 638. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
We stayed proceedings in this case pending our disposition of Yisrael, in which we (1) approved the decision of the First District in Gray v. State, 910 So.2d *1088 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So. 2d 952, 960-61 (Fla.2008) (Yisrael II). We then accepted jurisdiction in this case to resolve the conflict between Ventura and the decisions of this Court in Yisrael II and State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
With regard to the Yisrael issue, the Third District relied upon the rule articulated in Yisrael I to erroneously state that a Department of Corrections (DOC) release-date letter standing alone is admissible under the public-records exception to the hearsay rule to establish a defendant's criminal history for the purposes of imposition of a prison-releasee-reoffender sentence. This Court disapproved that rule in Yisrael II. However, upon review of the appellate record, it is clear that, although not reflected in the opinion of the Third District, the trial court was actually supplied with a signed release-date letter, written under seal, and an attached Crime and Time Report. In Yisrael II, we held that these DOC records can together be used to render the entire report admissible as a public record. See Yisrael II, 993 So.2d at 960-61 (approving usage of the signed release-date letter, written under seal, as authentication of an attached Crime and Time Report); see also §§ 90.803(6), 90.902(11), Fla. Stat (2003). Further, Ventura concedes that both documents (i.e., the signed release-date letter under seal and the Crime and Time Report) were provided to the trial court. Accordingly, as we did in Yisrael II, we approve the ultimate result reached by the Third District Court of Appeal below because the signed and under seal release-date letter provided in this case was used as a permissible means of authenticating an attached Crime and Time Report, but disapprove its reliance upon the rule expressed in Yisrael I. See Yisrael II, 993 So.2d at 960-61; see also Smith v. State, 990 So. 2d 1162, 1164-65 (Fla. 3d DCA 2008); Parker v. State, 973 So. 2d 1167, 1168-69 (Fla. 1st DCA 2007), review denied, 1 So. 3d 173, 2009 WL 427313 (Fla. 2009).
Next, the district court improperly utilized an "overwhelming evidence" test when considering whether the impermissible testimony of a witness which clearly undermined and violated the Fifth Amendment right to remain silent constituted harmless error. Unlike some evidentiary errors, such as the admission of a cumulative or irrelevant photograph, a comment on the right to remain silent strikes at the heart of our criminal justice system. This Court has clearly stated that it is constitutional error to penalize an individual for exercising the Fifth Amendment privilege; therefore, the prosecution may not introduce during trial the fact that an individual has relied upon this protection in the face of accusation. See Simpson v. State, 418 So. 2d 984, 984-85 (Fla.1982) (quoting Jones v. State, 200 So. 2d 574, 576 (Fla. 3d DCA 1967)); see also DiGuilio, 491 So.2d at 1131. As we stated in DiGuilio:
It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict and that an appellate court, or even the trial court, is likely to find that the comment is harmful under Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)].
491 So.2d at 1136-37. Accordingly, commenting on the silence of an accused is not a viable strategy for obtaining convictions, *1089 and any commentdirect or indirectby anyone at trial on this right is constitutional error that should be avoided. See DiGuilio, 491 So.2d at 1136, 1139.
During the trial proceedings below, a detective made two comments with regard to Ventura's silence, as follows:
A. Along with the victims, the defendant's [sic] wouldn't give any statements.
. . . .
A. Yes. The suspects were in custody and the defendant then declined to make statements.
(Emphasis supplied.) The Third District determined that the comments were improper and stated: "We fail to see how the detective's comment, twice repeated, could have been anything other than an intentional cheap shot at Ventura's constitutional rights." Ventura, 973 So.2d at 637. The court clearly and correctly recognized the egregious conduct. However, the district court then held that the error was "harmless beyond a reasonable doubt given the overwhelming evidence of guilt." Id.
Unfortunately, the Third District expressed an incorrect harmless error analysis. In DiGuilio, we fully explicated the application of the harmless error doctrine to a comment on a defendant's right to remain silent. In doing so, we explicitly expressed that the harmless error analysis is not an "overwhelming-evidence test." DiGuilio, 491 So.2d at 1139.
[H]armless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence. . . .
Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.
. . . .
The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict . . . .
. . . .
. . . The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on *1090 the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.
DiGuilio, 491 So.2d at 1136, 1138-39 (citations omitted) (emphasis supplied) (quoting People v. Ross, 67 Cal. 2d 64, 60 Cal. Rptr. 254, 429 P.2d 606, 621 (1967) (Traynor, C.J., dissenting), rev'd, 391 U.S. 470, 88 S. Ct. 1850, 20 L. Ed. 2d 750 (1968)).
Since restating the test in DiGuilio, this Court has provided further guidance on the correct analysis of harmless error. For example, in Rigterink v. State, 2 So. 3d 221 (Fla.2009), petition for cert. filed, No. 08-1229, 7 U.S.L.W. 3563 (Mar. 31, 2009), this Court discussed and applied the harmless error analysis in a circumstance where competent, substantial evidence supported the convictions, but the record did not demonstrate beyond a reasonable doubt that the error did not contribute to the verdict.
In sum, the evidence suggests that Rigterink has entangled himself in a web of deceit and these circumstances may indicate guilt. However, our harmless-error test is not guided by a sufficiency-of-the-evidence, correct-result, not-clearly-wrong, substantial-evidence, more-probable-than-not, clear-and-convincing, or overwhelming-evidence test. If any of these were the proper test, we might agree that the admission and publication of Rigterink's videotaped interrogation constituted harmless error. The simple answer to the simple question of whether there is competent, substantial evidence to support the charges that Rigterink committed these crimes is "Yes." However, the actual question that we must askand the constitutional protection that we must addressare not so simple. We have specifically rejected sufficiency-of-the-evidence approaches through our decision in DiGuilio, and we will not recede from established precedent by, on the one hand, paying lip service to its requirements and then, on the other, employing reasoning that would be clearly contrary to the pertinent legal standard. . . .
Under a proper analysis, we conclude that the jury most assuredly, and very seriously, considered and substantially included Rigterink's videotaped interrogation in reaching its verdicts. Therefore, the erroneous publication and admission of this videotape during Rigterink's capital trial "contributed to" his convictions. . . . [W]e reverse Rigterink's convictions and sentences and remand for a new capital trial during which this videotape is excluded. This is not because Rigterink is innocent; rather, it is because the rules established to guard fundamental constitutional protections were not followed, and, under these facts, we cannot say that the videotapewhich should have been suppressed based upon proper legal analysisdid not "contribute to" his convictions. The murders committed in this case were horrific, gruesome, and worthy of condemnation; moreover, there is evidence to support the verdicts returned by the jury. However, the rule of law must prevail and we must not allow the ends of punishment to trump the means that our state and federal Constitutions require.
. . . .
We are not nor do we consider ourselves a super-jury; rather, we are an appellate tribunal charged with the task of determining "whether there is a reasonable possibility that the error affected the verdict." If such a possibility exists, it is our duty to remand for a new trial, which shall be free from the offending error. The test is not whether *1091 the jury reached what we believe to be the correct result but is, instead, whether a reasonable possibility exists that the constitutional violation contributed to the defendant's convictions.
Id. at 255-57 (citations omitted) (some emphasis supplied) (quoting DiGuilio, 491 So.2d at 1139).
The district court noted only one factor in the harmless error analysis (i.e., permissible evidence of guilt), but that one factor is not the determinative test. We have explicitly rejected the overwhelming evidence test as a proper analysis of harmless error. Specifically, the decision of the Third District does not address a proper analysis and does not discuss whether there is a reasonable possibility that the constitutional error affected the verdict. Our colleague in dissent suggests that our decision is based on an erroneous assumption that the district court failed to give consideration to the correct harmless error analysis. We cannot assume that an analysis was conducted or review that which remains hidden behind the written opinion. In other words, the decision does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction, as required in an analysis of harmless error. Instead, as written, the appellate court appears to have "substitute[d] itself for the trier-of-fact by simply weighing the evidence" instead of focusing on the "effect of the error on the trier-of-fact." DiGuilio, 491 So.2d at 1139 (emphasis supplied). It is important for the test to be "conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review." Id.
The harmless error rule functions to conserve judicial labor while providing an "equal degree of protection for the constitutional right to a fair trial, free of harmful error." Id. at 1135. The analysis of the impermissible comments in the decision below and the announced principle of law does not demonstrate this balance.
Accordingly, we quash and remand to the Third District Court of Appeal for reconsideration upon application of our decision in DiGuilio. In addition, we approve the ultimate result reached by the Third District on the Yisrael issue, but disapprove its analysis and reasoning based upon the rule expressed in Yisrael I.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
CANADY, J., dissenting.
I disagree with the majority's decision to quash and remand the decision of the Third District Court of Appeal. On the Yisrael[1] issue, the majority recognizes that the Third District reached the correct result. On that basis, I would discharge jurisdiction on the Yisrael issue. For the reasons I will explain, I would also discharge jurisdiction on the DiGuilio[2] issue.
With respect to the DiGuilio issue, I disagree with the majority's conclusion that "the district court improperly utilized an `overwhelming evidence test'" and therefore "expressed an incorrect harmless error analysis." Majority op. at 1088-89. This is not a case in which the appellate court failed to acknowledge the DiGuilio standard. The Third District accurately *1092 stated the DiGuilio standard: "The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict." Ventura v. State, 973 So. 2d 634, 637 (Fla. 3d DCA 2008) (emphasis added) (quoting DiGuilio, 491 So.2d at 1138).
Notwithstanding this express and correct acknowledgement of the DiGuilio standard by the Third District, the majority here concludes that the Third District's decision "does not reflect any consideration by the appellate court of whether the impermissible comments contributed to the conviction." Majority op. at 1091. For the majority to reach that conclusion, it must assume that the district court failed to give any consideration to the precise test which the district court stated as the governing test. Such an assumption is unwarranted.
In condemning the district court's reference to "overwhelming evidence," the majority condemns an element of harmless error analysis which this Court itself has repeatedly employed. In numerous cases, we have expressly relied on the existence of overwhelming evidence of guilt in reaching the conclusion that an error was harmless. See, e.g., Hojan v. State, 3 So. 3d 1204, 1210 (Fla.2009) ("Based on this other extensive evidence, we conclude that even if admission of the statement was error, it was harmless error."), cert. denied, ___ U.S. ___, 130 S. Ct. 741, ___ L.Ed.2d ___, 78 U.S.L.W. 3319 (2009) (No. 09-5780); Fitzpatrick v. State, 900 So. 2d 495, 517 (Fla.2005) (stating in harmless error analysis that "[t]here was overwhelming permissible evidence of Fitzpatrick's guilt"); Hutchinson v. State, 882 So. 2d 943, 952 (Fla.2004) (stating in harmless error analysis that improperly admitted "testimony adds little, if anything, to the overwhelming evidence of guilt"); Walton v. State, 847 So. 2d 438, 448 (Fla.2003) ("Clearly, taken in conjunction with the presence of the overwhelming evidence before the court supporting its conclusions as to Walton's leadership role in the burglary planning, this mistaken statement by the trial court within its final order was harmless."); Chavez v. State, 832 So. 2d 730, 754, 762 (Fla.2002) (stating that "given the overwhelming evidence of Chavez's guilt, the error in admitting his last confession would be harmless" and stating that "[g]iven the overwhelming evidence of Chavez's guilt, on this record, there is no possibility that admission of the [bloody] mattress contributed to the outcome of the proceedings"); Henyard v. State, 689 So. 2d 239, 248 (Fla.1996) (relying in harmless error analysis on conclusion that "the other evidence presented at trial of Henyard's guilt was extensive and overwhelming").
There is no question that "overwhelming evidence" cannot be the alpha and omega of harmless error analysis. Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)which articulated the harmless error standard from which the DiGuilio standard was deriveditself questioned the California courts' "emphasis, and perhaps overemphasis, upon the court's view of `overwhelming evidence.'" Nonetheless, in Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969), the Court concluded that the erroneous admission of the confessions of codefendants who did not take the stand was harmless beyond a reasonable doubt under the Chapman standard because "apart from [those confessions] the case against Harrington was so overwhelming." See also Schneble v. Florida, 405 U.S. 427, 431, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972) (referring in harmless error analysis to "overwhelming" "independent evidence of guilt").
*1093 In determining whether beyond a reasonable doubt an error did not contribute to a guilty verdict, the weight of the properly admitted evidence must be evaluated. The United States Supreme Court has recognized that in harmless error analysis, an error must "be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Arizona v. Fulminante, 499 U.S. 279, 308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (emphasis added). Likewise, in DiGuilio we acknowledged the required "analysis of the strength and nature of the permissible evidence of guilt and of the strength and nature of the impermissible" matters presented to the jury. 491 So.2d at 1137 (emphasis added). A conclusion that the properly considered evidence of guilt is overwhelming may naturally flow from such a quantitative assessment or analysis of the strength and nature of the evidence.
As the precedents mentioned above amply demonstrate, a reviewing court's reference to overwhelming evidence of guilt does not establish that the court employed an incorrect test for harmless error. I therefore dissent from the majority's application of a requirement which is inconsistent with the precedents of this Court.
POLSTON, J., concurs.
NOTES
[1] Yisrael v. State, 993 So. 2d 952 (Fla.2008).
[2] State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569433/ | 985 F. Supp. 292 (1997)
In the Matter of the Application of Francis A. CROWLEY, Plaintiff,
v.
UNITED STATES MERCHANT MARINE ACADEMY and Rear Admiral Thomas T. Matteson, Superintendent, Defendants.
No. 97-CV-6547 (ADS).
United States District Court, E.D. New York.
November 15, 1997.
*293 Canfield, Venusti, Madden & Rossi by Thomas J. Rossi, Douglas, NY, for Plaintiff.
Zachary Carter, United States Attorney for the Eastern District of New York by Assistant United States Attorney, Vincent Lipari, Brooklyn, NY, for Defendants.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
Before the Court on Monday, November 10, 1997 at 5:00 p.m., was the motion of the plaintiff, Francis A. Crowley, a midshipman attending the United States Merchant Marin Academy, for an Order to Show Cause and a stay of the disciplinary hearing of the Executive Board of the Academy, scheduled to commence on Wednesday, November 12, 1997, to determine misconduct charges which may result in Crowley's dismissal.
I. BACKGROUND
The Second Circuit has described the defendant Merchant Marine Academy (the "Academy"), located at Kings Point, New York, as:
[T]he instrumentality of the federal government charged with the responsibility of training the officers of the United States Merchant Marine. Although the primary responsibility of the merchant marine is the transport of water-borne commerce, in times of need it acts as an auxiliary to the United States Navy and on graduation, a Cadet may receive a Reserve Commission in the Navy. Indeed, because of the vital national interest served by the merchant marine and the hazards which are commonly encountered, it accurately may be said that the responsibilities of merchant marine personnel are comparable to those of the Navy and Coast Guard. Chief Justice Maltbie once observed that the successful prosecution of (the Second World War) would hardly have been possible without the transportation facilities afforded by merchant vessels operating under the war shipping administration and that the persons who served in those vessels were subject to most serious danger of injury or loss of life from risks directly inherent in armed conflict at sea and on the shore (Walsh v. Jenks, 135 Conn. 210, 62 A.2d 773 [1948]). The Regulations of the Academy themselves recite the basis for the prerequisite that Cadets conduct their affairs with a military bearing: The standards of discipline required by Academy Regulations must necessarily be high, since offenses which might be condoned in other walks of life cannot be tolerated aboard ships of the Merchant Marine or Navy where sins of omission or commission might cost human lives or millions of dollars worth of property. The Merchant Marine is run entirely by the discipline of the officers, by their standards, so their ships are run, and good discipline among all officers is paramount.
Wasson v. Trowbridge, Secretary of Commerce, and the United States Merchant Marine Academy, et al., 382 F.2d 807, 809 (2d Cir.1967).
Francis A. Crowley ("Crowley" or "the plaintiff") is a midshipman in his fourth and final year at the Academy. On or about September 29, 1997, a fellow classmatea female midshipmanaccused Crowley of sexual misconduct. These allegations led the Nassau County Police to arrest Crowley and charge him with the offense of Aggravated Sexual Abuse in the Third Degree (New York Penal Law § 130.66), a class D felony. According to Crowley, the Nassau County District Attorney's Office will shortly present evidence of these charges to a grand jury panel, and an indictment likely will be handed down in the near future.
On November 4, 1997, the Academy advised Crowley that it was convening an Executive Board of the Academy ("the Board"), *294 on November 12, 1997, to hear evidence the female midshipman's allegations. The parties agree that if the Board finds Crowley guilty of these charges, the Academy will "disenroll," or dismiss, him.
II. THE PARTIES' POSITIONS
Crowley presents the Court with two arguments in support of his motion to stay the Academy hearing pending the outcome of the state criminal prosecution. First, he contends that Section 806 of the Academy's "Administrative Procedures for Operating the Disciplinary System" ("the Rules")(Attached as Ex. B to the Plaintiff's Order to Show Cause) requires that Crowley submit a written response to the charges and contest them in the form of "statement" at the hearing, or else The Board will interpret his silence as an admission of the charges. Section 806 of the Rules provides the following:
806. Disciplinary Statements: A Midshipman may submit a written statement on any report of a violation of the standards of conduct. It is desired that any mitigating or extenuating circumstances, error in the report, or other matters which might be favorable to the reported Midshipman be set forth in the statement. Lack of a statement regarding a conduct report constitutes agreement that the report is correctly stated and that there are no mitigating or extenuating circumstances.
a. Preparation: Statements will be typed only on form KP1-60 (Disciplinary Statement). When needed, extra plain white sheets will be used to provide extra space
b. Contents: Statements will consist of a straight forward account of the facts relating to the offense. Group statements will not be submitted. Statements will not be the medium of counter charges. It should not contain irrelevant or improper material (such as the use of slang or gross comments). If the statement places the blame on another Midshipman, that Midshipman must be named. Any statement submitted that does not adhere to the above will be an additional report offense with the charge "Failure to Comply with General Instructions with Minor Effect" and a recommended award of 10 demerits.
(The Rules, § 806)(emphasis supplied).
Relying on Section 806 of the Rules, Crowley argues that to defend himself at the Academy hearing he must make a "statement" or risk having his silence be deemed an admission of guilt. Crowley notes that any "statement" he makes in the Academy hearing may be used against him in the pending state criminal proceeding. The plaintiff asserts that this places him in an untenable "Catch-22" position: he must either make a statement at the Academy hearing, which can be used against him in the criminal prosecution, or refuse to submit a statement at the hearing, and have the Board infer from his silence that he admits the charges. The latter situation, as previously noted, will result in the plaintiff's dismissal from the Academy. According to Crowley, this dilemma constitutes an impermissible infringement of his Fifth Amendment right against self-incrimination. Crowley urges this Court to stay the hearing until the criminal case is resolved so that he can avoid this predicament.
Crowley's second argument in favor of a stay is that he will not have the full benefit of an Academy advisor if the hearing is held prior to resolution of the criminal prosecution. The parties agree that the Rules permit Crowley to consult with legal counsel prior to the hearing, but that counsel may not attend the hearing itself. Under the Rules, Crowley must select an Academy faculty or staff member to advise and assist him at the hearing. If he does not select an advisor, the Board will designate one for him. (The Rules, § 803[i]). Crowley asserts that since no attorney-client privilege will attach to his communications with the advisor, anything he says could be used against him in the state criminal prosecution. Thus, Crowley claims, he will be unable to speak freely, rendering his "right" to the assistance and consultation of an advisor meaningless.
In opposing Crowley's self-incrimination claim, the Government, citing Sections 803 *295 804(c) and 805(c)(1) of the Rules, argues that the Academy's procedures for handling Class I Violations, unlike those relating to the less serious Class II and III Violations, do not mandate a "statement" from the charged midshipman. In addition, defense counsel advised the Court during oral argument that the Academy plans to honor its longstanding practice not to require a midshipman accused of a Class I Violation, the most serious type of offense, to make a statement during his disciplinary hearing, and not to infer from his silence that the charges are admitted. The Government challenges the plaintiff's complaints regarding the Academy advisor by pointing to the many courts which have held that there is no formal right to the participation of counsel at military academy disciplinary hearings. The Government contends that the plaintiff is entitled only to an Academy Advisor, which the defendants have provided for Crowley. See, e.g., Wasson v. Trowbridge, 382 F.2d at 810, 812 (finding that "due process does not require representation by counsel" at Merchant Marine Military Academy disciplinary hearing).
III. THE SELF-INCRIMINATION ISSUE
Crowley maintains that the disciplinary hearing should be stayed because he faces a difficult choice which constitutes a violation of his Fifth Amendment right against self-incrimination: he must either make a statement at the hearing, which will be used against him in the parallel criminal prosecution, or refuse to submit a statement, resulting in the Board inferring from his silence that he admits the charges and dismissing him.
This argument was raised in Midshipman Wimmer v. Lehman, Secretary of the Navy, 705 F.2d 1402, 1404-05 (4th Cir.1983), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 681 (1983), where the Fourth Circuit reasoned that:
[D]ifficult choices are imposed upon defendants and litigants in many situations. See, e.g., McGautha v. California, 402 U.S. 183, 213-20, 91 S. Ct. 1454, 1470-74, 28 L. Ed. 2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S. Ct. 2873, 33 L. Ed. 2d 765; United States v. White, 589 F.2d 1283, 1286-87 (5 Cir., 1979); Arthurs v. Stern, 560 F.2d 477 (1 Cir., 1977). Even if the overhanging threat of the criminal trial created some hard choices for [the cadet] at the hearing, the [Academy's] strong interest in concluding its proceedings preclude delay due to [the cadet's] state case. Provided it respected his Fifth Amendment rights, which it more than fully did, both by drawing no inferences, and by permitting the limited presence of counsel, Gabrilowitz v. Newman, 582 F.2d 100 (1 Cir., 1978), it owed him no duty to subordinate its general interests.
Id. at 1407(emphasis added).
Crowley's arguments do not convince the Court that a stay is warranted, primarily because the Court determines that his right against self-incrimination will be honored during the hearing. Significantly, the defendants' counsel stated to the Court during oral argument that the Academy has a well-established policy not to require a midshipman accused of a Class I Violation, the most serious type of offense, to make a statement during his disciplinary hearing, and not to infer from his silence that the charges are admitted. Defense counsel assured the Court that the Academy would adhere to its customary practice in this case.
Nevertheless, Crowley contends that defense counsel's representations are not credible, because they are contradicted by Section 806 of the Rules, which provides that "midshipman may submit a written statement on any report of a violation of the standards of conduct," and that the "lack of a statement ... constitutes agreement" with the report (§ 806)(emphasis added). According to Crowley, the "any report" language necessarily includes reports of Class I Violations.
Crowley's reasoning is unpersuasive for several reasons. First, the Court accepts the representations of defense counsel, an officer of the Court, that Crowley will not be required to make a statement at the hearing, and that the Board will not consider his silence in determining his guilt. Crowley may be assured that the Academy will adhere to this pledge by presenting a transcript of these proceedings at the hearing. In the *296 unlikely event the defendants violate their promise and their long-standing policy, the plaintiff may turn to this Court for immediate relief.
Second, Section 806 must be reviewed in the context of the entire Rules, not isolation. The Rules for handling Class I, II and III Violations each contain a provision entitled "The charged Midshipman," setting forth the accused cadet's responsibilities. (§ 803[i][Class I Violations], 804[c][Class II Violations] and 805[c][1][Class III Violations]). The Rules regarding Class II and III Violations mandate that "the charged midshipman will ... indicat[e] whether or not he/she wishes to make a statement. An indication of no statement will be acceptance of the charge as preferred to be correct and that no extenuating or mitigating circumstances exist." (The Rules, §§ 804[c] and 805[c][1]). By contrast, the Procedures for Handling Class I Violations contain no such provision. (The Rules, § 803). In the Court's view, it is reasonable to deduce from the absence of such a provision that midshipman accused of a Class I Violation is not required to make a statement, and that his silence will not be interpreted as an admission.
Third, even if Section 806 were to apply to Class I violationsdespite the defendants' promise that it does not and the absence of any reference to "statements" in the Rules relating to Class I Violationsthe Court finds that the language of Section 806 is ambiguous with regard to the nature of the "statement" that a charged midshipman must submit to avoid having the Board draw an adverse inference. The plaintiff would construe Section 806 as imposing a requirement that the midshipman's "statement" take the form of a rebuttal of the charges. The Court disagrees, noting that nothing in Section 806 prohibits an accused midshipman from submitting a "statement" invoking his Fifth Amendment privilege against self-incrimination.
In deciding not to stay the disciplinary hearing, the Court is sensitive to the Academy's institutional mission of providing quasi-military training along with its academic program. "It has a disciplinary code designed to foster leadership, discipline and respect for authority." McLaughlin v. Massachusetts Maritime Academy, 564 F. Supp. 809, 812-13 (D.Mass.1983). "Few decisions properly rest so exclusively within the discretion of the appropriate government officials than the selection, training, discipline and dismissal of the future officers of the military and Merchant Marine. Instilling and maintaining discipline and morale in these young [cadets] who will be required to bear weighty responsibility in the face of adversityat times extremeis a matter of substantial national importance scarcely within the competence of the judiciary." Andrews v. Lt. General Knowlton, 509 F.2d 898, 904 (2d Cir.1975). To stay the hearing pending the trial of the criminal charges would undermine the Academy's interests in maintaining its strict standards, especially since the criminal case may not be finally resolved until several years from now, at which point Crowley, now a fourth-year cadet, will no longer be attending the Academy. In addition, if the charges are true, it would be unconscionable to compel the Academy to suffer indefinitely the presence of a midshipman who threatens the safety of other cadets.
In view of the foregoing, there is no reason to stay the hearing on the basis of Crowley's self-incrimination objections.
IV. THE RIGHT TO COUNSEL, AND PRIVILEGED COMMUNICATIONS AND DUE PROCESS
Crowley concedes that an accused cadet does not have a constitutional right to the active participation of counsel at the disciplinary hearings. See Cody v. Lt. General Scott Superintendent of the United States Military Academy at West Point, 565 F. Supp. 1031 (S.D.N.Y.1983)("Plaintiff's claim, more narrowly cast, is that he is guaranteed the right to have his counsel do more than assist in the preparation for the investigative hearing; plaintiff contends that counsel must be permitted to participate fully in that hearing.... However, the importance of informality in the proceeding militates against a requirement that the cadet be accorded the right to representation by counsel before the Academic Board.")(citing Hagopian *297 v. Knowlton, 470 F.2d 201 [2d Cir.1972]). In fact, he does not even assert the right to the presence of counsel at the hearing. Instead, Crowley complains that with criminal charges pending against him, he will be unable to freely confer with, or seek the advice of, his Academy advisor since any communications between them will not be privileged and could be used against him at the criminal trial. Crowley maintains that for this reason the hearing should be stayed until the conclusion of the criminal case so that he may have the full benefit of his advisor's assistance.
While Crowley's concerns are well-founded, his proposed solution is not. In the Court's opinion, the best way to address the issue is not by staying the hearing, but by affording the cadet the presence of counsel at the disciplinary hearing. Indeed, due process dictates this result.
"The power of the District Court to review procedures used at our service academies in the separation or dismissal of cadets and midshipmen is clear.... [C]ourts have held that ... midshipmen must be accorded due process before separation [from the Academy]." Andrews v. Knowlton 509 F.2d at 903 (discussing requisites of due process where a West Point cadet faces separation from the academy for violating the honor code) (citations omitted); see also Tully v. Orr, Secretary of the Air Force, 608 F. Supp. 1222, 1226 (E.D.N.Y.1985)("The [Air Force] Academy is, of course, subject to the requirements of due process in its disciplining of cadets"); Lightsey v. King, 567 F. Supp. 645, 648 (E.D.N.Y.1983)("The service academies of the Unites States, including the Merchant Marine Academy, are not immune from the strictures of Due Process"); Cody v. Scott, 565 F.Supp. at 1034 ("Without question, [the West Point cadet] could not be separated from the academy ... without certain procedural due process"). "Due process is a flexible concept, however, and in this Circuit the standard is clear: in military [disenrollment] proceedings such as [Crowley's], an individual must be given a full and fair hearing.... [In addition, the] cadet must receive notice of the charges against him and a fair opportunity to present a defense. He [also] should be given the opportunity to appear, and to present statements, evidence and witnesses on his behalf." Phillips v. United States, et al., 910 F. Supp. 101, 108 (E.D.N.Y.1996)(citing Wasson v. Trowbridge, 382 F.2d 807). However, "in deciding what process is due [the Courts have] not appl[ied] automatically the full dress standards required for hearings to revoke probation, ... or parole, ... or for proceedings which have been described as involving the `operation of the criminalization and incarceration process beyond the determination of guilt at trial,'.. [or] for termination of welfare payments, ... or of tenancy in public housing." Hagopian v. Knowlton, 470 F.2d at 208 (citations omitted), overruled in part and on other grounds by Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974)(reversing Hagopian to the extent that the Second Circuit held that suspension or dismissal from West Point constitutes sufficient irreparable harm to justify preliminary relief, and forbidding the granting of preliminary relief of reinstatement to a civilian employee of the Government upon a showing of interruption of career and damage to reputation).
Notably, the courts generally have declined to recognize a right to representation by counsel, as a function of due process, in military academy disciplinary proceedings concerning non-criminal acts, such as the accumulation of demerits and violations of the Honor Code. See, e.g., Hagopian v. Major General Knowlton, 470 F.2d at 211-12 (cadet attending West Point does not have a due process right to representation by counsel before Board convened to consider dismissal for the accrual of demerits); Wasson v. Trowbridge, 382 F.2d 807(Merchant Marine cadet not entitled to representation by an attorney at disciplinary hearing regarding non-criminal violation of Academy regulations); Tully v. Orr, 608 F. Supp. 1222 (Air Force Academy cadet does not have a right to have his attorney participate in disenrollment hearing regarding excessive demerits and plagiarism).
This rule is principally motivated by the courts' policy of "tread[ing] lightly on the military domain, with scrupulous regard for the power and authority of the military establishment to govern its own affairs within *298 the broad confines of constitutional due process." Friedberg v. Resor, 453 F.2d 935, 937 (2d Cir.1971); see also Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S. Ct. 534, 539-40, 97 L. Ed. 842 (1953); Cortright v. Resor, 447 F.2d 245 (2d Cir.1971), cert. denied, 405 U.S. 965, 92 S. Ct. 1172, 31 L. Ed. 2d 240 (1972). Additional reasons to decline to recognize a right to counsel at a military academy hearing include the courts' views that disciplinary proceedings are not judicial in nature and should be kept informal, and that literate and educated cadets should be able to defend themselves. See Richmond, "Students' Right to Counsel in University Disciplinary Proceedings," 15 J. Col. and Univ. L. 289, 298 (1989).
By contrast, the courts have acknowledged an accused cadet's due process right to have an attorney present during disciplinary proceedings involving criminal conduct. For example, in McLaughlin v. Massachusetts Maritime Academy, 564 F. Supp. 809, a cadet was arrested off-campus for the possession of drugs, and later was charged for the same incident by the academy's disciplinary board. The cadet's request that his attorney be present at his hearing was denied by the board. He then sought injunctive relief compelling the Academy to allow him the assistance of counsel. In granting the injunction, the district court reasoned that:
"[Military academies] have a significant interest in the promulgation of procedures for the resolution of student disciplinary problems (citations omitted). The limited role of counsel that we are considering, however, would not be very intrusive. Counsel would be present only to safeguard [the cadet's] rights at the criminal proceeding, not to affect the outcome of the disciplinary hearing.... Counsel should, however, be available to consult with [the cadet] at all stages of the hearing, especially while [the cadet] is being questioned." Gabrilowitz v. Newman, 582 F.2d 100 (1st Cir.1978). [To conduct] the disciplinary proceeding ... without [the cadet] having the right to a lawyer of his own choice with whom to consult and advise, [would] deprive[ ][him] of due process of law.
The [Court is] not unmindful of the fact that the Academy is an institution designed to provide quasi-military training along with its academic program; it has a disciplinary code designed to foster leadership, discipline and respect for authority. The argument ... that to allow the motion for an injunction would undermine the high level of discipline demanded of cadets is, in [the Court's] opinion, outweighed by the necessity that expulsion proceedings, at least in those instances in which they arise out of the same facts involved in criminal proceedings against the cadet, comport with the requirements of the Due Process Clause.
Id. at 812-13.
The Fourth Circuit addressed a closely-related issue in Midshipman Wimmer v. Lehman, Secretary of the Navy, 705 F.2d 1402, where the Court held that the Naval Academy "owed [a cadet] no duty to subordinate its general interests" in discharging him for marijuana possession by delaying the disciplinary hearing because of the "over-hanging threat of [a] criminal trial" involving the same offense. In arriving at its decision, the Court highlighted the fact that the Academy permitted the presence of counsel at the disenrollment hearing. Id. at 1407 (citing Gabrilowitz v. Newman, 582 F.2d 100, 103-04 [1st Cir.1978]).
Of particular importance is the case of Wasson v. Trowbridge, 382 F.2d 807, where the Second Circuit considered whether a cadet of the Merchant Marine Academythe same Academy at issue herewas entitled to representation by an attorney at the hearing which preceded his expulsion for tossing another cadet into Long Island Sound in violation of Academy regulations. In finding that due process did not require this, the Court emphasized that "the proceeding [was] noncriminal in nature, ... the hearing [was] investigative and not adversarial[,] the government did not proceed through counsel, the individual concerned [was] mature and educated, his knowledge of the events ... enable[d] him to develop the facts adequately through available sources, and ... the other aspects of the hearing taken as a whole [were] fair." Id. at 812 (emphasis added).
*299 In Hagopian v. Major General Knowlton, 470 F.2d 201, a case involving a disciplinary hearing of the United States Military Academy at West Point, the Second Circuit characterized the Wasson standards as "persuasive and controlling." 470 F.2d at 210. The Hagopian Court held that a cadet attending the West Point Military Academy did not have a due process right to representation by counsel before a Board convened to consider the cadet's dismissal for the accrual of demerits. Id. at 211-12.
A review of this line of cases reveals that the Second Circuit probably would have reached different results in Wasson and Hagopian had criminal acts been the subject of the disciplinary hearings. In this Court's opinion, these cases confirm that Crowley must be afforded the presence of counsel to satisfy the demands of due process. As opposed to the typical disenrollment procedure precipitated by excessive demerits and other non-criminal misconduct, special concerns arise where a cadet is facing disciplinary action for an unlawful act for which he is separately charged with a crime in the state court.
Crowley correctly emphasizes that if he actively defends himself in disciplinary hearings, he may incriminate himself and provide unwarranted evidence to the prosecutor. The midshipman's only other choice may be to avoid actively contesting the disciplinary charges, thereby aiding his criminal defense, but ensuring his dismissal from the Academy. See Richmond, supra, at 300-02 (discussing the hazards facing cadets at military academy disciplinary hearings involving criminal acts). Though the choices confronting Crowley do not, in and of themselves, rise to the level of a constitutional violation (see III supra), the cadet will be deprived of due process if forced to make this crucial decision without the assistance of counsel. Cf. Gabrilowitz v. Newman, 582 F.2d at 103-04 (concluding that University of Rhode Island student would be denied due process by being forced to choose, without the advice of counsel, between the risk of expulsion and the risk of self-incrimination at school disciplinary hearing). The presence of counsel will not remove all the perils, but it will enable Crowley to make an intelligent and informed choice as to risks presented. Id. at 106.
Accordingly, the Court finds that the best solution, based on the precedents and the facts of this case, is to allow the hearing to go forward with a legal advisor, the plaintiff's attorney, present at the hearing to assist him. Counsel shall not actively participate in the proceedings; his sole function will be to serve as Crowley's legal advisor. The Academy must afford Crowley the opportunity to consult with his attorney throughout the proceedings. In the Court's view, this limited role of counsel will be only slightly intrusive, will not place any administrative or financial burden on the Academy, and will not significantly complicate the hearing. See Massachusetts Maritime Academy, 564 F.Supp. at 812.
In view of the foregoing, the hearing shall be adjourned to a date that is mutually convenient for the members of the Board and the plaintiff's counsel, no later than November 25, 1997.
V. CONCLUSION
For the reasons set forth above, it is hereby
ORDERED, that the plaintiff's motion for a stay of the hearing of the Executive Board of the Academy pending the outcome of the state court criminal prosecution of the plaintiff is denied; and it is further
ORDERED, that the plaintiff be afforded the opportunity to have his attorney present at the hearing to act as his legal advisor. The hearing shall be adjourned to a date that is mutually convenient for the members of the Academy's Board and the plaintiff's counsel, no later than November 25, 1997.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569438/ | 985 F. Supp. 1220 (1997)
PLAYBOY ENTERPRISES, INC., Plaintiff,
v.
CALVIN DESIGNER LABEL, Calvin Fuller, and Calvin Merit, Defendants.
Civil Action No. C-97-3204 CAL.
United States District Court, N.D. California, San Francisco Division.
September 8, 1997.
Neil A. Smith, Limbach & Limbach L.L.P., San Francisco, CA, (David R. Francescani, Maryann Hayes, Darby & Darby P.C., New York City, of counsel), for plaintiff, Playboy Enterprises, Inc.
ORDER OF PRELIMINARY INJUNCTION
LEGGE, District Judge.
This cause has been presented to the Court, upon the motion of Plaintiff Playboy Enterprises, Inc. ("PEI"), seeking an Order of Preliminary Injunction during the pendency of this action, from infringing PEI's trademarks on Defendants' Internet World Wide Web sites.
PEI's motion is supported by a Complaint; a Memorandum of Points and Authorities; the Declaration of Michelle A. Kaiser, Staff Attorney of PEI; and the Declarations of Maryann Hayes and two Declarations of Neil A. Smith, outside intellectual property counsel to PEI.
*1221 This Court having given full consideration to all of PEI's papers and the relevant authorities, and in accordance with Federal Rule of Civil Procedure 65(b), makes the following Order:
IT IS HEREBY ORDERED AND ADJUDGED as follows:
1. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1332.
2. This Court has personal jurisdiction over Defendants by virtue of their California citizenship and tortious acts within this Judicial District.
3. PEI owns Federal Trademark Reg. No. 721,987 for the mark PLAYMATE, and Federal Trademark Reg. Nos. 2,020,389, 2,011,646, for the mark PLAYBOY, and other registrations for the marks PLAYMATE and PLAYBOY.
4. Defendants have used the marks PLAYBOY and PLAYMATE as part of their domain names on the Internet and used the marks PLAYMATE and PLAYBOY within the Internet Web pages offered at the sites at Internet addresses www.playboyxxx.com and www.playmatelive.com, all without PEI's authority.
5. Plaintiff PEI has demonstrated a sufficient (i) likelihood of success on the merits of its trademark infringement, unfair competition and dilution claims, (ii) irreparable harm if it is not granted a temporary restraining order pending hearing on its motion for a preliminary injunction, (iii) the balance of hardships tipping in its favor, (iv) and the absence of any public interest factors militating against the interim relief sought in its application, to merit and constitute good cause for the issuance of a Preliminary Injunction Order as more particularly described herein.
6. The Court finds that Plaintiff PEI is likely to succeed on the merits in proving inter alia trademark infringement, unfair competition, including a false designation of origin and false representation, in Defendants' use of the domain names "playboyxxx.com" and "playmatelive.com", the use of the name "Playmate Live Magazine" which include Plaintiff's PLAYMATE registered trademark, the use of "Get it all here @ Playboy" which includes Plaintiff's PLAYBOY registered trademark, and the repeated use of the PLAYBOY trademark in machine readable code in Defendants' Internet Web pages, so that the PLAYBOY trademark is accessible to individuals or Internet search engines which attempt to access Plaintiff under Plaintiff's PLAYBOY registered trademark.
IT IS THEREFORE FURTHER ORDERED that:
1. Defendants, their officers, agents, servants, employees, attorneys, parents, subsidiaries and related companies, and all persons acting for, with, by, through or under them having notice of this Order by personal service, electronic mail, or otherwise, and each of them, shall be immediately preliminarily enjoined and restrained during the pendency of this action, from:
a. using in any manner the PLAYMATE or PLAYBOY trademarks, and any other term or terms likely to cause confusion therewith, including PLAYMATELIVE or "playboyxxx.com" or "playmatelive.com", as Defendants' domain name, directory name, or other such computer address, as the name of Defendants' Web site service, in buried code or metatags on their home page or Web pages, or in connection with the retrieval of data or information or on other goods or services, or in connection with the advertising or promotion of their goods, services or web sites;
b. using in any manner the PLAYMATE or PLAYBOY trademarks in connection with the Defendants' goods or services in such a manner that is likely to create the erroneous belief that said goods or services are authorized by, sponsored by, licensed by or are in some way associated with PEI;
c. disseminating, using or distributing any Web site pages, advertising or Internet code words or titles, or any other promotional materials whose appearance so resembles the Web site pages or trademarks used by PEI, so *1222 as to create a likelihood of confusion, mistake or deception;
d. otherwise engaging in any other acts or conduct which would cause consumers to erroneously believe that Defendants' goods or services are somehow sponsored by, authorized by, licensed by, or in any other way associated with PEI; and
2. Defendants shall preserve and retain in hard copies or digital copies, all evidence and documentation relating in any way to their use of the domain names "playboyxxx.com" or "playmatelive.com" and the trademarks PLAYMATE and PLAYBOY in any form, including all records relating to such Web site or any other Web sites or subscription magazines or services where such names or marks have been used, all records relating to the names, addresses (email or otherwise) of any parties with whom Defendants have communicated, and all financial records relating to such Web sites, services, magazines, or any products or services, advertising, on or offered on or through such Internet Web sites, and shall deliver back-up copies of all of the aforementioned files to Plaintiff's counsel, Neil A. Smith, Limbach & Limbach, L.L.P., 2001 Ferry Building, San Francisco, California, 94111.
3. Defendants shall immediately cease using and claiming ownership of the marks "playboy", "playmate", "playboyxxx" or "playmatelive" on the Internet. That Defendants shall immediately discontinue using the Internet Web site addresses or domain names "http://www.playboyxxx.com" and "http://www.playmatelive.com" and Defendants shall immediately request Network Solutions, Inc. to cancel all such domain name registrations.
4. That if Network Solutions, Inc. delegates complete control regarding the disposition of the registration and use of these domain names to this Court, the domain names are hereby cancelled. That Plaintiffs shall notify Network Solutions, Inc. of this Court's cancellation of the domain names "playboyxxx.com", and "playmatelive.com".
5. That Defendants shall file with the Court and serve upon Plaintiff's counsel within thirty (30) days of the entry of such Order of Preliminary Injunction an affidavit or declaration attesting to and detailing Defendants' compliance with it.
6. It is further ordered that Plaintiff shall maintain the bond previously posted in the amount of $1000.00 for this Order.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569478/ | 304 S.W.2d 290 (1957)
J. A. BOLER, Appellant,
v.
William U. COUGHRAN, Jr., et ux., Appellees.
No. 13212.
Court of Civil Appeals of Texas, San Antonio.
June 26, 1957.
Rehearing Denied July 24, 1956.
Ewers, Cox & Toothaker, McAllen, for appellant.
J. D. Vollmer, Mercedes, for appellees.
BARROW, Justice.
This is a suit by appellant against appellees for damages for the alleged breach of a rent contract entered into between the appellant as lessor and the appellees as lessees. The contract was in writing and provided, among other things, for the rental of a cafe in the City of Pharr, Hidalgo County, Texas, for a period of five years, beginning December 7, 1953, and ending December 6, 1958. The contract further provided for the payment of the sum of $15,000, of which $1,650 was paid in advance, $250 to pay the first month's rent and $1,400 to be applied on the rent for the *291 last six months. The contract provided for payment of $250 on the 7th day of each month, and also provided that in case of default on the part of appellees, appellant would have the right to resume possession and re-let the premises for account of appellees for the best rent obtainable and that appellees would be chargeable with the difference.
The record shows that appellees went into possession and operated and occupied the cafe until on or about June 7, 1955, when they vacated the premises. Thereafter appellant re-entered and rented the cafe to Durst Brothers, who occupied the premises from August 31, 1955, to October 31, 1955. On November 21, 1955, appellant entered and conducted the business and occupied the premises until June 7, 1956, when the business again folded up.
It is appellant's contention that appellees abandoned the premises and that he reentered to manage the business for their account, without any intent to terminate the contract. On the other hand, it is appellees' contention that appellant accepted the surrender and thereby terminated their lease contract.
The case was submitted to a jury upon special issues, and Special Issue No. 5 was as follows:
"Do you find from a preponderance of the evidence that the plaintiff, J. A. Boler, terminated the cafeteria lease in question on or about the 7th day of June, 1955, by agreeing to the surrender of the premises by the Defendants William U. Coughran and wife?"
Appellant's bill of exceptions shows that after the charge had been read, the case argued, and the jury retired for deliberation for some time, appellees' attorney advised the court that he made a mistake in the date included in Special Issue No. 5, and that the date therein should be the "21st day of November, 1955, instead of the 7th day of June, 1955." Whereupon the trial court prepared, signed and sent to the jury by the bailiff the following instruction:
"The Court is correcting the date appearing in Special Issue No. 5 so as to make it read Nov. 21st, 1955 instead of 7th day of June, 1955, and you are instructed to change the date in said issue accordingly."
The appellant objected to this action upon several grounds, one being, that he had not been afforded an opportunity to argue such question to the jury. The court qualified the bill by certifying that appellant's counsel did not request further time to argue the case after the change. Notwithstanding the court's qualification, we think appellant's objection was sufficient to call the matter of argument of the new issue to the court's attention.
We are not unmindful of the fact that clerical and typographical errors can be corrected without harmful effect, but in this case the record shows that an entirely different state of facts existed on November 21, 1955, from that which existed on June 7, 1955, and that the change in the date inquired about amounted to a withdrawal of the original issue and the submission of a new and different issue of fact.
Rule 286, Texas Rules of Civil Procedure, provides for giving additional instructions to the jury after their retirement, and provides that for this purpose they shall appear before the judge in open court in a body, and further provides that no instruction shall be given except in conformity with the rules relating to the charge. The rule also provides that additional argument may be allowed in the discretion of the court. We think the fact that this was a controlling issue in the case, and that the charge presented a new and different issue based on different evidence from that which would support the former issue, the trial court's action was erroneous.
While no complaint is made of the form of Special Issue No. 5, we think it involved *292 the result of the actions and conduct of the parties with reference to the property in question as well as the intention of the parties with reference thereto. Moreover, the new issue, containing a new date, inquired about and involved a consideration of all the facts which occurred between the two dates, which facts were not important under the first issue. Under such circumstances, the appellant should have been permitted to present argument to the jury on the new issue. The trial court's failure to permit such argument resulted in probable harm to appellant and requires a reversal of the judgment. Scroggs v. Morgan, 133 Tex. 581, 130 S.W.2d 283; Rule 286, T.R.C.P.
The other matters complained of are not likely to occur upon another trial and for that reason will not be discussed.
The judgment is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569477/ | 37 F.2d 308 (1930)
MOORE & McCORMACK CO., Inc.,
v.
VALLEY CAMP COAL CO.
No. 2855.
Circuit Court of Appeals, Fourth Circuit.
January 14, 1930.
George W. P. Whip, of Baltimore, Md. (Lord & Whip, of Baltimore, Md., on the brief), for appellant.
Robert W. Williams, of Baltimore, Md. (Janney, Ober, Slingluff & Williams, of Baltimore, Md., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge.
NORTHCOTT, Circuit Judge.
Appellant is owner of steamship Ansonia, and the controversy in this case arose over the charter hire of that steamship for two consecutive voyages from Baltimore to Bangor, Me., carrying coal. After making one round trip the Ansonia was laid up for repairs, having been damaged, according to the contention of appellant, because of the fact that no safe berth was provided for her at Bangor. By agreement of parties the steamship Annie Murphy was secured from her owners by appellant and substituted for the Ansonia on the second voyage. On arriving at Fort Point, at the mouth of the Penobscot river, the master of the Annie Murphy declined to proceed any further toward Bangor, because no safe berth was provided, and the Annie Murphy cargo was discharged at Searsport, Me., about 20 miles from Bangor. A controversy then arose between appellant company and the charterer of the steamships, Valley Coal Company, as to the amount due.
On May 26, 1927, appellee sent appellant a statement setting out his claim of $2,782.82 as an offset against the freight, amounting to $4,714.16, leaving the balance, admitted to be due to appellant by appellee, of $1,931.34. A check for this latter amount was inclosed, on which check was printed, "In full payment of account as shown in statement on reverse side of this voucher." The account on the reverse side of the voucher, however, showed that the amount of the check was merely the admitted difference between the amount due for freight and the claim of appellee for damages. In a letter of the same date, inclosing the account and check, the statement is made that, "Check to balance the account is also herewith enclosed." But the letter contains no statement that the check is tendered upon condition that it be accepted as payment in full, or any intimation that appellee was seeking an accord and satisfaction of the amount in controversy.
*309 On the following day, May 27th, Moore & McCormack replied to the Valley Camp Coal Company, acknowledging the letter of May 26th, and saying:
"We have yours of May 26th, contents of which we are passing along to the owners of the Annie Murphy together with your claim in the amount of $2,782.82.
"Meantime, we must accept your check as on account, and without prejudice to our rights. If this is not acceptable to you will thank you to immediately stop payment on the check, otherwise we must consider the foregoing acceptance in order.
"Of course, should owners decline to pay the claim, and it is found the deductions made are improper, we hold you responsible for any and all interest charges and any damages we may suffer."
Moore & McCormack deposited the check in its bank, on May 28, 1927, and it was paid at the bank of the Valley Camp Coal Company, in Cleveland, Ohio, on May 31, 1927. A holiday and Sunday having intervened, the Valley Camp Coal Company received Moore & McCormack's letter of May 27th on May 31st, the same day the check was paid by the bank in Cleveland.
Appellee made no effort to stop payment of check as suggested in Moore & McCormack's letter of May 27th. On June 3, 1927, appellee wrote Moore & McCormack acknowledging receipt of the letter of May 27th, and reiterated the position taken in their former letter of May 26, 1927.
On July 20, 1927, appellant filed its libel in the District Court of the United States for the District of Maryland, claiming balance due for freight of $2,782.82. Appellee filed its answer, setting up its claim for damages, and also claiming that by reason of the acceptance of its check there was complete accord and satisfaction of the account of the appellant.
To this defense of accord and satisfaction libelant excepted, and on the hearing the court below overruled said exception and held the defense of accord and satisfaction valid, from which interlocutory decree this appeal was taken.
The sole question presented here is whether the receipt and use of the check, under conditions shown to exist, constituted accord and satisfaction. We do not think it did. Had the coal company stopped payment on the check which it evidently could have done, as it received the letter of appellant on the same day the bank paid the check, there would have, of course, been no claim of accord and satisfaction. This the appellant requested the coal company to do upon the receipt of notice to the effect that the appellant was not willing to accept the check as payment in full.
The United States Supreme Court has laid down the rule that accord and satisfaction require the voluntary assent of the creditor.
"It is said to be an accord and satisfaction. But this requires the voluntary assent of the creditor, which in this case was not given." Harvey P. Wilmot v. Enoch R. Mudge, 103 U.S. 217, 219, 26 L. Ed. 536.
The assent of the creditor in this case certainly was not given to the arrangement suggested by the coal company.
The proposition of the coal company to accept the check in full settlement was in no sense a compromise, because the coal company was paying no part of the disputed amount, but was only paying a sum that it admittedly owed.
"Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration." United States v. Bostwick, 94 U.S. 53, 67, 24 L. Ed. 65.
"To constitute a valid agreement there must be a meeting of minds upon every feature and element of such agreement, of which the consideration is one." Fire Insurance Association, Limited, v. John W. Wickham, Jr., 141 U.S. 564, 12 S. Ct. 84, 88, 35 L. Ed. 860.
Certainly, in this case, there was never any meeting of the minds of the parties. Had appellant accepted and used the check, making no condition, a different situation might be presented; but it did not do so.
We are of the opinion that the learned judge below erred in overruling the exceptions to the defense of accord and satisfaction. There is grave doubt, however, as to whether an appeal lay from his action in so doing. See H. Lissner & Co., Inc., v. Oceanic Steam Navigation Co. (C. C. A. 2d) 30 F. (2d) 290. The Act of April 3, 1926 (44 Stat. 233 [28 USCA § 227]) provides for appeals from interlocutory decrees "determining the rights and liabilities of the parties"; but an order overruling exceptions to a pleading determines, not the rights and liabilities of the parties, but the sufficiency of the pleading. The point has not been raised by counsel, however, and there is no question but that the rights of the parties are dependent upon the interpretation of the correspondence, which is admitted to be correctly *310 set forth in the answer. Because of these circumstances we have passed upon the question involved; but our action in so doing is not to be taken as a precedent for entertaining appeals from orders sustaining or overruling exceptions to a pleading in ordinary cases. For the reason stated, the cause is remanded to the court below for further proceedings not inconsistent with the view herein expressed.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541843/ | 76 B.R. 218 (1987)
In re Noel Dean CLARK, Jr. and Patricia Ann Clark d/b/a Nite Moves, and Northtown Square, Ltd., Debtors.
Bankruptcy Nos. 87-01031-BKC-TCB, 87-01251-BKC-TCB.
United States Bankruptcy Court, S.D. Florida.
June 15, 1987.
*219 Leonard L. Liszewski, Ft. Myers, Fla., for debtors Clark.
Michael Fineman, Lauderhill, Fla., for debtor Northtown Square, Ltd.
ORDER DENYING RECONSIDERATION
THOMAS C. BRITTON, Chief Judge.
These two unrelated cases heard June 9 present the same issues and are, therefore, treated together in this order. Each case was dismissed sua sponte under 11 U.S.C. § 105(a) because in each case the debtors had failed to file the bankruptcy schedules required by B.R. 1007(b) or the list containing the names and addresses of all creditors required by B.R. 1007(a)(1).
The schedules must be filed with the petition unless a complete list of creditors is filed with the petition, in which case the schedules are due within 15 days. B.R. 1007(c). In Clark the schedules were filed April 30, 34 days after the petition. In Northtown the schedules were filed May 11, 26 days after the petition.
In chapter 11 reorganization cases (both cases were filed under chapter 11), the debtor is also required to file with its petition a list of the 20 largest unsecured creditors. Clark did so and now advises that there were no other unsecured creditors. That fact was not apparent when the petition was filed or when the case was dismissed 23 days later, unless one compared the names of the schedules filed April 30 with the list of the 20 largest creditors. This was not done and in fact could not be done, because the debtors filed their overdue schedules in West Palm Beach and they did not reach the Miami offices of the clerk and court until after dismissal. It is unlikely that the lists would have been compared in any event.
It is not possible for the clerk to schedule the creditors' meeting required by § 341 and B.R. 2003 or even to notify creditors that the bankruptcy petition has been filed until a complete list of creditors is filed. The filing of a petition automatically enjoins and, therefore, nullifies any creditor action against any debtor or its property. Therefore, whether intended or not, the delayed filing of a list of creditors prejudices all creditors who do not even know they are being prejudiced unless they learn of the bankruptcy in some other way. It is for this reason that this court, and I believe most bankruptcy courts, enter sua sponte orders of dismissal where debtors have not complied with the filing requirements of B.R. 1007.
In Clark the debtors have moved for revocation of the order of dismissal (C.P. No. 16) and for new trial (C.P. No. 17a). In Northtown the debtor moved that the order of dismissal be altered or amended. The motions were heard at length upon notice to all creditors on June 9. In Northtown a secured creditor from Jacksonville filed a response opposing the debtors' motions and charging bad faith on the part of the debtors and contradicting the excuse offered by the debtors' attorney for his failure to comply with the rules. In Clark two attorneys appeared on behalf of various creditors to oppose the motions.
The motions are denied and the orders of dismissal are reaffirmed.
In each case the debtors rely upon In re Moog, 774 F.2d 1073 (11th Cir.1985) in which the court reversed and remanded the decision of the bankruptcy court, which had been affirmed by the district court. The bankruptcy court had:
"dismissed the debtor's petition as an abuse of Chapter 11 since Ms. Moog had `no business, no employees, and no known shareholders.'" (At p. 1074)
The court followed In re Gusam Restaurant Corp., 737 F.2d 274 (2nd Cir.1984) in which the court had held that the provisions of § 1112(b) which requires that a party in interest request conversion or dismissal of a chapter 11 petition precludes a sua sponte dismissal on account of the debtor's failure to file a plan "as soon as *220 practicable" as is required by § 1106(a)(5) and § 1107(a).
Section 105(a) was amended by Pub.L. No. 99-554, § 203 to add the following sentence:
"No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process."
This amendment is not yet effective. It becomes effective not later than August 24, 1987. Id. § 302. I do not rely upon the amendment which will when effective make the following discussion unnecessary.
I am, of course, bound by In re Moog. I do not believe, however, that the holding precludes sua sponte dismissal of these two cases because neither Moog nor Gusam involved a chapter 11 debtor who refused or failed to file a list of its creditors, without which creditors cannot even learn that bankruptcy has been filed and, therefore, cannot realistically be expected to request dismissal or conversion to chapter 7 as is permitted by § 1112.
The 1978 Act, in which § 1112 made its initial appearance, contemplated a U.S. Trustee in each district with immediate awareness of every filing and standing to move for dismissal. The administrative responsibility to dispose of petitions improperly filed was quite logically lifted from the bankruptcy court by § 1112 in contemplation of its assumption by the U.S. Trustee. However, this district does not yet have a U.S. Trustee. I cannot believe that Congress intended that nothing be done by the court to protect creditors from a chapter 11 filing unaccompanied by a list of the affected creditors. This administrative responsibility remains, at least where there is no U.S. Trustee, with the bankruptcy court who is authorized and required under § 105 to take action to prevent abuse of the Act.
It is clear to me that Moog recognizes the bankruptcy court's authority and duty to dismiss sua sponte under any circumstances indicating the lack of good faith on the debtor's part. The court said:
"We hold that absent any evidence of a lack of good faith on the part of the petitioner, the bankruptcy court erred in dismissing the chapter 11 petition sua sponte before the debtor had an opportunity to file a reorganization plan. . . . However, we hold that based upon the record before us, there is no evidence of bad faith on the part of the petitioner and absent a motion by a party in interest, the court was without power to dismiss the case sua sponte." (At p. 1077).
I believe that the failure to file a list of creditors evidences a lack of good faith and that the actions of the debtor's counsel must be imputed to the debtors. But in any event, the Moog court clearly recognizes that a sua sponte dismissal under § 105 is authorized under some circumstances, notwithstanding the provisions of § 1112. I am convinced that those circumstances include these cases.
Movants also argue that they and the creditors were entitled to a hearing. I agree and it is for this reason that a full hearing upon notice to the creditors as well as the debtors was held June 9. The fact that the hearing was provided after the court's action is specifically permitted by § 102(1)(B)(ii).
In addition to their contention that the court was powerless to act, the movants have also argued that the court should now exercise its discretion to retroactively extend the time for each of the debtors to comply with B.R. 1007. The court is permitted under B.R. 9006(b)(1):
"on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." (Emphasis supplied.)
In Clark no excuse is offered other than counsel's neglect. In Northtown the excuse is that counsel's secretary failed to calendar the matter for counsel's attention 15 days after the filing of the petition. This does not explain the failure to file the list of creditors required with the petition. The Response filed by a creditor disputes counsel's assertion that he overlooked the deadline for the filing of schedules. (C.P. *221 No. 12). The allegations of the Response have not been challenged by counsel for Northtown. I do not believe the excuse the failure to file should be blamed on the secretary.
In any event, even if the excuse of Northtown's counsel is believed, neither movant has shown "excusable neglect". As was said in In re South Atlantic Financial Corp., 767 F.2d 814, 817 (11th Cir.1985):
"Courts have interpreted `excusable neglect' under Rule 9006(b) and its identically worded predecessor, Rule 906(b), as requiring the movant to show that `the failure to timely perform a duty was due to circumstances which were beyond the reasonable control of the person whose duty it was to perform."
Both movants have argued, finally, that no creditor was prejudiced by movants' delayed compliance with B.R. 1007. I disagree for the reasons already explained. However, as was emphasized in South Atlantic Financial Corp.:
"It is clear from this language that the focus of these rules is on the movant's actions and the reasons for those actions, not on the effect that an extension might have on the other parties' positions." (At p. 819). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000047/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4398
TABARI A. SPANN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-6)
Submitted: September 30, 1999
Decided: October 20, 1999
Before NIEMEYER and LUTTIG, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
W. James Hoffmeyer, NETTLES, MCBRIDE & HOFFMEYER,
P.A., Florence, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States Attor-
ney, Florence, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Tabari Spann pled guilty to armed bank robbery, see 18 U.S.C.A.
§ 2113(a) (West Supp. 1999), and to using and carrying a firearm dur-
ing and in relation to a crime of violence. See 18 U.S.C.A. § 924(c)
(West Supp. 1999). He was sentenced to a term of fifty-seven months
imprisonment for the robbery and a consecutive ten-year sentence
under § 924(c)(1)(B)(i). Spann claims on appeal that the district court
erred when it added two offense levels pursuant to U.S. Sentencing
Guidelines Manual § 3C1.2 (1998) (Reckless Endangerment During
Flight), after making a three-level adjustment under§ 3A1.2(b) (Offi-
cial Victim), because both were based on the same conduct. We
affirm.
Spann and two friends robbed a bank in Marion, South Carolina,
at gunpoint while Spann's pregnant girlfriend, two other women, and
four small children waited in two getaway cars. Police arrived
quickly. As the robbers drove away, Spann fired the semi-automatic
pistol he was carrying at the officers. A high-speed chase followed for
at least ten or twelve miles. Eventually, both getaway cars crashed,
and Spann and the others were arrested. No injuries resulted. In sen-
tencing Spann, the district court added three offense levels under
USSG § 3A1.2(b), finding that Spann had assaulted the police officers
in a manner creating a substantial risk of serious bodily injury by fir-
ing a gun at them, and another two levels under USSG§ 3C1.2, find-
ing that the chase created a danger of serious bodily injury to the
children in the getaway cars and to the public.
The commentary to § 3C1.2 directs that the enhancement should
not be applied "where the offense guideline in Chapter Two or
another adjustment in Chapter Three, results in an equivalent or
greater increase in offense level solely on the basis of the same con-
duct." USSG § 3C1.2, comment. (n.1). However, circuits which have
2
addressed the issue raised here have uniformly held that both adjust-
ments may be applied where each is triggered by separate conduct.
See, e.g., United States v. Rodriguez-Matos , ___ F.3d ___, 1999 WL
727038, at *11 (11th Cir. Sept. 17, 1999); (assault on officer with
vehicle followed by high speed chase); United States v. Miner, 108
F.3d 967, 970 (8th Cir. 1997) (same); United States v. Alexander, 48
F.3d 1477, 1493 (9th Cir. 1995) (high-speed chase during which shots
fired at pursuing officers resulting in danger to police and public);
United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994) (high-speed
chase in which three officers shot and public endangered). Cf. United
States v. Hayes, 135 F.3d 435, 438 (6th Cir. 1998) (one incident justi-
fying only one adjustment where defendant rammed several police
cars with his vehicle, injuring a police officer and endangering a child
in his own vehicle).
The Fourth Circuit precedents on which Spann relies are not con-
trolling. Neither United States v. Sloley, 19 F.3d 149 (4th Cir. 1994),
nor United States v. John, 935 F.2d 644, 646 (4th Cir. 1991),
addressed the precise issue raised here. Moreover, we find no error in
the district court's determination that Spann's assault with a semi-
automatic weapon on the police officers near the bank was a separate
occurrence from the flight at high speed, and that the latter created a
separate risk of death or serious injury to both the children and the
public, and warranted an adjustment under § 3C1.2.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569613/ | 304 S.W.2d 297 (1957)
ST. LOUIS-SAN FRANCISCO RAILWAY CO., Appellant,
v.
ARKANSAS PUBLIC SERVICE COMMISSION et al., Appellees.
No. 5-1273.
Supreme Court of Arkansas.
July 1, 1957.
*298 George E. Bailey, St. Louis, Mo., Edward L. Westbrooke, Jonesboro, and Bernal Seamster, Little Rock, for appellant.
John R. Thompson, Rose, Meek, House, Barron & Nash, Stanley E. Price and W. Dane Clay, Little Rock, for appellees.
McFADDIN, Justice.
This appeal involves the ad valorem assessment of the St. Louis-San Francisco Railway Company (hereinafter called "Frisco") for the year 1955. The Arkansas Public Service Commission[1] (hereinafter called "Commission") made the assessment (see § 84-606 et seq., Ark.Stats.); and Frisco appealed to the Pulaski Circuit Court (see Act No. 388 of 1953 as found in § 84-120, Ark.Stats. Cumulative Pocket Supplement). The Circuit Court entered its judgment; and Frisco appeals to this Court. We have three main questions; being extent of review, the valuation, and the ratio of assessment.
I. Extent of Review. The first point is the extent of review in the Circuit Court of the assessment made by the Commission.[2] Prior to Act No. 388 of 1953 (see § 84-120, Ark.Stats. Cumulative Pocket Supplement), the applicable law was Act No. 191 of 1949, *299 and it provided in Section 8 thereof that any person aggrieved by the findings of the Commission could appeal to the Circuit Court and the proceedings "* * * shall be tried de novo on the record made before the Commission". But in the Act No. 388 of 1953 the words "on the record made before the Commission" were deleted; so that the law now merely provides that there would be a de novo trial in Circuit Court.[3]
When we consider the entire matter of assessments and the power of the Courts over assessments, it is clear that this Act No. 388 of 1953 does not contemplate the kind of de novo trial in Circuit Court in an appeal from the Commissionas one would have in a de novo trial in an appeal from a Justice of the Peace Court to the Circuit Court. The Circuit Court does not sit as an assessment or appraisal body when it hears the appeal from the Commission. In Cook v. Surplus Trading Co., 182 Ark. 420, 31 S.W.2d 521, we said:
"It is not within the province of the Courts to assess property * * * Courts can only review the assessments made by the assessing officers and have no power under our Constitution and laws to make the assessments."
The purpose of any Court appeal from an assessment or equalizing agency is to see that the assessment is neither erroneous in figures, nor arbitrary in measuring, nor confiscatory in results. In 84 C.J.S. Taxation § 566, p. 1123, the effect of the holdings is summarized in this language: "On an appeal from an assessment, the court will not disturb the decision of the assessors unless it is clearly erroneous, or, unless, as required by statute, the assessment is manifestly excessive, fraudulent, or oppressive. Ordinarily the court has no jurisdiction to make a tax assessment, and if it finds error, it should remand the case to the assessing body for further proceedings in accordance with the court's findings".
On appeal to the Circuit Court in this case, the record before the Commission was filed; and Frisco, as the objector, had the burden of showing that the assessment was erroneous in figures, arbitrary in measurement, or confiscatory in result. In its judgment, the Circuit Court found certain items misplaced or overvalued, and stated as to what extent the original assessment was a mistake in figures. It found that there was nothing arbitrary in the method of determination, nor confiscatory in the result. The Circuit Court remanded the matter to the Commission to make the proper corrections. This was the correct procedure because our Statute, then effective, (§ 84-611, Ark.Stats.) directed the Commission to certify to the assessor of each County affected, in which is located any property of the carrier, the correct amount of the assessment in order that the taxes shall be extended and collection made, as in cases of other property.[4]
II. Valuation of Frisco's Property. From the judgment of the Circuit Court Frisco appeals to this Court, claiming both mistake in figures, arbitrariness of the "yardstick", and confiscatory results of the valuation determined; and we proceed now to consider the matter of valuation. In this Court the Commission has submitted a concise tabulation which the Commission claims is Frisco's assessment, as made by the Commission and as modified by the Circuit Court judgment. We copy this tabulation:
*300
I. Cost Value:
(A) $449,827,713.00 RCN-D[5] as of 1/1/54
(B) 15,812,377.00 Net Plant Additions in 1954
_______________
(C) 465,640,090.00 RCN-D as of 1/1/55
(D) 10,605,882.00 Working Capital
(E) 9,274,023.00 Materials and Supplies
_______________
(F) 485,519,995.00 Cost Value
II. Capitalized Earnings Value:
(G) 16,674,770.00 5-year average Net
Operating Income
(H) 6% Capitalization
______________
(I) 277,912,867.00 Capitalized Earnings Value
III. Stock and Debt Value:
(J) 267,487,118.00 Stock and Debt as of 1/1/55
(K) 17,717,051.00 Non-Utility Property
(L) 249,770,067.00 Stock and Debt Value
IV. Recapitulation:
485,519,995.00
277,912,867.00
249,770,067.00
______________
(M) 3/1,013,202,929.00
(N) 337,734,310.00 System Value
(O) 10.33% Arkansas Ratio to System
(P) 34,887,954.00 Arkansas Value
(Q) 20% Assessment Ratio
(R) 6,977,591.00 Arkansas Assessment
It will be observed that each item is identified by letter; and later we shall explain and discuss the controversy on some of these items, likewise making reference to alphabetical identification. But before considering the matter of figures, there is the question of the "yardstick": by which is meant the factors that the Commission used to determine the valuation of Frisco's properties. The Commission considered three factors, being (I) cost value (lines A to F), (II) capitalized earnings value (lines G to I), and (III) stock and debt value (lines J to L). These three factors were given equal weight in determining the system value because in the recapitulation (IV), the three values were totalled and divided by three. This use of cost value, capitalized earnings value, and stock and debt value, is what we refer to as the "yardstick". Our applicable statute on method of valuing properties, as in this case, is § 84-606, Ark.Stats., and the germane portions of it provide:
"The valuation of the property of all * * * corporations required by law to be assessed by the Commission shall be made upon the consideration of what a clear fee simple title thereto would sell for under conditions under which that character of property is usually sold. As evidence tending to show what this would be the Commission, in so far as other evidence and information in its possession does not make it appear improper or unjust for it to do so, shall ascertain as nearly as it can and consider the market or actual value of all outstanding capital stock and funded debt and the income of such companies, and also the estimated investments and valuation of said property as set up by the officers or agents of such companies as a basis for the adjustment *301 of rates or charges for service to the public by such companies, and such other information as to value the Commission may obtain. (Acts 1927, No. 129, § 18, p. 400; Pope's Dig., § 2044.)"
The Statute requires the Commission to assess the property on what a "* * * clear fee simple title thereto would sell for under conditions under which that character of property is usually sold". Then, as evidence to aid the Commission in determining the "clear fee simple title" value, the Commission, if it is not improper or unjust to do so, shall consider (a) the market or actual value of outstanding capital stock and funded debt and the income of such companies, and (b) the established investments and valuation of the properties, and (c) such other information as to value as the Commission may obtain. These factorscost value, capitalized earnings value, and stock and debt valuehave been used by the Commission in this case (and the record shows have been used by the Commission in many other cases) as an aid, and as evidence of the actual clear fee simple title value, which is the ultimate desire in ad valorem assessments.
Is this methodof cost value, capitalized earnings value, and stock and debt valuea fair "yardstick" to determine the system value of Frisco's property? Frisco claims that the cost value is overweighted and that it should be given little, if any, consideration; and Frisco also claims that some of the other factors in the "yardstick" have been overemphasized. We hold that the "yardstick" used by the Commission in determining the system value of Frisco in this case is fair and not arbitrary. It is undenied that such a "yardstick" has been used by the Commission heretofore, and that such a "yardstick" is used in other states. One such case is that of Chicago & North Western Ry. Co. v. Department of Revenues, 6 Ill.2d 278, 128 N.E.2d 722, decided by the Supreme Court of Illinois in 1955, with certiorari denied by the U. S. Supreme Court, 351 U.S. 950, 76 S.Ct. 844, 100 L.Ed. 1474. This is not the only "yardstick" that could be used, but it is fair and equitable. As Mr. Justice Butler said, in 1934, in Rowley v. Chicago & Northwestern Ry. Co., 293 U.S. 102, 55 S.Ct. 55, 58, 79 L.Ed. 222, in discussing the assessment of railway properties by the State of Wyoming:
"The ascertainment of the value of a railway system is not a matter of arithmetical calculation and is not governed by any fixed and definite rule. Facts of great variety and number, estimates that are exact and those that are approximations, forecasts based on probabilities and contingencies have bearing and property may be taken into account to guide judgment in determining what is the money equivalentthe actual valueof the property."
We come then to the specific figures contained in the foregoing tabulation. Line (A) is the "Reproduction Cost New Less Depreciation", and is a figure furnished the Commission by the Interstate Commerce Commission. Line (B)the plant addition figurewas furnished the Commission by Frisco. Lines (D) and (E) are self explanatory. So, the total of the cost value shown in line (F) is correct.
(G) In the tabulation the figure in line (G) is $16,674,770.00 as the "5-year average Net Operating Income". Frisco challenges this figure because it is the income before the deduction of income tax. The Commission concedes that this figure is before any deduction for income taxes. If there should be made a deduction for income taxes, the figure in line (G) would become $14,393,207. The question, therefore, is whether the 5-year average Net Operating Income should be listed before or after the payment of income tax. It must be borne in mind that the Commission was considering the "Capitalized Earnings Value" to aid in determining the clear fee simple value of the Frisco system. Income tax is calculated on net earnings. The tax may be great or small, depending on the *302 needs of the taxing power. Prior to World War I, income tax was either non-existent or negligible; there was a period between World War I and World War II when the tax was small; at present the tax is large. Deduction of income tax is not an aid in determining "Capitalized Earnings Value" because the invested capital has made an earning regardless of the income tax rate. This is an ad valorem tax case and not an income tax case. It is not a question of what dividends go to the stockholders, but what is the "Capitalized Earnings Value" So we see no merit to Frisco's claim that the income tax should be deducted before listing the operating income.
(H) In the tabulation, in line (H) the figure of 6% is used by which to capitalize the earnings value. Frisco complains of this 6% figure and says it is too high; but we consider 6% to be a fair figure. It was stated by the Commission's witnesses, and without serious denial by Frisco, that the Commission had used this same figure for a number of years and that other Commissions and tax assessing bodies used the same figure. Certainly it cannot be said that the Commission acted arbitrarily in using the 6% figure for capitalization in this case.
(K) In the tabulation, line (K) contains the figure of $17,717,051 as a deduction for non-utility property. Section 84-610, Ark.Stats. requires that all propertyowned by such a taxpayer as Frisco in this casenot used in the utility operation shall be assessed by the County Assessor of the County wherein such property is located; and § 84-613, Ark.Stats. requires that the Commission, in assessing the true value of such a utility as Frisco, shall deduct the value of all property "* * * not used in the utility operation of the company". Therefore, the Commission undertook to exclude the value of the non-utility property of Frisco. At the time the Commission made the assessment, the latest report made to it by Frisco was one made in early 1954 (as required by § 84-601 and § 84-603, Ark.Stats.); and that report showed the value of Frisco's non-utility property to be $17,717,050, which is the same figure shown in line (K) of the tabulation. Frisco claims that it made a mistake in its 1954 return and that the correct figure that should have been in the return was $63,611,641. But when an analysis is made of Frisco's larger figure, it shows that it was not a mere mistake by Frisco, but that the larger figure was based on items that appear to have been an afterthought. For instance, in the larger figure of $63 million plus now claimed by Frisco, there is the stock market quotation of December 31, 1954 of some stock owned by Frisco in the New Mexico and Arizona Land Company. That stock market quotation could not have been in existence when Frisco mades its return to the Commission in early 1954. Also, in Frisco's larger figure of $63 million plus, there is included an item of temporary cash investments in excess of $11 million. These cash investments might have been used by Frisco as assets available for use in its public utility operations. At all events, we cannot say that the Commission made a mistake or was arbitrary, in using in line (K) the identical figure furnished by Frisco to the Commission, rather than a figure urged by Frisco much later. So, we find no error in the figure used by the Commission in line (K) of the tabulation.
(O) In discussing the "yardstick", we said that line (N) was the total system value of Frisco. The next step of the Commission was to determine the portion of the total system value that might be considered as being in Arkansas.[6] In line (O) of the tabulation there is the figure of 10.33% as *303 the Arkansas ratio to the system; and Frisco challenges that figure and insists that it is too large. In view of the state of the record before us and our holding on the Extent of Review (as discussed in Topic I, supra), we conclude that Frisco is correct in this contention. The Commission, in making its determination of the tax assessment of Frisco, fixed the "Arkansas ratio to the system" separately on each of the three principal items. That is to say: on "I. Cost Value" the Commission fixed the "Arkansas ratio to the system" to be 10.40%; on "II. Capitalized Earnings Value" the Commission fixed the "Arkansas ratio to the system" to be 9.14%; and on "III. Stock and Debt Value" the Commission fixed the "Arkansas ratio to the system" to be 9.71%. The average of these percentages is 9.75% and not 10.33%. When the case went to the Circuit Court, that tribunal held that the "Arkansas ratio to the system" should be determined after the total system value had been found (as in Line N, supra) rather than on each of the three separate items. It is true that in the Circuit Court hearing the Commission attempted to show additional factors to be considered in fixing the "Arkansas ratio to the system", some such being: car and locomotive miles, traffic units, traffic miles, etc.;[7] and the Commission now claims that with these other factors the percentage should be 10.33% rather than 9.75%. But under our holding in Topic I, supra (on the Extent of Review), it is clear that the hearing in the Circuit Court was not for the purpose of allowing the Commission to have the Circuit Court make an increase in assessment: rather the hearing in the Circuit Court was for the purpose of allowing Frisco to show either that the assessment was erroneous in figures, arbitrary in measurement, or confiscatory in result. Under such circumstances, the Commission cannot now justify its claim that Line (O) should be 10.33%. Instead, the figure in Line (O) as the "Arkansas ratio to the system" should be 9.75%, which is the average of the figures used by the Commission in making the assessment. This change from 10.33% to 9.75% will reflect a difference in Lines (P) and (R) of the tabulation. The correct figures for Lines (P) and (R) will be stated in the paragraph of this opinion entitled "Conclusion".
To summarize: we have considered, by reference to lines in the tabulation, all of the lines (A) to (O), inclusive, that have been challenged by Frisco seriously enough to justify discussion; and we have approved all lines down to Line (N) and now change Line (O) to 9.75%.
III. Assessment Ratio. Leaving Lines (P) and (R) for the portion of this opinion entitled "Conclusion", we come to Line (Q) of the tabulation which shows the assessment ratio at 20%; and this figure is so seriously challenged by Frisco that we have assigned it a topic heading. Property in Arkansas is not assessed at its actual value but only at a percentage of the actual value; and in Line (Q) of the tabulation the Commission determined that the property of Frisco in Arkansas would be assessed at 20% of its actual value. Frisco says that other property in Arkansas is not assessed so high, and that 12.32% is correct instead of 20%. Section 84-714, Ark.Stats. provides that the Commission shall sit as the State Board of Equalization in each year for the purpose of equalizing the "taxable *304 valuation" of all property. Such Board examines and compares the returns from the several counties, hears witnesses, and makes investigations "* * * so that all the taxable property throughout the State shall be assessed uniformly * * * at such percentum thereof as has been duly certified by the Commission". Section 84-103(c) requires the Commission to certify to each County in the State in advance of the assessing period "* * * a certificate showing the per centum of true and full market or actual value that it has used, or will use, in valuing for taxation for that year the property the Commission is required to assess". The evidence in this case shows that the Commission had certified 20% of the true or actual or market value as the assessment figure that the Commission had used and would use; and the County assessing authorities were required to use the same figure in their assessments.[8]
To justify its claim that the 20% as used by the Commission is too high and that the correct figure should be 12.32%, Frisco offered in evidence its Exhibit Q, being a document of twenty-five pages, dated March 1, 1956, and purporting to be a "Report of Committee to study ratio of 1955 Arkansas ad valorem property assessments to 1954 real estate sales".[9] This report is a very interesting document, but even if sufficiently authenticated to constitute evidence a point we need not decideit is nevertheless only a sample check or a series of spot checks of a limited number of ad valorem property assessments, as compared to the consideration for the sale of such property as disclosed either by the Federal stamps on the deeds or the recited consideration. Certainly such a study of a limited number of transactions cannot prove that all transactions in the State would show that the property was only assessed at 12.32% of its value. Neither can this study irrefutably prove (a) that the Commission was in error in fixing 20% as the amount for which it assessed the properties it was required to assess, or (b) that the various County Assessors disobeyed the Statute and failed to assess the properties in their Counties at the figure the Commission had certified. The witness, Walter P. Hinton, Jr., who was Director of the Assessment Coordination Division of the Arkansas Public Service Commission, stated that under Act No. 153 of 1955 the State of Arkansas was attempting a complete ratio study and that it would not be completed until the latter part of 1957. Until a complete study is shown to have been made, we think it would be improper to allow a partial study to refute the duty of the local assessing authorities to assess at the figure certified by the State Commission.
We recognize that obtaining a fair assessment of property has been a serious problem in this State for many years; but we know that considerable headway has been made toward more equitable assessments. Act No. 153 of the Legislature of 1955 shows the labor that the State is undertaking in this regard;[10] and in Section 4 of that Act the same figure of 20% is used. Some classes of property in Arkansas are assessed at more than 20%; other classes are assessed at less than 20%; but the State is striving for a 20% figure. In this case Frisco has failed to show either *305 that the Commission was in error in fixing the figure at 20%, or that the said figure was arbitrary, or that the said figure would result in confiscation.
Conclusion
The Commission has cross appealed, complaining of certain rulings of the Circuit Court; but in approving, as we have, Lines (A) to (N) of the tabulation, we have thereby disposed of the cross appeal.
We come now to Lines (P) and (R) of the tabulation. These must be changed because of the change made in Line (O) from 10.33% to 9.75%. Here are the concluding lines of the tabulation as revised and corrected by this opinion:
(N) $337,734,310.00 System Value
(O) 9.75% Arkansas Ratio to System
(P) 32,929,095.00 Arkansas Value
(Q) 20% Assessment Ratio
(R) 6,585,819.00 Arkansas Assessment
This revised tabulation shows the Arkansas assessment of Frisco for 1955 to be $6,585,819. Frisco has failed to show that such figure is either erroneous, or arrived at by an arbitrary method, or would result in confiscation. Therefore, we determine that figure to be correct, and we remand this case to the Circuit Court with directions to remand to the Commission to use the said figure and to take all steps for the Arkansas collecting agencies to collect the tax and interest from Frisco based on said figure. Interest on the balance of the tax due by Frisco will be calculated at 6% from November 1, 1956 until paid; and if not paid within thirty days after the determination of the balance actually due by the various taxing subdivisions, then the full statutory penalty, interest and costs will attach to said balance, the same as for delinquent taxes. The costs of this case are assessed against the appellant.
GEORGE ROSE SMITH, J., not participating.
NOTES
[1] In this Court on motion of Frisco, and in order that all possible parties may be in the case, two newly created state agencies have entered their appearances, adopting and supporting the position of the Arkansas Public Service Commission. These two new agencies are the Arkansas Commerce Commission and the Arkansas Tax Assessment Coordination Department. See Acts 132 and 234 of 1957.
[2] In 2 Arkansas Law Review, page 67, there is an enlightening article entitled, "Judicial Review of Findings of the Arkansas Public Service Commission".
[3] Merely for information purposes, attention is called to Act No. 234 of 1957, in Section 6 of which the words are used: "* * * de novo on the record made before the respective Commission."
[4] Some time ago the parties stipulated in this Court that, until the final decision in this case, Frisco might pay the taxes on a valuation of $5 million for the year 1955, conditioned that as soon as this case was finally decided, any additional tax and interest thereon, if any, would be promptly paid by Frisco. This will be covered in our directive contained in the section entitled "Conclusion".
[5] "RCN-D" means "Reconstruction New Less Depreciation".
[6] Section 84-610, Ark.Stats. says in part: "The Commission shall then ascertain and fix the value of the total utility operating property, tangible and intangible, in this State, by taking such proportion of the true market or actual value of the entire operating property, tangible and intangible, of such company, actually used in its public utility business, as its total lines within this State bear to the total lines both within and without this State, or as its total receipts or income from operation within this State bear to its total receipts or income from operation both within and without this State, or by using such other recognized method, or combination of methods, as will, in the judgment of the Commission, result in a just and equitable apportionment to this State of its due proportion of the value of the total utility operating property."
[7] We are not holding that these factors could not have been considered by the Commission originally: we are merely holding that these factors could not be brought into the Circuit Court hearing for the first time in order to thereby increase the percentage already fixed by the Commission.
[8] The witness, Earl Berry, who is Director of the Tax Division of the Arkansas Public Service Commission, testified that the 20% figure was used in this case because the Commission, under its order of December 18, 1954, had certified 20% of the true market value of the property as the percentage to be used in assessing.
[9] This report was made by and to the Missouri-Arkansas Association of Tax Representatives, which is an association composed of the tax representatives of various utilities, all of whom are interested in seeing that their property is not over-assessed.
[10] Some of our cases arising because of this Act, or other tax assessing acts, are Latham v. Hudson, Ark., 292 S.W.2d 252; and Strawn v. Campbell, Ark., 291 S.W.2d 508. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569616/ | 304 S.W.2d 500 (1957)
James EDWARDS
v.
STATE of Tennessee.
Supreme Court of Tennessee.
July 29, 1957.
*501 Looby & Williams, Nashville, for plaintiff in error.
Thomas E. Fox, Asst. Atty. Gen., for the State.
*502 TOMLINSON, Justice.
While State Highway Patrolman Morris was standing on the edge of State Highway No. 70 he was struck and instantly killed by an automobile being driven by James Edwards, who was drunk. Edwards was convicted of murder in the second degree, and has appealed.
A homicide of this character, generally speaking, is either involuntary manslaughter, Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685, or second degree murder, Owen v. State, 188 Tenn. 459, 221 S.W.2d 515, and Rogers v. State, 196 Tenn. 263, 265 S.W.2d 559, dependent upon the facts of each particular case. It is insisted in behalf of Edwards that there are no facts in this case from which the jury could reasonably infer malice; therefore, that Edwards' offense is involuntary manslaughter. The theory of this insistence is that Edwards was so drunk at the time as not to know what he was doing; hence, that, necessarily, the element of malice is absent.
In a homicide case "it is murder though the perpetrator was drunk. * * * Hence a party cannot show that he was so drunk as not to be capable of entertaining a malicious feeling. The conclusion of law is against him." Atkins v. State, 119 Tenn. 458, 481-482, 105 S.W. 353, 359, 13 L.R.A., N.S., 1031. Therefore, the question here is whether facts justifiably deducible from the evidence permit a finding by the jury of malice upon the part of Edwards.
At a point on State Highway No. 70 a short distance west of the corporate limits of the town of Lebanon, Patrolman Morris accompanied by a friend, Tommy Knowles, stopped for an official purpose a car driven east by soldier Sanford. When the soldier's car was brought to a stop its left rear wheel was thirteen inches south of the edge of the paved portion of the highway, and facing east, towards Lebanon. The car driven by patrolman Morris was parked behind it faced in the same direction and about the same distance from the paved portion of the highway. Knowles remained seated therein.
Patrolman Morris stood on the ground at the left front door of the soldier's car and examined his driver's license, etc. He had just returned these documents when there passed traveling towards Lebanon an automobile at a speed estimated at between 50 to 60 miles per hour.
It passed the patrol car "with a great gust" at a speed which "raised the side of it up". It then struck and knocked patrolman Morris a distance of 45 feet east of the soldier's car. Before striking Morris, as Morris stood on the ground at the left front door of the soldier's automobile, Edwards' automobile scraped the left rear fender of the soldier's car and on up the body of the soldier's car to where the patrolman was standing. It necessarily, therefore, was traveling with its right wheels on the right shoulder of the highway since the left wheels of the soldier's car were thirteen and fourteen inches, respectively, over on that car's right hand shoulder of the road.
Edwards did not stop his car though he told the sheriff the next morning that he "knew he hit something but didn't know what".
Edwards was pursued by Knowles in the patrol car, but was unsuccessful in efforts to stop him, until he forced Edwards' car to the shoulder of the road. Edwards was so drunk that the officers doubt that he understood what was then being said. It was there that his wife said "I tried to get you to stop and you wouldn't do it", a remark to which Edwards made no response.
Since the court is permitted to know what the general public knows, it takes judicial knowledge of the fact that Highway No. 70 leading from Nashville to Lebanon and on east is a paved highway upon which traffic is very heavy. This highway from the point where Morris was *503 struck is level for a distance west (towards Nashville) for more than a mile. It was from the west that Edwards was driving. The rear lights of the two parked automobiles, and the spot light of the patrol car, were burning. It was between 11 and 11:30 P.M.
Since no evidence was offered in behalf of Edwards other than in an unsuccessful effort to establish a reputation of sobriety, it is not known as to when Edwards began on this occasion to drink. It is permissible, however, to conclude (1) from the evidence of the character witnesses offered by him that he lived some where in the vicinity of Lebanon and (2) was thus returning to his home at the time he ran Morris down.
It is inconceivable that a man can get as drunk as Edwards was on that occasion without previously realizing that he would get in that condition if he continued to drink. But he did continue to drink and presumably with knowledge that he was going to drive his car back to, or close to, Lebanon over this heavily traveled highway. He knew, of course, that such conduct would be directly perilous to human life. From his conduct in so doing, it was permissible for the jury to imply "such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice." Owen v. State, 188 Tenn. 459, 468, 221 S.W.2d 515, 519.
The facts mentioned brought into the deliberations of the jury the rule that: "The act of a motorist may fall within the cases of murder in such a manner as to evince a depraved mind, as where one voluntarily becomes intoxicated while driving a car, and then drives on the streets of a city at a high rate of speed, heedless of pedestrians or of his acts." State v. Trott, 190 N.C. 674, 130 S.E. 627, 630, 42 A.L.R. 1114, 1119.
The case at bar is "on all fours" with Rogers v. State, 196 Tenn. 263, 265 S.W.2d 559, 560. The drunken driver there ran his automobile over, and killed, two people on the streets of Waynesboro. On appeal from his conviction of murder in the second degree his sole insistence was that he was so drunk as to be unconscious of committing any unlawful act; hence, "no malice shown, either express or implied". The Court rejected this insistence in accordance with the rules above stated and then added that: "It would be a mockery of the law for one thus guilty of violating the criminal laws of the State, enacted for the protection of human life, to say he could not foresee the consequence of his act."
Edwards requested the Court to instruct the jury that he could not be convicted of second degree murder because he was so drunk "at the time as not to know what he or she was doing". The action of the Court in refusing to so instruct the jury is assigned as error. Counsel made this request for Edwards under a misconception of the law, as hereinbefore set out.
The court charged the jury that if it found that Edwards while in a drunken condition, or partly so, drove his automobile over, and killed, Morris he would be guilty of murder in the second degree or involuntary manslaughter as the jury may decide "regardless of his intention * * *". The use of the expression "regardless of his intention" is assigned as prejudicial error.
Following the word "intention" in the quotation is a comma and the instruction of the Court then continues as follows:
"for it is not necessary to show an unlawful intention, for the intent is necessarily embraced in the wrongful act. If the act which causes the death is malum in se, bad in itself, such as driving an automobile while under the influence of an intoxicant the criminal intent is supplied from the very nature of the act, and it is not necessary that it be shown that death was the natural and probable result of the act."
It is clear from a reading of the instruction as a whole that the Court had *504 reference to "the criminal intent necessary to render one punishable for homicide." The Court was saying to the jury that when an unlawful act is "malum in se" a criminal intent is supplied by the very doing of the act. Hence, in order to convict Edwards of either involuntary manslaughter or second degree murder, as the case might be, it is not necessary to show that death was the natural and probable result of the criminal act, malum in se. See Keller v. State, supra, 155 Tenn. 636, 299 S.W. 803.
It is said that the Court erred in charging the jury that the wilfully becoming drunk, or partly so, and driving an automobile while in that condition "with knowledge that driving in such a condition was perilous to human life would constitute murder in the second degree". This is assigned as error on the ground that it was for the jury to determine from all the circumstances whether the element of malice essential to murder in the second degree might be implied.
Here again is demonstrated the attorney's erroneous opinion that the presence of malice is negatived by the fact that "there was abundant evidence that he was so drunk as not to be conscious of any impending peril at the time of the alleged homicide".
The instruction so given was correct. Immediately following it is the instruction as to the circumstances under which the act of Edwards may be involuntary manslaughter.
When the charge as a whole is considered, rather than isolated clauses therein, it is clear that the jury was given to understand that it was for it to determine whether Edwards' act amounted to second degree murder or involuntary manslaughter, or no offense at all. The jury could not have been misled by the instructions, and its verdict is not contrary to the preponderance of the evidence.
Finally, it is said that the punishment is so excessive as to show that the verdict was the result of passion, etc. The crime which Edwards committed was one directly perilous not only to the person he killed, but also directly perilous to the life of every person who happened to be on that heavily traveled highway at the same time Edwards, in his beastly drunken condition was thereon, a condition into which he necessarily knew he was getting. No extenuating circumstance is offered in evidence. The punishment was within the limitations of the law. This Court is not able to say that the jury was motivated by passion, prejudice or caprice in fixing that punishment at the amount specified in its verdict.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569619/ | 57 F.2d 784 (1932)
QUINN et al.
v.
SMITH CO., Inc.[*]
No. 6430.
Circuit Court of Appeals, Fifth Circuit.
April 9, 1932.
T. J. Blackwell and A. Y. Clement, both of Miami, Fla., for appellants.
Geo. L. Patterson and Dewey Knight, both of Miami, Fla., for appellee.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
HUTCHESON, Circuit Judge.
Appellant, Adwina Maria Quinn, a patron of a bathing pool conducted for profit by appellee in the city of Miami Beach, Fla., sued, alleging that through the negligence of the proprietor she had received serious injuries. There followed for fifty pages of the transcript an orgy of pleadings and demurrers, of moving for compulsory amendment and moving to strike, resulting in heavy casualties for both plaintiff and defendant. Plaintiff lost all of the four counts of her original declaration, and two of the amended counts as repleaded, while defendant lost all of its original pleas but one, its not guilty plea, and all of its amended pleas but two presenting the defense of contributory negligence, one to the third, the other to the fourth count of the amended declaration. The cause finally stood for trial at issue upon these pleas to the third and fourth counts of the declaration as amended. The fourth count alleged the operation by defendant of a public bathhouse, a part of the facilities of which consisted of an inclosed swimming pool, 50 feet wide by 100 feet long; that on March 23 plaintiff was a patron thereof, having paid the proper fees for admission to and the use of the facilities afforded; that on that day, in addition to the ordinary activities of the place, the defendant was engaged in conducting and carrying on for the amusement, instruction, and entertainment of its patrons and guests a *785 water carnival or swimming contest, from the witnesses to which it exacted pay; that plaintiff paid and became one of the patrons or guests. The declaration then alleged that it thereupon, in the exercise of due care, became the duty of the defendant to protect her from assault, but that it failed to perform that duty, and neglected and failed to provide a watchman, usher, or lifeguard, or other official to maintain order there; that at the completion of the carnival certain of the participants therein and other unidentified persons became engaged in horseplay and conducted themselves in a disorderly and boisterous manner by pushing one another from the platform; that the defendant knew, or ought to have known in the exercise of due care, of these conditions, and could and ought to have prevented the result which followed, by providing an attendant or guard, but that it failed to do so, and as a result one of the persons engaged in such rough and boisterous conduct, struck plaintiff with great force and violence and without warning, hurling her into the pool and seriously injuring her; that these injuries were the proximate result of the negligence of the defendant in failing to provide a lifeguard or other person of authority to safeguard its patrons, and to prevent boisterous and dangerous conduct on the part of persons at the pool.
It was in addition in the third count alleged that there was a hydrant or overflow pipe so placed in the pool as that it was likely to cause injury to persons coming in contact therewith, and that it did cause injury to her.
At the trial plaintiff proved substantially what she had alleged in the fourth count, particularly that there was boisterous conduct being engaged in at the pool, which defendant did know of, or ought in the exercise of care to have known of; that nothing was said or done by any one in apparent authority in charge of the pool to prevent the conditions existing, or to protect the patrons of the pool, including plaintiff, and that she received her injuries without fault on her part.
At the conclusion of plaintiff's case, defendant moved for a directed verdict. The motion was granted, and from the judgment entered thereon plaintiff has duly appealed. The errors assigned are to the sustaining of the demurrers to the first and second count of the amended declaration, to the granting of appellee's motion for directed verdict, and to the denial of a motion duly made by appellant, to reopen the case to put in further evidence. Since the fourth count on which the case went to trial was in legal effect identical with the first count, the sustaining of the demurrer to that count presents no reversible error. Nor was there any error in the action of the court in sustaining the demurrer to the second count, for it plainly appears that the negligence asserted there, the failure to furnish life lines or life rafts required by section 3767 of the Compiled General Laws of Florida 1927, could not have been the proximate cause of plaintiff's injury, if indeed, which we are inclined to doubt, the statute at all applies to a pool of the kind in question.
That the court did commit error, however, in directing a verdict does not, we think, admit of question. It goes without saying, in fact, it is not disputed, that proprietors of bathing pools owe to their patrons a duty to exercise due care, not only in providing a safe and proper place as such, but in policing and supervising the place to protect those coming there from wanton and unprovoked assault and injuries at the hands of other persons there. Especially is this duty laid upon proprietors with regard to women and children, to protect them from rude, boisterous, and unprovoked attacks and assaults. The case made by plaintiff showed an egregious want of care, not only entitling her to go to the jury, but, if her testimony was believed, making a clear case for recovery. It showed her presence at the pool as a patron, entitled to be there; the presence there of other persons, invited to entertain and amuse those who, like plaintiff, came as paying guests; conduct of those persons, boisterous, rude, and dangerous to a degree, going on without let or hindrance, and with apparently no one there present to prevent it; that suddenly, and without warning, she was hurled into the pool by one of those persons, with resulting serious injury. Such evidence if believed made a clear case for recovery. It required the submission of plaintiff's case to the jury.
For the error in instructing a verdict, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
NOTES
[*] Rehearing denied June 3, 1932. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569509/ | 29 So. 3d 1135 (2010)
HARRISON
v.
STATE.
No. 5D09-4242.
District Court of Appeal of Florida, Fifth District.
March 2, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569494/ | 37 F.2d 430 (1930)
FRITZ
v.
HAWN.
Patent Appeal No. 2214.
Court of Customs and Patent Appeals.
February 6, 1930.
Rehearing Denied March 3, 1930.
*431 Frank E. Liverance, Jr., of Grand Rapids, Mich., and John Boyle, Jr., of Washington, D. C., for appellant.
Chappell & Earl, of Kalamazoo, Mich. (F. L. Chappell, of Kalamazoo, Mich., of counsel), for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
GRAHAM, Presiding Judge.
Philip Fritz, of Grand Rapids, Mich., presented his application to the Patent Office on May 18, 1925, for a patent on certain improvements in ice cream cabinets. On January 5, 1926, United States patent No. 1,568,216 was issued to him thereon.
On February 21, 1925, Harold A. Hawn filed his application, serial No. 10,778, for a similar invention. On March 6, 1926, an interference proceeding was instituted and declared between said patent and said application, and is one of the matters now involved here. The subject-matter of said interference is set forth in two counts, which are as follows:
"1. In a construction of the class described, a cabinet having sides and ends and an interior space adapted to receive ice cream holding containers, said space at the lower portion thereof being relatively narrow and of a width to receive a single ice cream container and of a length to receive a plurality thereof, and at its upper portion being widened whereby an elongated space is left between a side of the cabinet and containers for ice cream placed therein, and a plurality of refrigerant holding receptacles located end to end in said last mentioned space and adapted to be freely placed therein or removed therefrom.
"2. In a construction of the class described, a cabinet having sides and ends and an interior space, said space at its lower portion comprising a relatively narrow and elongated rectangular well and at its upper portion being widened, a plurality of ice cream containers of substantially cylindrical form located in said interior space of the cabinet with their lower portions received in said well and with their upper portions spaced from an inner side of the cabinet, and a plurality of refrigerant holding receptacles located between the said inner side of the cabinet, and the upper portions of said containers, each of said receptacles being freely removable from the cabinet independently of any other receptacle or of any ice cream container, and freely placed therein, substantially as described."
Thereafter, on the 16th day of March, 1927, the case having been submitted to the Examiner of Interferences, a decision awarding priority to Hawn was rendered, which decision thereafter, on March 23, 1929, was affirmed by the Board of Appeals.
On January 19, 1926, Hawn presented another application for improvements in ice cream cabinets to the Patent Office, and thereafter, on March 6, 1928, an interference proceeding was instituted and declared between his said application and the patent to Philip Fritz, heretofore mentioned, No. 1,568,216. The subject-matter of this interference consisted of one count, which is as follows:
"In a construction of the class described, a cabinet having sides and ends and an elongated interior space in which ice cream holding containers are adapted to be placed, said space at its lower portion being in the form of an elongated relatively narrow rectangular well and at its upper portion being widened at both sides of the well whereby elongated spaces are left between ice cream containers placed in alinement in the well and the inner sides of the cabinet, and a plurality of refrigerant holding receptacles located end to end in each of said last mentioned spaces at each side of end above the well and adapted to be freely placed therein or removed therefrom."
Afterwards, the case having been submitted, the Examiner of Interferences awarded priority to Hawn, which decision, on appeal to the Board of Appeals, was reversed on March 23, 1928, and priority was awarded by said Board to Fritz.
Both interferences are now before us on appeal by the respective parties. It has been stipulated that the same record shall be used in both cases, the cases have been heard together, and the points in issue in both will be, therefore, fully discussed herein.
It will be observed, from what has been said, that priority has been awarded to Hawn upon counts covering ice cream cabinets with refrigerant holding receptacles to be located on one side of the ice cream containers to be placed in said cabinet, while priority is awarded to Fritz on similar cabinets with refrigerant holding receptacles to be placed on both sides of the ice cream containers.
The main and only controversy here is a question of fact as to the origin of the idea which finally led to the invention in question. The facts, as they appear from the record, are substantially as follows:
Philip Fritz is a man 70 years of age, has been engaged in manufacturing since *432 1882, at Grand Rapids, Mich., and about 28 years before the hearing herein began the manufacture of refrigerators. This business has increased from year to year, and at the time of hearing amounted to perhaps half a million dollars a year. Fritz, during his business experience, has had active charge of the business of his factory, and has made several inventions. From the record it is obvious that all details of the business were submitted to him and had his personal supervision. In 1923, when mechanical refrigeration began, he and his son, who was then engaged in business with him, together with others of the company, sold and manufactured to some extent mechanical or iceless refrigerators. He stated that in December, 1922, he first began to experiment with an ice cream cabinet similar to that here involved, and at that time built a cabinet.
Up to that time ice cream containers had been manufactured with the refrigerating material placed in the chamber with the containers and immediately surrounding them. The effort of Fritz was to produce a form of cabinet where the refrigeration might be applied through receptacles in the side or sides of the cabinet, which receptacles might be removed and filled elsewhere than in the place of business.
In 1924 and 1925 the Fritz company made and sold a considerable number of ice cream cabinets with a removable refrigerating tray placed between two ice cream containers in the cabinet. These trays were originally full length, but later were shortened and placed on a rack. In January, 1925, the Fritz company began to sell cabinets constructed according to the design embodied in patent No. 1,568,216, here involved, and, in 1925, 2,800 of these cabinets were sold by the company.
During this experimental stage, the party Hawn was employed by the Fritz company, being employed originally to introduce a system of cost accounting and production efficiency in the plant. His employment continued from March 24, 1919, to October 12, 1925. He had had some experience as a draftsman, and was the only person in the Fritz establishment who had had training along this line. The party Philip Fritz on many occasions made rough sketches, several of which are in evidence, on work which he desired to have done in his factory, but made no pretense of being able to make a finished drawing. The evidence shows that Hawn, from time to time, made drawings for the company, as requested by Mr. Fritz.
There is a sharp conflict in the evidence as regards the making of the drawing which is known as Fritz Exhibit A, and from which it is agreed that the first test cabinet made by the Fritz company was constructed.
Philip Fritz and his son, Edward M. Fritz, testified that the elder Fritz had made a small, rough sketch of a cabinet to be constructed as the one here in issue, and called in Hawn and asked him to prepare a drawing, following the sketch, and at that time explained to him what the device was. Hawn testified, on his part, that he was called into conference with the elder Fritz and asked if he had any suggestions, and at that time he suggested the device in question; that after having done so, he went to his home and prepared the drawing, Exhibit A, and delivered it to Mr. Fritz on the next morning, December 4, 1924. Thereupon the necessary instructions were given by Mr. Fritz to the factory superintendent, Mr. Thomas, to prepare the necessary specifications, and to construct test cabinets. These were constructed, and, on January 10, 1925, the first cabinets were ready and offered for sale according to the new method of construction. The construction of these cabinets was admittedly made under the supervision of the elder Fritz.
The party Hawn, who was 30 years of age at the time of hearing, had been engaged, since leaving school, in work for various companies in ascertaining production costs and in purchasing. He had never had any experience with refrigerating devices, nor had he ever made any inventions of any kind. He testified that in November and December, 1924, and in January and February, 1925, he conceived the idea of using frozen ice and salt in removable trays, and that, during November, 1924, at his home, he drew the sketch which afterwards became Exhibit A, and which embodies the ideas of the device here in question. He further stated that he did not show this sketch to his employer, Fritz, at the time he first prepared it, but showed it only to one A. G. Woodman, who was at that time employed by the Fritz company. Afterwards, when requested by the elder Fritz to give suggestions, he procured the drawing from his home and showed it to him, having completed some details on the night before so offering it. Woodman testified that he saw this sketch at Hawn's home about the last of November, 1924.
As has been stated, Hawn filed his first application on February 21, 1925. He continued in the employ of Fritz until October *433 12, 1925. Before leaving this employment he organized a copartnership, to be known as the Consolidated Cabinet Corporation, and in this copartnership engaged Frank W. Thomas, superintendent, Mr. Thome, auditor and office manager, Mr. Schmeiser, foreman of the machine room, Mr. Woodman, shop superintendent, all employees, at that time, of the Fritz company, with the purpose of engaging in the manufacture of ice cream cabinets such as those involved here, and which, at that time, were being produced by the Fritz company. Hawn at no time protested against the using by the Fritz company of the device suggested by said Exhibit A, but does state that he brought it to the attention of the elder Fritz that he (Hawn) was the inventor of the device. The witness Frank W. Thomas, called by Hawn, testified that Mr. Fritz showed him a sketch of an ice cream cabinet, told him he was going to have Hawn make a drawing of it, and that the next day Hawn showed him Exhibit A, which he had prepared and which he then used to prepare further specifications for the cabinet.
As to the cabinet with refrigerating containers on one side only, Hawn testified that none were made by the Fritz company while he was in their employ, and that he made a drawing of such a cabinet shortly after he prepared Exhibit A; that he did not show this drawing to the Fritzes, and thereafter built a cabinet along these lines. It further appears from the evidence that Philip Fritz had, prior to November, 1924, manufactured ice cream cabinets with tapered sides of the opening for ice cream containers, with refrigeration means extending only part way down alongside of the ice cream containers, and as early as 1923 had made removable full length tapered trays for such cabinets. He also stated, with some corroboration, that he had built such removable trays, prior to that time, which were shorter than the ice cream containers with which they were used.
These interferences were decided by the Board of Appeals upon the theory that the junior party, in neither case, had sustained the burden cast upon him by law, and that, therefore, priority should be awarded in each case to the senior party. It is vigorously insisted that the Patent Office failed to take into account, in coming to such conclusion, the relationship of employer and employee existing between Fritz and Hawn, and that, under the law, because of such relationship, the burden of proof was upon Hawn; that, therefore, if it be true, as found by the Board, that neither party hereto sustained his burden of proof, award of priority should be made to Fritz. This contention we shall briefly examine.
We are of opinion that the Board of Appeals did not give sufficient consideration to this phase of the subject. It is argued that Hawn was not employed to help design cabinets. Nevertheless the nature of his duties were such as to bring him in contact with the details of such work. He was obliged to compute, for his employer, the cost and efficiency of each detail of construction. He was called upon to make estimates and drawings for such construction and perform these functions constantly. We therefore hold that the relationship of employer and employee did exist between Fritz and Hawn in this work.
Under such circumstances, the law is well settled. It was expressed by Smith, J., in Larson v. Crowther, 55 Ohio App. D. C. 58, 1 F.(2d) 761, 767:
"But, however that may be, Crowther was assigned to the duty of making apparatus required by Larson for his experiments, and that relation between the parties imposed upon Crowther, notwithstanding his status as senior party, the burden of proving by competent credible evidence that the conception definitely evolved by those experiments was his, and not that of his employer. Winslow v. Austin, 14 Ohio App. D. C. 137, 143, 144."
To the same effect are Sendelbach v. Gillette, 22 Ohio App. D. C. 168; Gallagher v. Hastings, 21 Ohio App. D. C. 88; Laughlin v. Burry, 50 Ohio App. D. C. 273, 270 F. 1013; Miller v. Kelley, 18 Ohio App. D. C. 163.
Perhaps the most illuminating discussion of the principles of law involved in such cases may be found in the opinion rendered by Mr. Justice Clifford in Agawam Woolen Co. v. Jordan, 7 Wall. 583, 602, 19 L. Ed. 177. At the risk of perhaps unduly extending this opinion, we quote it here:
"No one is entitled to a patent for that which he did not invent unless he can show a legal title to the same from the inventor or by operation of law; but where a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are in general to be regarded as the *434 property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention.
"Suggestions from another, made during the progress of such experiments, in order that they may be sufficient to defeat a patent subsequently issued, must have embraced the plan of the improvement, and must have furnished such information to the person to whom the communication was made that it would have enabled an ordinary mechanic, without the exercise of any ingenuity and special skill on his part, to construct and put the improvement in successful operation.
"Persons employed, as much as employers, are entitled to their own independent inventions, but where the employer has conceived the plan of an invention and is engaged in experiments to perfect it, no suggestions from an employee, not amounting to a new method or arrangement, which in itself is a complete invention, is sufficient to deprive the employer of the exclusive property in the perfected improvement. But where the suggestions go to make up a complete and perfect machine, embracing the substance of all that is embodied in the patent subsequently issued to the party to whom the suggestions were made, the patent is invalid, because the real invention or discovery belonged to another."
Guided by the principles thus announced, we have no hesitation in concluding priority in both these interferences should have been awarded to the party Fritz. It is quite evident, from the evidence which we have herein set out at some length, that, even taking Hawn's testimony at its face value, all he did was to make suggestions to Fritz ancillary to the plan and design which Fritz had conceived and was then engaged in working out, and for which he had in his mind at that time the basic ideas. For years Fritz had lived with the ice cream cabinet business; he had constantly made improvements and many inventions, building his business up until he outstripped his competitors. Every idea employed in the later cabinets, whether they had refrigerating trays on one or both sides, whether the trays were long or short, had been conceived and utilized, in some degree, by him. On the other hand, Hawn was not an inventor. If he did conceive, without outside suggestion, the invention here in question, it would be remarkable. On the other hand, the more reasonable conclusion is that, from his contact with Fritz and Fritz's business, and from the suggestions thus received, he evolved the idea which he thought was his own conception, but which was, in fact, the creature of his employer's brain. In order to succeed here, it must be apparent, from the record, that he was the inventor of the device in question that the basic conception was his. This, we believe, he has not shown.
This being our conclusion, the decision of the Board of Appeals should be affirmed as to interference No. 53,491, and reversed as to interference No. 53,490, and priority should be awarded in said last-numbered interference to Philip Fritz.
The decision of the Board of Appeals is therefore, in this appeal, reversed, and priority is awarded to the party Philip Fritz.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569497/ | 304 S.W.2d 549 (1957)
Betty Jean STAHL et vir, Appellants,
v.
John A. RAWLINS, Appellee.
No. 15291.
Court of Civil Appeals of Texas, Dallas.
June 7, 1957.
Rehearing Denied July 26, 1957.
*551 Owens & Purser, Austin, Scurry, Scurry & Pace, Dallas, for appellants.
Johnson, Guthrie & Stanfield, and John A. Rawlins, Dallas, for appellee.
YOUNG, Justice.
Pursuant to authority of Rule 166-A, Texas Rules of Civil Procedure, the trial court, after a hearing, had sustained appellee's motion for summary judgment; decreeing that Mrs. Stahl (formerly Mudge) take nothing by her suit to cancel an existing contract of employment had with John A. Rawlins; also sustaining his cross-action for enforcement of said employment contract which provided for a one-fourth interest to him in all property, real, personal or mixed, recovered by her in cause No.94-F/J, styled Mudge v. Mudge; the contract allegedly extending to a property settlement agreed upon by the parties in their later judgment of divorce. An appeal from such summary action of the District Court has been duly prosecuted. Events leading up to above adjudication should first be related in some detail.
Marital differences between appellant, then Betty Jean Mudge, and husband Edmund W. Mudge, Jr., had resulted in their 1955 separation, she employing Judge Rawlins as attorney to institute suit for divorce and interest in community property. The employment was evidenced by written contract of May 17, 1955, drawn by the attorney and signed by her; with the suit for divorce, property rights, and custody of children filed June 28, 1955 in Juvenile Court of Dallas County. Other than formal parts, the mentioned contract for legal services is here set forth in full:
"Whereas, Mrs. Betty Jean Mudge, hereinafter called `undersigned', presently resides at No. 5926 Averill Way, in Dallas, Texas, and is the wife of Edmund W. Mudge, who is also a resident of Dallas, Dallas County, Texas;
"Whereas, the undersigned and the said Edmund W. Mudge were duly and legally married in Walla Walla, Washington, on or about January 13, 1944, and continued to live together as husband and wife, with brief separations, until their final separation on or about March 1, 1955;
"Whereas, there were two children born to the marriage, Edmund W. Mudge, III, and Laura Jean Mudge;
"Whereas, unhappy differences have arisen between the undersigned and her said husband, wherein she avers that for a long period of time before and after she has been subjected to cruel and inhuman treatment which renders their further living together insupportable;
"Whereas, the undersigned is desirous of obtaining a final decree of divorce from the said Edmund W. Mudge, and also of obtaining her rightful interest in the community property accumulated during said marriage, and further desirous of obtaining the care, custody and control of her said children and adequate support before and after a divorce is granted and a property settlement had and effected;
"Whereas, the said Edmund W. Mudge has threatened to file suit for divorce against the undersigned, and has consulted and employed an attorney at law, to-wit: R. Guy Carter, Esq., of the Dallas Bar;
"Whereas, the said Edmund W. Mudge has made various threats to and concerning and against the undersigned; among other things, claiming to have accumulated *552 much damaging evidence involving her; has threatened to expose her to public shame and to damage her character, and to take the custody of her children away from her and place them in the hands of relatives;
"Whereas, in connection with the threats to divorce her, he has claimed that no community property has been accumulated during their eleven (11) years of marriage and that she is entitled to nothing;
"Whereas, the undersigned believes that a large amount of community property has been accumulated during the marriage consisting of, among other things, the following:
"1. Cash, and various negotiable instruments in the possession of Edmund W. Mudge or some other person holding them for him.
"2. Oil wells, and oil producing property, royalties, interest shares, and leases, in the name of Edmund W. Mudge, and also in the name of various corporations, companies and individuals.
"3. Large holdings in stocks and bonds of every kind and nature.
"4. Substantial amounts in notes due to him, including on land and personal property to secure same.
"5. The family home on Averill Way, and a country estate on 28 acres of land on State Highway No. 869.
"6. Business enterprises, partnerships, stocks in companies and corporations and other properties both real and personal including a substantial collection of oil paintings and other valuables.
"Undersigned represents that she has the following property as her sole and separate property, to-wit:
"1. Personal jewelry in her possession, some of which was owned by her prior to her marriage and other given to her during the marriage.
"2. A 1955 model Cadillac sedan.
"Now Therefore, this confirms that the undersigned has employed and does employ John A. Rawlins, as attorney at law of the Dallas Bar to represent her in the recovery of her community interests, to present and try her cause of action for divorce against the said Edmund W. Mudge, to defend any cause of action that he may bring against her, and in any and all events to represent her in any and all courts necessary to obtain a final decree; to do all possible to enable her to retain the custody, care, control and education of the two children of the marriage; and she does hereby agree to pay said attorney a reasonable fee in connection therewith, as follows: for counsel and advice, in the past and in the future, and in the event that no divorce is granted either on account of failure or inability of either party to obtain a court decree, or in the event of a reconcilliation on terms mutually satisfactory to the parties, the sum of $25,000.00; in the event the case is prosecuted to a conclusion by either party and for services rendered in all the courts, trial or appellate, the undersigned hereby agrees to pay the said John A. Rawlins, as her attorney herewith, twenty-five per cent (25%) of all monies and properties recovered by him for her whether in cash or other properties or in trust, and whether by settlement, by suit or otherwise, and in consideration of the services performed and to be performed by said attorney, hereby conveys, sells and assigns to said attorney, John A. Rawlins, twenty-five per cent (25%) of all her rights, title and interest in and to the community estate of herself and her husband, and to her own property, real or personal, and the undersigned hereby agrees that upon request of her attorney, she will execute any supplemental instrument or instruments deemed advisable to more fully effectuate such assignment of twenty-five per cent (25%) interest in and to such properties.
"The undersigned hereby appoints the said John A. Rawlins as her attorney-in-fact, with full power to institute in her *553 name such legal proceedings for recovery of title and possession to her properties as he may deem advisable, and further agrees that in the event of an adverse or inadequate judgment in any suit or proceeding in the trial court, said attorney shall have full power in his sole discretion to make the decision and use his best judgment as to whether or not an appeal from such judgment shall be taken, and if an appeal is taken, said attorney shall have full power, in his sole discretion to determine how far said appeal shall be carried; and undersigned further gives to said attorney, as her attorney-in-fact, full power to compromise or settle her claim for community and separate property, with or without her consent, and upon such terms and in such amounts on such percentages, as he, in his sole discretion, may deem to be to her best interest; and undersigned further hereby agrees to indemnify and save said attorney harmless and hereby releases said attorney from any claim on her part that he was negligent or failed to use the best judgment in connection with handling of her suit, but said attorney shall nevertheless be liable to her for willful misconduct or bad faith in connection with this employment.
"The undersigned agrees to cooperate with all reasonable requests of her attorney in the prosecution of any suit or action that he may bring or defend for the recovery of her property and protection of her interests in the divorce and custody proceedings, and she further agrees that she will be liable and responsible for all Court costs and expenses incurred by said attorney in connection with his representation of her in said proceedings, and undersigned understands that said costs and expenses shall be additional to any fee above referred to."
On July 20, 1955 Mrs. Mudge sent by registered mail the following letter to appellee:
"Re: No. 94-F/J, Mudge v. Mudge.
"Dear Judge Rawlins:
"This letter is to serve as formal notice that your services as my attorney in the above named suit were discontinued as of 11:00 A.M. this 20th day of July 1955 because I have not been satisfied in the manner in which you have handled my case as discussed with you yesterday in your office. As you recall, you agreed with me in this conference that if I was not satisfied and did not have complete faith and confidence in you I should change lawyers. You further stated in front of a witness that you would allow me to employ another attorney. There was no mention of your fee in advance of my being released by you.
"This letter is to request a release allowing me to employ another lawyer and to furnish me a copy of the files of this case. I am willing to pay a reasonable fee for the services rendered in this case up to 11:00 A.M. this 20th day of July, 1955. Very truly yours, /s/ Betty Jean Mudge Mrs. Betty Jean Mudge."
Mrs. Mudge thereafter employed the present firms of attorneys to represent her as counsel; on September 16, 1955 filing affidavit (Rule 8, T.C.P.) of her desire to change lawyers, naming them; and the Juvenile Court entered an order to such effect, same being without prejudice to any right of appellee, perforce of the employment contract of May 1955, executed by "plaintiff" and "filed with the records of this Court."
On October 21, 1955 Mrs. Mudge filed the instant suit against defendant Rawlins for cancellation and rescission of above employment contract, praying for determination of the amount due Judge Rawlins for services prior to his alleged discharge on a quantum meruit basis; defendant filing plea in abatement, alleging that her then husband was a necessary party, plaintiff amending petition in accordance but being unable to secure service on Mudge. Plaintiff's sworn petition (second amended original), filed October 2, 1956, is lengthy, its contents being sufficiently reflected in her *554 amended and sworn reply to defendant's motion for summary judgment which is hereinafter quoted in full. The answer of appellee on file consists of plea in abatement, numerous exceptions, denials, defenses; and alternatively, a cross-action for damages in the sum of $250,000, charging that the contract of employment was wrongfully breached.
On August 8, 1956 the parties were granted a divorce in cause No. 94-F/J, Mudge v. Mudge, plaintiff obtaining custody of their two minor children with provisions for support. The divorce decree approved, ratified, and confirmed a property settlement agreement; filed, however, as a separate instrument, paragraph (5) thereof providing:
"(5) Wife warrants and represents that she has not incurred any indebtedness other than for personal living expenses at her domicile and those expenses incurred in the perfection of her action of divorce and a property settlement. She agrees that she will pay off and discharge any and all obligations or indebtedness created by her in connection with or arising out of her employment of John A. Rawlins, Wroe Owens and Scurry, Scurry & Pace, attorneys, as well as any other attorneys, if any, who she may have engaged for services rendered or expenses incurred in connection with a suit for divorce from Husband instituted by her against him in the above styled and numbered cause pending in the Juvenile District Court of Dallas County, Texas, as well as in connection with any litigation or controversy which she may have now pending, or which she may hereafter have, in connection with said attorneys by virtue of such services so rendered her by said attorneys. In this connection, she agrees to indemnity and hold Husband harmless against any loss, cost, expense, court costs, judgments, liens or claims of any kind or character in connection therewith.
"In order to better secure Husband in the performance by Wife of all of the terms and provisions of the indemnity agreement next above provided for, it is agreed that until terminated as hereinafter provided for, one-half (½) of the securities awarded to Wife in Paragraph 1, Subdivision (h) hereof, shall be deposited with her attorneys, Scurry, Scurry & Pace, and that simultaneously therewith the assignments provided for in Paragraph 10 hereof insofar as the interests of Wife in the following described properties may be concerned shall likewise be held by said attorneys in escrow and without being recorded, such properties being Wife's entire interest in the properties described in Subdivision 2 of Exhibit A of Paragraph 1. Such attorneys hereby consent to hold such properties in escrow and agree that they will hold such stocks and assignments intact until they are authorized to release same by instrument in writing signed by either Edmund W. Mudge, Jr. or R. Guy Carter."
Appellee filed an instrument styled "Acceptance" of the terms of above August 8 judgment and property settlement, also delivering to opposing attorneys a letter to like effect; taking the position that he is a third-party beneficiary under the judgment rendered in cause 94-F/J, whose rights are defined therein. And in subsequently filed motion for summary judgment he takes the same position, i. e., that the rights of both parties under said contract of employment have become merged in the Mudge v. Mudge final judgment, "which is a new debt, replacing the old obligation under the contract and precluding all consideration or discussion thereof."
We come now to the instant proceedings. On September 19, 1956 appellee filed a motion for summary judgment in plaintiff's cause of action No. 4527-A/B, styled Mudge v. Rawlins, asserting the existence of no genuine issue of any material fact so far as plaintiff was concerned, thus entitling movant to judgment on his cross-action as a matter of law. Among other things, said motion was based upon the entire record in cause 94-F/J, Mudge v. Mudge; pleadings in the case of Mudge v. Rawlins; depositions *555 of Betty Jean Mudge and John A. Rawlins; statement of facts in an intermediate receivership hearing; the contract of employment in question; final judgment in cause 94-F/J, inclusive of property settlement agreement and paper of acceptance on which claim is made of third-party beneficiary.
Appellants' sworn reply to above motion for summary judgment is here quoted in full:
"I. The allegations contained in paragraph `P' of defendant's motion for summary judgment are not true; in this connection, plaintiff would show unto the Court that there are genuine issues of fact involved in this case as follows:
"(A) Plaintiff in her second amended petition asserts and alleges that the contract upon which the defendant bases his right of recovery was procured by the fraud of defendant and that such plea of fraud involves issues of fact which must be decided to dispose of this case.
"(B) Plaintiff further asserts in Paragraph III of her second amended petition that defendant as an attorney did not investigate the case properly; that such allegation raises a question of fact as to whether the defendant properly performed all of his duties and obligations under the contract upon which he bases his right of recovery.
"(C) Plaintiff further alleges in said pleading that the defendant, as an attorney, did not keep her advised of the progress he was making in the case; that said attorney gave confidential information to the attorney on the opposing side; that defendant recommended to the plaintiff that she settle her case for an amount far below an amount which would be fair and reasonable; such allegations raise a question of fact as to whether the defendant complied with the terms of his purported employment contract upon which he bases his right of recovery.
"(D) Plaintiff in her second amended petition alleges that if defendant is entitled to recovery at all, such recovery would be limited to a reasonable amount for the services which he actually rendered to the plaintiff as an attorney; the amount of recovery in such event would be a question of fact, and defendant is asserting in his motion for summary judgment that he is entitled to recover on the contract itself and does not allege that he is entitled to recover on the basis of services rendered.
"II. Defendant in part bases his action for summary judgment on a purported third-party beneficiary contract arising out of the settlement agreement entered into between plaintiff and her former husband; it would be a question of fact in this case as to whether the plaintiff and her former husband by said agreement intended to confer a benefit upon defendant, which allegation is expressly denied by plaintiff.
"III. Defendant has alleged that he relied upon the alleged or purported third-party beneficiary agreement and such reliance, or lack of reliance, is a question of fact, and in this connection, plaintiff expressly denies that such statement is true.
"IV. Plaintiff would show the Court that under the allegations of fraud as contained in plaintiff's second amended petition, questions of fact are involved which would preclude any recovery by defendant for any services performed.
"V. Plaintiff would show the Court that the depositions of the parties hereto have not been completed and that plaintiff has been prevented from such completion by the acts of the defendant and his counsel as reflected by Page 95 of the deposition of plaintiff which reflects that the deposition was adjourned rather than completed and the complete facts have not been developed by deposition for either plaintiff or defendant as a result of such acts of defendant and his counsel."
Appellee's claim of third-party beneficiary is based on the agreed property settlement between Betty Jean Mudge and husband as approved and confirmed in final *556 judgment of August 8, 1956; there being no contention of any lack of a bona fide dispute relative to the issues theretofore joined in the instant suit for cancellation of employment contract and answering cross-action.
The principles controlling of contracts made for benefit of a third person are well stated in Citizens National Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, and reiterated in Standard Accident Ins. Co. v. Knox, 144 Tex. 296, 184 S.W.2d 612, viz.: (1) "Parties are presumed to contract for themselves. It follows that a contract will not be construed as having been made for the benefit of a third person unless it clearly appears that such was the intention of the contracting parties." [136 Tex. 333, 150 S.W.2d 1006.] (2) "A person not a party to a contract may sue thereon for himself if it appears that it was made for his benefit, but the presumption is that parties contract for themselves alone; and a contract will not be construed as having been made for the benefit of a third party, unless it clearly appears that such was the intention of the contracting parties." [144 Tex. 296, 184 S.W.2d 615.] See also James Stewart & Co. v. Law, Tex. Civ.App., 228 S.W.2d 601, affirmed 149 Tex. 392, 233 S.W.2d 558, 22 A.L.R. 2d 639, holding in effect that intention of the parties with respect to whether one has been constituted a third-party beneficiary in their contract should be determined by terms of the contract as a whole, construed in light of the circumstances under which it was made.
Here involved is a construction of the judgment of August 8, 1956 wherein Judge Peurifoy recites an approval of this property settlement agreement after hearing of "full and complete evidence." It is the contention of appellee that his right as third-party beneficiary appears as a matter of law from recitals of the property settlement agreement; but if not, then appellant is precluded from raising the fact issue of whether the parties intended to create such a relationship, because she "has brought only a partial or fragmentary record before this Court"; the situation thereby requiring us to indulge the presumption of correctness of the judgment under review. Appellee says that the following items, considered by Judge Bryan (who presided at the hearing for summary judgment), are omitted from the record here: (1) Some thirteen Exhibits introduced in evidence on an intermediate receivership hearing in Mudge v. Mudge, all of which Exhibits were attached to the original statement of facts (Receivership), but none to the "Copy" filed in this Court; (2) the District Clerk's Certificate recites as omitted: "the evidence developed in the divorce hearing, which is no longer available, because the parties are not able to locate same, after diligent effort. The Clerk is without information whether any evidence was developed in that case or not and is making no certificate as regards that evidence."
More specifically, appellee argues that if resort must be had to the "surrounding circumstances" (as a question of fact) for construction of the property settlement agreement, this Court is confronted with only a partial record, as appellant has not made available to us the circumstances surrounding such agreed settlement; that on summary judgment hearing in the instant cause (4527-B, Mudge v. Rawlins), Judge A. J. Bryan had before him the entire record in cause No. 94-F/J inclusive of full and complete evidence heard by Judge Peurifoy at time of rendition of the 1956 judgment; which evidence is not a part of this record on appeal as is apparent from the Clerk's Certificate; thus making applicable the rule annotated in 4 Texas Digest Complete, Appeal and Error, sec. 907, subdvs. 3, 4, that, absent a statement of facts, or in case of an incomplete record all reasonable presumptions will be indulged in favor of the judgment appealed from. Manifestly, the position taken by appellee is untenable in view of our Rules of Procedure which *557 authorize either party to supplement the record either before or after same has been transmitted to the appellate court. Rules 428, 437, 503. They should receive a liberal construction. Barron v. James, 145 Tex. 283, 198 S.W.2d 256; a Sub-Committee of our State Bar on interpretation of these Rules having long since concluded that thereunder the old presumption in favor of the judgment below, in case of an incomplete record, will no longer be indulged. 5 T.B.J. 236; 8 T.B.J. 17. Moreover, the entire record in cause No. 94-F/J, Mudge v. Mudge, was made a part of appellee's own motion for summary judgment, which would comprehend the omitted matter, if existent.[1]
Appellant is therefore entitled to be heard on the merits of her cause of action; inclusive of the issue of whether the parties, by their settlement agreement, intended same to be for benefit of appellee, as in Lindler v. McClure, Tex.Civ.App., 292 S.W.2d 381. Her affidavit of October 18, 1956, offered in evidence before Judge A. J. Bryan of the 66th District Court, sitting for the 44th District Court, but rejected by him, was sufficient in itself to raise the issue of intention. This affidavit should have been considered. City of Mesquite v. Scyene Investment Co., Tex.Civ.App., 295 S.W.2d 276.
At this juncture and expressly, we do not pass upon appellant's points 2 and 3, urging that appellee did not become a third-party beneficiary under the settlement agreement as a matter of law. Our holding here relates only to her first point complaining of error "in entering a summary judgment in favor of appellee when there existed genuine issues of fact."
The cause is reversed and remanded for further trial proceedings.
On Motion for Rehearing.
In view of appellee's counter-points, presented in the alternative, the statement made in original opinion of "no contention of any lack of a bona fide dispute relative to the issues theretofore joined in the instant suit for cancellation of employment *558 and answering cross-action" is hereby withdrawn.
But obviously the pleadings of the parties in cause No. 4527, standing alone, involve a bona fide dispute to which Rule 166-A is inapplicable. We have here a sworn petition (second amended) seeking cancellation of the contract for legal services on grounds of fraud and imposition; her sworn reply to motion for summary judgment detailing such grounds; answered by defendant's plea of nonjoinder of parties, numerous special exceptions, a cross-action on basis of the contract, and in the alternative, for $250,000 for its wrongful breach. Said sworn resistance to the summary judgment proceedings consisted of numerous specific charges of fraud concerning material facts within affiant's knowledge and of probable admissibility upon a trial to the merits. "Where facts on issue are uncertain or there is reasonable indication that a material fact is in dispute, case should not be disposed of by summary proceedings." Ridenour v. Wilkes, Tex. Civ.App., 283 S.W.2d 401, 402, syl. 5.
Appellee reasserts with much vigor that a presumption must be indulged in favor of the court's judgment in cases where the record before the appellate court is incomplete. Certainly such presumption still obtains in total absence of a statement of facts, but since adoption of Rule 428, T. C.P., resort may be had to its liberal provisions in case of an incomplete record.[1] The rule has been consistently made use of in such respect. "Under our rules and decisions ample opportunity is provided for the correction of the statement of facts subsequent to the thirty-day period mentioned in Rule 404 where it appears that the same is not properly prepared or some material portion has been omitted. Rules 428, 429 * * *." Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486, 487. "If it were contended that the statement of facts was incomplete or incorrect it would be an easy matter to amend and correct the statement of facts under the provisions of Rules 428 and 429, T.R.C. P., * * *." McKay v. Kelly, Tex.Civ. App., 225 S.W.2d 992, 994. See also Patrick v. Simpson, Tex.Civ.App., 168 S.W.2d 315; Magnolia Petroleum Co. v. State, *559 Tex.Civ.App., 218 S.W.2d 855, 862; Thompson v. Janes, Tex.Civ.App., 227 S.W.2d 330; Hanna v. Home Ins. Co., Tex.Civ. App., 260 S.W.2d 891.
The motion for rehearing is overruled.
NOTES
[1] Since submission of cause appellant has placed on file the Certificate of Judge Paul Peurifoy who held the divorce hearing of August 8, 1956, approving also the property settlement agreement; certifying in part that evidence adduced at the trial of said cause was never reduced to writing. His sworn statement is quoted in full:
"I, Paul G. Peurifoy, Judge of the District Court for the 95th Judicial District, Dallas County, Texas, do certify that on August 8th, 1956, there appeared before me, sitting as the District Judge of the 14th Judicial District Court, Dallas County, Texas, the Plaintiff and her attorneys and the attorneys for the Defendant in the cause entitled Betty Jean Mudge v. Edmund W. Mudge, Jr., No. 94 F/J, and evidence was presented to the effect that a property settlement agreement had been executed by the Plaintiff and the Defendant, but no evidence was offered or given specifying which obligations or the extent of the obligations assumed by Plaintiff or the Defendant. The judgment entered by me in said cause did nothing but approve the fact that an agreement as to said property division had been made, and that the Defendant was to make certain payments for child support as set out therein.
"At the time this matter was presented to me, I was on vacation; my court reporter was on vacation. I came by the office to check my mail. The attorneys asked me if I would handle this settlement for them. My reporter not being available, I asked the attorneys to get their own reporter. I do not recall what reporter took the case. I have no present recollection of a discussion of attorneys' fees for any attorney in the case, present or not present in court.
"Diligent search has been made by this Court and its Court Reporter attempting to find the reporter who took the testimony offered at the time the divorce judgment was entered, and we have not been successful.
"I further certify that the evidence adduced at the trial of said cause has never been reduced to writing; that if a court reporter was present at the time of the hearing, his identity is unknown, though diligent search has been made, and no record now exists nor has ever existed, since judgment was entered in said cause, of any of the evidence introduced therein."
[1] Of the omitted matters detailed in original opinion, the affidavit of Judge Peurifoy is to effect that no evidence heard by him on entry of agreed judgment in cause No. 94-F/J was transcribed. Appellant's reply to the motion for rehearing accounts for the missing exhibits as either appearing in the present transcript or relate to the Receivership statement of facts (checks, papers, etc.) and material only to that proceeding.
In the same connection a second affidavit of Judge Peurifoy is attached to appellant's motion, now quoted:
"This affidavit is to supplement the one made by me, which appears in the footnote of the opinion written and handed down by Mr. Justice Young in Cause No. 15291, 5th Court of Civil Appeals of Dallas;
"The above mentioned affidavit was signed by me without having been approved by the attorneys for John A. Rawlins or having been presented to them or inspected by them, or by Rawlins himself, for the following reasons;
"Mr. John Pace, attorney for Betty Jean Mudge, told me that he had only until 12:00 o'clock of the day on which said affidavit was made to file same in the Court of Civil Appeals, and I inferred from his statement that he had obtained consent of the Court of Civil Appeals to file same and that 12:00 was his deadline;
"I requested Mr. Pace to get in touch with opposing counsel and ask them to be present and he told me that he had tried to reach them but could not do so; I further certify that at the time the divorce case between Betty Jean Mudge and her husband, Edmund W. Mudge, Jr., was tried, being Cause No. 94-F/J, and the trial date being August 8, 1956, said Betty Jean Mudge was placed on the witness stand and in response to questions by Hon. R. Guy Carter, attorney for the defendant, she testified that she understood the agreement and the property settlement and she understood that it covered all her rights and obligations and she wanted the Judge to approve same." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569526/ | 29 So. 3d 381 (2010)
Marcia D. ECKERT, Appellant,
v.
David L. ECKERT, Appellee.
No. 5D09-605.
District Court of Appeal of Florida, Fifth District.
February 26, 2010.
*382 Kenneth D. Morse, of Kenneth D. Morse, P.A., Orlando, for Appellant.
Tatiana Leo, of Pratt & Morrision, P.A., Winter Park, for Appellee.
PER CURIAM.
Appellant, Marcia Eckert ["Wife"], seeks review of the "Supplemental Final Judgment of Dissolution of Marriage," rendered on January 9, 2009. She challenges the amount of alimony she was awarded.[1]
The parties resided together from the date of their marriage in 1983 until they separated in August of 2004. Appellee, David Eckert ["Husband"], owned his own business installing telephonic data cables and programming phone systems. Wife was not employed during the marriage. In early 2005, the parties entered into a mediation agreement which settled all the equitable distribution issues. The only issues remaining to be decided were alimony and attorney's fees. During the course of the proceedings, Wife was awarded $1,000 per month as temporary alimony.
A trial to determine alimony was conducted on August 7, 2006. The evidence at trial showed that the parties lived a comfortable life during the marriage. Wife did not work during the marriage, and Husband acknowledged that Wife had been a good mother and homemaker until, at the end of the marriage, Wife engaged in numerous adulterous affairs.
Both Husband's ability to pay alimony and the amount of Wife's need were disputed issues at trial. At the close of trial, the court took the matter under advisement and, according to subsequent filings, communicated by letter with counsel about its ruling. The parties were unable to agree on the form of a judgment because of the lack of findings contained in the letter. Finally, in November 2007, Wife filed a motion to have the court enter a judgment with findings of fact. In support of that motion, the transcript was prepared and filed for the court's use. Eventually, some twenty-eight months later, in January 2009, the final judgment was entered.
The final judgment is sparse. On the issue of need and ability to pay, there are only three findings: that Husband's net income was between $7,000 and $12,000 per month, that Wife has illnesses that prevent her from working full time and that she has "substantial" medical and drug expenses. The court concluded that the $1,000 temporary alimony Wife had been receiving was inadequate and awarded $1,800 per month. On appeal, Wife contends that an award of $1,800 per *383 month is so inadequate for her needs that the award constitutes an abuse of discretion. For his part, Husband contends that all of the court's findings are wrong: Husband's net income was much less than $7,000 to $12,000 per month; Wife was perfectly able to work, as even her own physician testified; and Wife's medical and drug expenses as documented at trial were a fraction of the $1,100 per month she claimed. Nonetheless, Husband urges that the $1,800 award should be sustained because it is supported by record evidence.
We find the judgment to be inadequate in several respects. The finding of such a wide range for Husband's income is too uncertain, and is not warranted by the evidence. There is a lack of findings on Wife's need, an issue greatly disputed at trial, making it impossible for this Court to make any meaningful review. These deficiencies are combined with a twenty-eight month delay between the trial and entry of the judgment and appear to be related.[2] Even though the trial court was eventually provided a transcript, it is doubtful, with the passage of so much time, that issues of credibility and weight of evidence could accurately be recalled. Loath as we are to require parties to incur the cost and delay of a retrial, it is necessary in this case, and the parties are partly responsible for the delay. A new hearing of all alimony issues, including whether Wife's adultery should affect the amount of alimony awarded, is required. The currently assigned judge,[3] with the benefit of current information on the issues of need and ability will be able to render a more reliable decision, even if the figure is the same. See Rosario v. Rosario, 945 So. 2d 629 (Fla. 4th DCA 2006) (In considering alimony award, the trial court is authorized to consider any factor necessary, including adultery, to do justice between the parties). Accordingly, we vacate the judgment and remand for a new hearing on the issue of alimony.
JUDGMENT VACATED and REMANDED.
GRIFFIN, TORPY, JJ., and THOMPSON, E., JR., Senior Judge, concur.
NOTES
[1] Wife has also appealed attorney's fees, but concedes that this issue is not ripe for review.
[2] There is abundant case law requiring a retrial where there has been a long delay between the conduct of a trial and the issuance of a judgment, if circumstances suggest that the passage of time may have adversely affected the accuracy of the judgment. See, e.g., Porter v. Estate of Spates, 693 So. 2d 88 (Fla. 1st DCA 1997). In this case, both the lack of findings and the lack of precision in the income and expense figures strongly suggest that the passage of time adversely affected the judgment.
[3] The case was heard by a senior judge in 2006. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569492/ | 304 S.W.2d 855 (1957)
STATE of Missouri, Respondent,
v.
Eugene Ray KOLLENBORN, Appellant.
No. 43549.
Supreme Court of Missouri. En Banc.
September 9, 1957.
*856 Max Patten, Joplin, for appellant.
John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.
EAGER, Judge.
This case is written on re-assignment. Defendant was tried, convicted, and sentenced to a term of 6 months in jail for acts constituting a violation of § 559.340. (All statutory references are to RS Mo 1949, V.A.M.S., unless otherwise stated.) That section deals with the mistreatment of an infant under the age of 16 by a parent or other person having the care and control thereof; the punishment ranges from 3 years in the penitentiary down to a fine; the offense is a felony of which this court has jurisdiction. Section 556.020; State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 606.
The case was tried by agreement before the Honorable Rex V. McPherson as Special Judge, without a jury. Under Art. I, § 22(a), Constitution of Missouri, 1945, V.A.M.S., a jury may be waived in any criminal case with the consent of the court, and the court's finding shall have the force and effect of a verdict of a jury.
*857 Defendant was the father of the infant in question; he was 22 years of age at the time of the alleged offense in November, 1951, and his wife was either 18 or 19. He had married Betty Kollenborn (whose maiden name is not shown) on January 12, 1949. Their progress in the matrimonial venture had not been unperturbed; she did not know where her husband was living at the time the child was born on July 4, 1951, and she had gone to Wichita, Kansas. Thereafter they were reunited and lived in Joplin, Wichita and Carthage. They were living in Carthage in November, 1951, in an upstairs apartment. At that time the infant daughter was between 4 and 5 months old. The wife worked "most of the time." The oral evidence showed: that around the first of November (1951) the baby's ankle was swollen, and the mother took her to a doctor who found nothing wrong; about 2 weeks later defendant went to a show one evening while his wife stayed at home with the baby; after his return and during the very late evening or early morning, the baby was "fussing" in her bed and the husband got up; the baby started "screaming" and the mother got up, took her, and rocked her to sleep. The mother was awakened by the screaming, and when she got up, defendant was bent over the bed and the baby was crying. The next morning the baby's "whole body" was swollen, and the mother took her first to a doctor in Carthage and then both parents took her to the K. U. Medical Center in Kansas City. There she stayed for a week; she was X-rayed, and her arm was put in an elastic bandage. The child's left arm is "crooked" just a little above the elbow; the mother learned at Kansas City that the child had an "injured" arm and ankle. About 3 weeks after these occurrences the wife left defendant, and on February 29, 1952 (prior to the trial), procured a divorce. The foregoing recital comprises the substance of the testimony of Betty Kollenborn, defendant's former wife. When she was called as a witness for the State, she stated under oath that she desired to testify voluntarily, and to tell what she knew about the case; also, that she knew that she might refuse to testify, and that she was not being compelled to testify. It was agreed between counsel that Dr. Isbell, of Carthage, would testify that the child was "injured" when brought to him and that he recommended that it be taken to Kansas City. Lillian Briggle, who lived downstairs in the same apartment building, testified that on one Sunday "night" in November, 1951, about 1 or 2 A.M., she heard the baby upstairs crying, and heard such loud voices that she went out in the hall to listen. On the next morning Mrs. Kollenborn brought the baby to the witness' apartment and called the doctor from there; the baby's ankles were swollen, its arm, "this arm," was "laying like this," and when the witness slipped her finger under its arm "on the bed," it screamed. She knew of no one else in the Kollenborn apartment that night except the husband, the wife, and the baby.
After complaint was made and defendant was arrested, he made and signed a detailed statement in the presence of a deputy sheriff, the City Marshal, and the jailer. This was offered and received in evidence at the trial without objection. Therein defendant stated, in part: that he and his wife were separated for almost a year; that he had a violent temper; that his wife had threatened to leave him for spanking the baby "too hard," as she thought; that on one occasion in November, 1951, while his wife was working, the baby was fussing and he "jerked it up out of bed," and its feet were caught in the railings of the bed; that "it could have been a possibility that I injured its leg"; that on November 25, 1951, although his wife asked him not to go, he and his brother-in-law went to a show; he got home about 10:30 or 11 P.M.; he and his wife "had a few words," and she was already in bed; "sometime in the night, the baby was fussing," and he got up and went to the crib; that he reached down and took hold of the baby's *858 left arm (and possibly her leg), jerked her "clean up out of the crib and shook her pretty rough"; that she "let out a loud cry, as if though in pain"; that at that point his wife got up and took the baby; that, on the next morning, his wife sent word to him at work that the doctor said there was something seriously wrong with the baby and that it needed to be taken to a baby specialist, so he borrowed a car and took them to Kansas City; that the doctor in Kansas City told him, as he understood, that the baby had two broken ankles and that its arm was out of place. At the trial the defendant merely testified that he did not break the baby's arm or leg, and he produced several character witnesses.
On this evidence the trial judge, sitting as a jury, found defendant guilty and fixed his punishment at imprisonment for 6 months in jail, stating expressly that, in so doing, he had considered the time already spent in jail. Motion for new trial was filed and overruled, allocution awarded, and sentence pronounced accordingly; this appeal was duly taken.
No brief has been filed here for appellant. We, therefore, examine those assignments sufficiently raised in his motion for a new trial. State v. Murray, Mo., 280 S.W.2d 809. These are, somewhat consolidated and condensed: (a) that the court erred in permitting defendant's former wife to testify to "occurrences during the period of their marriage," such being privileged; (b) that the State's proof failed to show that defendant had committed the crime alleged; and (c) that, even if defendant's statement was a "confession," there was no proof of the corpus delicti. We shall consider these points in inverse order.
It would be a mere quibble on words to discuss whether defendant's written statement was a "confession" or not; it was an extra-judicial admission against interest, received in evidence without objection, and it was thus in the case for whatever it might legally prove. "Corpus delicti" (i.e., proof of the "body of the offense," City of St. Louis v. Gavin, Mo. App., 222 S.W.2d 531) has been described as consisting of, and requiring proof of, two elements, namely: proof of the death (or injury) of the person in question; and proof of the criminal agency of someone in causing it. State v. Lyle, 353 Mo. 386, 182 S.W.2d 530. Apparently, defendant here claims that there must be independent proof of every element of the crime, aside from his own statement. In the Lyle case, supra, in City of St. Louis v. Gavin, supra, and in State v. McQuinn, Mo., 235 S.W.2d 396, it has been held that full proof of the corpus delicti, independent of defendant's extra-judicial admissions or confessions, is not required; if there is independent evidence, direct or circumstantial, which is corroboratory of the admissions, then both or all may be considered together in determining whether the corpus delicti has been sufficiently proved. See also: State v. Black, 360 Mo. 261, 227 S.W.2d 1006 (abuse of a minor child, with a charge of manslaughter); State v. King, 342 Mo. 1067, 119 S.W.2d 322; 26 Am.Jur., Homicide, § 383, p. 425. In the case of City of St. Louis v. Gavin, supra, the court said, at 222 S.W.2d 531, loc. cit. 540: "In our state in the case of State v. Skibiski, 245 Mo. 459, loc. cit. 463, 150 S.W. 1038, [loc. cit.] 1039, the Supreme Court said, `The rule in this state has long been that full proof of the corpus delicti, independently of the confession, is not required. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delcti is sufficiently proved in a given case.' This rule has been stated in many cases, some of which are: State v. Mullinix, 301 Mo. 385, 257 S.W. 121; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523; State v. Kauffman, 329 Mo. 813, 46 S.W.2d *859 843, 848; State v. King, 342 Mo. 1067, 119 S.W.2d 322, 326; State v. Lyle, 353 Mo. 386, 182 S.W.2d 530, loc. cit. 533." The case of State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, cited by this defendant in the trial court, was overruled in State v. Hardy, Mo., 276 S.W.2d 90, in so far as it purported to define the elements necessary for proof of the corpus delicti. We have no hesitancy here in holding that the testimony of the wife and the neighbor constituted sufficient corroboration, and that all the evidence sufficiently proved the corpus delicti. We are not confronted here with any question on the admissibility of the confession, for trial counsel expressly stated that there was "no objection" to it.
From counsel's oral argument upon a motion for dismissal in the trial court, we gather that one of defendant's principal arguments on the insufficiency of the evidence was that defendant had merely admitted a possibility that he had injured the baby's ankle or leg; this evidently referred to the occasion concerning which defendant had stated that the baby's feet were caught in the railings of the bed. We may disregard that occasion entirely, and consider merely the subsequent occasion (on or about November 25, 1951) when he admits that he jerked the baby "clean up out of the crib and shook her pretty rough"; it was the latter occasion about which the wife testified, and the injury then sustained would be sufficient in itself for all present purposes. The information charged an offense committed on "or about the _____ day of November, 1951," and defendant has made no point of the indefiniteness in dates; we may thus consider the events which transpired on the second occasion as constituting the offense charged. We doubt that evidence of both offenses should be considered, for technically each offense was separate. We shall so consider the case; in this view, defendant's insistence on a mere "possibility" of injury is wholly immaterial.
The principal question, and the only troublesome question, involved here is the admissibility of the testimony of the former wife, Betty Kollenborn. Her testimony constituted the major part of that evidence which we have held to be corroboratory of defendant's admissions, and it was for that reason, an essential part of the State's proof. We shall dispose first of a specific objection to a question asking the wife for any conversations had with the defendant at the time; the objection that the matter would constitute privileged communications was overruled. The answer was that defendant had then said that he had merely picked the baby up to give her the bottle and that he had not hurt her. The question was improper and the objection should have been sustained; the last clause of § 546.260 forbids such testimony when one spouse is testifying for the other; the disqualification of such testimony in § 491.020 is perhaps limited to civil cases. But in any event a disqualification of such testimony has generally been adopted. State v. Kodat, 158 Mo. 125, 59 S.W. 73, 75, 51 L.R.A. 509; State v. Bell 212 Mo. 111, 111 S.W. 24; Vol. 3, Wharton's Criminal Evidence (12th Ed.), § 767, p. 105; Vol. 8, Wigmore on Evidence (3rd Ed.), §§ 2228 and 2237, pp. 226, 249. Here, however, the "communications" received in evidence admitted nothing, directly or indirectly, and the evidence could not have been prejudicial in any event.
In the following discussion, we shall refer to criminal cases and procedure, unless otherwise stated. At common law one spouse was not permitted to testify for or against the other, generally, whether willing or unwilling to do so. State v. Willis, 119 Mo. 485, 24 S.W. 1008; State v. Arnold, 55 Mo. 89; State v. Evans, 138 Mo. 116, 39 S.W. 462; State v. Witherspoon, 231 Mo. 706, 133 S.W. 323. This disqualification was based upon: (a) the supposed public policy of promoting and preserving domestic harmony; (b) the strong "repugnance" against seeing a person convicted by the testimony of one *860 "sharing the secrets of his domestic life and living under his roof" (Vol. 8, Wigmore on Evidence, 3d Ed., § 2227, p. 222, § 2228, pp. 224, 225); and, (c) because of the temptations to perjury (State v. Willis, 119 Mo. 485, 488, 24 S.W. 1008). Reasons (a) and (b) were presumably applicable to prevent adverse testimony, while (c) might presumably apply in any event. But, we also see that centuries ago, and almost contemporaneously with the growth of the rule itself, an exception developed. This exception has been variously defined in the cases expounding it, but its substance was that a wife or husband would be, and was, permitted to testify against the other spouse where the latter had committed or attempted an assault or other act of violence upon the proffered witness; naturally, such testimony was admitted over the objection of, and without the consent of, the offending spouse. This doctrine was declared in Missouri prior to the enactment of any statutes on the general subject. For discussions thereof, see: State v. Koelzer, 348 Mo. 468, 154 S.W.2d 84; State v. Anderson, 252 Mo. 83, 158 S.W. 817; State v. Vaughan, 136 Mo.App. 645, 118 S.W. 1186; State v. Pennington, 124 Mo. 388, 27 S.W. 1106. The existence of the exception was recognized in Missouri in the very early case of State v. Newberry, 1869, 43 Mo. 429; and, incidentally, we note that in this early (and probably first) Missouri case the common law requirement of an assault or personal violence was extended to include the abandonment of the wife. The court noted there that the facts were known only to the husband and wife, that the offense could not be proved except by the wife's testimony, and that "the principle is broad enough, in our opinion, to include the case at bar." In discussing the reasons for the common law exception the court said, 43 Mo. loc. cit. 430: "To the general rule excluding the husband and wife as witnesses there are many exceptions, which are allowed from the necessity of the casepartly for the protection of the wife, and partly for the sake of public justice. Sometimes this necessity is general, as where there is no other witness to the facts; sometimes particular, as where, for instance, the wife would otherwise be exposed, without remedy, to personal loss or injury. (1 Greenl. Ev. 343-344; 1 Phil. Ev. 94, 95; 2 Stark Ev. 403-404; 2 Bright on Husb. and Wife, 42, §§ 25, 26.) In this case the necessity was both general and particular. There was no other witness, and without her testimony she would be remediless and public justice defeated. This case, then, comes within the reason and philosophy of all the exceptions to the general rule." And see State v. Bean, 104 Mo.App. 255, 78 S.W. 640. Various other cases and authorities have emphasized the theory of "necessity" in enforcing the exception. State v. Anderson, 252 Mo. 83, 158 S.W. 817; State v. Vaughan, 136 Mo.App. 645, 118 S.W. 1186; 8 Wigmore, supra, § 2239, p. 251; Brooks v. Brooks, 357 Mo. 343, 208 S.W.2d 279, loc. cit. 283, 4 A.L.R. 2d 826 (a civil case). Some of the rather nebulous definitions of "necessity" in certain of the Missouri cases cited (as in State v. Vaughan, 136 Mo.App. 645, 118 S.W. 1186) seem to have originated in an opinion of Lord Mansfield (1784) in the case of Bentley v. Cooke, 3 Doug. 422. To us the real necessity arises from the fact that, without the testimony of the wife, justice may not be done to the public in general, and also from the fact that the husband should not be permitted, at his option, to exempt himself from punishment by closing the mouth of the only witness against him. And, as Mr. Wigmore effectively argues, in such cases the reasons for the rule of exclusion itself have fallen, for no domestic harmony or peace may be presumed to exist after the husband has beaten, poisoned, or deserted his wife, and any peace which then remained would be enforced by tyranny. 8 Wigmore, supra, § 2239, pp. 251-252. And any public "repugnance," in such cases, would more properly be directed at a rule of law which excluded the testimony of the injured *861 wife, rather than at its admission. As already indicated, Mr. Wigmore felt that the entire rule of exclusion of a spouse's testimony was never sustainable, except as to confidential communications, and that it is not in the interest of public justice. We on the courts, however, may not so easily wipe out a doctrine that has been firmly implanted for four centuries or so.
Into this common law scene of exposition and confusion, rule and exception, came our first statute on the subject in 1879 (§ 1918, Ch. 24, RSMo 1879). It was then enacted, to all present intents and purposes, as it now remains in our § 546.260. For convenience, and in view of our subsequent discussion, we quote it here, as follows: "No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a codefendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife."
It will be noted that this statute makes no attempt to incorporate or define the common law exception permitting a spouse to testify in case of an assault or violence to him or her by the other spouse. In this respect the Missouri statute is exceptional. The statutes of the 48 states are collected in Vol. 3, Wigmore on Evidence, § 448, in an extensive note, with the additions and amendments in the pocket parts; the effect of these varies widely. Some, in effect, abolish generally the disqualification of one spouse to testify for or against the other; some provide that such spouse shall be competent, but shall not be required to testify; some provide that one may only testify with the consent of the other, or that he or she may not (generally) testify against the other; many expressly prohibit the disclosure of confidential communications. But the vast majority of these statutes contain some provision adopting and defining, and in some instances expanding, the common law exception discussed above; and these provisions vary considerably. The most common are that the wife (or either spouse) may testify against the husband (or other spouse) in the prosecution of such other "for a crime committed by one against the other," or "for an offense committed by or against the other," or in case of "personal injury of either by the other," or in cases involving "unlawful assault or violence * * * on such witness." At least 5 states (Ohio, Pennsylvania, Oregon, Virginia and West Virginia) have expressly expanded the exception by statute so as to permit testimony by the wife against the husband where he has committed an act of violence, personal injury, or cruelty (the phrasing varies) against a minor child (below a fixed age) of the couple, or of either of them. These states have thus, by statute, recognized that the same necessity exists for the testimony of the wife when her child is injured, as exists when she herself is wrongfully or criminally injured.
Our statute (§ 546.260) is primarily an enabling act, enacted to relieve against certain fixed, common law disabilities; it was not enacted for the purpose of creating new disabilities. Considered in this light, and since it contains no express provision eliminating the common law exception permitting the wife to testify against her husband in case of her own injury by the husband, we think that common law exception still exists. At least, *862 various Missouri cases decided since the enactment of the statute have seemed to have no difficulty in declaring and upholding the exception. State v. Koelzer, 1941, 348 Mo. 468, 154 S.W.2d 84; State v. Bean, 1904, 104 Mo.App. 255, 78 S.W. 640; State v. Anderson, 1913, 252 Mo. 83, 158 S.W. 817; State v. Pennington, 1894, 124 Mo. 388, 27 S.W. 1106. The law does not favor repeals of the common law by implication in a statute, and a legislative intent to do so is generally not presumed. State v. Dalton, 134 Mo.App. 517, 114 S.W. 1132; Raper v. Lusk, 192 Mo.App. 378, 181 S.W. 1032; Lajoie v. Central West Cas. Co., 228 Mo.App. 701, 71 S.W.2d 803. If it be urged that the express statutory permission for the wife to testify on behalf of her husband, "at the option of the defendant," excludes all forms of voluntary testimony against him, we merely say that our courts have not so interpreted the statute in cases where the wife has been assaulted or injured by him and volunteers to testify. See the cases last cited above. In the case of State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845, Division One of this court held that it was reversible error to compel a wife to testify against her husband in a prosecution for felonious assault on the wife, although under the statute she was a competent witness; the court further held that the common law exception permitting the wife to testify, voluntarily, in the event of her criminal injury by the husband was not changed by our statute; and it further indicated (as we understand the opinion) that our statute (then § 4081, RSMo 1939) means: (1) that in no event may one spouse be required to testify against the other; but (2) that in any criminal case he or she may testify voluntarily against the other, if he or she so chooses. In so far as clause (2) is concerned, that question was not directly involved there on the facts, and we need not go so far here in our construction of the statute.
There are few reported cases involving the issue which we now have. Most of them did not specifically involve the common law exception, but rather a construction of statutes different from ours. However, in State v. Woodrow, 1905, 58 W.Va. 527, 52 S.E. 545, 2 L.R.A.,N.S., 862, the court held that under the common law a wife was not a competent witness against her husband in a prosecution for the murder of their infant child while in its mother's arms, although the defendant actually shot at the mother and wounded her with the same bullet. The decision was premised upon the theory that while the wife could testify in a prosecution for a criminal assault which, in a legal sense, was upon herself, she could not do so otherwise, and that the then West Virginia statute did not alter the common law rule. The decision, we think, is somewhat narrow and strained. There was a vigorous dissent by two judges to which we shall allude later. This precise situation has since been corrected in West Virginia by express statute. West Virginia Code, 1955, § 5728. See also to the same general effect as the Woodrow case, supra: Grier v. State, 1924, 158 Ga. 321, 123 S.E. 210, 35 A.L.R. 1122 (but under a statutory exception confined to criminal offenses committed or attempted upon the person of the wife; with a dissenting opinion); People v. Westbrook 1893, 94 Mich. 629, 54 N.W. 486 (a one-paragraph opinion, based upon the authority of a prior case to the effect that bigamy is not a "personal wrong or injury" to the wife under the Michigan statute [3 How.Ann.St.1883-1890, § 7546]; in the prior casePeople v. Quanstrom, 93 Mich. 254, 53 N.W. 165, 17 L.R.A. 723, three judges dissented); Cargill v. State 1923, 25 Okl.Crim. 314, 220 P. 64, 65, 35 A.L.R. 133 (wife not competent in prosecution of husband for incest with his stepdaughter, under statute permitting such testimony "for a crime committed one against the other [Comp.Laws 1921, § 2699]," but distinguishing bigamy and other "direct infringements upon the marital rights" of the wife); Jenkins v. State, 1935, 191 Ark. 625, 87 S.W.2d 78, 80 (prosecution for murder of child; statute permitted testimony in cases of an "injury has been *863 done by either against the person or property of either" [Crawford & Moses' Dig. § 3125]).
In the dissenting opinion in the Woodrow case, supra, it was said at 52 S.E., loc. cit. 550, 551, 2 L.R.A.,N.S., loc. cit. 871, 872: "Any interpretation of the common law which ignores natural rights is not to be entertained, for its object is the vindication of such rights. The general rule to which exception has been made is not predicated upon any natural, inalienable right, but merely upon public policy, and to say that public policy will, in any event, be carried to the extent of destroying a natural right, or falls short of the protection of such rights, is to carry it beyond reason. * * * when the blood of husband, wife, or helpless child is found on the door of the home, and wounds on the body of such member of the family, the law must invade that home and permit the truth to be disclosed, else the enemy of the home and all society, and violator of all laws, human and divine, must go unwhipped of justice. The law of necessity alters the general rule of competency under such circumstances. This is the force and effect of the common-law decisions which permit the husband and wife to testify against each other on charges affecting their persons and liberty. They declare a principle of the common law, and the reason for the application of that principle here is imperious."
In Colorado the statute permitting testimony of one spouse against the other is essentially a declaration of the common law exception, perhaps in somewhat broadened terms; such testimony is permitted where there has been "a crime committed by one against the other." [Laws 1929, p. 642] It has been held there that a wife may testify against the husband when he is charged with the murder of the wife's child. O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543, 82 A.L.R. 622 (with a dissent); see also Wilkinson v. People, 86 Colo. 406, 282 P. 257 (rape by husband of a daughter of the wife by a former marriage); and Read v. People, 122 Colo. 308, 221 P.2d 1070. In the O'Loughlin case, supra [90 Colo. 368, 10 P.2d 547], the court expressly announced its departure from the doctrine of the early case of Bassett v. United States, 137 U.S. 496, 11 S. Ct. 165, 34 L. Ed. 762, which restricted such testimony to instances of personal violence against the wife, and the court said that "* * * reason and justice demand the broader interpretation * * *;" in a concurring opinion it was stated that "a crime that directly affects an individual is also a crime against such individual." In some states, statutes relating to crimes against the wife have been construed so as to permit her testimony in cases of incest, adultery and bigamy. Many of these cases are collected in the note appearing in 4 A.L.R. at page 1069 et seq.
The common law must continually expand with the progress of social development, in order to meet the exigencies and usages that arise of necessity from the growth and progress of society (Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66, 74; State ex rel. Schlueter Mfg. Co. v. Beck, 337 Mo. 839, 85 S.W.2d 1026, 1029-1030) except where limited by statute (§ 1.010). In Lutwak v. United States, 344 U.S. 604, loc. cit. 614, 73 S. Ct. 481, loc. cit. 487, 97 L. Ed. 593, the court said: "Under this rule, the competency of witnesses is to be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience. The governing principles are not necessarily as they had existed at common law. Congress has not acted, and has specifically authorized this Court to prescribe rules of criminal procedure, but the rules do not specifically answer the problem here. Therefore, it is open to us to say whether we shall go further and abrogate this common-law rule disqualifying one spouse from testifying in criminal cases against the other spouse."
Having determined that the common law exception permitting the testimony of the wife in certain cases still *864 exists in Missouri, we may now determine its present scope, in so far as this case is concerned. We are much inclined to the view stated by Mr. Wigmore (8 Wigmore on Evidence, § 2239, p. 258) that: "By a liberal view any injury to a spouse's child is a wrong to the spouse, and his or her testimony becomes admissible against the other." However, we need not go so far here. The offense presently charged was a crime against the person of an infant less than 5 months of age; there is at least a fair inference that no one was present except the defendant, the wife, and the child. We now hold that the wife, testifying voluntarily, is a competent witness against her husband in a prosecution for acts constituting a crime of personal violence against her child. The exact scope of the common law exception has been somewhat nebulous and confused; we need not attempt at this time to define further its precise limits and boundaries. The present offense can well be classed as one against the marital status, within the authorities using that test as a guide. We hold that every reason of public policy and true necessity which permits the wife to so testify in the event of a personal injury to herself, applies equally here. The modern tendency is to relax the old rules of incompetency of witnesses, generally. Funk v. United States, 290 U.S. 371, 54 S. Ct. 212, 78 L. Ed. 369. This tendency is exemplified in many of the modern statutes. It is, in our opinion, contrary to all principles of morality and justice to close the mouth of the only witness in such a case as the present. What is not good sense should not be the law.
To the extent indicated in this opinion, the broad statements in certain cases to the effect that in no event may a wife testify against her husband in a criminal case, or testify without his consent, should no longer be followed. Generally, these statements were not necessary to the respective decisions. See State v. Wooley, 215 Mo. 620, 115 S.W. 417; State v. Willis, 119 Mo. 485, 24 S.W. 1008; State v. Kodat, 158 Mo. 125, 59 S.W. 73, 51 L.R.A. 509. To the same extent, the principle of those Missouri cases limiting the wife's voluntary testimony to those cases where her husband is prosecuted for a crime or personal injury upon or to her own person, is extended as herein indicated.
We do not base this decision upon the fact that Betty Kollenborn had been divorced from the defendant prior to the time of trial. It has been stated that her marital status at the time of trial should control. State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845, 848. The contrary has also been asserted. State v. Kodat, 158 Mo. 125, 59 S.W. 73. There is a conflict on that subject generally. Vol. 3, Wharton's Criminal Evidence, 12th Ed., § 772, pp. 109, 110; 8 Wigmore on Evidence, 3d Ed., § 2237, pp. 247-250. The grounds already discussed are sufficient here.
This being a criminal case, what we have said is not to be taken as controlling in attempted civil litigation between spouses for negligence. The general policy of preserving domestic harmony is applicable in some degree to both classes of cases, but we are dealing here also with the preeminent duty of the courts to enforce the criminal laws, and with the interests of the public generally.
The appellant's assignments of insufficient proof of the crime, and of error in failing to direct a verdict, have already been disposed of. The assignment that the verdict should have been for the defendant on the evidence raises nothing under our Rule 27.20, 42 V.A.M.S. Supreme Court Rules. The formal parts of the record are deemed sufficient. The judgment of conviction is hereby affirmed. It is so ordered.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569539/ | 29 So. 3d 1260 (2010)
Antonio TYSON
v.
Lynn McCLOUD, et al.
No. 2009-CP-2428.
Supreme Court of Louisiana.
March 26, 2010.
Reconsideration denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569587/ | 304 S.W.2d 825 (1957)
James RYAN, Respondent,
v.
CAMPBELL "66" EXPRESS, Inc., a Corporation, Appellant.
No. 45656.
Supreme Court of Missouri. En Banc.
September 9, 1957.
*826 F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant.
William H. Becker, Robert C. Smith, Jr., Columbia, Roberts P. Elam, St. Louis, Clark & Becker, Columbia, Elam & Casey, St. Louis, of counsel, for respondent.
EAGER, Judge.
This is a suit for personal injuries sustained in a collision between a panel truck operated by plaintiff, and a tractor-trailer operated for defendant. The prayer of the petition was for $75,000. Plaintiff sustained serious injuries, but it will be unnecessary to discuss them here. The accident occurred on Highway 54 about a mile south of Mexico, Missouri, on July 1, 1952. Plaintiff was working as a route man for a linen supply company of Columbia, Missouri. The petition charged primary negligence in several respects, but the sole controversy actually tried and submitted was whether defendant's tractor-trailer or plaintiff's truck caused the collision by crossing the center line of the highway. The collision itself established the fact that one or the other did so. Plaintiff was going south, and the tractor-trailer north; the highway was straight at the point of collision. A second and a third count of the petition, each charging malicious prosecution of civil proceedings, were dismissed at the trial, and are not involved here; a counterclaim for damage to the trailer was dismissed without prejudice at the close of the evidence.
*827 The jury returned a nine-man verdict for defendant. The court sustained plaintiff's motion for new trial on three grounds assigned in the motion, and also assigned five additional grounds "of its own motion." Defendant has appealed from that order. The grounds thus assigned for sustaining the motion are lengthy and somewhat complicated. We shall not set them out verbatim. In substance, they are all based on supposed misconduct of defendant's trial counsel, and more specifically that: (a) counsel persistently asked for conclusions and opinions from the two highway patrolmen who testified, and, by repeated references to the patrol report, gave the jury the impression that it was unfavorable to plaintiff, and that thereby counsel violated the rulings of the court; (b) counsel persisted in displaying, explaining, and asking questions concerning a photograph of the highway on which a highway patrolman had punched a hole to locate the supposed point of impact, which exhibit the court had ruled inadmissible; (c) counsel persistently asked for opinions and conclusions of witnesses, therein failing to comply with the rulings of the court, and thus forced plaintiff's counsel to make numerous objections, and created unfavorable inferences; (d) counsel made "long and emphatic complaint" to the court in the presence of the jury of supposed remarks and gestures of plaintiff's counsel, which was not justified; (e) counsel acted "amazed and shocked" at certain rulings of the court; and (f) these matters, actions and occurrences "injected false issues into the case."
These assigned grounds have necessitated a minute examination of the record, and will require a somewhat tedious recital here. The numerous cases cited pro and con are applicable only to establish the recognized principles upon which we must proceed. None is specifically in point on these particular facts; and, of course, every case of this character depends solely upon its own facts and record. A trial court is necessarily allowed considerable discretion in declaring a mistrial or in granting a new trial on matters which concern issues of fact. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R. 2d 710. And, therein, the trial court is vested with a wide discretion in determining whether, in view of the action already taken, the conduct or ruling was prejudicial and substantially influenced the verdict. Stutte v. Brodtrick, Mo., 259 S.W.2d 820; State ex rel. and to Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132; Gettys v. American Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 85, 89; Welch v. McNeely, Mo., 269 S.W.2d 871; Buzan v. Kansas City Railways Co., Mo.App., 212 S.W. 905; Cox v. Wrinkle, Mo., 267 S.W.2d 648; Cornwell v. Highway Motor Freight Line, 348 Mo. 19, 152 S.W.2d 10. Sec. 510.370, RSMo., V.A.M.S., expressly provides that the trial court may within 30 days, order a new trial of its own motion, specifying the grounds. The present order was made within 30 days after the verdict and judgment. This section is not so much a grant of a power as it is a limitation, for the courts had the same power during the term under our former practice. Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674.
We are confronted here with two fundamental questions. First, was there any misconduct? Secondly, if there was such, was it prejudicial, considered singly or collectively? And, in determining each of these questions, we may not ignore the discretionary powers of the trial court, and we may reverse only if we consider that such discretion has been abused. Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38. A statement of facts in the usual sense is not necessary here. We shall refer to sundry trial incidents in the course of this opinion. It would be wholly impossible to discuss all the instances and places in the record which respondent's counsel have listed as establishing some impropriety or misconduct. We shall discuss those phases which seem to have some possible materiality.
*828 We shall first consider assigned ground (a) supra. Highway patrolmen Cameron and Dix testified, the first for plaintiff, and the latter for defendant; their testimony covered generally their respective observations at the scene of the collision, including the positions and conditions of the vehicles, the location of debris and parts of the panel truck, tire marks, and (from Dix) the presence of a long scratch mark on the highway in the shape of an arc. After Trooper Cameron had testified that Trooper Dix made a report of the accident and that he had since seen it, counsel for defendant asked again if he had seen the "record" since the accident, to which question an objection was sustained; counsel read (over objection) from Cameron's deposition questions and answers which again referred to the accident report; later counsel asked whether the tractor-trailer was described in the report, but an objection was sustained; still later, counsel asked again whether he had seen a "record" made by either, since the time of the accident, and objection was sustained; subsequently, counsel asked again whether Dix "made out a report" but on objection, withdrew the question, and the court instructed the jury to disregard it; immediately, however, counsel asked if he, Cameron, had made out any report, which question was answered in the negative. Trooper Dix testified that he made a report and mailed it to headquarters, and that he had since seen a copy; he was then asked "how many times" he had seen it and counsel for plaintiff objected that the witness could tell the facts personally, but that questions concerning the report were immaterial and were "leading to inadmissible matter."
This objection was sustained. However, counsel asked further, and immediately, whether the reports were available to interested parties and whether such a report was a public record. The witness later referred to his report for the name of defendant's driver. Counsel for defendant also asked Trooper Cameron if the curve just south of the scene of the accident was "considered practically the same as a straight highway," so far as "markings" were concerned, to which question an objection was sustained as calling for a conclusion. There were questions and answers concerning some dual tire marks observed by both patrolmen, and objections were sustained to some of these questions as calling for conclusions. An objection was also sustained to a question asking Dix whether a long arc-shaped scratch which he had observed in the concrete was made by "wood or stone or metal."
The patrol report was not offered in evidence, and certainly any conclusions or opinions in it as to the point of impact would not have been admissible. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242; Pulse v. Jones, Mo., 218 S.W.2d 553; Welch v. McNeely, Mo., 269 S.W.2d 871, 879; 20 Am.Jur., Evidence, § 1027; 32 C.J.S. Evidence §§ 626, 637. The Uniform Business Records Act, §§ 490.660-490.690, RSMo., V.A.M.S., eliminates the hearsay objection when such a record is properly qualified thereunder, but it does not make admissible any evidence which would be incompetent if offered in person. Allen v. St. Louis Public Service Co., Mo., 285 S.W.2d 663. Respondent submits that the persistent asking of improper questions, or offering of improper evidence, or display of something not in evidence, constitutes misconduct sufficient for the granting a new trial. 109 A.L.R. 1089, Note; 53 Am.Jur., Trial, § 559, p. 360; 37 A.L.R. 2d 662; Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268; McClendon v. Bank of Advance, 188 Mo.App. 417, 174 S.W. 203; Levels v. St. Louis & H. R. Co., 196 Mo. 606, 94 S.W. 275. In certain cases this is true, and the theory is that such acts constitute a willful attempt to present improper matters to the jury, or to create significant and improper inferences, or to force one's opponent to be placed in the light of suppressing facts by his objections. In each such case the final question is whether the conduct substantially influenced the verdict, despite the action taken at the time by the *829 court, in sustaining objections or otherwise. If every case in which improper questions were asked was reversed, few verdicts would stand. Hollenbeck v. Missouri Pacific Railroad Company, 141 Mo. 97, 106, 38 S.W. 723, 41 S.W. 887. Here it was legitimate to show that there was a patrol report and that these witnesses had seen it, or a copy, in order to refresh their recollections. We think it was also proper to show a duty to make a report, for from this some inference of close observation might reasonably be drawn. It would be improper to attempt to create inferences of the substance of any opinions or conclusions contained in the report. While we are told in the brief that Trooper Dix expressed the opinion in this report (by words or diagram) that the impact occurred east of the center line of the highway, on the tractor-trailer's side, it is at least very doubtful whether the above trial incidents could reasonably be said to have created an inference to that effect in the jury's minds. While there was some undue repetition in the various references to the patrol report, we do not think that the foregoing, standing alone, constituted sufficient misconduct to support the granting of a new trial, even in view of the discretion permitted the trial court; however, these incidents may properly be considered together with the point next discussed.
We next consider assigned ground (b) supra. Trooper Dix's deposition had been taken by defendant; at that time he was shown a photograph of the highway at the location in question, looking north, and showing a gravel road running east from the highway. The witnesses testified that the collision occurred a little north of this intersecting gravel road, and the precise distance would not seem too material. The picture also showed that at the point of collision the road was slightly uphill as one proceeded south, as plaintiff was doing. At this deposition counsel for defendant asked Trooper Dix to mark the place on the road where the collision occurred, but "not with respect to the center line." The witness marked the supposed location by punching a small hole in the photograph, north of the gravel road, and just east of the center line. At the beginning of the trial, counsel for plaintiff asked that the court rule the highway patrol report inadmissible, and that it admonish counsel that he should not ask the troopers for conclusions concerning the manner in which the accident occurred, they not having been present; in this connection he also called the court's attention to the depositions of the troopers. No ruling appears at that time, but there was an "off-the-record" discussion. The picture which had been so marked (or punched) at the deposition was marked Defendant's Ex. 1 at the trial, and it is here as an original exhibit. It was taken some months after the accident. During plaintiff's case this photograph was discussed by court and counsel outside the presence of the jury, and counsel for defendant explained that the hole represented merely the north and south location of the collision, but not "where it occurred with relation to the center line." The exhibit was then offered by defendant's counsel; it was objected to (out of the presence of the jury) as not taken at or near the time of the accident, as showing "skid and track marks" made months later, and as bearing the hole or designation which the trooper had placed there, he not being competent to fix the point of impact. The court ruled that the exhibit had not then been sufficiently identified, but proceeded to let counsel identify it, generally, by the plaintiff as showing the roadway; however, it was not re-offered until later in the trial. Counsel for defendant showed this exhibit to both of the troopers; when it was shown to the first one, counsel for plaintiff objected on the ground that it was not in evidence, and that it contained "marks"; the court cautioned all counsel not to show it to the jury. This witness (Cameron) identified it as showing the topography of the highway, but knew nothing about the "marks" on it. Trooper Dix was asked if he recalled being asked at his deposition to mark on this picture the point of collision, but "without *830 reference to the center line," and he was specifically asked if he made the perforation. An objection to the latter question as leading was sustained. Next he was asked to point out on the picture where the collision occurred. That question was objected to as invading the province of the jury and as contrary to the rulings of the court. The objection was sustained, the court remarking that the witness was not present at the accident. The witness was then asked to point out in the picture where he found the panel truck. An objection to this was sustained. The exhibit was then re-offered and objected to. The objection was sustained for the reason that "marks and perforations" had been made on the picture. The propriety of this ruling is not in question on this appeal, nor is the propriety of other specific rulings. On re-direct examination counsel for defendant again reverted to this picture and brought out the fact that it correctly showed the roadway, shoulders and side road as of the time of the accident. He then re-offered the exhibit explaining "that the scratch marks have no connection with this accident." The court rejected the offer out of the presence of the jury, stating that counsel for defendant had violated the court's instructions that he should not ask the troopers where the accident happened, and stating further that the picture had been defaced. Counsel explained that as he understood the admonition, he was not to ask on which side of the center line the collision occurred, and that he had merely inquired about the north and south location of the point. At this juncture counsel made an offer of proof, and examined Trooper Dix concerning the perforation in the picture, outside the presence of the jury. The court remarked that Dix could testify in person to any facts which he knew. The offer was denied and the exhibit rejected. Eventually, counsel offered and the court received Defendant's Ex. 5, which appears to be an exact duplicate of Defendant's Ex. 1, except for the perforation. An admission was made that certain oil marks and skid marks on the road in Defendant's Ex. 5 had no connection with the accident.
The trial court has, by its ruling, found that the foregoing proceedings constituted misconduct on the part of defendant's counsel, and that it was prejudicial. After much consideration, we are unable to say that in so doing, it abused the discretion permitted to it. Were we passing on the matter as an original proposition, we would have an entirely different question. It is true that defendant's counsel stated that the hole made in the picture was merely meant to show the north and south location of the point of impact; but, conceivably, if the jury could see the mark or deduce from the colloquies where it was on the picture, these incidents might have given the jury the impression that Trooper Dix had placed the impact at a point unfavorable to plaintiff, that is, on the east of the center line. And we cannot say, with confidence, that such an inference might not have been imparted from the fact that defendant's counsel was pressing the matter as he did. Actually, it would seem that there was little legitimate reason for using that particular picture when various witnesses could and did tell approximately where, north and south, the accident occurred, and the duplicate photograph showed the roadway equally well. On this ground, with some little assistance from the misconduct charged under point (a) supra, we hold that the order granting a new trial should be affirmed.
We find nothing sufficiently material or prejudicial to constitute misconduct in other questions asked of witnesses, and assertedly calling for opinions and conclusions, except as related under (a) and (b) above. The ruling on ground (c), assigned by respondent in his motion, will not be sustained as an independent reason for the order, even allowing the full range of discretion; perhaps it was not really intended as such.
The "long and emphatic complaint" made of supposed remarks and gestures of plaintiff's *831 counsel (ground (d) supra) is stated in the order to have been made in the presence of the jury; the record here shows that it was made out of the hearing of the jury. In any event, it seems to have been such a complaint and motion for discharge as any vigorous and able lawyer might make in a hotly contested case. On the record we cannot and do not sustain this finding of misconduct. The last ground of the ruling (omitting the summation that "false issues" were injected) was that counsel was guilty of misconduct in acting "amazed and shocked" at the court's rulings "in keeping with his own previous agreement." There is nothing in the record to indicate any such conduct and no admonition or criticism on the subject at any point during the trial. It would certainly be preferable to make some record showing of such conduct, if it be sufficiently serious to justify the stern action taken later. However, the trial court saw counsel throughout the trial and we did not; this finding concerns a question of fact, and we cannot say that it constitutes an abuse of discretion. As to the points not herein sustained, we do hold that the granting of a new trial thereon was an abuse of discretion. This, however, is more or less immaterial in view of our ruling on the other phases of the case. Much is said in the case of Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674, which is applicable in principle to the present situation.
In view of all the "misconduct" now charged by court and counsel it would have been much preferable for the trial court to have declared a mistrial of its own motion, when these things occurred, rather than to do so retroactively; and, likewise, much better for respondent's counsel to have then moved for a mistrial instead of speculating on a favorable verdict. The court has said in its order that it was "reluctant to declare a mistrial" because of the long time which had elapsed since the accident. No time has been saved by the present procedure. There was certainly no aggravated misconduct here. We are affirming the ruling because we feel that the trial court had and has the right, based on the conduct specified, and in the exercise of a duty to see that justice is done, to find that plaintiff was deprived of a fair trial. It has so found.
It is wholly unnecessary to consider the additional and unassigned grounds now urged by respondent as supporting the order granting the new trial. These concern the admission of evidence, failure to strike out evidence, and supposedly prejudicial argument. In view of the prospect of a retrial we may say that we are not persuaded that any of these grounds would have been sufficient on this particular record. The trial court did not assign any of these as a discretionary ground for its order.
The order granting a new trial will be affirmed. It is so ordered.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569567/ | 57 F.2d 20 (1932)
THE HERMOSA.
MAGGIO et al.
v.
MEXICO ARIZONA TRADING CO.
No. 6647.
Circuit Court of Appeals, Ninth Circuit.
March 21, 1932.
Montgomery Phister and Loucks & Phister, all of San Pedro, Cal., and John C. McHose and Young, Lillick, Olson, Graham & Kelly, all of Los Angeles, Cal., for appellants.
Harold M. Sawyer, Alfred T. Cluff, and Daniel W. Evans, all of San Francisco, Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges.
SAWTELLE, Circuit Judge.
This appeal was taken by the claimants of the motorship Hermosa from a decree holding the vessel and her owners liable for the loss of the greater part of a cargo of tomatoes shipped by the appellee from Topolobampo, Sinaloa, Mexico, to San Pedro, Cal., in May, 1929.
Much of the testimony was conflicting. Since we believe that there was substantial evidence to sustain the findings of the trial court, we are adopting the general narrative of the material facts as outlined by such findings.
The libelant-appellee is an Arizona corporation, engaged, among other things, in the business of growing tomatoes in the Fuerte Valley, state of Sinaloa, Mexico, and of importing tomatoes into the United States.
The Hermosa is a sea-going vessel, capable of a normal cruising speed of ten and one-half nautical miles, and equipped with a refrigerating or cooling plant whereby her holds may be maintained at low and even temperatures.
On or about April 18, 1929, at Los Angeles, the appellee and William J. Maggio, as managing owner of the respondents-appellants' *21 motorship, entered into a contract of affreightment or charter party, for the carriage on the Hermosa from Topolobampo to Los Angeles harbor, of a full cargo of fresh tomatoes, with the option to the appellee, at the conclusion of the voyage, for the carriage of a second cargo of tomatoes between the same ports for like compensation as that provided for the first voyage, and upon the terms of the same contract of affreightment.
The material provisions of the charter-party or contract of affreightment are as follows:
"This cargo is to be loaded by the Mexico Arizona Trading Company as soon after the arrival [at Topolobampo] as possible. Vessel then to be immediately dispatched for San Pedro at full economical speed. * * *
"M.S. `Hermosa' to furnish sufficient tarpaulins to cover crates of tomatoes carried on deck and exposed to the sun, and the crew of said vessel are required to cover the cargo of tomatoes during the daytime to protect same from sunlight, and to remove tarpaulins at nighttime for the purpose of cooling off cargo, all hatches and vents to be left open, weather permitting, in order to give cargo best ventilation possible. * * *
"It is further understood and agreed that the M.S. `Hermosa' shall be absolved from all liability for deterioration or decay of said cargo of tomatoes."
The first voyage provided for in the above contract was successfully accomplished. On that trip, a supercargo, employed by the appellee, accompanied the tomatoes. Within the time required by the contract, the appellee exercised its option for a second voyage, and on May 4, 1929, the Hermosa left Los Angeles harbor for Topolobampo, where she arrived on May 9, 1929.
The motorship finished discharging her down cargo at Topolobampo on May 10, 1929, and was ready for loading tomatoes for the second voyage. No supercargo was to accompany the consignment.
On May 10 and 11, 1929, the appellee loaded on board the Hermosa 7,725 lugs of fresh green tomatoes, grown in the vicinity of Los Mochis, Sinaloa, about sixteen miles by rail from Topolobampo. The loading was completed at about noon on May 11. Of the 7,725 lugs, 3,600 were stowed in the after refrigerated hold of the vessel, and the remainder in the 'tween decks forward, on the after deck, and elsewhere above the main deck.
Under ordinary circumstances, and at her full economical speed, the Hermosa was capable of making the passage from Topolobampo to Los Angeles harbor in about four and one-half days.
Upon completion of the loading, the vessel failed to sail immediately for her destination, as required by the charter party, but remained at the dock until approximately 3 p. m. the following day, May 12. This delay was due to the conduct of the master of the motorship. At about 11 o'clock in the forenoon of May 11, Captain H. J. Rookus, the master, left the Hermosa and went ashore to Topolobampo, where he became intoxicated and remained so until 3 o'clock in the afternoon of the following day, May 12. At that day and hour, still incapacitated, the master was assisted on board, and, immediately thereafter, the vessel sailed for Los Angeles under the direction of one of her crew.
After this delay of twenty-seven hours caused by the captain's intoxication, the Hermosa proceeded on her voyage without incident until about 10:30 a. m. on May 13, when a valve seat in the main engine circulating pump broke, interrupting the cooling of the engine and necessitating its being stopped. After a delay of an hour and three-quarters, the engineer disconnected the vessel's general service pump from the refrigerating plant and attached it to the main engine. This was done for the purpose of supplying water to the main engine.
The main engine was then started, and the vessel proceeded into San Lucas Bay, Lower California, Mexico, to attempt repairs. The engineers, however, were unable to mend the broken valve seat, or otherwise to operate the main engine without using the general service pump for supplying water thereto.
After a further delay of about four hours, at 4 p. m. on May 13, the vessel proceeded on her voyage, using the general service pump to supply water to the main engine, and continuing to do so for the rest of the trip. The operation of the refrigerator plant ceased with the disconnecting of the general service pump from at about noon on May 13, and was not resumed for the rest of the voyage. During all of that time the tomatoes in the afterhold of the Hermosa were without refrigeration.
There is no positive evidence as to the cause of the breaking of the valve seat, but the court found that the mishap was due to defects in the metal of the seat, or, as suggested by the engineer, to a resting away of *22 the casting beneath the seat, which conditions must have existed when the vessel left Los Angeles harbor at the commencement of the voyage. There were eighteen similar valve seats in the pumps of the Hermosa. The vessel, however, carried no spare valve seats or any tools or materials by which a valve seat might be fabricated or by which the broken one might be repaired.
The Hermosa arrived at Los Angeles harbor at about 2:30 p. m. on May 17, 1929. She was delayed, as we have seen, for twenty-seven hours before leaving Topolobampo, and was further delayed about five and one-quarter hours because of the break-down of her pump. Had it not been for these delays, the Hermosa presumably would have arrived at her destination early in the morning of May 16.
Upon discharge of the vessel's cargo, the 3,600 lugs of tomatoes that had been stowed in the afterhold were found to be completely yellowed and cooked by their own heat, generated as a result of the cessation of refrigeration in the unventilated hold, following the substitution of pumps on May 13. The remainder of the tomatoes, which were loaded in the 'tween decks and elsewhere above the main deck, were badly overripened and detriorated, which condition is apparently accounted for by the undue prolongation of the voyage, the additional exposure to the sun, and the lack of ventilation while the vessel lay motionless at Topolobampo and San Lucas Bay. All of the tomatoes stowed in the hold and some of the others were so badly damaged as to be unsalable, and were taken to the city dump. The remainder, after being reconditioned, were sold by the appellee at Los Angeles for a price less than the market price for tomatoes in sound condition.
Upon completion of the discharge of the tomatoes, the appellee paid to the owners of the Hermosa $5,500 as freight money, as required by the contract of affreightment.
The lower court found that the Hermosa was unseaworthy in several respects, including that of a defective refrigerating plant and that of having an incompetent and irresponsible master. The court also found that the damage to the tomatoes was due to the unseaworthiness of the vessel, and that "it is not true that said damage would have happened if the vessel had sailed from Topolobampo for Los Angeles harbor immediately on the completion of loading" the tomatoes.
As conclusions of law, the trial court found that the delay of twenty-seven hours in sailing from Topolobampo, after the completion of loading, was unjustified and unexcused, and was a deviation, for which the Hermosa and her owners are liable for all damage to the shipment; and that there was a breach of the warranty of seaworthiness implied in the contract of affreightment.
The pivotal fact in issue, in our view of the case, is whether or not the delay at Topolobampo amounted to a deviation. In our view of the case, it is not necessary to consider the question of seaworthiness.
The vessel was loaded on May 11, but did not sail until May 12. Topolobampo is a bar harbor, and the Hermosa was unable to get over the bar except in the afternoon, at high tide. The appellee contends that loading was completed at 11 o'clock in the morning of May 11, and that the boat missed the tide and failed to sail that day through the fault of the drunken master. The appellants insist that the loading was not completed until between 2 and 3 o'clock in the afternoon of May 11, too late to catch the tide that day, that the consequent delay was not the fault of the ship, and that therefore it could not amount to a deviation.
As we have said, we believe that the findings of the lower court, to the effect that there was an unjustified deviation, were correct and were supported by substantial evidence. But the difficulty is that appellants have filed a stipulation and a motion for leave to take new testimony bearing upon the question of deviation, which question, as we have stated, we hold to be controlling here.
We will consider first the motion to take new testimony. In effect, the appellants claim surprise, in that two depositions taken at Nogales, Ariz., on September 10, 1930, six days before the commencement of the trial, contained the first intimation of "the contention of libelant that there had been an initial delay of twenty-four hours at Topolobampo caused by the alleged drunkenness of the captain of the `Hermosa,' and that libelant would claim that said delay amounted to a deviation."
Counsel for the appellants insist that thereafter they acted "as promptly and effectively as was possible." A chronology of events, as disclosed by the appellant's brief, by the apostles on appeal, and by the documents filed in support of the motion to take new testimony, leads us to disagree with the appellants on this point.
In the first place, the original libel in rem and in personam, filed on August 6, 1929, alleged in general terms that the respondents-appellants *23 "unduly delayed said voyage and deviated from the course thereof, contrary to the requirements of the said charter-party."
The "Amendment to Libel," specifically setting forth the facts of deviation, was filed on September 16, 1930, on the day the trial opened. On the same day, counsel for the appellants stated that they had no objection to the filing of the amended libel, and that they understood that the court would allow them to take the depositions of two witnesses who were experts "in respect to tomatoes and the condition of tomatoes."
Nothing was then said about surprise on the deviation issue. Counsel for the appellee announced that he would consent to a reasonable time for the taking of depositions, as he did not "want counsel to submit his case without a proper presentation of testimony." It is also to be noted that the trial court was most generous in the matter of granting delay for the production of additional evidence.
"With that statement, we are ready," counsel for the appellants announced. The trial proceeded and was completed on September 18, 1930.
According to counsel for the appellants, they "immediately endeavored to discover evidence which would establish the truth or falsity of the testimony of Adams and Shepley [as to the alleged deviation]."
It was not until May 4, 1931, seven and one-half months after the close of the trial, that the appellants were informed "that a man by the name of John Davidson, Lloyd's agent at Guaymas, should be able and competent to make the investigation."
Considering the fact that Topolobampo is in easy communication from Los Angeles by rail, mail, boat, and telegraph, we do not believe that, according to appellant's own statements, they have made a showing of due diligence in presenting their evidence in the court below. Appellants themselves are the owners of a motorship that, as we have seen, can make the trip from Los Angeles to Topolobampo in four and one-half days. There is no reason shown why they could not have sent their own representatives direct to the Sinaloa port, instead of waiting seven months before they found an agent of Lloyd's at Guaymas, Sonora, "some four hundred miles from Topolobampo by rail."
In The Mabey, 10 Wall. (77 U. S.) 419, 420, 19 L. Ed. 963, the Supreme Court said:
"No excuse is shown in the papers, on which the motion is founded, why the witnesses named, and proposed to be examined, were not examined in some one of the courts below before the hearing there. The affidavit simply states that the testimony of these witnesses is material, as advised by counsel.
"This is not in accordance with the practice of the court. Some excuse, satisfactory to this court, should be shown for the failure to examine them in the courts below, such as that the evidence was discovered when it was too late to procure such examination, or that the witnesses had been subpnaed and failed to appear, and could not be reached by attachments and the like. * * *
"It is quite apparent, if commissions were to be allowed by this court to issue as a matter of course, on a formal application under the twelfth rule, without requiring any excuse for not taking the evidence in the usual way before the courts below, the privilege would be open to great abuse, disturbing the orderly proceedings in courts of admiralty. Instead of taking proofs in the cause in the courts below, and there thoroughly trying it, much of the evidence could safely be omitted, relying on the new evidence in this court. There is no hardship upon the parties in guarding against this abuse with great care and strictness, as they have two opportunities to procure the attendance and examination of the witnesses before they come here on appeal: first, before the District Court, and again before the Circuit."
This court has likewise frowned upon the proposed method of trying an admiralty case: "After the decree was rendered the appellant obtained an order from this court permitting the taking of additional testimony, a practice which, by the way, is becoming entirely too common. Parties should endeavor to procure all the testimony material to the issues presented by the pleadings in the first instance. The practice of bolstering up a lost cause by additional testimony ought not to be encouraged." Pacific Steam Whaling Co. v. Grismore et al. (C. C. A.) 117 F. 68, 70.
See, also, The Juniata, 91 U.S. 366, 367, 23 L. Ed. 208; Taylor v. Harwood et al., Fed. Cas. No. 13,794; The Busy, Fed. Cas. No. 2,232.
We next turn to the stipulation already on file in this court. It is to the effect that the appellants are prepared to procure witnesses who will establish the fact that the records of the collector of customs at Topolobampo contain notations that the Hermosa commenced the loading of tomatoes at 3 p. m., *24 May 10, 1929, and completed such loading at 6:30 p. m., May 11, 1929. It is agreed by the appellee that, if the Hermosa was to cross the bar on May 11, she had to leave her dock not later than 2 p. m. Otherwise, she would have to wait another day.
According to a chronological table prepared by the appellants, the hour on May 11 when the Hermosa completed the loading is variously fixed as follows:
Appellee's version: Before noon.
Appellant's version: 3 p. m.
Official records: 6:30 p. m.
Thus it will be seen that the customs records at Topolobampo set the hour of completion three and one-half hours later than even the appellants claim to have been the correct time. Are the customs records correct, and the appellant's own witnesses wrong?
The answer to this troublesome question is found in the appellant's own brief: "The Mexican authorities having issued the permit to load, and having furnished the necessary inspectors, were not concerned about the actual time loading started. When they were officially notified that loading was completed, and they officially called off the inspectors, the loading was officially completed. The captain's presence was not required to notify the Mexican authorities loading had been completed." (Italics are the appellants'.)
Thus it will be seen that the appellants concede that the Mexican authorities were not concerned with the actual time when either the commencement or the completion of the loading took place. They were merely concerned with the time the permit was issued, on the one hand, and with the time "they were officially notified that loading was completed."
This court, however, is concerned with the actual time loading was completed; for it is upon this fact that the entire case hinges. If the actual loading was completed before 2 p. m. on May 11, and the vessel's departure was delayed by the master's intoxication, the appellants are liable for a deviation; otherwise, not. We are concerned here with actual facts, and not with the hour at which the Topolobampo customs authorities were notified of those facts.
If the loading was completed before noon of May 11, the vessel could have cleared the bar before 3 p. m. that same day, save for the master's carousal.
On conflicting testimony, the court below found that the loading was completed at about noon. We are not disposed to disturb this finding, or to be impressed with a stipulation that admittedly does not establish the actual loading time.
In Luckenbach S. S. Co. v. Campbell, 8 F.(2d) 223, 224, the late Judge Rudkin, of this court, said: "There was ample testimony tending to prove that the working place was unnecessarily dark and dangerous, and whether the appellant, the deceased, or his fellow servants were responsible for that condition was a question of fact for the determination of the court below. The findings of that court, based as they were on competent testimony, will not be disturbed on appeal, in the absence of some plain or obvious error, and none such is here apparent."
Again, in The Mazatlan (C. C. A.) 287 F. 873, 875, the same learned jurist said: "If these findings of the court are sustained by the testimony, it becomes unnecessary to consider many incidental questions presented by the record and discussed by counsel on the argument. In this class of cases the rule is well settled that an appellate court will not disturb the findings of the trial court, except for manifest error. [Many cases cited.]"
We find no such error in the record before us, and accordingly we hold that the appellants were guilty of deviation, as a result of the unnecessary detention of the Hermosa from noon, May 11, to 3 p. m., May 12.
Finally, we advert to the legal consequences of such deviation.
In Carver on Carriage of Goods by Sea (6th Ed.) § 284, p. 393, we find the following language:
"And the voyage ought to be commenced without needless delay. If there has been an improper loss of time after the goods have been delivered by the shippers for shipment, and damage or loss results, the shipowner is answerable. Thus, where there has been negligent delay in provisioning the ship so that she was detained at the port of loading, and was, consequently, frozen up there for a long time, the shipowner was liable to the charterers for consequent damage. * * *
"The voyage must be prosecuted without unnecessary delay or deviation. The shipowner's undertaking is that he will be diligent in carrying the goods on the agreed voyage, and will do so directly, without any unnecessary deviation. * * *"
Again, in section 287, on page 399 of the same eminent text, we find: "A voluntary and unwarranted deviation, therefore, displaces the original contract."
*25 In this connection, it is to be observed that in the instant case the applicants are claiming exemption from liability under the clause as to damage from "deterioration or decay," hereinbefore quoted. If the charter party is swept away by the deviation, this saving clause, of course, cannot apply.
Again quoting from section 287, supra, we find:
"When a vessel has deviated from her proper course, the shipowner is not only liable for the delay, but he becomes responsible for any loss or damage that happens to the goods. He is not protected by the exception of perils in the contract.
"Thus in Thorley v. Orchis Co., [76 L. J., K. B. 595] locust beans were shipped in a vessel described as `lying at Limassol and bound for London.' The vessel did not proceed direct to London, but went out of her way to two ports in Asia Minor; on arrival in London, the beans were damaged through the negligence of the stevedores; the shipowners were held liable notwithstanding an exception of such negligence in the bill of lading. There is no need, the Court held, to show that the loss which has occurred is traceable to the deviation."
"A deviation is such a serious matter, and changes the character of the voyage so essentially, that a shipowner who has been guilty of a deviation cannot be considered as having performed his part of the bill of lading contract, but something fundamentally different, and therefore he cannot claim the benefit of stipulations in his favour contained in the bill of lading. In what position, then, does he stand? He has carried the goods to their place of destination, and is therefore entitled to some remuneration for that service, of which the owner of the goods has received the benefit. The most favourable position which he can claim to occupy is that he has carried the goods as a common carrier for the agreed freight. I do not say that in all cases he would be entitled as of right to be treated even as favourably as this."
It is true that, as appellants point out, the same learned text, in section 16, page 19, indicates that, only if the "consequences" of the deviation "would not have operated but for that," the shipowner is not excused; but, regardless of this apparent contradiction, we believe that the foregoing quotation from section 287 correctly states the law, and that the deviating shipowner is an insurer, unless, again borrowing the language of Carver, "such loss or damage to cargo would have occurred notwithstanding the deviation."
Numerous decisions of the Supreme Court sustain this view. Early in the history of American jurisprudence, Chief Justice Marshall succinctly stated the principle, in Oliver v. Maryland Insurance Co., 7 Cranch (11 U. S.) 487, 490, 3 L. Ed. 414: "Unquestionably an idle waste of time, after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters. If the Comet remained, without excuse at Barcelona an unnecessary length of time while her cargo was ready for her and she might have sailed, she would remain at the risk of the owners not of the underwriters."
That a deviation, if established, subjects the carrier to the liability of an insurer, was clearly indicated by the Supreme Court as early as 1894, in the case of Constable v. National Steamship Co., 154 U.S. 51, 66, 14 S. Ct. 1062, 1068, 38 L. Ed. 903: "It is claimed, however, that the berthing of this ship at a pier other than her own was in legal effect a deviation, which rendered the company an insurer of the cargo discharged at such pier without notice, until its actual delivery to the consignee. In the law maritime, a deviation is defined as a `voluntary departure without necessity, or any reasonable cause, from the regular and usual course of the ship insured' (1 Bouv. Law Dict. 417; Hostetter v. Park, 137 U.S. 30, 40, 11 S. Ct. 1 [34 L. Ed. 568]; Davis v. Garrett, 6 Bing. 716; Williams v. Grant, 1 Conn. 487 [7 Am. Dec. 235]); as, for instance, where a ship bound from New York to Norwich, Conn., went outside of Long Island, and lost her cargo in a storm (Crosby v. Fitch, 12 Conn. 410 [31 Am. Dec. 745]), or where a carrier is guilty of unnecessary delay in pursuing a voyage, or in the transportation of goods by rail (Michaels v. N. Y. Central Railroad, 30 N.Y. 564 [86 Am. Dec. 415]). But, if such deviation be a customary incident of the voyage, and according to the known usage of trade, it neither avoids a policy of insurance nor subjects the carrier to the responsibility of an insurer. [Cases cited.]"
Again, in The Willdomino v. Citro Chemical Co., 272 U.S. 718, 725, 47 S. Ct. 261, 262, 71 L. Ed. 491, the court said: "The Circuit Court of Appeals [300 F. 5], we think, rightly held that the Willdomino made an inexcusable deviation from the permitted course when she went to North Sydney. Consequently she became liable as an insurer *26 for any damage suffered by the cargo. [Cases cited.]" See, also, The Sarnia (C. C. A. 2) 278 F. 459, 461, 463, 464, certiorari denied 258 U.S. 625, 42 S. Ct. 382, 66 L. Ed. 797; St. Johns N. F. Shipping Corporation, Owner, etc. v. S. A. Companhia Geral Commercial do Rio de Janeiro, 263 U.S. 119, 124, 125, 44 S. Ct. 30, 68 L. Ed. 201; The Malcolm Baxter, Jr., 277 U.S. 323, 331, 48 S. Ct. 516, 72 L. Ed. 901; The Citta Di Messina (D. C.) 169 F. 472, 475.
The foregoing cases, it is true, all involve common carriers; and the appellants insist that: "Under the rule announced by the District Court, a vessel would be liable after a deviation for damages to cargo caused by some occurrence with which the deviation had no connection whatsoever. This is not correct particularly in the case of a private carrier."
The authorities, however, do not sustain this attempted distinction between a private and a common carrier, so far as concerns liability for voluntary deviation. Nor do the appellants cite any case in support of such distinction.
In Scrutton on Charter Parties and Bills of Lading (12th Ed.), art. 99, pp. 294, 295, the rule is thus stated:
"In the absence of express stipulation to the contrary, the owner of a vessel, whether a general ship or chartered for a special voyage, impliedly undertakes to proceed in that ship without unnecessary deviation in the usual and customary manner. * * *
"The effect of deviation is to displace the special contract of the charter-party or bill of lading, together with all exceptions therein. The shipowner will, therefore, be liable to the charterer or cargo owner for any loss or damage which the goods sustain, unless he can shew that the loss or damage was occasioned either by the act of God, or by the King's enemies, or by inherent vice of the goods, and that the said loss or damage must equally have occurred even if there had been no deviation. And it is immaterial whether the loss or damage arises before, or during, the deviation, or after it has ceased."
See, also, Carver, supra, section 16, page 19, as to the latter part of this rule, dealing with the sole defense allowable to the shipowner in case of deviation; namely, that the loss would have occurred, regardless of such deviation.
In Globe Navigation Co., Limited, v. Russ Lumber & Mill Co. (D. C. Cal.) 167 F. 228, 231, a case that involved the chartering of the whole of a steamship, Judge De Haven said: "* * * The rule seems to be that, when there has been an unjustifiable deviation upon the part of the vessel in the prosecution of her voyage, the shipowner is deprived of the benefit of exceptions contained in the contract of affreightment, unless it affirmatively appears that the losses would have happened if there had been no deviation. [Authorities cited.]"
That case was cited with approval in The St. Johns N. F. (C. C. A. 2) 280 F. 553, 557; affirmed St. Johns N. F. Shipping Corporation, Owner, etc. v. S. A. Companhia Geral, etc., supra.
In Knox v. The Ninetta, Fed. Cas. No. 7,912, the shipment was "made under an agreement that no other freight should be taken." Nevertheless, according to the libel, "master, in violation of his contract, did not proceed with the said cargo directly to the port of Philadelphia, but deviated from his course and went into the river Piankitank, and there took in a deck load of wood, whereby the vessel was overloaded and caused to leak, in consequence whereof the wheat was damaged, injured, and rendered unmarketable," etc.
There it was contended that the wood "in no way interfered with the safe sailing or navigation of the schooner," just as here the appellants contend that "the correct rule is that a vessel is liable, where there is a deviation, for damage proximately caused by the deviation."
In The Ninetta Case, where, as here, the contract was for private carriage, the court said: "The greatest difficulty I have had in this case has been to determine whether this damage was occasioned by the fault or improper conduct of the captain, in putting into the Piankitank; but when I reflect that this was in violation of an express contract with the shipper, who was put to considerable trouble and expense in order to obtain the exclusive use of the vessel, I think the party who violates such a contract, and takes in additional cargo, without the consent of the first shipper, assumes the risk and responsibility of an insurer, and should be liable for any loss that may afterwards occur."
That case was cited with approval in The Sarnia (C. C. A. 2) 278 F. 459, supra.
There is no suggestion that the court reached its conclusion because it regarded the ship as a common carrier since the master had breached the contract of private carriage; on the contrary, the learned judge asserted that the party who violates such a contract assumes the liability of an insurer.
*27 The entire trend of authorities, so far as we have been able to discover, indicates that, as to the effect of a voluntary deviation from the contract of carriage, whether private or common, the liability of the shipowner is that of an insurer.
As we have seen, this liability, once incurred, can be avoided by the shipowner only by an affirmative showing that the loss must have occurred, even without the deviation. The appellants did not discharge this burden of proof, and the trial court correctly found "that it is not true that the said damage to the said tomatoes would have happened if the vessel had sailed from Topolobampo * * * immediately on the completion of loading. * * *"
Accordingly, we hold that the lower court's findings of fact and conclusions of law were correct, and that the decree should be affirmed.
Decree affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569713/ | 57 F.2d 227 (1932)
CONSTANTIN et al.
v.
SMITH et al.
No. 365.
District Court, E. D. Texas, Tyler Division.
February 18, 1932.
*228 *229 *230 *231 *232 *233 Bailey, Nickels & Bailey, of Dallas, Tex., for complainants.
Elbert Hooper and Fred Upchurch, Asst. Attys. Gen., for respondents Attorney General of Texas and Railroad Commission of Texas.
Paul D. Page, Jr., of Houston, Tex., and Dan Moody and E. F. Smith, both of Austin, Tex., for other respondents.
T. W. Gregory and Samuel B. Dabney, both of Houston, Tex., amici curiæ.
Before HUTCHESON, Circuit Judge, and GRUBB and BRYANT, District Judges.
HUTCHESON, Circuit Judge (after stating the issues and facts as above).
This suit, involving the exercise of the judicial power of the United States to restrain by injunction R. S. Sterling, W. W. Sterling, and Jacob F. Wolters, holding the offices respectively of Governor of the state of Texas, adjutant general, and brigadier general, from, under the claim of military necessity, limiting the production from plaintiffs' wells in the East Texas oil field where the Governor has declared martial law, presents, in a fundamental way, questions of executive and judicial power.
The case is one of wide interest and concern. It has been thoroughly and adequately briefed by counsel of distinction and ability. Our disposition of it has been greatly aided by the candor and excellence of the briefs filed. Plaintiffs' counsel have filed one brief, defendants' counsel two; one brief has been filed amicus curiæ in support of, one against, the martial law jurisdiction asserted. The arguments, as befits the subject, have taken wide range; in the grand manner they have discussed the great themes of liberty under law, separation of powers, the rights of man, the sovereign powers of states, the Federal Constitution as the supreme law of the land. Plaintiffs' brief reciting a tale of ancient wrongs at the hands of tyrannous executives professes to see in the actions and purposes of defendants here despotism and tyranny walking again to perpetrate old outrages under new pretenses. Both plaintiffs and defendants conjure here the specter of usurpation of powers, judicial and executive. *234 We do not start at such specter conjuring on either side. The judicial branch has neither purse, nor sword, nor ministers to execute its will. Its decrees take their force alone from the purity and the justness of its judgments; while the executive in our time, though strong in theory, is of all men most bound to show a decent respect to the opinions of mankind, and may not ever be any stronger than the gathered force of public opinion.
It is entirely evident, however, that, unless we keep firmly in mind that this is a cause in court involving real rights, and real issues, in which the judgment must be, not what one wills, but what one must, not a philosophical debate in which the judges may decide not what is, but what ought to be, the temptation to match forensic with judicial opinion will not only make this opinion overlong, but will add to the already too long list of so-called martial law opinions, most of them the bitter fruit of industrial passion, still another one so concerned with general principles that it says far more than it decides. Courts of equity should and must decide cases as private, not as public, as real, not as abstract, controversies, and determine them accordingly. California v. San Pablo & T. R. Co., 149 U.S. 308, 13 S. Ct. 876, 37 L. Ed. 747; Mills v. Green, 159 U.S. 654, 16 S. Ct. 132, 40 L. Ed. 293; United States v. Hamburg, 239 U.S. 475, 36 S. Ct. 212, 60 L. Ed. 387.
We turn then to a consideration of this case, as it is, a private controversy in which plaintiffs, complaining of the illegal deprivation of their property, invoke the chancery powers of this court to prevent it.
We examine the questions propounded and the authorities cited in the light, not of abstractions, but of the case before us, first premising what the case is not; then what it is.
Stripped of the involvement with which its contentions course has invested it, and considered as it now presents itself for decision, it is not a proceeding for habeas corpus, as Re Milligan, 4 Wall. 2, 18 L. Ed. 281, was, nor one under 28 USCA § 41, subd. 14, section 24 (14) of the Judicial Code, to redress the deprivation of civil rights, as were the federal cases of Moyer v. Peabody (C. C.) 148 F. 870; Id., 212 U.S. 78, 29 S. Ct. 235, 53 L. Ed. 410; United States v. Wolters (D. C.) 268 F. 69; United States v. Fischer (D. C.) 280 F. 208; United States v. Adams (D. C.) 26 F.(2d) 141; nor is it a petition for writ of habeas corpus, as were Commonwealth v. Shortall, 206 Pa. 165, 55 A. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759; In re Moyer, 35 Colo. 159, 85 P. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189; Ex parte Lavinder, 88 W. Va. 713, 108 S.E. 428, 24 A. L. R. 1178; In re Boyle, 6 Idaho, 609, 57 P. 706, 45 L. R. A. 832, 96 Am. St. Rep. 286; Ex parte Jones, 71 W. Va. 567, 77 S.E. 1029, 45 L. R. A. (N. S.) 1030-1058, Ann. Cas. 1914C, 31; State ex rel. Mays v. Brown, 71 W. Va. 519, 77 S.E. 243, 45 L. R. A. (N. S.) 997, Ann. Cas. 1914C, 1; Ex parte McDonald, 49 Mont. 454, 143 P. 947, L. R. A. 1915B, 998, Ann. Cas. 1916A, 1166. It is not a suit for damages, as were Herlihy v. Donohue, 52 Mont. 601, 161 P. 164, L. R. A. 1917B, 702, Ann. Cas. 1917C, 29; Bishop v. Vandercook, 228 Mich. 299, 200 N.W. 278; Mitchell v. Harmony, 13 How. 115, 14 L. Ed. 75; Franks v. Smith, 142 Ky. 232, 134 S.W. 484, L. R. A. 1915A, 1141, Ann. Cas. 1912D, 319; Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Allen v. Gardner, 182 N. C. 425, 109 S.E. 260, 261. It is not a case like Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537; Chapin v. Ferry, 3 Wash. 386, 28 P. 754, 15 L. R. A. 116; Sweeney v. Commonwealth, 118 Ky. 912, 82 S.W. 639, involving solely the question of the right in one case of the President, in the others of the Governor, to call troops out. Nor is it even, so far as this three-judge court is concerned with it, a contempt case, like Fluke v. Canton, 31 Okl. 718, 123 P. 1049, for the disobedience of an injunction. It is not a case like Hartranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667, of an effort of a state grand jury to prosecute an inquiry into the public actions of the Governor in using military force to suppress an insurrection. Nor does the case in any manner involve a general inquiry into or an effort to restrain the general power of the Governor to call out troops or to take such actions generally with them as he may see fit. The case involves merely the right of a citizen to relief against acts in deprivation of his property, and the questions of martial law and the power of the Governor come up as incidental to the inquiry, and are drawn into it and affected by it only in so far as it is necessary to settle that inquiry.
It is perfectly clear that, unless the defendants can maintain their proposition, that they are ad hoc the state, and therefore may not be sued, or that the declaration of martial law has superseded the Federal Constitution as the supreme law of the land, and during the time of its fiat continuance placed defendants above accountability to the courts, plaintiffs *235 are entitled to equitable relief, for no clearer case of deprivation of rights inhering in private ownership of property under color of law can be imagined than is here occurring. It could not be, it is not contended that, under ordinary conditions, that is, martial law absent, a Governor and the militia could expropriate the management of private property, as they are now doing. It remains only to inquire whether the defendants because of the proclamations find themselves so situated as that a court of the United States may not exert its jurisdiction upon complaint against their actions to inquire into them, or, if it may, may not, under the undisputed facts obtaining, grant relief.
Looking first to defendants' contentions, we think it might reasonably be expected that, in support of pretensions so vast, of authority so absolute and uncontrolled as here asserted, of power in the executive of a state by fiat to suspend, not only the Constitution of the state, but of the United States, to the extent of depriving their courts of jurisdiction to inquire into and redress grievances, defendants would point to enabling constitutional provisions, state or national, or at least clear and convincing authority supporting their claim.
We have examined the constitutional provisions which they rely on. We have examined every authority cited by them. We have found none, we conclude that none exists which, as against the claim of deprivation of property, supports defendants' claim to immunity from judicial inquiry, and none which has even considered, much less declared, that a court of the United States may not, by injunction, prevent the deprivation of property such as is here occurring.
Upon the first proposition advanced, that this is a suit against the state, and that as such it may not be maintained, the authorities overwhelm that this is a suit under the first subdivision of section 41, 28 USCA, section 24, subd. 1 of the Judicial Code, to redress the deprivation of property arising under the Constitution and laws of the United States (Holt v. Indiana Mfg. Co., 176 U.S. 70, 20 S. Ct. 272, 44 L. Ed. 374) and that as such it is not a suit against the state, but against persons in their individual capacities, to prevent them from enforcing statutes in themselves unconstitutional, or unconstitutional as attempted to be enforced and applied. That in such a suit, when it is found, that "an individual, acting under the assumed authority of a state, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Ex parte Ayers, 123 U.S. 507, 8 S. Ct. 164, 184, 31 L. Ed. 216; Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Greene v. Louisville & Int. R. R., 244 U.S. 507, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; MacMillan v. Comm. (D. C.) 51 F.(2d) 400; McLeaish v. Binford (D. C.) 52 F.(2d) 151. In this suit plaintiffs invoke the exercise of the judicial power of the United States which, vested by the Constitution in its courts, extends to all cases of law and equity arising thereunder. La Abra Silver Mining Co. v. U. S., 175 U.S. 423, 20 S. Ct. 168, 44 L. Ed. 223; Kansas v. Colorado, 206 U.S. 83, 27 S. Ct. 655, 51 L. Ed. 956.
No exertion of this power rests on clearer or more certain grounds than that of its chancery jurisdiction. It is exercised uniformly throughout the nation, unaffected by statutes, usages, or customs of the several states. It is properly commensurate with every right or duty declared or necessarily implied by and under the Constitution of the United States, and its jurisdiction to inquire into a cause and determine whether it presents a matter of equitable cognizance may not be infringed or impaired by the Constitution of any state or by any act or proceeding of the legislative, the executive or the judicial branch of a state. Truax v. Corrigan, 257 U.S. 334, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375. Of the chancery jurisdiction no phase of it has a better settled basis, a more comprehensive and remedial scope than that which it employs to prevent persons, acting under the authority or color of state laws, from denying the due process and equal protection which the Fourteenth Amendment guarantees. This must necessarily be so, for, independent of each other in their respective spheres as are the state and federal governments, the Constitution of the United States is the supreme law of the land, and the courts of the United *236 States, as the repositories of federal judicial power, are compelled to and will assert and vindicate its supremacy, to protect the rights of individuals menaced by personal aggression masked under official power. United States v. Lee, 106 U.S. 208, 1 S. Ct. 240, 27 L. Ed. 171; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169; Ex parte Ayers, supra; Terrace v. Thompson, 263 U.S. 214, 44 S. Ct. 15, 68 L. Ed. 255.
Defendants do not, they cannot, point to any provision of the Federal Constitution or statutes which exalts an officer of the state, when acting beyond his powers, above the authority of the courts of the United States; which subordinates the federal courts, acting within their spheres, to the authority of the officers of the state, or which permits anything to "be interposed between the individual and the obligation he owes to the constitution and laws of the United States, which can shield or defend him from their just authority, the extent and limits of which authority the government of the United States, by means of its judicial power, interprets and applies for itself." Ex parte Ayers, supra.
It follows that plaintiffs' suit as alleged, being one to restrain the officers of the state from enforcing against them, in a confiscatory way, the laws of that state on the ground that such laws or their enforcement are opposed to the Constitution of the United States, and particularly the Fourteenth Amendment thereof, this court, organized as a statutory court under 28 USCA § 380 (Judicial Code § 266), has undoubted jurisdiction to inquire into the merits of the cause, and to adjudicate in accordance with its merits. Authorities supra, and Oklahoma Natural Gas Co. v. Russell, 261 U.S. 292, 43 S. Ct. 353, 67 L. Ed. 659; Western & A. Ry. v. Commission, 261 U.S. 264, 43 S. Ct. 252, 67 L. Ed. 645.
We reject, then, as entirely without substance, contrary to the genius of the two governments, federal and state, and opposed to the very conceptions upon which this government was founded and has been maintained, the contention that any officer of a state, whether acting in a civil or a military capacity, whether executive, legislative, or judicial, can, by proclamation or otherwise, erect himself above the jurisdiction of the federal courts, withdraw his actions affecting private property from judicial inquiry, and insulate himself from judicial process and the consequences of disobedience to judicial decree. Ex parte Ayers, Ableman v. Booth, United States v. Lee, supra.
We come then to an examination of the case upon its merits, first inquiring what are the provisions of the State Constitution under which these great powers are claimed, and next, whether in this state, or in any other, any court, state or federal, has ever declared that persons in an industry dominated and taken over by the executive of a state for the purpose and with the result of controlling production, and kept under control, as this has been, for some six months, are powerless to obtain injunctive relief against such executive aggression because of the fact that the Governor has issued a proclamation of martial law, and is controlling the production of oil upon the asserted ground that it is necessary to do so in order to prevent persons, who would become enraged if production were not kept down to the figure they desire, from committing acts of incendiarism and violence.
The provisions of the Constitution on which defendants rely are:
Article 4 § 1: "The executive department of the state shall consist of a governor, who shall be the chief executive officer of the state."
Article 4 § 10: "* * * Shall cause the laws to be faithfully executed. * * *"
Article 4 § 7: "Shall be the commander-in-chief of the military forces of the state * * * he shall have power to call forth the militia to execute the laws of the state, to suppress insurrection, repel invasion, and protect the frontier from hostile incursions by Indians or other predatory bands."
The Legislature has made the following provisions:
Article 5889: "Whenever any portion of the military forces of this State is employed in aid of the civil authority, the Governor, if in his judgment the maintenance of law and order will thereby be promoted may, by proclamation, declare the county or city in which the troops are serving, or any special portion thereof, to be in a state of insurrection."
Article 5834 provides: "The Governor may order the active militia, or any part thereof, to assist the civil authorities in guarding prisoners * * * or discharging other duties in connection with the execution of the law as the public interest or safety at any time may require."
Article 5778 provides: "The Governor *237 shall have power in case of insurrection, invasion, tumult, riot or breach of peace, or imminent danger thereof, to order into the active service of this State any part of the militia that he may deem proper."
Article 5830 provides: "When an invasion of, or an insurrection in, this State is made or threatened, or when the Governor may deem it necessary for the enforcement of the laws of this State, he shall call forth the active militia or any part thereof, to repel, suppress, or enforce the same."
It will be noted that nowhere, in either the Constitution or the statutes, is a state of war referred to, or the declaration of martial law authorized. It is nowhere provided that the Governor may institute it, or that he may in any manner, or under any circumstances, suspend the laws and deprive persons of access to the courts. Considering these provisions alone, we think the defendants' case fails for want of affirmative authority, in that the provisions they invoke do not contain the grant of power claimed.
But we do not rest our conclusion alone upon the silence of the Constitution in not granting the power, for it has by express provision withheld such power and prevented beyond peradventure, it being there implied. That the Governor may, in his discretion, call out the militia, the Constitution does indeed provide. That the Constitution has prohibited to the Governor the power by proclamation to suspend the Constitution and laws, the power to invest himself with a military character which will confer on him and the militia any extraordinary powers not given by the civil laws, or place them above the corrective reach of the courts as here contended, the Constitution of this state and the applicable authorities make perfectly clear.
Martial law, the law of war, in territory where courts are open and civil processes run, is totally incompatible with, it cannot co-exist, with provisions such as are contained in article 1, Bill of Rights of the Texas Constitution.
Section 12: "The writ of habeas corpus is a writ of right, and shall never be suspended."
Section 13: "All courts shall be open."
Section 19: "No citizen of this state shall be deprived of life, liberty, property, privileges or immunities * * * except by the due course of the law of the land."
Section 24: "The military shall at all times be subordinate to the civil authority."
Section 28: "No power of suspending laws in this state shall be exercised, except by the legislature."
Having in mind the great issues out of which these constitutional provisions grew, the courts of Texas have never faltered in straightly upholding them. Men learn but to forget, to learn and forget again. Sometimes they learn at such cost of shame and sorrow, of bitterness and despair, that graven on their hearts the lessons lie, deep beyond forgetting. At such times, men yearning toward their posterity write these lessons down, as imperishably as they may, that, standing as the Lord's remembrancers, they may save their children from like passion and travail. Of this kind are the constitutional provisions above set out. They were written into the fundamental law as direct inhibitions upon the executive, by men who had suffered under the imposition of martial law, with its suspension of civil authority, and the ousting of the courts during reconstruction in Texas. These provisions had their origin under practically the same conditions as those, which, in 1689, wrote limitations upon the power of the crown to suspend the laws. Their authors had petitioned the Congress of the United States in vain for relief. In every convention, in every gathering assembled, protesting the suppression of free speech, the interference with the processes, the judgments, the decrees of courts, these men had denounced martial tyranny, and sought relief against it, and, when they met to adopt the Constitution of 1876 which still obtains, they determined to, and they did, so write the fundamental law that such deprivations of liberty might never again occur.
One of counsel for defendants urges that here is no case of suspension of laws, no case of deprivation of due process. That here is due process, the exertion of the power of police. That the exercise of such power inherent in government violates neither the Constitution of the state nor of the United States. The argument begs the question.
Certainly, if the actions of the Governor and of his subordinates here complained of are valid exercises of the police power of the state, they are not contrary to, they accord with, they do not violate, they conform to, the law. On the contrary, if they represent attempts to exercise police power not conferred upon the Governor, they are invalid under both Constitutions. "The police power is subordinate to the Constitution, as *238 is every other power of the government." It may be exercised only when and by whom the Constitution authorizes its exercise, and in the judicial branch of the Government alone resides the power to determine whether it is being so exercised. Stockwell v. State, 110 Tex. 551, 221 S.W. 932, 934, 12 A. L. R. 1116, Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A. L. R. 1387. Without variableness, neither shadow of turning, the courts of Texas down to this very day mindful of the occasion, the purpose, and the meaning of these constitutional safeguards, keeping faith with them, have kept the Constitution paramount. Arroyo v. State (Tex. Cr. App.) 69 S.W. 503, 504; Brown Cracker Co. v. Dallas, 104 Tex. 294, 137 S.W. 342, Ann. Cas. 1914B, 504; Box v. Newsom (Tex. Civ. App.) 43 S.W.(2d) 983; Stockwell v. State,[1] Spann v. City of Dallas,[2] Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810, 26 A. L. R. 1210.
When the Governor calls out the troops in Texas, he calls them out, not as a military, but as a civil officer. Their powers and duties are derived from, they must be found in, the civil law. At no time and under no conditions are their actions above court inquiry or court review.
This does not mean, of course, that the military, acting as peace officers, may not in emergencies exercise summary power. They may, but so may peace officers, and even civilians. "Measures are sometimes necessary under the police power, that are severe." Moyer v. Peabody (C. C.) 148 F. 870, 876. But the measures referred to in that opinion were not military, they were civil measures taken in and justified by necessity. If we were without direct authority for these views, they would commend themselves to us as the only ones in accord with the genius of a government like ours. The view we take, however, has received positive and authoritative sanction, first in the courts of Kentucky, the "dark and bloody ground," where men have learned both to love and to know liberty, and by adoption afterwards, in Montana, North Caroline, Michigan and Oklahoma. Franks v. Smith, 142 Ky. 232, 134 S.W. 484, L. R. A. 1915A, 1141, Ann. Cas. 1912D, 319, lays down, we think, with precision and power, the rights of the Governor of a state, in the calling out and use of the militia. His unquestioned right to call it out is conceded. That his and the militia's status when called out is that of civil officers, whose only power must be found in civil laws, and that they are always subject to those laws, is declared in no uncertain terms. There the difference between the unquestioned right of the Governor to call out the militia, which all the authorities concede, and his right to erect himself and them above the law, giving them superpowers, is set out. That court in terms declared that it rejected the doctrine, as applied to Kentucky, announced in Re Moyer, 35 Colo. 159, 85 P. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189; Commonwealth v. Shortall, 206 Pa. 165, 55 A. 952, 65 L. R. A. 193, 98 Am. St. Rep. 759, that civil emergencies requiring the calling out of troops may be declared to be a state of war, and a military government may then ensue. Upon those points it said: "It must nevertheless be kept in mind that in its exercise [of the power to call out troops] the governor acts in his capacity as a civil officer of the state and not as commander in chief of its army. As the chief civil magistrate of the state, he calls out and must direct in accordance with law the movements and operations of the military forces. `The military shall be at all times and in all cases in strict subordination to the civil power.' It is so written in section 22 of the Bill of Rights. We have not, and cannot have, in this state a military force that is not and will not be subordinate to the civil authorities. The military cannot in any state of case take the initiative or assume to do anything independent of the civil authorities. Ours is a government of civil, not military, forces. The militia in active service and in every emergency that arises in such service is subordinate to the civil power. The soldier and the citizen stand alike under the law. Both must obey its commands and be obedient to its mandates. * * *" Page 242 of 142 Ky., 134 S.W. 484, 488. "We are not *239 willing to concede that in any exigency that may arise the military is superior to the civil authorities. * * * Nor do we believe that the time will ever come when the military forces of the state, acting under and in obedience to the civil laws of the state, will not be able to control under the authority conferred by these laws any situation that may present itself." Page 243 of 142 Ky., 134 S.W. 484, 489. "After mature consideration, we have reached the conclusion that any military order, whether it be given by the Governor of the state or an officer of the militia * * * that attempts to invest either officer or private with authority in excess of that which may be exercised by peace officers of the state is unreasonable and unlawful. * * *" Page 251 of 142 Ky., 134 S.W. 484, 492. We "hold as a matter of law that these orders [of the military] are confined to such as a peace officer in the discharge of his duty might execute. * * * What one cannot do, neither can the other; what one may do, so may the other." Page 251 of 142 Ky., 134 S.W. 484, 492. Again: "On the other hand, to say that the state militia acting in obedience to military orders may commit any act that may suggest itself to the commanding officer as being necessary to restore peace and quiet, although such act might be a greater violation of law than was committed by the person it was visited upon, would place the militia above the civil authorities, and give to the soldier power not conferred upon the civil officer charged with the duty of enforcing the law. The command of the officer would take the place of the statute, and there would be no limitation upon his conduct except such as his judgment and discretion might dispose him to adopt. We can find no warrant, either in the Constitution or statute * * * for investing the military forces of the state with arbitrary power like this." Page 245 of 142 Ky., 134 S.W. 484, 490.
And finally, pointing to the full power existing under the statutes of Kentucky and at common law in civil officers to meet emergencies, it declares that there is no occasion for, there can never be, the erection in any part of Kentucky of a military government, except where an actual war between contending armies is being waged.
This case has been accepted as authority, its views fully quoted and applied, in Fluke v. Canton, 31 Okl. 718, 123 P. 1049; Bishop v. Vandercook, 228 Mich. 299, 200 N.W. 278; Ex parte McDonald, 49 Mont. 454, 143 P. 947, 948, L. R. A. 1915B, 988, Ann. Cas. 1916A, 1166; Allen v. Gardner, 182 N. C. 425, 109 S.E. 260. Recognizing as it does, the universally accepted view that "martial law is the law of actual military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will." United States v. Diekelman, 92 U.S. 526, 23 L. Ed. 742. "Martial law is founded on paramount necessity. It is the will of the commander of the forces. In the proper sense, it is not law at all." In re Ezeta (D. C.) 62 F. 972, 1002. "The will of the military chief * * * is, subject to slight limitations, the law of the military zone." State v. Brown, 71 W. Va. 519, 77 S.E. 243, 244, 45 L. R. A. (N. S.) 999, Ann. Cas. 1914C, 1. It declares that the Governor of a state may not, by proclamation, bring about such a condition of civil anarchy. It but declares and reaffirms the doctrine fixed beyond cavil and for all time by the Milligan Case, that martial law and civil law are mutually contradictory; they may not coexist. That martial law cannot exist where there is no real state of war, where the ordinary tribunals are functioning and orderly courts are run. That, under Constitutions like ours, in times of peace such military dictatorships may not be established by executive fiat.
We accept these principles in their fullest implications as principles obtaining in Texas under her Constitution and laws. We hold with the Supreme Court of Montana, in Re McDonald, 49 Mont. 454, 143 P. 947, 954, L. R. A. 1915B, 988, Ann. Cas. 1916A, 1166, that, under the Constitution of Texas, courts may not be closed, or their processes interfered with by military orders, that "courts cannot be ousted by the agencies detailed to aid them; nor can their functions be transferred to tribunals unknown to the Constitution"; and with that court in Herlihy v. Donohue, 52 Mont. 601, 161 P. 164, 166, L. R. A. 1917B, 702, Ann. Cas. 1917C, 29," "the Governor is at all times amenable to the Constitution and laws of the state. They are the charters of his powers, and in them he must find the authority for his official acts." And that, "while at times, within the narrow limits of actual and pressing necessity, private property may be taken and destroyed for the public good, in every instance where such right has been exercised and questioned, the decision upholding the right makes it clear beyond controversy that only the most overriding necessity will justify or excuse;" with the Supreme Court of West Virginia, in Ex parte Lavinder, 88 W. Va. 713, 108 S.E. 428, 430, 24 A. L. R. 1178: "Martial *240 law is a drastic and oppressive system. Under it the rights, privileges, and liberties ordinarily possessed and enjoyed by citizens are greatly restricted and abridged, and the powers of the military officers are infinitely larger than those conferred upon the civil officers. Hence, it ought not to be put into effect except upon occasions of dire and inexorable necessity. Limitation of the power of the Governor to invoke and apply it only on occasions of actual warfare and within the area of actual hostilities renders it impossible for him to set aside the civil laws and rule by his practically unrestrained will, under any other circumstances."
We agree with Judge Symes in United States v. Adams (D. C.) 26 F.(2d) 141, 145, that, if the Governor of this state can do what he here asserts, "it logically follows that the protection of the Fourteenth Amendment is a matter of favor only, depending on the whim of the Governor, and not an absolute right."
We agree with Judge Nuessle, then District Judge, now Justice of the Supreme Court of North Dakota, in the views expressed by him when, granting an injunction restraining the Governor of North Dakota, acting as the chief executive, and commander in chief of the military forces of the state, from taking over and operating coal mines in that state upon the grounds of public shortage and necessity, he said: "It is not so material that this court shall pass upon the propriety of the executive declaring martial law. As I read the authorities there is no occasion for martial law unless the courts themselves have been so incapacitated by reason of the circumstances existing and calling forth a declaration of martial law, that they are unable to function. The reason for martial law is the necessity to rehabilitate the courts, not to destroy them or usurp their powers. Bruce." The Non-Partisan League, pp. 134 to 139. Writ of prohibition and injunction denied by a divided court in State ex rel. Governor Fraser v. Nuessle, D. J.[3]
We have found no case, we have been cited to none, supporting a view, the contrary of that which we take here, that under a Constitution like ours a Governor may by proclamation bring about a state of war. It is true that some of the decisions in their generalizations lend color to this view. An analysis of the decisions will show, however, that that color is spurious. The confusion with which the subject under investigation by us is invested has arisen, not from what has been decided in cases, but from what has been said in them, from an attempt to follow, not stare decisis, but stare dictis. None of the so-called martial law cases cited to us, and only two that we have found, State ex rel. Governor Fraser v. Nuessle, supra, and Dakota Coal Co. v. Fraser (D. C.) 283 F. 415, temporary injunction granted, declared moot and reversed in (C. C. A.) 267 F. 130, 133, have dealt with a situation even remotely resembling the one involved. Therefore none are authority for our views, except as the general principles asserted in them furnish analogies for our course.
In the examination which we have made of them, we have found that, however they may differ in argument and result, one general principle runs through them from the Borden Case to the Lavinder Case, that dire necessity and dire necessity alone, the necessity of self-defense, suspends ordinary constitutional guaranties, and that, where that necessity does not in fact exist, no such suspension occurs.
In West Virginia, whose cases are most strongly relied upon by the defendants, Judge Poffenbarger in State ex rel. Mays v. Brown, 71 W. Va. 519, 77 S.E. 243, 244, 45 L. R. A. (N. S.) 997, Ann. Cas. 1914C, 1, and in Ex parte Lavinder, makes this crystal clear. In the first case, which was a case involving long-continued, desperate, and dangerous violence and disturbance, he declares: "It is said, also, that the proclamation of martial law ousts or suspends the civil jurisdictions. These expressions are hardly accurate. The invasion or insurrection sets aside, suspends, and nullifies the actual operation of the Constitution and laws. The proclamation of martial law simply recognizes the status or condition of things resulting from the invasion or insurrection, and declares it."
In the second case, although in West Virginia, the Governor by statute has the power to declare a state of war. Cf. State ex rel. Mays v. Brown. Judge Poffenbarger, on the authority of the Milligan Case, refused to permit proclamation to take the place of fact, saying: "The substitution of military for the civil law in any community is an extreme measure. Socially, economically, and politically, it is deplorable and calamitous. Its sole justification is the failure of the civil law fully to operate and function, for the time being, by reason of the paralysis or overthrow of its agencies, in consequence of an insurrection, invasion, or *241 other enterprise hostile to the state, and resulting in actual warfare. * * * It is perfectly manifest that the proclamation of war did not, ipso facto, * * * inaugurate martial law in Mingo county. The Governor's attempt to inaugurate it and put it into effect in that county, in the manner hereinbefore described, was clearly futile and inoperative."
In none of the state cases on which defendants rely was there any theoretical, there was serious, in some of them desperate and prolonged, riot, destruction of property, and carnage. The decision of the court in each instance was based upon the existence of those facts, and the language of the opinions must be read in that light.
The federal cases cited by them, none of which, except the Wolters Case, are Texas cases, may be briefly disposed of.
Luther v. Borden arose before the passage of the Fourteenth Amendment. It was a damage suit involving an arrest made, during the rebellion and civil war in Rhode Island, under the authority of an act of the Legislature declaring martial law, and directing the taking of extreme action. The two Moyer Cases were civil rights cases. They did not decide, the Supreme Court of Colorado did not decide, that the Governor of Colorado had authority to declare martial law. United States v. Adams (D. C.) 26 F.(2d) 143. "We therefore reach the conclusion that, independent of the questions of the authority of the Governor to declare martial law * * * the petitioner, on the showing made by the return, is not illegally restrained of his liberty." In re Moyer, 35 Colo. 159, 85 P. 190, 194, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189. They decided merely that the Supreme Court of Colorado, having found Moyer's arrest lawful under the laws of that state, and the petition not negativing the good faith of the arrest or showing abuse of power, no lack of due process, no deprivation of civil rights, was made out by him.
The Fischer Case (D. C.) 280 F. 208, 210, was disposed of on the assertion, as to the correctness of which no state authority was cited, but which we accept, that, under the laws of the state of Nebraska, the Governor had the power to declare a state of war and initiate martial law in that territory. If these assumptions as to the law of Nebraska are sound, plaintiff was not deprived of his civil rights.
The Wolters Case (D. C.) 268 F. 69, 70, another civil rights case, was on a petition for writ of habeas corpus, opinion by Judge Rufus Foster of Louisiana, while sitting in the Southern District of Texas, for release from imprisonment in default of payment of fine imposed by a military court set up in Galveston after martial law had been proclaimed, some of the civil magistrates had been removed from office, and a military court set up in their stead.
In this case the relator conceded away the point at issue here, whether the Governor could, by proclamation, declare martial law. On page 71 of 268 F., the court said: "I must conclude that the Governor had complete authority to institute martial law in the city of Galveston. That is conceded by the relator." From that erroneous conclusion, induced, certainly aided by the concession, the learned judge proceeded to conclude that the Governor could do anything necessary to make his proclamation effective. That case correctly decided that the question whether there was riot or insurrection or breach of the peace and whether troops shall be called out is solely for the Governor, that the courts will not interfere with his discretion in that regard and will not inquire whether or not the facts justify it. It incorrectly assumed in the Governor, in addition to that unquestioned power, the existence of the stupendous one asserted here, the power to, by proclamation, set aside the laws and institute a military government in place of a civil, a power not only not granted, but forbidden to the Governor of Texas by its Constitution.
Upon a consideration of the whole case we hold not that we may, or that we do, inquire into the propriety of the Governor's calling out the troops to enforce the law, but that they were called out to act as civil officers, with no greater power than civil officers would have, that in their actions they are amenable to inquiry, as civil officers are, in their actions, and that neither the proclamation of martial law, nor the purported military character of the actions, constitutes any defense to plaintiffs' suit. That defendants Jacob F. Wolters, R. S. Sterling and W. W. Sterling have been without warrant of law interfering with and illegally depriving plaintiffs of their undoubted right to operate their own properties in a prudent and reasonable way, and in accordance with the laws of the state, and that, from further interference, pending the final disposition of this suit, they must be enjoined.
*242 It does not follow, however, that plaintiffs may have their injunction without terms. For though the pursuit of the ignis fatuus, martial law, with its claims of military necessity and action in extremis has caused all parties to this suit to lose sight of the real, the fundamental, facts which the pleadings and the evidence present, and of which we may take judicial knowledge (Henderson v. Comm., 56 F.(2d) 218), we may not do so. These facts are that the East Texas oil field is of great extent, and, if proper measures are taken to safeguard against waste of oil and gas stored there, it has enormous production potentialities. That it is the concensus of informed opinion, with which plaintiffs do not disagree, that the general operation of wells in that field to their full capacity would result in actual physical waste of oil and gas, and injury to the strata in which it is confined. That before the taking over by the Governor, upon the ground of military necessity, of the wells in the field, the railroad commission, the statutory agent of the state for the administration of its conservation laws, had undertaken the duty of and was determining the amount of oil which might be taken daily without waste, and, but for the action of the Governor in ousting it from the exercise of its jurisdiction, it would still be doing so.
We have held in MacMillan v. Comm., 51 F.(2d) 400, and Henderson v. Comm., 56 F.(2d) 218, that the state of Texas has the power to conserve its resources of oil and gas, and prohibit the waste thereof. That the commission is the body charged with the administration of those laws, and that its orders, issued in pursuance thereof, are prima facie valid. This case began with a complaint against the commission's orders, as to which no evidence has been offered.
It is true that the orders of the commission have expired, and that we are without the guidance of their findings under present conditions as to what may be safely taken without waste. Nor is there any evidence before us upon which we could form a conclusion of our own as to what amount of oil might safely, without violation of the statutes' prohibition against waste, be produced from plaintiffs' wells.
We may not therefore, in view of the attitude which the plaintiffs and the commission have taken in this cause in not pressing the issue between them, at this time make any decision on that issue or grant any relief as to the commission. In this situation, we are disposed to authorize a decree enjoining the defendants, the two Sterlings and Wolters, from enforcing against plaintiffs any of their so-called military orders already passed or to be passed, regulating or restricting the production from their wells, and from in any manner interfering with the lawful production of oil from plaintiffs' property, conditioned upon the plaintiffs before opening their wells to produce more than their neighbors are now content without complaint of oppression to produce, making a showing as to what amount of oil can be reasonably taken therefrom per day; or preferably, upon the condition that, pending a further hearing of the controversy between the plaintiffs and the commission as to the right of the commission to limit their production, plaintiffs produce no more oil than that which, upon a specific and precise examination of their wells, and a finding under the statutes prohibiting waste, the commission finds the wells may produce without the waste prohibited by law.
A decree prepared in accordance with these views may be presented to the District Judge for settlement within fifteen days.
NOTES
[1] The police power is subordinate to the Constitution as is every other power of government. If this were not so, the result would be to subject the citizen's property solely to executive authority, putting it beyond the protection of the courts and depriving the courts of their essential power to determine what, under the written law, was lawful and what was not. Declaring the law of the land and adjusting property rights accordingly. Stockwell v. State.
[2] The substantial value of property lies in its use. If the right to use be denied, the value of the property is annihilated and ownership is rendered a barren right. The police power is a grant of authority from the people to their governmental agents. In its nature it is broad and comprehensive. While this is true, it is only a power, it is not a right. The powers of the government under our system are nowhere absolute. The fundamental rights of the people are inherent, and cannot be yielded to governmental control. Constitutional power can never transcend constitutional rights.
The police power is founded in public necessity, and only public necessity can justify its exercise. Spann v. City of Dallas, supra.
[3] No opinion filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569750/ | 304 S.W.2d 577 (1957)
Lee Dale GIVENS, Appellant,
v.
Wanda Jean GIVENS, Appellee.
No. 15315.
Court of Civil Appeals of Texas, Dallas.
July 19, 1957.
Frank H. Cathey, Jr., Dallas, for appellant.
Robert G. Vial, Dallas, for appellee.
*578 YOUNG, Justice.
The suit by appellee, filed September 21, 1956, was for divorce, custody of children and partition of community property; answered by cross-action of Lee Dale Givens for like relief. On December 19, 1956, the cross-action only was heard and defendant granted relief as prayed; that is, a divorce from plaintiff Wanda Jean Givens; custody of the three minor children, Dale Wayne, aged 9, Cathy Janene, aged 4, and Judy Diane, an infant; being also awarded a small amount of community property on assumption of community debts. Judgment to such effect was signed by Judge Bush on January 3, 1957. On same date Wanda Jean Givens filed motion to vacate said judgment on grounds allegedly meritorious. At the hearing of said motion there was an extensive production of testimony; the court vacating and setting aside his former judgment of December 19, 1956. The entire case was also dismissed, the court finding that it had no jurisdiction of the suit and cross-action; the judgment reciting in that respect "that the parties to this suit effected a reconciliation after this suit was filed, and that the parties left the jurisdiction of this court after the filing of this suit, and lived together as husband and wife." It is from this order signed on January 25, 1957 that the appeal is taken.
Issues raised by the parties require a more detailed history of this brief litigation. The September 1956 petition of Wanda Jean Givens was filed by attorney Frank Cusack, but no citation issued thereon nor waiver filed by defendant. On November 21, 1956, however, defendant through attorney Frank Cathey, Jr., filed aforesaid cross-action, mailing a copy thereof to Mr. Cusack. Such cross-action contained the following allegation: "Defendant submits the parties of this cause have, in fact, lived together for at least a period of approximately two weeks since the filing of this cause, by plaintiff, and said parties did not, in fact, finally separate until on or about November 15, 1956."
Thereafter attorney for defendant caused a setting of the case for December 19, 1956, giving notice of same to Mr. Cusack who notified Wanda Jean Givens by letter mailed to her last known address. On above date defense counsel announced ready for trial with witnesses and defendant in person; attorney for plaintiff stating that he had attempted a notification to his client in writing with no word from her, although his letter had not been returned; that he had no grounds for continuance and was therefore not in position to offer more than a formal defense. The trial proceeded with the result of a defendant's judgment on his cross-action as hereinabove stated.
Mrs. Givens attached an affidavit to her motion to vacate above judgment, reciting no notice of the December 19 setting; that she would have been present had she known of it, with witnesses to refute defendant's right to a divorce and custody of the children.
The petition of Wanda Jean Givens was on ground of cruel treatment; alleging a marriage in 1946, a living together until about July 1, 1956 when the parties finally separated. Defendant in cross-action also claimed the right to divorce on grounds amounting to cruel treatment; alleging that he "is presently a resident of Augusta, ______ County, Kansas, but that having answered herein, and thus having invoked the jurisdiction of the Court, this Court has jurisdiction in this matter for all purposes, including that of defendant's cross-action against plaintiff." Obviously by above allegations, defendant was relying upon the residence qualifications of plaintiff for jurisdiction of his cross-action. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198.[1]
*579 Without reference to order of presentation, the several points of appellant may be summarized: Error of the court in finding (1) that it did not have jurisdiction to grant a divorce to defendant Dale Givens on December 19, 1956; (2) that plaintiff on December 19, 1956, had not received due notice of defendant's cross-action and the setting of same for trial; (3) that plaintiff on her own testimony alone, had not been guilty of cruel treatment and that her absence from the trial was not the result of her own neglect and indifference; (4) in not finding that plaintiff had made legal appearance in court on December 19, 1956; (5) that plaintiff, having failed to appear at the trial, was precluded thereafter from advancing new defensive pleading and evidence on hearing of the later motion to vacate judgment; and (6) that plaintiff had failed to meet the burden of proof necessary for the court to change its judgment of December 19, 1956, wherein it was found that the parties had not lived together as husband and wife since the filing of her initial suit of September 21, 1956.
Mrs. Givens testified on the January motion to vacate judgment of divorce that a couple of days after Mr. Cusack had filed her suit, she and husband decided to reconcile their differences; notifying her attorney of the fact of their reconciliation and that "we wanted him to drop the charges." (Note) Mr. Cusack denied the statement just quoted; testifying that in the telephone conversation with Mrs. Givens she advised him "that they were trying to get back together and my instructions to her were that if they got back together for her to notify me in writing she wanted her lawsuit dismissed."
Plaintiff further testified that marital relations were resumed about October 1, 1956, the parties moving to Kansas about November 1st. Later that month the cruel treatment of her by defendant was renewed, resulting in a final separation, she returning to Dallas; that she had no notice of defendant's cross-action filed November 21, 1956, or of the trial on December 19th; that on reconciliation, she and her husband had intended to move permanently to Kansas and did so; having no knowledge of his present whereabouts. Defendant did not appear or testify at the hearing in question. A finding of fact is to effect that he was served with notice of the motion in the State of Oklahoma. His attorney, however, was present and participated in the hearing. Incidentally, Mrs. Givens through her present attorney filed a later suit for divorce against Lee Dale Givens in another District Court (Dallas); on the instant trial testifying rather inconsistently that she did not want a divorce and could go back to her husband and live as a family unit.
The record, together with the court's findings of fact made on March 21, 1957, reflects in general all matters of fact hereinabove detailed. These further findings may properly be quoted: "(1) That Wanda Jean Givens and Lee Dale Givens were lawfully married persons who on the 21st day of September 1956 were and had been actual bona fide inhabitants of the State of Texas for at least one year and had resided in Dallas County, Texas for more than six months immediately prior to said date of 21st day of September, 1956. * * * (11) That plaintiff Wanda Jean Givens had no notice, prior to December 19, 1956, of the cross-action filed against her by Lee Dale Givens. * * * (13) That Lee Dale Givens and Wanda Jean Givens did live together as husband and wife between September 21, 1956 and December 19, 1956; and that such parties did effect a reconciliation of their marital differences during said period of time; that Lee Dale Givens and Wanda Jean Givens were actually residents of Augusta, Kansas in November and December, *580 1956. (14) That on said date of December 19, 1956 on the strength of the testimony of Lee Dale Givens, the court granted defendant judgment of divorce from plaintiff * * *."
Turning to appellant's points on appeal, only No. 1, complaining of dismissal of the cause in its entirety, is entitled to consideration. His other points relate to the setting aside of the court's prior judgment of December 19, 1956, a judicial act made within 30 days of the judgment entry and not appealable.
It is also our conclusion that point 1 should be overruled. In the first place, it appears without dispute that there was a living together of these parties subsequent to the institution of plaintiff's suit of date September 21, 1956. "The overwhelming weight of authority is to the effect that when the parties to a suit for divorce have effected a reconciliation, condoned their offenses, and resumed their marital relations, such action operates to end the litigation * * *." Jones v. Jones, 128 Tex. 309, 97 S.W.2d 949, 950. Defendant's cross-bill, filed November 21, 1956, thereby became an independent cause of action; and a grant of divorce prior to the expiration of the statutory period (now 60 days, Art. 4632, Vernon's Ann.Civ.St.) has been held to be a void proceeding, the statute being mandatory. Beeler v. Beeler, Tex.Civ. App., 218 S.W. 553; Snow v. Snow, Tex. Civ.App., 223 S.W. 240. In consequence, defendant's judgment of divorce on December 19, 1956, was null and properly set aside. Furthermore, under the facts and circumstances of this record, defendant's petition was subject to dismissal for deficiency of pleading in matter of residence (Art. 4631, V.A.C.S.), and in fact; considering, as we may, the hearing of January 25 as part of the full trial of defendant's cross-action. We refer to the testimony of Mrs. Givens in such connection, also allegations of the cross-action to effect that defendant was a resident of Augusta, Kansas, on November 21, 1956. Art. 4631 expressly states that the petitioner for divorce must be an actual bona fide inhabitant of Texas for twelve months and a resident of the County for six months next preceding the filing of petition.
The judgment dismissing suit inclusive of cross-action is accordingly affirmed.
NOTES
[1] Notwithstanding above quoted allegation, later findings of fact made by the court relative to the trial of December 19, 1956, recited: "that Lee Dale Givens testified that he had been, for one year prior to the filing of this suit, a resident of the State of Texas; that Lee Dale Givens testified that he was and had been, for at least six months prior to the filing of this suit, a bona fide inhabitant of Dallas County, Texas; that this Court on the strength of such testimony, together with other testimony, granted Lee Dale Givens a divorce and signed and entered its judgment dated January 3, 1957." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569752/ | 985 F. Supp. 1017 (1997)
UNITED STATES of America, Plaintiff,
v.
Boyd D. RANSOM, Defendant.
Nos. 89-40050-01, 97-3311-RDR.
United States District Court, D. Kansas.
October 20, 1997.
Kurt J. Shernuk, Asst. U.S. Atty., Kansas City, KS, for Plaintiff.
R. Bruce Kips, Fairway, KS, for Defendant.
*1018 MEMORANDUM AND ORDER
ROGERS, District Judge.
This case is now before the court upon defendant's motion to vacate part of his sentence.[1] Defendant's sentence led from his plea of guilty to using and carrying a firearm (a shotgun) during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) and to manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). In return for his plea of guilty to these charges, pursuant to a plea bargain, at the time of sentencing two other charges were dismissed: one count charging defendant with possession of certain chemicals and glassware with the intent to manufacture methamphetamine and one count charging defendant with the illegal possession of a silencer. Defendant was sentenced to 121 months on the manufacturing methamphetamine charge with a consecutive term of 60 months on the § 924(c) charge.
Defendant did not appeal his sentence, but he has filed several motions to vacate or modify his sentence. He filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 on December 21, 1992. This motion attacked his sentence on the § 924(c) charge claiming: that his plea was not knowingly and intelligently entered; that the plea lacked a factual basis; and that he was denied effective assistance of counsel. Some of defendant's arguments were similar to ones accepted by the Supreme Court in Bailey v. United States, ___ U.S. ___, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). However, based on Tenth Circuit law at the time which provided a broader interpretation of § 924(c), on February 11, 1993, this court dismissed defendant's motion to vacate without an evidentiary hearing. This ruling was affirmed on appeal by the Tenth Circuit. Doc. No. 48.
Pursuant to a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2), this court reduced defendant's sentence on his § 841(a) charge to 120 months. Doc. No. 57. On October 17, 1996, defendant filed a second motion to vacate sentence under § 2255. This court dismissed the motion because neither defendant nor this court had received an order from the Tenth Circuit authorizing consideration of a second application for relief. Doc. 59. Because the motion this court dismissed was defendant's second motion under § 2255, he was required to seek and receive authorization from a panel of the Tenth Circuit to proceed with the motion in this court. Such authorization was ultimately denied by the Tenth Circuit. The Circuit held that defendant had failed to advance an issue of constitutional significance, as is required to file a second or successive § 2255 motion under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132 ("AEDPA").
The instant motion makes the same kind of "Bailey" arguments for relief as defendant's first and second § 2255 motions. However, it is not brought under that statute. Instead, the motion asks for relief under 28 U.S.C. § 2241 and pursuant to a writ of coram nobis.
Defendant contends that the facts of his case do not support his plea to the § 924(c) charge in light of the Bailey decision which narrowed the meaning of "use" under the statute. The Bailey decision was issued approximately five years after defendant's guilty plea and three years after defendant filed his first § 2255 motion.
But for the AEDPA, the merits of this petition would have been considered when defendant filed his second § 2255 motion. See U.S. v. Barnhardt, 93 F.3d 706 (10th Cir.1996) (applying Bailey retroactively to consider an ultimately unsuccessful challenge under § 2255 to a conviction after a guilty plea); U.S. v. Watson, 942 F. Supp. 1378 (D.Kan.1996) (same); U.S. v. Strese, Case No. 92-40029-02 (D.Kan., unpublished, 8/20/96) (vacating a conviction under the Bailey decision); U.S. v. Fitzherbert, Case No. 92-40033-01 (D.Kan., unpublished, 3/29/96)(same).
Section 2255 contains language which allows an application by an inmate for habeas relief if it appears that "the remedy by *1019 [§ 2255] motion is inadequate or ineffective to test the legality of his detention." Relying upon this language the Second and Third Circuits have held that relief is available under § 2241. Triestman v. U.S., 124 F.3d 361 (2nd Cir.1997) (permitting the assertion of a Bailey issue under § 2241(c)(3) when § 2255 is foreclosed by the AEDPA); In Re Dorsainvil, 119 F.3d 245 (3rd Cir.1997) (same). In addition, the Sixth Circuit has held that relief may be available under § 2255 even with a second successive petition when a Bailey issue is raised. In re Hanserd, 123 F.3d 922 (6th Cir.1997). The court also notes that two other circuit court opinions have hinted that habeas relief might be available if a remedy is foreclosed under § 2255 because of the AEDPA. See U.S. v.. Lorentsen, 106 F.3d 278, 279 (9th Cir.1997); In re Vial, 115 F.3d 1192, 1198-99 (4th Cir. 1997) (concurring opinion).
The question before this court is whether habeas relief should be available in this instance. The Tenth Circuit has recently stated that: "A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity ... [i]t is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996). However, the same opinion appears to acknowledge that a remedy under § 2241 may exist for an invalid judgment if a motion under § 2255 would be either inadequate or ineffective. Id., quoting Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965) and Williams v. United States, 323 F.2d 672, 673 (10th Cir.1963) cert. denied, 377 U.S. 980, 84 S. Ct. 1887, 12 L. Ed. 2d 749 (1964). We believe in this case the Tenth Circuit would follow the reasoning of the Second and Third Circuits and allow a remedy under § 2241 because of the inadequacy of § 2255.
Defendant also asks for relief under a writ of error coram nobis. The Tenth Circuit has stated that a writ of error coram nobis "is available only to correct errors resulting in a complete miscarriage of justice, or under circumstances compelling such action to achieve justice." U.S. v. Bustillos, 31 F.3d 931, 934 (10th Cir.1994) citing, United States v. Williamson, 806 F.2d 216, 222 (10th Cir.1986). The Third Circuit has stated: "Use of the writ is appropriate to correct errors for which there was no remedy available at the time of trial and where `sound reasons' exist for failing to seek relief earlier" United States v. Stoneman, 870 F.2d 102, 106 (3rd Cir.) cert. denied, 493 U.S. 891, 110 S. Ct. 236, 107 L. Ed. 2d 187 (1989), citing United States v. Morgan, 346 U.S. 502, 512, 74 S. Ct. 247, 252, 98 L. Ed. 248 (1954). Recently, the Supreme Court commented on the rarity of the writ's application. "`[I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.'" Carlisle v. United States, 517 U.S. 416, ___, 116 S. Ct. 1460, 1468, 134 L. Ed. 2d 613 (1996), quoting United States v. Smith, 331 U.S. 469, 475 n.4, 67 S. Ct. 1330, 1334 n. 4, 91 L. Ed. 1610 (1947).
While it may have been difficult to conceive of the present situation before the court, we believe that if a remedy was unavailable under § 2241, then relief could be justified via a writ of coram nobis. If defendant is innocent of the crime of which he was convicted and does not have any other effective opportunity to raise this claim, then there is a compelling reason to grant relief pursuant to a writ of coram nobis.
Accordingly, the court shall permit this matter to go forward under the following guidelines. The government should inform the court within 20 days whether it contends that it has sufficient evidence to support a post-Bailey conviction under § 924(c). If so, the court shall conduct an evidentiary hearing in this matter. If not, the court shall enter an order vacating defendant's sentence for the § 924(c) conviction, unless the government contends that defendant should only be allowed to withdraw his guilty plea in this case. See U.S. v. Lewis, 964 F. Supp. 1513 (D.Kan.1997); U.S. v. Barron, 940 F. Supp. 1489 (D.Alaska 1996). If the government concedes that it cannot establish a post-Bailey § 924(c) conviction and wishes to limit the relief in this case to a withdrawal of defendant's guilty plea, defendant shall have 20 days to respond to this position.
IT IS SO ORDERED.
NOTES
[1] Defendant has moved to file an untimely reply to the governments response to his motion. This motion shall be granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3188607/ | Spathis v Spathis (2016 NY Slip Op 02169)
Spathis v Spathis
2016 NY Slip Op 02169
Decided on March 24, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 24, 2016
Mazzarelli, J.P., Manzanet-Daniels, Kapnick, Webber, JJ.
614 302534/08
[*1]Constantine Spathis, Plaintiff-Respondent,
vAlina Dulimof Spathis, Defendant-Appellant.
Alinda Dulimof, appellant pro se.
Order, Supreme Court, New York County (Lori S. Sattler, J.), entered June 23, 2014, which, to the extent appealed from as limited by the brief, denied defendant wife's motion for a money judgment, and immediate enforcement thereof, in the amount of maintenance arrears awarded her in the parties' divorce judgment, for interest on the arrears from August 24, 2011, and for attorney's fees on the motion, unanimously modified, on the law, to award defendant post-decision interest on the maintenance arrears from January 8, 2014, and otherwise affirmed, without costs.
Supreme Court correctly denied defendant's motion for an immediate money judgment as premature.
Contrary to defendant's argument, raised for the first time on appeal, she is not entitled to pre-decision interest on the maintenance arrears, there being no automatic entitlement to prejudgment interest in matrimonial actions (CPLR 5001[a]). However, since post-decision interest is mandatory (CPLR 5002), defendant is entitled to post-decision interest on the maintenance arrears portion of the modified divorce judgment at the statutory rate, from the date on which the modified divorce judgment was entered, i.e., January 8, 2014 (id.).
Supreme Court providently exercised its discretion in denying defendant's motion for attorneys' fees.
The remainder of the issues raised by defendant are not preserved for review since they were not raised before Supreme Court. Moreover, those issues raised by defendant that were decided by this Court in a prior appeal in this case are barred under the doctrine of law of the case (see Board of Mgrs. of the 25 Charles St. Condominium v Seligson, 106 AD3d 130, 135 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2016
CLERK | 01-03-2023 | 03-24-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1569904/ | 29 So.3d 903 (2009)
Ex parte S.C.
(In re S.C. v. C.C.)
2080419.
Court of Civil Appeals of Alabama.
August 14, 2009.
*904 Floyd C. Enfinger, Jr., Montrose, for petitioner.
Thomas P. Ollinger, Jr., Mobile, for respondent.
BRYAN, Judge.
S.C. ("the mother") petitions this court for a writ of mandamus directing the Baldwin Circuit Court to set aside its order dated January 26, 2009, which suspended the counseling relationship between the parties' only child ("the child") and Julia Summerlin, the child's counselor. For the reasons set forth below, we grant the petition.
As part of their divorce judgment, the mother and C.C. ("the father") entered into a settlement agreement in July 2007 that awarded primary physical custody of the child to the mother and awarded the father supervised visitation. The mother and the father agreed to "participate in counseling with Julia Summerlin for the benefit of the minor child."
In December 2007, the father filed a "Motion for Rule Nisi and Modification Petition" in which he argued that the settlement agreement was internally inconsistent regarding his visitation privileges and in which he sought a modification of the settlement agreement regarding his visitation with the child. In that petition, the father alleged that he had "visited" Summerlin "without success."[1] On July 1, 2008, the trial court denied the father's petition for a rule nisi, but it set forth a visitation schedule for the father for the months of July, August, September, October, and November, and it set the case for review in October 2008.
Following a hearing on October 30, 2008, the trial court issued an order on November 14, 2008, that set forth a visitation schedule for the father for the months of November and December and that stated:
"The [child] ... shall continue to see Ms. Julia Summerlin, as [the mother] deems prudent. [The father] ... has proposed to voluntarily seek parenting skill enhancement [with] Dr. France Frederick ... and/or joint parent/child counseling with he and [the child] therewith. This Court approves such proposal and awaits the results thereof at the next succeeding hearing."
Following the entry of that order, Summerlin referred the child to Dr. Daniel Koch, a forensic psychologist, who Summerlin described as an "expert" in parental alienation syndrome. The child was evaluated by Dr. Koch at some point in late November 2008. However, the mother refused to allow the child to meet with Dr. Frederick based on a concern expressed by Summerlin that it would violate the American Psychological Association Guidelines of Ethical Standards and Principles for the child to receive treatment by Dr. Frederick while she was being counseled *905 by Summerlin. The father filed a motion to compel the mother to abide by the trial court's November 14, 2008, order and to allow the child to participate in joint counseling with the father and Dr. Frederick, and the mother filed a response to the father's motion to compel based on Summerlin's ethical concerns.
The parties argued their motions before the trial court at a hearing on January 7, 2009. The trial court orally announced its judgment at the hearing, stating that it was necessary, in light of the child's best interest and the ethical concerns presented, to suspend the counseling relationship between the child and Summerlin so that the child could begin counseling with the father and Dr. Frederick. The mother's counsel took exception to the trial court's order, and the court permitted the mother to proffer her own testimony, as well as the testimony of Summerlin and Dr. Koch.
Summerlin testified that she had been counseling the child for approximately three years and that she was willing to continue to counsel the father, despite his reluctance to continue the relationship. Summerlin stated that she believed that it was not in the best interest of the child and that it would be detrimental to the child for the counseling relationship between her and the child to be suspended. She stated that changing the child's counselor would be harmful to the child because she and the child had developed a trusting relationship. Summerlin stated that she had sought Dr. Koch's opinion regarding the child because she had wanted to find out if she was "on track" and had wanted to ask Dr. Koch's opinion regarding her possible ethical dilemma.
Dr. Koch testified that he had evaluated the child but had not treated the child. His evaluation of the child showed that the child had suicidal ideations, and he believed that it would be risky to suspend the therapeutic relationship between the child and Summerlin. Dr. Koch stated that the appropriate way to counsel the father and the child together would be for the child and Summerlin to meet with the father and his counselor. Dr. Koch believed that, in this scenario, the child would be "protected" and the four individuals could work on the relationship between the child and the father together.
The father produced no witnesses and offered no evidence to refute the testimony of Summerlin and Dr. Koch that suspending the counseling relationship between the child and Summerlin would be harmful to the child. The trial court entered a written order on January 26, 2009, which stated:
"1. The Court accepts the proffer made from counsel for the Mother ... that the order entered by this court which directed [the child] to continue counseling with [the] existing counselor, Julia Summerlin and to engage in additional counseling with [the] father and Dr. France Frederick cannot be enforced as it violates the Rules of Ethics to which these psychologists are bound to adhere.
"2. Therefore, [that part] of the Court's order of [November 14, 2008, which orders counseling for the child with both Summerlin and Dr. Frederick] is hereby vacated in its entirety.
"3. The Court recognizes that the minor child has been in counseling with Ms. Summerlin for the past two and one-half years, and further, that the child has developed a bond with said counselor, there has been no significant advancement in the relationship between the child and the father. While the Court recognizes the benefit to the minor child to continue her counseling with Ms. Summerlin, the same is outweighed by what the Court deems is in the child's *906 best interest, to-wit: the necessity to reconcile and further promote the relationship between this minor child and [the] father. The Court notes that there has been no progress in this regard since the inception of this matter.
"4. In order to do this within the bounds of professional ethics, the Court deems it necessary to order the following: the counseling sessions between Julia Summerlin and the minor child shall be suspended; Dr. France Frederick is hereby appointed by the Court as counselor in this matter, and as such shall conduct joint parent/child counseling with the minor child and [the] father....
"5. The Court reserves jurisdiction to enter an[y] further orders that the court deems are in the interest and welfare of the minor child."
The mother filed this petition for a writ of mandamus on February 6, 2009. She argues that, based on the undisputed testimony of Summerlin and Dr. Koch that it would be against the best interest of the child to suspend her therapeutic relationship with Summerlin, the trial court exceeded its discretion by suspending the counseling relationship between the child and Summerlin.
The appellate courts of this state have consistently held that
"`[a] writ of mandamus is an extraordinary remedy, and it will be "issued only when 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." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993)....'
"Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). `Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion.' State v. Cannon, 369 So.2d 32, 33 (Ala.1979)."
Ex parte Showers, 812 So.2d 277, 280-81 (Ala.2001).
The trial court used its discretion in deciding to suspend the counseling relationship between the child and Summerlin. As stated above, this court does not have power to compel the exercise of a trial court's discretion in a particular manner, except when the trial court has exceeded its discretion. State v. Cannon, 369 So.2d 32, 33 (Ala.1979). After a review of the record, particularly the testimony of Summerlin and Dr. Koch, we conclude that the trial court exceeded its discretion in suspending the counseling relationship between the child and Summerlin because uncontroverted evidence showed that suspending the counseling relationship would be harmful to the child and detrimental to her best interest.
It was undisputed that the child had been counseled by Summerlin for approximately three years and that she and the child had developed a trusting relationship. Further, both Summerlin and Dr. Koch testified that removing the child from the counseling relationship with Summerlin could harm the child, and Summerlin stated, in no uncertain terms, that it would be against the best interest of the child. Dr. Koch even testified that suspending the counseling relationship would be "risky" due to the child's expressed suicidal ideations.
When a trial court hears evidence ore tenus, "[w]e will not reverse the trial court's judgment unless it is unsupported by the evidence so that it is plainly and *907 palpably wrong." Page v. Page, 562 So.2d 272, 273 (Ala.Civ.App.1990); see Newsome v. Newsome, 984 So.2d 463, 465 (Ala.Civ. App.2007); and Bishop v. Knight, 949 So.2d 160, 166 (Ala.Civ.App.2006). See also Turnbull v. Rencher, 53 Ala.App. 12, 15, 296 So.2d 912, 914 (Ala.Civ.App.1974) (In a mandamus proceeding to review the judgment of a trial court after it has heard evidence ore tenus, "the usual presumption in favor of the correctness of the [trial] court's findings of fact is indulged."). In light of the fact that the father failed to produce any evidence to indicate that the best interest of the child would be promoted by suspending the counseling relationship between the child and Summerlin, we conclude that the trial court's decision to suspend the counseling relationship was unsupported by the evidence and, therefore, was plainly and palpably wrong.
We commend the trial court for seeking a remedy that would foster a relationship between the child and the father, and we agree that it is essential that the child develop a relationship with the father. However, we cannot ignore, as the trial court has done, the undisputed fact that to suspend the counseling relationship between the child and Summerlin would be detrimental to the child and not in the child's best interest.[2]See Ex parte Ward, 782 So.2d 1285, 1288 (Ala.2000) ("A trial court cannot ignore undisputed evidence.").
We hold that the mother has a clear legal right to a judgment that is supported by the evidence submitted. Because we conclude that the trial court exceeded its discretion by ordering the suspension of the counseling relationship between the child and Summerlin, a writ of mandamus will lie to compel the trial court to set aside its order suspending the counseling relationship. See East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969), and State v. Cannon, 369 So.2d at 33.
PETITION GRANTED; WRIT ISSUED.
PITTMAN, THOMAS, and MOORE, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing.
NOTES
[1] Although the father does not specify why his "visitation" with Summerlin was "without success," we assume, based on other portions of the record, that the father and Summerlin did not get along and that the father believed that Summerlin was not succeeding in fostering a relationship between the child and the father.
[2] We believe that Dr. Koch presented the trial court with a scenario that would promote the best interest of the child, i.e., continuing the counseling relationship between the child and Summerlin while fostering a relationship between the child and the father. Nothing in this opinion is meant to discourage such an arrangement. In fact, because the order suspending the counseling relationship between the child and Summerlin is not a final judgment, the trial court is not prohibited from receiving additional evidence before fashioning an appropriate order. But see East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969) (mandamus will not issue to compel the exercise of the trial court's discretion in a particular manner). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569824/ | 29 So.3d 1125 (2010)
BARBER
v.
STATE.
No. 2D09-1959.
District Court of Appeal of Florida, Second District.
March 10, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569826/ | 29 So.3d 292 (2010)
SAUNDERS
v.
STATE.
No. SC10-221.
Supreme Court of Florida.
February 5, 2010.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569868/ | 57 F.2d 682 (1932)
WILSON et al.
v.
BOWERS.
No. 325.
Circuit Court of Appeals, Second Circuit.
April 11, 1932.
*683 George Z. Medalie, U. S. Atty., of New York City (Murray I. Gurfein, Asst. U. S. Atty., of New York City, of counsel), for appellant.
Taylor, Blanc, Capron & Marsh, of New York City (Russell L. Bradford and Edwin E. Peterson, both of New York City, of counsel), for appellees.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
This appeal presents a dispute as to the value of 3,000 shares of corporate stock owned by the testator at the time of his death and specifically bequeathed by him to his nephew Franklin H. Wilson. In their return of estate taxes, the executors valued these shares at $20,000 or $6.66 2/3 per share. The Commissioner of Internal Revenue increased the valuation to $23.55 per share, with the result that an additional tax of $3,039 was assessed against the executors, and paid by them on July 14, 1922. To recover this sum, with interest from the date of payment, the present action was brought against Collector Bowers, and after his death, was duly continued against his executor, the appellant. It is conceded that the judgment awarded the plaintiffs was right, if their valuation of the shares is sustainable.
For purposes of the estate tax imposed by the Revenue Act of 1918 (40 Stat. 1057, 1097), section 402 provides that the value of the gross estate of a decedent shall be determined by including the value at the time of his death of all property "to the extent of the interest therein of the decedent at the time of his death which after his death is subject (1) to the payment of the charges against his estate and (2) the expenses of its administration and (3) is subject to distribution as part of his estate." Thus the tax is to be levied on the value of the decedent's interest at the time of his death, and this means, as the Regulations themselves provide, that "the value to be ascertained is the market, or sale, value of the property." Article 14, Reg. 37. Moreover, the decedent's interest must possess all three of the above-enumerated characteristics, as these requirements are to be read conjunctively. Crooks v. Harrelson, 282 U. S. 55, 51 S. Ct. 49, 75 L. Ed. 156.
The valuation returned by the executors in respect to the shares here involved was based upon a contract dated May 21, 1909, between the testator, his nephew Franklin, and one Betts. These three owned all the common stock of Earl & Wilson Company. By the contract the testator agreed not to sell or assign his shares without first offering them to his nephew Franklin at $6.66 2/3 per share payable within four months from the date of the offer; and if Franklin did not accept the offer, a similar offer was to be made to Betts. It was also provided that upon the death of Arthur R. Wilson, said Franklin should have the right for four months after the qualification of the testator's executors to purchase the stock at the price of $6.66 2/3 per share, and in the event of his failure to exercise the option a similar right was given to Betts. Reciprocal options granted by the other parties to Arthur R. Wilson furnished consideration for his promises. The appellant does not dispute the validity of the contract nor deny that it could be specifically enforced against any transferee with notice to whom the testator might have transferred during his life, or against his executors after his death. See Scruggs v. Cotterill, 67 App. Div. 583, 73 N. Y. S. 882; Rockland-Rockport Lime Co. v. Leary, 203 N. Y. 469, 97 N. E. 43, L. R. A. 1916F, 352, Ann. Cas. 1913B, 62; Matter of Fieux, 241 N. Y. 277, 149 N. E. 857; Marthinson v. King, 150 F. 48 (C. C. A. 5).
Since the contract was specifically enforceable, it seems obvious that the sale value of the stock during the testator's life could have been no more than the low price at which he was obliged to offer it, first, to Franklin Wilson, and then to Betts; nor could his executors have sold it for more, unless both the option holders had allowed *684 their options to lapse. Even if each was penniless, money could readily have been borrowed on the stock when it was worth nearly four times the option price. We are to deal with actualities; and the suggestion that the shares may have had a greater market value because of the possibility that the options would not be exercised seems too extravagant to require further refutation. Nor do we see the force of the appellant's argument that the holder of an option has no equitable interest in the property until the option is exercised. Williston, Contracts (2d Ed.) § 61. Granting this and accepting the appellant's analysis of the legal relations created by an option, the option holder's power to create a contract enforceable in equity was as effective to depress the value of the option giver's interest in the property subject to the option as would be the contract itself when created. So long as the option here involved was outstanding, the property could not be sold for more than the option price.
It is urged that the full value of the shares was subject to charges against the decedent's estate. Two cases are relied upon. Sheeby v. Scott, 128 Iowa, 551, 104 N. W. 1139, 4 L. R. A. (N. S.) 365; West Virginia Pulp & Paper Co. v. Cooper, 87 W. Va. 781, 106 S. E. 55. They hold merely that an attaching creditor may prevail over the holder of an option on the attached property, if the attachment antedates the exercise of the option. Granting that attaching creditors might reach the full value of the property, it by no means follows that simple creditors of the testator would prevail over an option holder willing and able to pay the option price. An attaching creditor obtains a legal lien which may well have precedence over the option holder's power to obtain in the future a specifically enforceable contract a conditional equity, as it were but whether simple creditors should have precedence is another matter. But we need not decide it. To be taxable at its full value the interest of the testator must also be subject to distribution as part of his estate. These shares were not. Had the testator attempted to bequeath them to a stranger, the option holders could have taken them away from the legatee upon paying him $20,000 within the time limited by the contract.
Finally, the appellant argues that the option was never exercised, and that Franklin Wilson took under the will thereby relinquishing his option and leaving the interest which passed by will the full value of the shares. Logically, subsequent events should not be considered in determining value at the time of death. It is true that this court held the contrary with respect to the relinquishment of dower in Schuette v. Bowers (C. C. A.) 40 F.(2d) 208, 213. But the ruling there made was put squarely on precedent and was recognized as illogical. We shall not extend it where authority does not compel.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570127/ | 722 N.W.2d 136 (2006)
2006 WI App 163
STATE of Wisconsin, Plaintiff-Respondent,
v.
Roberto Vargas RODRIGUEZ, Defendant-Appellant.[]
No. 2005AP1265-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs May 1, 2006.
Opinion Filed July 28, 2006.
*139 On behalf of the defendant-appellant, the cause was submitted on the briefs of Donna L. Hintze, assistant state public defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Charlotte Gibson, assistant attorney general.
Before FINE, CURLEY and KESSLER, JJ.
¶ 1 FINE, J.
Roberto Vargas Rodriguez appeals judgments convicting him of: one count of battery, see WIS. STAT. § 940.19(1); one count of intimidation of a victim, see WIS. STAT. §§ 940.45(3) & 940.46; one count of intimidation of a witness, see WIS. STAT. §§ 940.42 & 940.46; and two counts of disorderly conduct, see WIS. STAT. § 947.01, all as an habitual criminal, see WIS. STAT. § 939.62. He also appeals from the trial court's order denying his motion for postconviction relief. He contends that the trial court denied him his right to confrontation by receiving into evidence police-officer testimony of what his alleged victim, Jill LaMoore, and her seven-year-old daughter Casey, told the police, when neither Ms. LaMoore nor Casey testified at the trial. He also claims that the trial court erred in: (1) permitting the State to ask Rodriguez's brother about his membership in a street gang; (2) overruling a defense objection to the prosecutor accusing Rodriguez of lying during his testimony; and (3) not recusing itself in connection with Rodriguez's postconviction motion asserting that he was prejudiced by his trial lawyer's alleged deficient representation. Rodriguez also argues that he was prejudiced by his trial lawyer's alleged deficient representation when the trial lawyer: (1) did not object when the prosecutor asked the police-officer witnesses whether there was anything else they wanted to tell the jury, and (2) asked one of the police officers whether he believed that Ms. LaMoore was telling the truth when she told him that Rodriguez had attacked her and Casey. We affirm, and analyze in sequence Rodriguez's claims.
*140 I. CONFRONTATION.
A.
¶ 2 As we have seen, Rodriguez claims that he was denied his right to confrontation when the trial court permitted police-officer witnesses to testify about what Jill LaMoore and her daughter Casey told the officers, when neither Ms. LaMoore nor Casey testified. We disagree.
¶ 3 The West Allis officers, Brad Sterling and Todd Kurtz, were the first two witnesses called by the State. Sterling told the jury that he went to LaMoore's house in West Allis after midnight because someone had called his department to say that a man was beating a woman there. He said that he arrived within "about a minute of the call at the most," and found Jill LaMoore inside the house: "She was crying. She was breathing very fast. She was hysterical. She stated she was just beat up." Sterling testified that "the right side of her face was red," that "it looked like an injury," and that Ms. LaMoore had "contusions on the top of her head and back of her head."
¶ 4 Officer Sterling also testified that Ms. LaMoore told him that Rodriguez had come home around midnight, accused her of infidelity, and kicked her repeatedly, threatening to kill her. According to the officer, LaMoore then called her Rottweiller dog for help, but Rodriguez punched the animal "several times, choked it, threw it against the wall," and then "[g]rabbed [LaMoore] by the hair" and "punched her in the top and back of the head." Sterling testified that LaMoore "was crying the entire time I was talking to her and she would talk very fast."
¶ 5 According to Officer Sterling's recounting of what Ms. LaMoore told him, seven-year-old Casey came into the room during the assault and "yelled to Mr. Rodriguez, `Stop hitting my mom.'" Rodriguez "then turned and grabbed the seven year old and pushed her hard against the wall." When Ms. LaMoore tried to stop this, and made an unsuccessful attempt to slap Rodriguez, Rodriguez grabbed her "by the shoulders I believe it was or the head, pushed her up against the wall and spit in her face."
¶ 6 Both LaMoore and Casey were able to run out of the house, and, again according to what LaMoore told Sterling, LaMoore "could see inside the door and she noticed the defendant was kicking or punching the dog and dragging the dog out the door." At this point, the prosecutor asked the open-ended question to which Rodriguez contends his trial lawyer should have objected:
Q. Is there anything else in your investigation with regard to this that I've neglected to ask you that you think it's important for the jury to hear?
A. I think that she just advised she was very, very afraid and very threatened of Mr. Rodriguez. She has advised that she had wanted toshe doesn't know how to leave Mr. Rodriguez and she even said that the quote she gave me was, the police can't help me. You guys can't help me. You can't protect me or my child.
That ended the State's direct-examination of Officer Sterling.
¶ 7 The cross-examination of Officer Sterling by Rodriguez's trial lawyer was brief, and gave the officer a chance to repeat that Ms. LaMoore was very upset when he spoke to her shortly after he arrived at her house. Additionally, Rodriguez's trial lawyer asked the officer:
Q. And you believe that her statements were truthful at the time?
A. Yes, sir.
Q. Okay. And what are you relying on to believe that they were truthful?
*141 A. I don't believe she had enough time to make up any kind of statement. The way she was, her emotional state. My experience in this area, we've taken a number of domestic violence incidents. When people are this upset and we get there very quickly, there's not enough time in my opinion that I have seen for her to make up any kind of story. That this didn't happen. Also with her injuries that I felt and observed.
¶ 8 The State called West Allis police officer Todd Kurtz as its second witness. Kurtz arrived at LaMoore's house shortly after Sterling, and spoke with LaMoore's little girl, Casey. According to Kurtz, Casey was "crying hysterically" when he first spoke with her "a few seconds" after he arrived. He testified what she told him after he tried "to calm her down for a little bit."
She told me she was trying to sleep in the living room on the couch and that her mom had brought some popcorn into the living room. She told me that Roberto had punched her mom in the head and she didn't know why that had occurred. She then said that Roberto was throwing her mom around the entire house, picking her up and throwing her down, and that at one point she saw Roberto throw her mom into the bathroom.
According to Kurtz, Casey was able to get away and ask "the upstairs neighbor" to call the police, which the neighbor apparently did.
¶ 9 Officer Kurtz also told the jury that the next day he found some of Jill LaMoore's personal property near the LaMoore house, and that he was on his way to return it to her when he saw LaMoore's dog, which he also brought back to the house. Once at the house, the dog started to bark, and Ms. LaMoore came out of the house. Kurtz testified that when he asked about Rodriguez, Ms. LaMoore told him that Rodriguez had returned about an hour after the police had left but that he was then on his way to Texas.
¶ 10 Kurtz testified that he was suspicious about Ms. LaMoore's "body language" and story when Casey came out of the house and told him that Rodriguez had "tried to stab me and my mom with a knife last night." Kurtz then testified:
I looked at Jill, at the mother, and I said is that true and she put her head down, started to cry, and told meshe told me that that was true. So now I asked her again, I said, are you sure that he's not in the house right now and she was crying and said, you know, no, he's not in there, and as she said that then Casey, the little girl, tucked [sic] on my pants leg and saidshe said, mommy, don't lie, he's underneath the couch with a knife, and I looked at her again and I said is that true. She started crying even harder and said, yes, he's in there.
Officer Kurtz "called for back-up," and, after the other officers arrived, they found Rodriguez underneath a couch with "a knife laying right next to his feet."
¶ 11 As with Sterling, the prosecutor also asked Officer Kurtz whether there was "anything else" the prosecutor "neglected to ask with regards to your investigation that you think is for the jury to hear." Kurtz responded:
He did make several threats to stab her with the knife and this had gone on for quite a period of time and she said that eventually she just got sick of the-of all these threats and she said she called his bluff and said, well, then go ahead and stab me then if you're going to do it, and he didn't stab her at that point.
*142 B.
¶ 12 Every defendant in a criminal case is entitled to confront his or her accusers: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. This clause applies to the states as well as to the federal government. The Wisconsin Constitution also guarantees the right to confrontation: "In all criminal prosecutions the accused shall enjoy the right ... to meet the witnesses face to face." WIS. CONST. art. 1, § 7. The two clauses are, "generally," coterminous.
State v. King, 2005 WI App 224, ¶ 4, 287 Wis. 2d 756, 760, 706 N.W.2d 181, 184 (case citations and quoted case-source omitted). Rodriguez was tried shortly after the United States Supreme Court issued Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which held that a defendant's right to confrontation is violated if the trial court receives into evidence out-of-court statements by someone who does not testify at the trial if those statements are "testimonial" and the defendant has not had "a prior opportunity" to cross-examine the out-of-court declarant. Id., 541 U.S. at 68, 124 S. Ct. 1354. Accordingly, the trial court appropriately held a hearing under WIS. STAT. RULE 901.04(1) to determine whether what Ms. LaMoore and Casey told the officers passed confrontation muster. The State indicated that it was relying on the excited-utterance exception to the rule against hearsay, WIS. STAT. RULE 908.03(2), and was seeking admission of only those things that Ms. LaMoore and Casey told the officers that "relat[ed] to the assault."
¶ 13 After hearing from the officers and the lawyers' arguments, the trial court ruled that what LaMoore and her daughter told the officers were "excited utterances" and were not "testimonial" under Crawford. Although normally the determination of whether an out-of-court assertion qualifies as an excited utterance is within the trial court's reasoned discretion, State v. Moats, 156 Wis. 2d 74, 96, 457 N.W.2d 299, 309 (1990), the constitutional issue of whether admission of an out-of-court assertion violates a defendant's right to confrontation is a matter that we assess de novo, State v. Manuel, 2005 WI 75, ¶ 25, 281 Wis. 2d 554, 569, 697 N.W.2d 811, 818.
¶ 14 If this case presented purely an evidentiary issue, there would be little doubt, and Rodriguez does not dispute, but that what Ms. LaMoore and her daughter told the officers, as testified to by the officers at the trial, would be admissible as excited utterances under WIS. STAT. RULE 908.03(2), which permits use at trial of an out-of-court assertion irrespective of whether the declarant testifies at trial if the out-of-court assertion is: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The rule reflects the law's recognition that persons who are under the stress caused by a startling event are not likely to have had either the time or presence-of-mind to make up a story relating to that event. See Idaho v. Wright, 497 U.S. 805, 820, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990) ("The basis for the `excited utterance' exception, for example, is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous."); Moats, 156 Wis.2d at 97, 457 N.W.2d at 309 ("Statements made by a declarant will be admitted *143 where indications are that he or she is still under shock of injuries or other stress due to special circumstances.").
¶ 15 The confrontation issue in this case turns on whether what the officers testified at the trial Ms. LaMoore and her daughter told the officers were "testimonial" assertions by Ms. LaMoore and her daughter. If they were, Rodriguez's constitutional right of confrontation was violated because he did not have a chance to cross-examine them. See Crawford, 541 U.S. at 68, 124 S. Ct. 1354. Crawford determined that there were two main considerations as to whether an out-of-court assertion is "testimonial," and that the considerations have a gradient overlap: "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id., 541 U.S. at 51, 124 S. Ct. 1354. The former is within what Crawford calls the "core class of `testimonial' statements"; the latter is not. Ibid. Beyond that, "what is `testimonial' hearsay" was, at least until Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), "still in flux." King, 2005 WI App 224, ¶ 5, 287 Wis.2d at 761, 706 N.W.2d at 184. Thus, Crawford noted that it was leaving "for another day any effort to spell out a comprehensive definition of `testimonial.'" Id., 541 U.S. at 68, 124 S. Ct. 1354. That day came, at least for further clarification of what is and what is not "testimonial" for confrontation purposes, when the United States Supreme Court issued Davis.
¶ 16 Davis was a consolidated decision in two cases: Davis v. Washington and Davis; Hammon v. Indiana, 126 S.Ct. at 2270, 2272. Davis proper concerned a victim's out-of-court declarations to a 911 operator. Id., 126 S.Ct. at 2270-2271. The victim told the operator that her former boyfriend, whom she identified in the call, was "`here jumpin' on me again.'" Id., 126 S.Ct. at 2271. "As the conversation continued, the operator learned that Davis had `just r[un] out the door' after hitting [the victim], and that he was leaving in a car with someone else." Ibid. (first set of brackets by Davis). The victim's statements to the operator were both volunteered and in response to the operator's questions. Ibid.
¶ 17 In Hammon, police went to a house on a domestic-disturbance call, where they found Hershel Hammon's wife "alone on the front porch, appearing somewhat frightened, but she told them that nothing was the matter." Davis, 126 S.Ct. at 2272 (internal quotation marks omitted). The officers took Hammon's wife back into the house, where they saw Hammon and signs of a fight. Hammon attempted to assure the officers that although "he and his wife had been in an argument," everything was all right. Ibid. (internal quotation marks omitted). The officers then took Hammon's wife aside and, without Hammon being permitted to be present, asked her to tell them what had happened. Ibid. "After hearing [Hammon's wife's] account, the officer `had her fill out and sign a battery affidavit,'" in which she wrote: "`Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave the house. Attacked my daughter.'" Ibid.
¶ 18 Davis reiterated that the Confrontation Clause "bars `admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination,'" and that the critical focus is on whether the out-of-court declarations are "`testimonial statements'" because "[o]nly statements of *144 this sort cause the declarant to be a `witness' within the meaning of the Confrontation Clause." Id., 126 S.Ct. at 2273 (quoting Crawford, 541 U.S. at 51, 124 S. Ct. 1354). Resolving much of the ambiguity left by Crawford, Davis set out the following bright-line, but, perhaps, not conclusive rule:
Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present case to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis, 126 S.Ct. at 2273-2274. Applying that rule to the two cases before it, Davis held that at least the early out-of-court declarations made by the victim in Davis to the 911 operator, even if in response to interrogation, permitted law-enforcement to assess the nature of the reported problem or emergency, including the "identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon," and were thus non-testimonial because the facts "objectively indicate [their] primary purpose was to enable police assistance to meet an ongoing emergency. [The victim in Davis] simply was not acting as a witness; she was not testifying. What she said was not a `weaker substitute for live testimony' at trial." Id., 126 S.Ct. at 2276-2277 (quoted source omitted, emphasis by Davis).[1]
¶ 19 In Hammon, however, the situation was different. There, the out-of-court declarations, both oral and in the affidavit, given to the police officers were after the emergency had passed and were a recording of past events rather than information pertinent to an assessment of a potential ongoing emergency. Davis, 126 S.Ct. at 2278 (the officer in Hammon was "not seeking to determine (as in Davis) `what is happening,' but rather `what happened.'") (parenthetical by Davis). We now turn to our case, and analyze it under both Wisconsin case law and the United States Supreme Court's latest word in Davis.
¶ 20 In analyzing whether an out-of-court declaration is "testimonial" under Crawford "Wisconsin has, `at a minimum,' adopted what Manuel calls `Crawford's formulations.'" King, 2005 WI App 224, ¶ 5, 287 Wis.2d at 761, 706 N.W.2d at 184 (referencing Manuel, 2005 WI 75, ¶ 39, 281 Wis.2d at 577, 697 N.W.2d at 822). Manuel set out the formulations as follows:
(1) "[E]x parte in-court testimony or its functional equivalentthat is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially."
*145 (2) "[E]xtrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions."
(3) "[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Id., 2005 WI 75, ¶ 37, 281 Wis.2d at 575-576, 697 N.W.2d at 821 (citations to Crawford omitted; brackets by Manuel).[2]
For a statement to be testimonial under the first formulation, it must be "ex parte in-court testimony or its functional equivalent." For a statement to be testimonial under the second formulation, it must be an "extrajudicial statement[] ... contained in formalized testimonial materials, such as [an] affidavit[], deposition[], prior testimony, or confession[]. For a statement to be testimonial under the third formulation, it must be a statement[] that [was] made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Id., 2005 WI 75, ¶¶ 40-42, 281 Wis.2d at 577-578, 697 N.W.2d at 822 (citations to Crawford and paragraphing omitted; brackets by Manuel). Rodriguez does not contend that what Ms. LaMoore and her daughter told the officers falls within the first two Manuel-adopted formulations but argues that it is within the third, to which we now turn.
¶ 21 In adopting the three formulations, Manuel applied Crawford, and not the Wisconsin Constitution's confrontation clause. Manuel, 2005 WI 75, ¶¶36-53, 281 Wis.2d at 574-582, 697 N.W.2d at 820-824. Crawford, however, concerned an out-of-court declaration that was a "testimonial" paradigmcustodial interrogation by law-enforcement officers of the defendant's wife who did not testify because of the State of Washington's marital-privilege. Crawford, 541 U.S. at 38-40, 124 S. Ct. 1354. Manuel, on the other hand, dealt with what a witness to Manuel's crime told the witness's girlfriend, who later told the police. Manuel, 2005 WI 75, ¶¶ 1, 9-10, 281 Wis.2d at 561, 564-565, 697 N.W.2d at 814, 816. The witness did not testify at Manuel's trial because he successfully asserted his Fifth Amendment privilege against self-incrimination. Id., 2005 WI 75, ¶¶ 1, 13, 281 Wis.2d at 561, 565, 697 N.W.2d at 814, 816. The witness's girlfriend testified at the trial but claimed that she could not recall precisely what the witness told her about the shooting. Id., 2005 WI 75, ¶¶ 1, 13, 281 Wis.2d at 561-562, 565-566, 697 N.W.2d at 814, 816. A police officer testified at trial about what the witness's girlfriend told the officer about the shooting. Id., 2005 WI 75, ¶¶ 1, 13, 281 Wis.2d at 562, 566, 697 N.W.2d at 814, 816. Manuel held that the witness's out-of-court declarations to his *146 girlfriend were not "testimonial" under any of the three Crawford formulations that it adopted. Manuel, 2005 WI 75, ¶¶ 40-53, 281 Wis.2d at 577-582, 697 N.W.2d at 822-824. Manuel concluded that there was nothing in the Manuel record showing that either the witness expected his girlfriend to tell the police what he told her, or that he was "attempting to use [the girlfriend] to mislead the police on his own behalf." Id., 2005 WI 75, ¶ 53, 281 Wis.2d at 581-582, 697 N.W.2d at 824.
¶ 22 The third "Crawford formulation" comes from an amicus curiae brief submitted to the United States Supreme Court in Crawford by its lead author, the National Association of Criminal Defense Lawyers. King, 2005 WI App 224, ¶ 5 n. 1, 287 Wis.2d at 761 n. 1, 706 N.W.2d at 184 n. 1. Even that brief, however, was not seeking a per se rule that made "testimonial" everything that an out-of-court declarant told law-enforcement:
By and large, statements made to law enforcement officials about a crime will be testimonial. And by and large, statements made to friends, relatives, accomplices or anyone outside of criminal justice system will not be testimonial.
There will be exceptions to these broad and general rules, of course. A witness to a crime may make a statement to a friend knowing that the friend will subsequently contact police. Such a statement is aimed at law enforcement and would therefore be testimonial. And calls to 911 call for some judgment in the application of the testimonial approach. That is because 911 serves a dual role in our society. It is both a component of our law enforcement system (suggesting that statements to 911 are testimonial) and an emergency response system (suggesting that statements to 911 are not testimonial). Whether a particular statement made to a 911 dispatcher was testimonial would depend on which capacity the caller was using when contacting the system.
Brief for the National Association of Criminal Defense Lawyers et al. as Amici Curiae Supporting Petitioner at 25, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (No. 02-9410), 2003 WL 21754961 (emphasis added; citation omitted).
¶ 23 We have a similar situation here. Victims' excited utterances to law-enforcement officers responding to either an on-going or recently completed crime, serve, as with the 911-call, a dual rolethe dichotomy between finding out what is happening as opposed to recording what had happened, which, as we have seen, was recognized in Davis. See, e.g., Davis, 126 S.Ct. at 2278; see also State v. Parks, 211 Ariz. 19, 116 P.3d 631, 639 (Ariz.Ct.App. 2005) ("Whether an excited utterance will be testimonial, thus, depends on the circumstances existing when the statement was made."). Insofar as a victim's excited utterances to a responding law-enforcement officer encompass injuries for which treatment may be necessary, or reveal who inflicted those injuries, which may facilitate apprehension of the offender, they serve societal goals other than adducing evidence for later use at trial. Davis, 126 S.Ct. at 2277. Several of our recent, albeit pre-Davis, decisions are consistent with this common-sense recognition.
¶ 24 In State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, police responded to a "`trouble with subjects'" and "`subject with gun'" call. Id., 2005 WI App 248, ¶ 2, 287 Wis.2d at 602, 707 N.W.2d at 314. When they arrived, a woman standing outside of the building "pointed at two people who were walking away from the building and said something like, `Those are the ones. That's them.'" Ibid. The police ultimately arrested Hemphill, *147 who was one of the men to whom the woman pointed. Id., 2005 WI App 248, ¶ 3, 287 Wis.2d at 602-603, 707 N.W.2d at 314. The woman did not testify at the trial, and responding police officers told the jury what she had said. Id., 2005 WI App 248, ¶ 4, 287 Wis.2d at 603, 707 N.W.2d at 314-315. Hemphill contended that this violated Crawford because, in his view, her out-of-court declarations were "testimonial." We disagreed, pointing out that what she said "was not a statement extracted by the police with the intent that it would be used later at trial," but, rather, "was a spontaneous statement." Hemphill, 2005 WI App 248, ¶ 11, 287 Wis.2d at 605, 707 N.W.2d at 316. Of course, the arrival of the police to the scene of a disturbance carries with it the tacit question of "where are they?" even if not spoken, and the woman's response to the officers' arrival was not, therefore, equivalent to a wholly spontaneous exclamation made by someone not aware that his or her words would result in law-enforcement action.
¶ 25 In State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497 (Ct.App. 2005), Searcy's cousin told police officers who were arresting Searcy for burglary that she was Searcy's cousin and that he was staying with her, thus tying "him to the residence where the police found stolen items." Id., 2006 WI App 8, ¶¶ 1, 11, 288 Wis.2d at 813, 816-817, 709 N.W.2d at 500, 502. Her statements to the officers were wholly unsolicited, as one of them testified: "a large crowd gathered and `one lady in the crowd came up and said that she was Mr. Searcy's cousin, and that he was staying with her in the neighborhood there.'" Id., 2006 WI App 8, ¶ 11, 288 Wis.2d at 816-817, 709 N.W.2d at 502. In rejecting Searcy's Crawford-based confrontation challenge, we explained that what she told the police did not fall within any of the three Crawford/Manuel formulations: the woman "initiated the interaction with the officers; the police did not seek her out." Id., 2006 WI App 8, ¶ 53, 288 Wis.2d at 837, 709 N.W.2d at 512. Further, the cousin's comments to the police were not "made in response to a tactically structured police interrogation, or in response to any questioning at all." Ibid.
¶ 26 A similar analysis applies when police talk to an attack-victim when the stress and cognitive disruption caused by the attack is still dominant, because the key consideration in connection with both the third Crawford/Manuel formulation and Davis's rubric, focuses on an objective analysis of the out-of-court declarant's expectation as to how what he or she tells law enforcement will be used. See Davis, 126 S.Ct. at 2272-2273; Manuel, 2005 WI 75, ¶ 37, 281 Wis.2d at 576, 697 N.W.2d at 821 (third formulation concerns "`statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'") (citation to Crawford omitted). Thus, the out-of-court declaration must be evaluated to determine whether it is, on one hand, overtly or covertly intended by the speaker to implicate an accused at a later judicial proceeding, or, on the other hand, is a burst of stress-generated words whose main function is to get help and succor, or to secure safety, and are thus devoid of the "possibility of fabrication, coaching, or confabulation." See Wright, 497 U.S. at 820, 110 S. Ct. 3139. We examine against this background what Ms. LaMoore and her daughter Casey told the officers, both at the initial response to the neighbor's 911-call, and the following day.
¶ 27 There is nothing in the Record here that indicates that what Rodriguez does not dispute were "excited utterances" *148 by Ms. LaMoore and Casey when the officers first spoke with them were motivated by anything other than their desire to get help and secure safety. Moreover, given their contemporaneously endured trauma it cannot be said that objectively they said what they said to the officers with a conscious expectation that their words would somehow have the potential for use in court against Rodriguez. It also cannot be said that, objectively, the officers intended to record past activities rather than assess the then-current situation. Moreover, there is nothing in the Record that indicates that anything either Ms. LaMoore or her daughter told the officers during that first encounter was in response to any sort of structured interrogation to questioning beyond simple inquiries. Simply put, Officers Sterling and Kurtz did not go to the LaMoore house looking for evidence with which to prosecute Rodriguez, and, after they arrived their focus was not on building a case against him but, rather, trying to ensure the safety of Ms. LaMoore and her daughter, and other members of the community. Thus, those out-of-court declarations were not testimonial. Similarly, when Officer Kurtz went to the LaMoore house the next morning to return the dog and other property, his inquiries were limited to an assessment of whether Ms. LaMoore and Casey were still in danger, and Casey's tug on the officer's trouser leg and spontaneous exclamation begging her mother not to lie and revealing that Rodriguez was still there and still a severe threat to their safety was also, under our de novo analysis, not "testimonial." Once prodded by her daughter, Ms. LaMoore broke down and admitted the truth in an otherwise unprompted collapse of her fragile pretense that all was well. Those statements, also, were not "testimonial."
¶ 28 A determination that an out-of-court declaration is not testimonial, does not end our inquiry. Rather, the analysis then turns to whether under pre-Crawford analysis, the dual test in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), of unavailability and whether there are sufficient "`indicia of reliability'" attached to the declarations is satisfied so as to make their receipt into evidence permissible under the confrontation clause. Manuel, 2005 WI 75, ¶¶ 60-61, 281 Wis.2d at 586-587, 697 N.W.2d at 826-827; Crawford, 541 U.S. at 68, 124 S. Ct. 1354 (states may use the Roberts approach for non-testimonial hearsay). Here, Rodriguez does not argue that Ms. LaMoore and Casey were not "unavailable" or that because "excited utterances" are "firmly rooted" exceptions to the hearsay rule, State v. Ballos, 230 Wis. 2d 495, 510, 602 N.W.2d 117, 124 (Ct.App.1999), the Roberts test is not satisfied. Accordingly, Rodriguez was not denied his right to confrontation by the officers' testimony relating what Ms. LaMoore and her daughter told them.
II. STREET GANG QUESTIONS.
A.
¶ 29 Rodriguez's brother, Luis Rodriguez, testified that he had spoken with Ms. LaMoore and that she told him that what she and Casey had related to Officers Sterling and Kurtz was not true, and that she was not going to go to court even though she was subpoenaed because, according to Rodriguez's brother, "nothing happened" that night other than a fight because, according to the brother, LaMoore was angry at Rodriguez for not getting her drugs. On cross-examination, the State asked the brother whether LaMoore was afraid of him and, for that reason, falsely recanted. When the brother replied that LaMoore was not afraid of him, the prosecutor asked:
Q She's not afraid of anybody that you're affiliated with?
*149 A Correct. I'm not affiliated with nothing.
Q What's a Spanish Cobra?
A It's a
At that point, Rodriguez's lawyer objected and the trial court excused the jury to discuss the matter with the lawyers.
¶ 30 The prosecutor indicated that he wanted to ask about the brother's alleged street-gang affiliation because Ms. LaMoore had also told the West Allis police that she was afraid of Rodriguez and his family, and read to the trial court excerpts from a police report:
"Jill stated that she has tried to break up with Roberto in the past. During this time Roberto, his friends and family threatened her and damaged her property. She reported that one year ago the furniture and house was set on fire. She did not have proof, but knows it was Roberto's family. Jill stated that Roberto is a member of the Spanish Cobra gang and is afraid to leave him due to possible retaliation."
The State argued that the street-gang question went to Ms. LaMoore's state of mind in allegedly recanting what she and Casey told the officers. The trial court overruled Rodriguez's objection. When asked in front of the jury about the Spanish Cobras, Rodriguez's brother, after first denying that he had been affiliated with the gang, admitted that he "used to hang out with them" from about 1979 until 1990.
B.
¶ 31 A trial court's decision to receive evidence is vested within its discretion, and we will not reverse if that decision is one that a reasonable judge could make. Wittig v. Hoffart, 2005 WI App 198, ¶ 12, 287 Wis. 2d 353, 363-364, 704 N.W.2d 415, 419. As we have seen, Ms. LaMoore was a hearsay declarant against Rodriguez, and, accordingly, the rules permitted Rodriguez to attack her credibility. See WIS. STAT. RULE 908.06 ("When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness."). Rodriguez attacked Ms. LaMoore's credibility by claiming that she had admitted to the brother having made up what she told the officers. Rodriguez thus put into issue whether LaMoore had a motive to "recant" to Rodriguez's brother, and the State had a concomitant right to try to show that her alleged recantation was false. See id. ("When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness.") (emphasis added). A witness's motive (whether testifying "live" or by admission of his or her out-of-court assertions) is never collateral, see State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978), and, if an out-of-court declarant, may be attacked and supported as provided for in RULE 908.06. Moreover, given the crucial nature of evidence provided by LaMoore's out-of-court assertions, we cannot say that the "probative value" of a possible motive for her to falsely recant was "substantially outweighed by the danger of unfair prejudice" to Rodriguez. See WIS. STAT. RULE 904.03 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."). The trial court did not erroneously exercise its discretion in overruling Rodriguez's objection to the State's gang-related questions to his brother.
III. PROSECUTOR'S CROSS-EXAMINATION OF RODRIGUEZ.
¶ 32 Rodriguez contends that he was denied a fair trial when the State *150 asked on cross-examination about his pending misdemeanor and felony cases. We disagree.
¶ 33 Rodriguez testified that he did not hit LaMoore that night, and told the jury that he left because she kept demanding that he get her some drugs, and began pummeling him when he was watching "some beautiful gorgeous girls on TV" because she was, according to Rodriguez, "very jealous." Finally, after further conflicts between them that evening, Rodriguez testified that he told LaMoore that he "had enough of her behavior," that he was going to pack his things and go to Texas. He said that he left the house, but was going to return when he remembered that he had left his car and house keys "at the house." He told the jury, however, that when he saw the officers at the house he "left the scene" because he had "a warrant in Waukesha for a driving ticket." When his lawyer asked, "So basically you were concerned about an outstanding warrant and that's why you didn't go back right away?" Rodriguez replied, "Yes. Yes."
¶ 34 On cross-examination the prosecutor asked the questions about which Rodriguez complains:
Q. Everything is the truth, sir?
A. Yes.
Q. One traffic ticket warrant?
A. One traffic ticket warrant?
Q. Just one ticket warrant?
A. What do you mean, one warrant?
Q. About four, five warrants out for your arrest that you knew about because you were failing to appear in court in Waukesha and Milwaukee County, right?
A. For what? Okay. With the knowledge at the time I knew I had one warrant. Okay. That's all I knew at the time.
Q. And that's despite being in court on criminal cases, being told that there would be a warrant issued for your arrest if you failed to appear?
A. Yes.
Q. And you knew those were ongoing and you had failed to appear?
A. Yes.
Q. So do you want to change that lie a little bit that there was more than one warrant that you were aware of?
A. At the time I was only aware of one-about one case.
Q. Now, you said you were aware of one ticket?
A. One ticket, one case.
Q. You weren't aware of a felony criminal case, a misdemeanor criminal case, theft, theft, retail theft, issue of worthless checks?
[Rodriguez's lawyer]: Objection.
[Prosecutor]: It's the defendant's statement. It's clear on cross. This is a lie.
THE COURT: Overruled.
Rodriguez argues that this was improper impeachment under WIS. STAT. RULE 906.08(2) and also complains that the prosecutor improperly used the words "lie" and "lying."
¶ 35 WISCONSIN STAT. RULE 906.08(2) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than a conviction of a crime or an adjudication of delinquency as provided in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. 972.11(2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies *151 to his or her character for truthfulness or untruthfulness.
(Emphasis added.) Rodriguez argues that impeachment is permitted by convictions only, see WIS. STAT. RULE 906.09, and that the prosecutor's questions brought before the jury "other wrongs evidence prohibited by Wis. Stat. § 904.04(2)." Rodriguez does not brief the RULE 904.04(2) contention, and, accordingly, we do not address it. See Vesely v. Security First Nat'l Bank of Sheboygan Trust Dep't, 128 Wis. 2d 246, 255 n. 5, 381 N.W.2d 593, 598 n. 5 (Ct.App.1985). As we have seen, however, RULE 906.08(2) permits the cross-examination of a witness about "extrinsic" matters, "if probative of truthfulness or untruthfulness." Certainly, lying on direct-examination, and repeating the lie on cross-examination, is "probative of truthfulness." Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it. See Harris v. New York, 401 U.S. 222, 223-226, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) (prosecutor did not violate defendant's rights by introducing on cross-examination the defendant's statement to the police even though the defendant had not been warned of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), because the defendant opened the door by denying matters he admitted in that uncounseled statement) ("Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.") (citations omitted). Further, in context, the prosecutor's use of the words "lie" and "lying" was not, as Rodriguez contends, the prosecutor's "personal[] comment" on Rodriguez's credibility; it was the prosecutor's confronting Rodriguez with what Rodriguez tacitly at least admitted were inconsistencies in his testimony, when he acknowledged that he did, indeed, have unexecuted warrants. Rodriguez's claim that what the prosecutor did denied him a fair trial is without merit.
IV. TRIAL COURT'S REFUSAL TO RECUSE ITSELF.
¶ 36 When Rodriguez at sentencing mentioned that he did not believe that his trial lawyer had given him good representation, the trial court responded:
That'sI guess you canyou have the right to file an appeal on that basis, I guess, but if I had to answer that question if there was a hearing before this court since I heard the trial I know what [Rodriguez's trial lawyer] did for you, I would have to say that you're wrong. Court of Appeals could decide that but it would be myat least my hearing I would find that that [Rodriguez's trial lawyer] was not incompetent in any way. I find that he was very competent in the way he handled your case.
Rodriguez contends that what the trial court said reflects at least the appearance of bias, and that it should have recused itself from hearing Rodriguez's postconviction motion alleging ineffective assistance of counsel. Although the parties debate whether Wisconsin's dual test of judicial impartiality, with its objective and subjective elements, see State v. Rochelt, 165 Wis. 2d 373, 378-379, 477 N.W.2d 659, 661 (Ct.App.1991), is still good law, the short of it is that, absent a pervasive and perverse animus, which Rodriguez does not allege, a judge may assess a case and potential arguments based on what he or she knows from the case in the course of the judge's judicial responsibilities. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. *152 1147, 127 L. Ed. 2d 474 (1994) ("[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."). The trial court did not err in declining to recuse itself from consideration of Rodriguez's postconviction motion.
V. EFFECTIVE ASSISTANCE OF COUNSEL.
¶ 37 As we have seen, Rodriguez contends that his lawyer gave him constitutionally deficient representation in two respects: (1) by not objecting to the prosecutor's open-ended questions to both officers at the end of their direct-examinations, and (2) by asking Officer Sterling why he believed what Ms. LaMoore told him that night. We examine these contentions in turn.
¶ 38 What is or is not ineffective assistance of counsel is governed by the watershed decision Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
To establish ineffective assistance of counsel, a defendant must show: (1) deficient performance, and (2) prejudice. To prove deficient performance, a defendant must point to specific acts or omissions by the lawyer that are "outside the wide range of professionally competent assistance." To prove prejudice, a defendant must demonstrate that the lawyer's errors were so serious that the defendant was deprived of a fair trial and a reliable outcome. Thus, in order to succeed on the prejudice aspect of the Strickland analysis, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
State v. Ellington, 2005 WI App 243, ¶ 15, 288 Wis. 2d 264, 278-279, 707 N.W.2d 907, 914 (citations and quoted source omitted). In denying Rodriguez's postconviction motion, the trial court determined that it did not have to assess whether Rodriguez's trial lawyer's representation was deficient because Rodriguez did not show how he was prejudiced by what the lawyer did or did not do. We agree.
A. Open-Ended Questions.
¶ 39 Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court's discretion under WIS. STAT. RULE 906.11, Wisconsin's version of Rule 611 of the Federal Rules of Evidence. See United States v. Garcia, 625 F.2d 162, 169 (7th Cir.1980) ("There is, of course, nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality."). Absent a blurt-out in response to an open-ended question that significantly prejudices the adversary, it is rare for an open-ended question to require reversal. See State v. Jeannie M.P., 2005 WI App 183, ¶ 8, 286 Wis. 2d 721, 731, 703 N.W.2d 694, 699 (trial lawyer did not provide constitutionally deficient performance when he explained at a postconviction evidentiary hearing that he had a strategic reason for asking an open-ended question). Rodriguez has not shown prejudice here; much of what the officers "added" was cumulative, and, further, if Rodriguez's trial lawyer had objected, the prosecutor could have simply reviewed his notes and *153 asked more focused questions to each officer.
B. Questions by Rodriguez's Trial Lawyer to Officer Sterling.
¶ 40 The trial court did not hold an evidentiary hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.1979), to determine whether Rodriguez's trial lawyer had a strategic reason to ask Officer Sterling whether he believed Ms. LaMoore when the officer spoke with her shortly after he arrived at LaMoore's house. Thus, although the State posits a strategic reason in its appellate brief, we have no way of assessing it without the trial lawyer's testimony. See id., 92 Wis.2d at 804, 285 N.W.2d at 908-909. A Machner hearing here, however, was not required, because we agree with the trial court, on our de novo review, that Rodriguez has not shown the requisite prejudice.
¶ 41 Officer Sterling's response to the question about which Rodriguez complains both: (1) repeated testimony that was already before the jury (her emotional situation and the time that elapsed from when the police department received the 911-call to Sterling's talk with LaMoore), and (2) the rest of Sterling's response, if not already before the jury, was either something the jurors could reasonably infer from the evidence (that LaMoore was afraid of Rodriguez) or was within their common experience (that persons under great stress caused by something generally do not have the cognitive ability to fabricate). Indeed, as we have already seen, this is the underpinning to the "excited utterance" exception to the rule against hearsay, and is why it is "firmly rooted" in our jurisprudence. Accordingly, Rodriguez has not carried his burden to show that he was prejudiced by his trial lawyer's questions to Officer Sterling.
Judgments and order affirmed.
¶ 42 CURLEY, J. (dissenting).
In the landmark case of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court announced that out-of-court statements by witnesses that are testimonial are barred under the Confrontation Clause unless the witnesses are unavailable and the defendants had a prior opportunity to cross-examine them, regardless of whether such statements are deemed reliable by the court. In Crawford, the Court advised that statements that are testimonial include "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52, 124 S. Ct. 1354 (citation omitted).
¶ 43 Recently, the Supreme Court again weighed in on the issue in Davis v. Washington, (No. 05-5224), and Hammon v. Indiana, (No. 05-5705), 547 U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). In these latest two cases, the Supreme Court refined the definition of what is a "testimonial" statement, and determined in Davis that 911 calls in which a party seeks assistance while the emergency still exists are "nontestimonial." Id. at 2276-77. However, in Hammon, the Court determined that when a police officer, responding to a domestic violence call, encounters two people who are no longer engaged in any disputes, but sees evidence that a fight occurred, and elicits a statement from one that the other person in the home hit her, that statement is testimonial. Id. at 2278-79. It appears that the lynchpin for the different outcomes was the fact that in Davis, the emergency was ongoing, while *154 in Hammon, the emergency had ended. The Supreme Court noted that:
The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry's present-tense statements showed immediacy; Amy's narrative of past events was delivered at some remove in time from the danger she described.
Id. at 2279. Applying these holdings to our facts, I disagree with the majority's conclusion that the victims' two sets of excited utterances occurring on separate days were entirely non-testimonial in nature, and thus admissible at trial when the victims failed to appear.
¶ 44 The initial contact the police had with LaMoore and her daughter fell outside the "911" call exception of Davis because the emergency had ended by the time the police arrived. Rodriguez was not in the home. Thus, the questioning and investigation was testimonial as the victims certainly expected that their later statements would form the basis of a criminal complaint against Rodriquez and "be available for use at a later trial." LaMoore and her daughter's second encounter with police came the next day when the police returned LaMoore's property and dog to her. One of the motives behind the police going to LaMoore's residence and returning LaMoore's property was to locate Rodriquez. The subsequent police interrogation of LaMoore revealed that Rodriquez was hiding in the house. No "emergency response system" prompted the police to return to the home, and LaMoore knew by answering the police questions and acknowledging that Rodriquez was in the home that her statement would be used by police at trial. LaMoore may have been fearful when she found herself confronted by the police while Rodriguez hid in the house, but the police questioning and her responses did not fall within the "emergency response system" exception. She was outside the home when interrogated, protected by the police, while Rodriguez was inside.
¶ 45 The majority bootstraps its decision legitimizing the admission of these statements by noting that excited utterances often have a higher degree of reliability than other statements. However, the Supreme Court's ruling reinvigorated the constitutional right that under our system of justice the accused has the right to confront the accusers. The holding in Crawford specifically abrogated the prior law found in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), and said that no matter how reliable a testimonial statement may appear, reliability must be tested by cross-examination. Crawford, 541 U.S. at 61, 124 S. Ct. 1354.
¶ 46 I also see a distinction between the Wisconsin cases the majority cited for support and the facts here. In both State v. Hemphill, 2005 WI App 248, 287 Wis. 2d 600, 707 N.W.2d 313, and State v. Searcy, 2006 WI App 8, 288 Wis. 2d 804, 709 N.W.2d 497, citizen witnesses not victims volunteered an isolated bit of information to the police. Citizens who volunteer information of this nature to the police usually do not have an expectation that their statements will require them to testify. This is in contrast to victims who ordinarily would assume that information they give to the police regarding a crime would "be available for use at a later trial."
¶ 47 The end result of the majority's determination is that Rodriquez had no opportunity to confront his accusers and the jury was denied the opportunity to evaluate the accusers' testimony and assess their demeanor, both often key in a *155 search for the truth and in rendering a thoughtful decision. Indeed, the State's case concerning the first four counts consisted solely of police officers' testimony.
¶ 48 Finally, other events in this trial raise doubts about its fairness. The exploration of a defense witness's gang affiliation ten years before is questionable. So, too, Rodriguez's defense counsel's failure to object to obviously improper questions by the prosecutor and his cross-examination of a police officer which led to the police vouching for the truthfulness of the victimsa question that the prosecutor would have been prohibited from asking strongly suggest that defense counsel's trial skills were woefully inadequate and that Rodriguez was prejudiced as a result.
¶ 49 For the aforementioned reasons, I respectfully dissent.
NOTES
[] Petition for Review filed.
[1] Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), did not parse some of the later out-of-court declarations by the victim in that case to the 911 operator because no one challenged the Washington Supreme Court's determination that even if the later statements were testimonial, their admission into evidence at Davis's trial was harmless beyond a reasonable doubt. Id., 126 S.Ct. at 2271-2272.
[2] We noted in State v. King, 2005 WI App 224, ¶ 5 n. 1, 287 Wis. 2d 756, 761 n. 1, 706 N.W.2d 181, 184 n. 1, that the "formulations" were not crafted by Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), but were, rather, proposals submitted by the defendant in Crawford and two amici briefs. Nevertheless, as we did in King, "we assume that [State v.] Manuel[, 2005 WI 75, ¶ 39, 281 Wis. 2d 554, 577, 697 N.W.2d 811, 822,] intended to adopt the party-and amici-phrased formulations, and we apply them here" as well. See King, 2005 WI App 224, ¶ 5 n. 1, 287 Wis.2d at 761 n. 1, 706 N.W.2d at 184 n. 1. Davis emphasized that those "formulations" were not those of Crawford: "Our opinion in Crawford set forth `[v]arious formulations'" of the core class of "testimonial statements," ibid., but found it unnecessary to endorse any of them, because "`some statements qualify under any definition,' id., [541 U.S.] at 52, 124 S.Ct. at 1364." Davis, 126 S.Ct. at 2273. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569764/ | 304 S.W.2d 793 (1957)
I. E. GRIMES and Erie Grimes, Appellants,
v.
Blanche ARMSTRONG and Frank Armstrong, Respondents.
No. 45488.
Supreme Court of Missouri. Division No. 2.
July 8, 1957.
Motion for Rehearing or for Transfer September 9, 1957.
*794 Almon H. Maus, Monett, for appellants.
Royle Ellis, Cassville, for respondents.
Motion for Rehearing or for Transfer to Court en Banc Denied September 9, 1957.
EAGER, Presiding Judge.
This is a suit in three counts, to try and determine the title to real estate, for damages for alleged trespass, and to enjoin further trespasses. It was filed on May 13, 1955. Defendant Blanche Armstrong denied the substantive allegations, joined in the prayer for a determination of the title, and counterclaimed in ejectment. The case was tried by the court without a jury, and the findings and judgment were for defendants on plaintiffs' petition and against defendant on her counterclaim, the latter for the asserted reason that plaintiffs were not shown to be in possession of the land in question. Plaintiffs have appealed.
The dispute concerns a strip of land 34 feet wide and approximately 428 feet in depth in the town of Washburn, in Barry County. Plaintiffs, the Grimes, are admittedly the owners of Lots, 8, 9 and 10, Block 1, in Johnson and Plummers' Addition and also of 20 acres lying easterly from Lot 8; defendant Blanche Armstrong (who will hereinafter be referred to as the defendant) is admittedly the owner of Lots 1 to 4, inclusive, of Block 4 of the same addition and also of a certain unplatted portion of Block 4 lying east of those lots; these adjoin the Grimes' property on the south. Defendant Frank Armstrong was joined because he had allegedly committed certain of the trespasses charged. The properties of the opposing parties adjoin for a distance of approximately 428 feet. The line is generally east and west, but actually runs somewhat north of west and south of east. Plaintiffs acquired their property in September, 1943, and defendant acquired hers in August, 1943. On plaintiffs' land is a brick house, a barn and perhaps other buildings; on defendant's north lot was a dwelling house, now replaced by a filling station; there was also an old barn, back perhaps 150-200 feet from the front property line, and located near the disputed north property line. These properties front westerly on a street which is actually State Highway No. 37, and will be referred to as the highway. A driveway ran back at a right angle from the highway near the south side of the plaintiffs' place for about 150 feet, then turned northward to plaintiffs' house. The *795 driveway is part of the disputed strip. In 1954 defendant constructed a filling station on the north part of her property and, during the course of construction, graded down a "bank" just south of the driveway; plaintiffs claim that in so doing she also destroyed several trees and that the grading has caused surface water and mud to collect in the driveway.
Plaintiffs insist that the line of an old fence just south of the driveway was and is the correct boundary; also, that they have acquired title to the ground up to that line by adverse possession, and that such line was also established as an agreed boundary line. Much of the controversy on this appeal arises from the testimony of the county surveyor who established the boundary line 34 feet north of where plaintiffs claim it to be, thus placing the disputed strip within defendant's property lines. The court found and decreed (on Count 1) that such was the correct line, and found that plaintiffs had failed to establish title by adverse possession, primarily because the driveway had been used by defendant's tenants and others and that plaintiffs' possession had not been exclusive.
We shall not attempt to state the facts in great detail. It seems reasonably clear that for some years there was a wire fence just south of the driveway which ran east from a point near the highway; this fence had certainly become much dilapidated and perhaps had even disappeared (according to some testimony) by the time plaintiffs and defendant acquired their properties. Plaintiffs rebuilt the back part of the fence, beginning at a point variously estimated as from 150 to 200 feet east of the highway and running back to the east line of Lot 8, the terminus of the joint property line; Mr. Grimes testified that this was done in the fall or early winter of 1943. Plaintiffs' witnesses and Mr. Grimes testified that this new fence was put exactly where the old fence was, but defendant and her witnesses insisted that the new fence was moved south about 10 or 12 feet, and that the work was done after September, 1947. It seems that originally a sort of "lane" led easterly from the highway the entire depth of the respective properties, with fences on both north and south and with gates leading to each side, the latter being about where the barns were located. However, after plaintiff Grimes moved in, he put up a cross fence east of the turn in the driveway, and he or his predecessors took out some or all of the north fence of the "lane." Defendant's property had generally been known as the "Warren" place; various tenants lived on it or used the ground. According to various witnesses, the respective tenants, and others, used the now controverted driveway to go into the back part of the Warren place, including the barn, first through a gate and later simply through an open space where the fence had been. In other words, there had been for many years a sort of joint use of the "lane" and driveway. There was no evidence that any of these people ever actually asked plaintiffs or their predecessors in title for permission to use it; all said that there never was any objection to the use. Mr. Grimes testified that he planted a few small trees along the south side of the driveway (which others denied), that he put gravel on it, and that he always "claimed" the land up to the old fence. There was no evidence, however, of any discussion of the location of the property line by anyone until about 1954 when defendant had a survey made, with the single exception that defendant objected when, as she said, Mr. Grimes moved the rear part of the fence over "on her." Grimes testified that he rebuilt that fence in 1943, whereas defendant testified that it was after September, 1947. There was some evidence that in years long past the old fence had been maintained jointly by the then adjacent owners. Defendant testified specifically that she did not know where the property line was. Other facts will be referred to in the discussion which follows.
The court specifically fixed a boundary line which placed the controverted 34-foot strip within defendant's *796 property lines. While the question has not been raised by the parties, we first consider the question of our jurisdiction. In many cases this court has considered whether or not title to real estate was involved in a constitutional sense, and the question has often been troublesome. Ordinarily, title is not involved where there is merely a dispute over the location of a boundary line. City of Marshfield v. Haggard, Mo., 300 S.W.2d 419. Here, however, the real controversy involves a specific 34-foot strip of ground; plaintiffs and defendant each claimed, respectively, that this was within their or her property lines, but plaintiffs also claimed title to that particular tract by adverse possession; the trial court made a specific finding on the latter question, and adjudicated the title to the strip in question. The situation is somewhat similar to that in the case of Klaar v. Lemperis, Mo., 303 S.W.2d 55, and we have determined that title to real estate is involved. See, also, Albi v. Reed, Mo., 281 S.W.2d 882.
Plaintiffs' first three points, though variously expressed, assert error in the admission of the testimony of County Surveyor Brock and of his survey; also, in permitting him to testify that he commenced his survey from "a section corner." The argument is that his basic statements were conclusions, that he had not established the corner from the government field notes, and that he had not complied with the requirements of Section 60.290 RSMo 1949, V.A. M.S., providing a means of establishing "decayed or destroyed section corners," sometimes referred to as lost corners. The plat of the addition in question is based upon the section corner of Sections 27, 28, 33 and 34 in Township 22, Range 28 west. At this point it becomes necessary to outline, briefly, the testimony of Mr. Brock. He was the only surveyor who testified; he had made a survey for the purpose of locating this property line in 1954, but the exhibit showing the result of that survey was excluded upon the objections of counsel for plaintiffs. After hearing most of the evidence, the court continued the case to permit the defendant an opportunity to procure a new survey. Counsel for plaintiffs objected to this procedure, but the action taken was certainly within the legitimate limits of the court's discretion. Mr. Brock, therefore, testified on two occasions; he had been county surveyor for 8 years. The plat of his last survey was admitted. In substance, he testified: that he started at a corner which he "knew" was a government quarter section corner; that he had previously made surveys from that corner, and that he had found other corners from it which checked properly with the "field notes"; that this particular quarter corner was located two and one-half miles west of the section corner now in question; that he ran a line east four and one half miles to another corner which he knew, and where there was an established point, made his correction of the variation, and surveyed back 2 miles to where he found the section corner of Sections 27, 28, 33, 34; that he found the "monument" of this section corner in a black top road, by digging down in the road; that this was a sandstone of stated size; that in locating the section corner he referred to the original government field notes, which he produced at the trial, and which were part of his official files; that the "witness trees" referred to in the notes for this particular section corner were gone; that the stone "fits" the line; that he located "witness trees" for other points (presumably from the government field notes) which he used in establishing this line; that he also compared the government field notes with the corner from which he started. A photostatic copy of the official government survey and field notes for the entire Township 22, Range 28 west, was offered and received in evidence without objection. As surveyed by Mr. Brock, the point where the section line crossed the east edge of Highway No. 37 was 20 feet north (or northerly) of the southwest corner of plaintiffs' Lot 10 (identical with the northwest corner of defendant's Lot 1), and 59 feet north of the south edge of the controverted driveway. However, for some reason, he set the stake for *797 the lot corners 25 feet south of the section line, thus allowing plaintiffs an additional 5 feet; this gave plaintiffs a frontage of 148 feet, which was apparently the full frontage called for by the plat. He arrived at these distances by scaling them on three different plats, two of which were official plats. The plat itself did not show the respective distances in feet. In support of their after-trial motion plaintiffs filed affidavits purporting to show that the stone so used by Mr. Brock as a section corner was an entirely different type of stone, both in constituency and size, and that there was no such stone there as described by Mr. Brock. The trial court overruled the motion and thus, in his discretion, denied the attack on Mr. Brock's veracity.
We hold that Mr. Brock's testimony that he started from a government corner does not consist of mere conclusions; we think that the foregoing recitals of the evidence demonstrate that fact. Moreover, much of the testimony of a surveyor is actually in the nature of expert testimony, and to some extent his conclusions are permissible, when supported by facts. Mr. Brock laid a sufficient basis for the admission of the ultimate findings of his survey. His evidence, oral and written, constituted a survey by the official county surveyor, and made a prima facie case for defendant; of course, it was not conclusive and it could be overthrown by other evidence. Jones v. Eaton, 307 Mo. 172, 270 S.W. 105; Morris v. Nowell, Mo., 180 S.W.2d 717. Here plaintiffs offered no controverting evidence whatever except the after-trial affidavits. In Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544; Klinhart v. Mueller, Mo., 166 S.W.2d 519, and Schell v. City of Jefferson, 357 Mo. 1020, 212 S.W.2d 430, relied on by plaintiffs, it was held that surveys which were not shown to have started from a government corner or, if the corner be lost, not started from a corner re-established as provided by the statute (§ 60.290) were not proper evidence. In Cordell v. Sanders, 331 Mo. 84, 52 S.W.2d 834, also cited by plaintiffs, it seems that the surveyor merely assumed that there was a section corner at the crossing of two roads, and that he did not survey from or to any established corner to check it; the court held, and properly so, that the result of such a survey was insufficient because consisting merely of assumptions and conclusions. We do not have that situation here. There is here substantial evidence, which the trial court evidently believed, that Brock's survey did start from a government corner. That being true, the statute on establishing lost corners (§ 60.290) has no applicability. Opperman v. La Brot, Mo. App., 283 S.W.2d 902. Mr. Brock's testimony and the record of his survey were properly admitted.
The next point made is that the court erred in admitting a plat and notes of a survey of Section 25, Township 22, Range 28, made in 1895, because it was not affirmatively shown that the survey was made in accordance with legal requirements. This was a certified copy of a recorded survey, made by the then County Surveyor. The purpose of the offer of this exhibit was apparently to show an established corner in Section 25 to which Mr. Brock ran the eastern terminus of his line of survey. At the most, this exhibit was merely corroboratory of Brock's testimony; naturally, affirmative evidence could not be produced to show the circumstances of the making of a survey 60 years previously. Plaintiffs cite the case of Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544, but there it was affirmatively shown that the questioned survey was improperly made, because it was not started at an established corner and there were other irregularities. It would seem that the survey now in question, being so old as not to permit of proof of its making and circumstances, and being apparently fair and complete on its face, should be admissible. Section 60.150 RSMo 1949, V.A.M.S.; State v. Turpin, Mo., 196 S.W.2d 798; Morris v. Nowell, Mo., 180 S.W.2d 717; Clark v. McAtee, 227 Mo. 152, 127 S.W. 37, 47; Schell v. City of Jefferson, 357 Mo. 1020, 212 S.W.2d 430. *798 But we need not decide that question. The case is here for our review de novo. Section 510.310 RSMo 1949, V.A.M.S.; Kimberly v. Presley, Mo., 245 S.W.2d 72; Been v. Jolly, Mo., 247 S.W.2d 840, and we have no hesitancy in saying that the acceptance or rejection of this exhibit would not be in any way decisive of the case. Its admission in evidence was certainly not reversible error.
Complaint is also made of the admission in evidence of a survey made by Mr. Brock in 1954. The document we have, however, is a certified copy of the recorded survey made on January 17, 18, 19, and February 7, 1956, concerning which Mr. Brock testified fully. At page 222 of the transcript the year is erroneously stated by counsel as 1954. From what we have already said the exhibit which was actually offered was properly received.
Counsel urge that we should reverse the case because Mr. Brock's testimony of finding a sandstone of a stated size at the section corner nearest to these lots was on a decisive point, and that it was completely contradicted by affidavits filed with plaintiffs' after-trial motion for judgment, to reopen the case, or for a new trial. The court, in its discretion, overruled that motion. There is no showing that plaintiffs asked to participate in Mr. Brock's survey, and they produced none on their own behalf. The affidavits were filed, respectively, 7 and 10 days after judgment. The question was one directly involving the credibility of Mr. Brock; we defer to the finding and ruling of the trial judge who saw him and heard him. The point is disallowed.
The remaining questions concern plaintiffs' alleged adverse possession and their claim of an agreed boundary. The trial court found that plaintiffs' supposed possession was not exclusive. We concur in this finding. Substantially all the former owners and tenants on the Warren (defendant's) property, as well as the employees of defendant, appear to have used the driveway, for sundry purposes. This use had started perhaps 40 years or more ago, and there seems to have been either a gate or an opening in the old fence continuously. There was considerable evidence of such user. Defendant's family, her tenants, and her employees used her barn after she acquired the property, and the only practical way to get to it was to use the driveway and cross the supposed line; her testimony and that of her daughters indicates that the barn was not abandoned until sometime after 1947; a tenant by the name of Mason apparently used the driveway and barn from about 1944 to 1947; an employee by the name of Senter testified that he fed cows at the barn in the winters of 1949 and 1950 and used the driveway then and at other times; members of defendant's family used the driveway from time to time. The barn was generally referred to as the Warren barn, and the Warrens, according to abstracts in evidence, owned the place from 1926 to 1943; it seems that over the entire period discussed, the most accessible route to the Warren barn was along this driveway. There was thus substantial testimony of such user over a long period, continuing at least to a time well within 10 years prior to the institution of this suit. This user was not factually shown to have been by permission of plaintiffs or of any of their predecessors. It is true that some witnesses said, referring to Mr. Grimes or his predecessor, that he "let us use it," or words to that effect. These statements were actually in the nature of conclusions, and no express conversations on the subject were mentioned or related by anyone. The evidence fairly established a user by defendant and her predecessors sufficiently continuous to prevent the possession of plaintiffs and their predecessors from being exclusive for any period of 10 years or more. The trial court evidently so found. In such event, we need not consider, as argued, whether defendant had herself established an independent adverse user or possession for 10 years or more, so as to divest plaintiffs of any adversely acquired title. *799 The trial court saw and heard the witnesses; this is a question on which we think it is particularly appropriate to defer to the finding of the trial court, and we do so, holding that exclusive possession by plaintiffs and their predecessors for a period of ten years was not established.
Plaintiffs had the burden of establishing every element of adverse possession, including: (a) a hostile claim, as of right; (2) actual possession; (3) open and notorious possession; (4) exclusive possession; and, (5) continuous possession. State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174. There is at least some doubt here as to whether the claim of plaintiffs was sufficiently "hostile," i. e., with intent to claim the ground to the actual fence line, regardless of the record title. Mr. Grimes had not discussed the boundary line with defendant until 1954. In certain of the fence line cases where title was held to have been acquired by adverse possession there had been some dispute regarding the line, or some overt act or notice of an actual, existing intent to claim specific land, regardless of record title. On the other hand, where one only means to claim to the true line, and is mistaken about the boundary, his possession is generally held not to be adverse. See, in general: Ackerman v. Ryder, 308 Mo. 9, 271 S.W. 743; Bell v. Barrett, Mo., 76 S.W.2d 394; Courtner v. Putnam, 325 Mo. 924, 30 S.W.2d 126; Welsh v. Brown, 339 Mo. 235, 96 S.W.2d 345; Foard v. McAnnelly, 215 Mo. 371, 114 S.W. 990; State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174. Since plaintiffs have failed to establish the exclusiveness of their possession, we need not adjudicate this additional question, which has often been troublesome to our courts.
The driveway in question ran back on this strip a distance of perhaps 150-175 feet from the highway. The principal user which prevented plaintiffs' possession from being exclusive, was of this driveway. However, plaintiffs pleaded and tried their case as one involving the title to the entire 34-foot strip, running from the west property lines to the east line of their Lot 8, a depth of approximately 428 feet. They could not change their trial theory here, and, indeed, counsel do not ask us now to differentiate between the east and west parts of the strip in question. Under these circumstances, we decline to consider separately the question of a possible adverse possession of the east part of the strip.
Plaintiffs also say that in any event we should hold that their own use of the driveway "ripened into an easement," even though we may find that the strip belongs to the defendant. The difficulty with that contention also lies in the fact that the case was not presented or tried on any such theory. Plaintiffs sought to establish in themselves full fee-simple title to the strip in question; the trial court had no opportunity to pass upon any contention of an easement, and certainly did not adjudicate it. And, the theory of an easement is not entirely consistent with a claim of full title. Plaintiffs cite the case of Lortz v. Rose, 346 Mo. 1212, 145 S.W.2d 385, to the effect that equity will ordinarily retain jurisdiction until the rights of the parties are fully adjudicated; there the trial court had passed upon the issue in question and had granted the relief to which plaintiff objected. We decline to consider the question at this stage.
The remaining question is the contention that there was an agreed boundary line. We note here, again, that Mr. Grimes and the defendant never discussed the boundary line until 1954; they certainly did not agree on anything then. The defendant testified definitely that she did not know where the boundary line was. Plaintiffs rely principally on the maintenance of the old fence by adjacent owners, and the fact that none of defendant's predecessors had actually made any claim to property beyond the fence. Actually the statements that those owners did not "claim" beyond the fence, are in the nature of conclusions, particularly when coming from others. *800 The exact nature of the "claims," pro and con, under such circumstances is often a matter submerged in obscurity and doubt, unless a boundary dispute has actually arisen. The trial court did not expressly pass on this contention, although it was pleaded. The necessary inference is that the court decided the issue adversely to plaintiffs. Counsel cite the cases of Stumpe v. Kopp, 201 Mo. 412, 99 S.W. 1073, and Martin v. Hays, Mo., 228 S.W. 741. In the Stumpe case a new fence line was recognized as the boundary for years after a dispute or disputes had occurred, and after a somewhat informal "field court" was held to settle the question; thereafter new disputes arose. The court recognized the line as thus established and further held that an agreement settling a disputed boundary line may be shown by conduct, acts and long acquiescence and recognition of the line, where such justify an inference of a prior agreement. The same is generally true of the Martin case, where disputes had certainly occurred, a survey had been made, and a new fence constructed on a different line. It is also to be noted that in those cases the user and possession up to the fence on each side was apparently exclusive. Under all the circumstances here we do not feel that the evidence justifies a fair inference that the line of the old fence was agreed upon as the boundary. Much of what we have said on the subject of adverse possession is also applicable here. And see: Ackerman v. Ryder, 308 Mo. 9, 24, 271 S.W. 743; Foard v. McAnnelly, 215 Mo. 371, 114 S.W. 990.
The court dismissed plaintiffs' second count, which sought damages for trespasses on the strip in question; it necessarily follows from the foregoing that there could be no trespasses by defendants on land which one of them owned; no point is made here of the mode of disposing of that count. The third count sought an injunction against future trespasses; under the circumstances its dismissal was proper. The court found the issues for plaintiffs on, and dismissed, the counterclaim of defendant in ejectment; therein it was alleged that plaintiffs were unlawfully withholding from defendant the possession of the 34-foot strip "except 177 feet off the west end * * *." This description was obviously drawn so as to apply to that part of the strip where Mr. Grimes had allegedly moved the fence southward. The finding and dismissal were made for the asserted reason that defendant had failed to show that plaintiffs were in possession. Defendant has not appealed, and we may not review that ruling.
Upon the whole record, the judgment should be affirmed. It is so ordered.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917411/ | 288 B.R. 533 (2003)
In re ALLIED PRODUCTS CORPORATION, Debtor.
No. 00 B 28798.
United States Bankruptcy Court, N.D. Illinois, Eastern Division.
January 6, 2003.
*534 Steven B. Towbin, Kathleen H. Klaus, Jeremy C. Kleinman, D'Ancona & Pflaum LLC, Chicago, IL, for Debtor.
John D. Shugrue, Paul Walker-Bright, Zevnik Horton, Chicago, IL, for ITT Industries, Inc.
Arthur J. Howe, Jason M. Rosenthal, Schopf & Weiss, Chicago, IL, George M. Plews, Jeffrey D. Featherstun, Indianapolis, IN, for City of South Bend, Indiana.
MEMORANDUM OF DECISION
EUGENE R. WEDOFF, Chief Judge.
This Chapter 11 case has come before the court on the debtor's motion to sell certain of its liability insurance policies back to the carriers who issued them for the general benefit of its estate and to enjoin parties with claims under these policies from taking any action against the carriers. As discussed below, (1) the insurance policies are property of the estate that the debtor may sell, but not without providing adequate protection for the interests *535 of parties in the policies; and (2) under applicable nonbankruptcy law, parties with claims under liability insurance policies have an ultimate right to recover from the issuing carriers. Since this interest is not protected by the debtor's proposed sale, the debtor's motion will be denied.
Jurisdiction
Federal district courts have exclusive jurisdiction over bankruptcy cases. 28 U.S.C. § 1334(a). Pursuant to 28 U.S.C. § 157(a), district courts may refer bankruptcy cases to the bankruptcy judges for their district, and, by Internal Operating Procedure 15(a), the District Court for the Northern District of Illinois has made such a reference of the pending case. When presiding over a referred case, a bankruptcy judge has jurisdiction, under 28 U.S.C. § 157(b)(1), to enter appropriate orders and judgments in core proceedings within the case. A motion to sell property of the estate is a core proceeding under 28 U.S.C. § 157(b)(2)(N). This court therefore has jurisdiction to enter a final ruling on the pending matter.
Findings of Fact
The few facts relevant to this decision are not in dispute. For several years prior to its bankruptcy filing, Allied Products, Inc., headquartered in Chicago, engaged in manufacturing operations in a number of states. In connection with these operations, Allied purchased general liability insurance from The Travelers Indemnity Company, the Insurance Company of North America (succeeded by Century Indemnity Company), and various affiliated entities. At the time of its bankruptcy filing, Allied was subject to claims that may have been covered by these policies, including environmental claims of ITT Industries, Inc. and the City of South Bend, Indiana.
Since the filing of its case, Allied has determined to liquidate its assets. On July 11, 2002, as part of this liquidation, Allied filed the pending motion, seeking to sell most of its liability insurance policies to the carriers who issued them, pursuant to a "buy-back" agreement, for a price of $3.5 million. At the initial hearing on this motion, the debtor acknowledged that the intent of the motion was to obtain funds from the insurance carriers for the general use of its estate, rather than for payments of claims that are covered by the policies. Accordingly, the court directed that notice of the debtor's motion be given to all potential policy claimants. In response to this notice, several claimants including ITT Industries and the City of South Bend filed objections to the proposed sale. After extended briefing, the court took the matter under advisement.
Conclusions of Law
Allied's proposed "buy-back" sale of its liability insurance policies involves more than a simple transfer of its rights under the policies to the insurance carriers that issued them. In particular, Allied's motion requests two additional forms of relief affecting the holders of claims covered by the policies. First, Allied seeks a determination by this court, enforced by an injunction, that the proposed buy-back will satisfy all payment obligations of the insurance carriers under the policies, so that parties with claims covered by the policies would be allowed to assert those claims only against Allied. Second, Allied proposes that the payment to be received under the buy-back agreement would become part of its estate, available to all creditors, rather than being segregated for payment of claims covered by the policies.
As the parties all acknowledge, Allied's liability insurance policies are property of its estate in bankruptcy, under the broad definition of *536 § 541(a) of the Bankruptcy Code (Title 11, U.S.C.). See In re Edgeworth, 993 F.2d 51, 55 n. 13 (5th Cir.1993) (collecting authorities); Home Ins. Co. v. Cooper & Cooper, Ltd., 889 F.2d 746, 748 (7th Cir.1989) ("A policy of insurance is an asset of the estate.") Accordingly, Allied's policies are subject to sale under § 363(b)(1) of the Code, which permits a trustee (or debtor in possession) to sell estate property out of the ordinary course of business, after notice and hearing.
The difficulty presented by Allied's sale motion is the objecting parties assert an interest in the policies proposed to be sold specifically, they assert a right under the policies to enforce their claims against the insurance carriers that issued the policies and Allied's motion would sell the policies free and clear of any such interest, by enjoining actions against the insurance carriers. Although estate property subject to interests of other parties may be sold free and clear of the other parties' interests under § 363(f), any such sale must provide adequate protection for those interests.[1] The legislative history of § 363(f) reflects this requirement: "Sale under this subsection is subject to the adequate protection requirement. Most often, adequate protection in connection with the sale free and clear of other interests will be to have those interests attached to the proceeds of the sale." H.R.Rep. No. 95-595, at 345 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 6302. Here, since Allied declines to allow liability claims to be asserted against the proceeds of its proposed buy-back, and since it provides no other form of adequate protection for the holders of such claims, the buy-back arrangement can only be approved if the claim holders have no interest in the liability policies.
Allied recognizes that its motion requires a determination that policy claim holders have no right to payment from the insurers. In this regard, it argues (1) that "[a]ny interest the [claim holders] have in the Policies . . . must be determined by the substantive law of Illinois," and (2) that neither Illinois law nor the policies themselves "confer any benefit" on policy claim holders. Allied Products Corporation's Omnibus Reply, filed Sept. 6, 2002, at 4-5.
Allied's choice of law argument is correct. The Seventh Circuit has not determined whether the choice of law rules of the forum state are binding in bankruptcy cases, or whether a bankruptcy court may exercise independent judgment as to the appropriate source of substantive law. See In re Morris, 30 F.3d 1578, 1581-82 (7th Cir.1994). However, this court would adhere in any event to the rule applied in Illinois that the domicile of the insured should determine the law applicable to a liability policy covering operations in several states. Lapham-Hickey Steel Corp. v. Protection Mut. Ins. Co., 166 Ill.2d 520, 526-27, 211 Ill.Dec. 459, 655 N.E.2d 842, 845 (1995). Given that Allied's principal place of business was in Illinois during all relevant times, and that its operations were conducted in several states, Illinois law should determine the rights of parties under the policies.
However, contrary to the balance of Allied's argument, both Illinois law and the policies in question do confer on policy claim holders a right to payment from the issuers of the policies. Illinois, like most states, has a public policy prohibiting "an *537 injured party from recovering . . . against an insurance carrier on account of the negligence of its insured prior to obtaining a judgment against the insured." Richardson v. Econ. Fire & Cas. Co., 109 Ill.2d 41, 51, 92 Ill.Dec. 516, 485 N.E.2d 327, 329-30 (1985), citing Marchlik v. Coronet Ins. Co., 40 Ill.2d 327, 332, 239 N.E.2d 799, 802-03 (1968). However, this rule does not preclude ultimate recovery against the insurer. As explained in Joachim Zekoll, Liability for Defective Products & Services, 50 Am J. Comp. L. 121, 156-57 (2002):
In most states, an injured party cannot sue the liability insurance company directly, at least not initially. Instead, the plaintiff is required to sue the insured and exhaust all remedies against that party before he is entitled to bring an action against the insurer. The main rationale for this position is to protect insurance companies against overly sympathetic juries which might be more inclined to find for the plaintiff and award unjustified damages if they are aware of insurance coverage. . . . If the judgment against the insured tortfeasor remains unsatisfied, the plaintiff may bring a direct action against the insurance carrier.
Indeed, an Illinois statute mandates that insurance policies provide for direct action against the insurance carrier if necessary to collect a judgment against the insured. Section 388 of the Illinois Insurance Code, 215 ILCS 5/388 (2002) provides:
No policy of insurance against liability . . . shall be issued or delivered in this State . . . unless it contains in substance a provision that the insolvency or bankruptcy of the insured shall not release the company from the payment of damages for . . . loss occasioned during the term of such policy, and stating that in case a certified copy of a judgment against the insured is returned unsatisfied . . ., then an action may be maintained by the injured person . . . against such company under the terms of the policy . . . for the amount of the judgment in such action not exceeding the amount of the policy.
Section 388 was applied in Home Ins. Co. v. Hooper, 294 Ill.App.3d 626, 229 Ill.Dec. 129, 691 N.E.2d 65 (1998), to require an insurance carrier to make direct payment to a policy claimant despite the fact that the corporation covered by the insurance policy was in bankruptcy, and hence could not make the self-insured retention payment that the policy mandated. The court read the statute as reflecting "the legislative intent to prevent insurers from using the insured's bankrupt condition and resulting inability to make actual payment to satisfy a judgment . . . as grounds to avoid payment on a policy." 294 Ill.App.3d at 632, 229 Ill.Dec. 129, 691 N.E.2d at 69-70. Thus, under § 388, a claim covered by a liability insurance policy in Illinois, once pursued to judgment against the insured, must be satisfied up to the policy limits if not by collection against the assets of a solvent insured entity, then against the insurance carrier directly.
The insurance policies at issue here are fully consistent with § 388 of the Illinois Insurance Code in providing that policy claimants have a right to payment from the insurance carrier. Allied points to the language of one policy issued by an affiliate of the Insurance Company of North America, which states: "We will pay the insured for the `ultimate net loss' . . . that the insured becomes legally obligated to pay as damages . . ." (emphasis added). Exhibits in Support of Allied Products Corporation's Omnibus Reply, filed Sept. 6, 2002, Ex. A, p. 1. However, the same policy provides that "[a] person or organization may sue us to recover on . . . a final *538 judgment against an insured." Id. at Ex. A, p. 10. The other policies cited by Allied provide that the insurance carrier will "pay on behalf of the Assured . . . all sums which the Assured shall be obligated to pay" for covered liabilities. See, e.g., id., Ex. B, p. 2 (emphasis added). A payment "on behalf of" Allied, in the context of a liability insurance policy, can only reasonably be understood to mean a payment to the policy claimant, not a payment directly to Allied. And a provision for direct payment to policy claimants is quite reasonable: since the insurance carrier would be liable under Illinois law to pay the claimant directly in the event of the insured's insolvency, direct payment to the claimant protects against the possibility of the insurance carrier paying twice on the same claim.
Finally, a series of decisions from the Seventh Circuit further recognizes that claimants under a liability insurance policy have an ultimate right to payment from the insurance carrier. Hawxhurst v. Pettibone Corp., 40 F.3d 175, 179 n. 1 (7th Cir.1994); In re Hendrix, 986 F.2d 195, 197 (7th Cir.1993); and In re Shondel, 950 F.2d 1301, 1307 (7th Cir.1991), all hold that a debtor discharged in bankruptcy is nevertheless subject to a nominal suit by claimants under a liability insurance policy, for purposes of obtaining a judgment that may be enforced against the carrier that issued the policy.
Because the policy claimants who object to Allied's proposed sale of its liability insurance policies do have an interest in payment under those policies that is not adequately protected by the terms of Allied's motion to sell, the motion must be denied.[2] A separate order will be issued to that effect.
NOTES
[1] Under § 363(e), parties with an interest in estate property must be adequately protected in connection with any sale of the property: "[O]n request of an entity that has an interest in property . . . proposed to be . . . sold . . . the court . . . shall prohibit or condition such . . . sale . . . as is necessary to provide adequate protection of such interest."
[2] The obstacle to Allied's motion addressed in this opinion is not the only ground raised by the objecting policy claimants. Even if Allied had provided for the sale proceeds to be segregated for purposes of paying policy claims, as in MacArthur Co. v. Johns-Manville Corp. (In re Johns-Manville Corp.), 837 F.2d 89, 93 (2d Cir.1988), there would remain objections to the adequacy of the sales price in the motion. These additional objections are not resolved here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917438/ | 835 So.2d 1174 (2002)
Andre WINDOM, Appellant,
v.
STATE of Florida, Appellee.
No. 5D02-3359.
District Court of Appeal of Florida, Fifth District.
December 20, 2002.
Andre Windom, Miami, Pro Se.
Richard E. Doran, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
ORFINGER, J.
Andre Windom appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.
In 1989, Windom was sentenced as a youthful offender to a term of imprisonment followed by probation. He violated his probation in 1992 by committing new crimes. His probation was then revoked and he was sentenced to a term of fifteen years in prison. On appeal, Windom argues that his fifteen-year sentence is illegal due to the six-year cap on youthful offender sentences found in section 958.04(2)(a), Florida Statutes (1989), as it existed at the time he committed his offenses. The State contends that Windom's sentence is authorized based on a 1990 amendment to the youthful offender law (before Windom violated his probation, but after he committed the underlying offenses), which allows for a defendant originally sentenced as a youthful offender to be resentenced up to the statutory maximum for the offense involved upon a substantive violation of probation. The resolution of this controversy depends on which version of section 958.14 should applythe version in effect at the time Windom committed his original offenses, or the amended version, which was in effect *1175 that the time Windom violated his probation.
In Reeves v. State, 605 So.2d 562, 563 (Fla. 2d DCA 1992), the court held that the application of the amended statute would constitute an ex post facto violation:
The amended version of section 958.14 operates to subject a youthful offender to the general provisions of section 948.06(1) beyond the normal six-year cap for such an offender when the offender commits a substantive violation of probation or community control. In this case, there is no dispute that defendant's having resisted arrest without violence constituted such a substantive violation. There is also no dispute that section 958.14 as amended was in effect at the time defendant committed the substantive violation in March 1991, a fact upon which the state relies in its argument that the six-year cap may be exceeded.
* * *
Since defendant was being sentenced for a crime he committed in 1988, we conclude that application of a statute amended in 1990 which clearly serves to increase the length of incarceration to which he could be subject would constitute an impermissible ex post facto law under both the Florida and United States Constitution. See, e.g., Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Swinson v. State, 588 So.2d 296 (Fla. 5th DCA 1991). Therefore, the sentence may not exceed the foregoing six-year cap.
We adopt the holding in Reeves. We find no merit in the other issues raised by Windom. We remand the matter for resentencing consistent with section 958.14, as it was in effect at the time Windom committed his original offenses.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
PETERSON and GRIFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569799/ | 29 So. 3d 298 (2010)
DECARVALHO
v.
STATE.
No. 2D09-837.
District Court of Appeal of Florida, Second District.
March 3, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917507/ | 835 So. 2d 880 (2002)
MOUNT MARIAH BAPTIST CHURCH, INC., Plaintiff-Appellee,
v.
PANNELL'S ASSOCIATED ELECTRIC, INC. and Acstar Insurance Company, Defendants-Appellants.
No. 36,361-CA.
Court of Appeal of Louisiana, Second Circuit.
December 20, 2002.
Rehearing Denied January 23, 2003.
*883 Larry English, Shreveport, Calvin Lester, for Appellants.
Robert E. Plummer, Mansfield, for Appellee.
Before WILLIAMS, GASKINS and PEATROSS, JJ.
GASKINS, J.
The defendants, Pannell's Associated Electric, Inc. and Acstar Insurance Company, appeal from a trial court judgment ordering them to pay the plaintiff, Mount Mariah Baptist Church, Inc., $148,620.04 arising from a dispute over a building contract. For the following reasons, we affirm in part and amend in part the trial court judgment.
FACTS
In 1998, Mount Mariah Baptist Church, Inc., "the church" decided to renovate their existing building and add a new sanctuary. The church hired Jeron Rogers, an engineer, to draw the plans. Amos Hines bid $497,000.00 to build according to the plans. The church secured financing with Hibernia Bank. The bank required that the church have a licensed and bonded contractor to oversee the project. Hines did not meet this qualification. Negotiations were entered into with Pannell's Associated Electric (Pannell's) which was licensed and bonded. The church insisted that Hines be the foreman on the project.
On February 8, 1999, the church entered into a contract with Pannell's to do the work for $497,000.00. The parties had reviewed cost estimates made by Hines and by Pannell's for the various components of the construction. In the contract, Nathan Holden was designated as the architect. The contract contemplated that the architect would oversee work performed by *884 Pannell's and would authorize periodic payments to the company. The document also provided that the project would be built according to plans and specifications. Any changes from the plans would cost extra. The contract required that the defendant start work within 30 days of the contract, with substantial completion within 180 days of the date of commencement.
Financing was not complete until April 1999, when Acstar Insurance Company (Acstar) issued a performance bond in the amount of $497,000.00. Construction began within 30 days of obtaining financing. The plans furnished by the church were lacking in detail. Generally, the architect hired by the owner would be consulted throughout the construction process regarding lack of detail or other problems with the plans. In this case, the architect sought payment from Pannell's. However, Pannell's contended that the architect was to be paid by the church. Apparently, due to nonpayment, the architect ceased work on the project. It appears that Pannell's was then forced to consult directly with representatives of the church regarding the lack of specificity in the plans.
The church then began making oral changes to the plans without change orders and without paying for the changes. Due to the failure to pay the architect, there was no review of the changes. The changes included the alteration of the thickness of the concrete slab, deletion of classrooms, changes to the balcony, change of the size of the pulpit area, and changes to the choir area. Two bathrooms were deleted and a lounge was added to the entry area. Other changes were made to use more expensive materials than originally called for. Wood paneling was placed behind the choir area instead of sheetrock and more expensive stained glass windows were added. Different and more extensive lighting was installed. These changes were made by the church's pastor, Johnny Baylor, and/or one of the deacons, Robert Boyd. The changes were implemented by Hines, often without any consultation with Pannell's.
In October 1999, the church presented Pannell's with a bill for more than $18,000.00 for a sound system that was not included in the plans. The preliminary cost allowances provided $4,000.00 for a sound system. Pannell's refused to pay the bill or to pay for any more changes without a change order. The parties reached an impasse at this point and the church contacted Acstar on the performance bond, claiming that Pannell's had stopped work on the project. The problem was temporarily worked out and Pannell's continued to work.
Pannell's insisted that the church owed approximately $58,964.00 for changes made to the plans. When an agreement as to this amount could not be reached, the church locked Pannell's off the job site, refusing to let the company continue with the work. Subcontractors, who had not been paid, filed liens against the church.
Due to the changes in the original plans, which increased the seating capacity of the sanctuary, the fire marshal changed the building's classification from "Class C" to "Class A." This required extensive modifications to the fire alarm, sprinkler, air conditioning and electrical systems. The fire marshal would not allow the building to be occupied without the modifications.
On April 5, 2000, the church filed suit against the defendants, basically asserting a claim for breach of contract. The church claimed that Pannell's failed to complete the renovation and construction in accordance with the design and specifications. The church also alleged that Pannell's failed to pay invoices for labor and materials resulting in numerous liens. The church asserted that Pannell's departed *885 from the design for the work resulting in a different classification by the fire marshal and requiring extensive additional work to meet fire code regulations. The church attached a list of deficiencies in the building to its pleadings and sought to recover for unpaid claims for labor and materials, the expense of having another contractor complete the work, costs of performing the work required by the fire marshal, costs to redo unsatisfactory work performed by Pannell's, sums due for breach of contract by Pannell's, additional costs for material, labor, and engineering, and additional architectural fees, legal fees, and costs.
The defendants answered and filed a reconventional demand against the church, the members of the building committee, and the pastor. According to the defendants, the church breached the contract by failing to retain an architect or engineer to oversee the work and in making numerous changes to the original plan without paying for them. The defendants sought $112,555.00, which included the cost of the changes, the amount necessary to perform work required by the fire marshal, costs associated with any increase in bond premiums, lost profits, costs associated with lien filings, and attorney fees and costs. Pannell's also complained that the church refused to allow the company to finish the project.
The pastor and building committee members filed an exception of no cause of action which was granted by the trial court. The matter was tried and on November 13, 2001, a judgment was filed, ordering the defendants to pay the church $136,850.04 together with $11,770.00 in expert witness fees.
In written reasons for judgment, the court found that this was a suit for breach of contract, redhibition, and quantum merit. The court noted that the project cost more than anticipated and the church was not satisfied with the quality of the work. Also, some of the labor and materials were not paid for by Pannell's.
The court denied the church's redhibition claim, finding that the church was using the facility and was largely satisfied with it. However, because many aspects of the construction were substandard, the court found that a reduction in price was warranted.
The court found that the church was entitled to reimbursement for five liens against the property totaling $46,249.45. The court then went through a list of deficiencies in materials and construction and set forth the amounts due the church for these items. The church was also awarded a credit for the cost of a metal roof originally contemplated in the plans. The court allowed a credit to the church for the amount needed to complete the project. The court further found that the church was entitled to recover expert witness fees. The total amount the court found due to the church was $183,823.04.[1]
The court then found that this amount was subject to an offset for items due to the defendants. The court found that the church had to pay for a thicker slab than specified in the plans. Pannell's was also granted recovery for the cost of the sound *886 system not included in the plans, but paid for out of the contract price. The court found that a final payment under the contract was owed to Pannell's.[2]
The court noted that the plans for the project were inadequate, and that the church did not provide an engineer or architect as required by the contract. The court denied Pannell's claim for lost profits due to the church's action in seeking to enforce the performance bond. According to the court, although the church erroneously believed that the bond was an additional source of funding, the quality of the work was substandard. Therefore, the church was entitled to seek enforcement of the performance bond. The total amount of the set-off allowed to the defendants was $35,203.00. Therefore, the judgment awarded to the church was $148,620.04. The defendants appealed, asserting numerous assignments of error.
JUDGMENT AGAINST DEFENDANTS
The defendants argue that the trial court erred in rendering judgment against them. They contend that it was the church that breached the contract and caused the damages by failing to retain the services of an architect and/or engineer, in making modifications to the plans without paying for the changes, in failing to communicate with Pannell's, and in refusing to allow Pannell's access to the project. They contend that by January or February 2000, the project was substantially completed and that the church was responsible for all delays in the completion of the project. The defendants claim that all damages were caused by the church and the court's judgment unjustly enriches the church.
Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art.1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. Where factual findings are pertinent to the interpretation of a contract, those factual findings are subject to the manifest error standard of review. Industrial Roofing & Sheet Metal Works, Inc. v. J.C. Dellinger Memorial Trust, 32,048 (La. App.2d Cir.8/20/99), 751 So. 2d 928, writs denied, 99-2948, 99-2958 (La.12/17/99), 752 So. 2d 166.
A court of appeal may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So. 2d 880 (La.1993). In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. If the factfinder's findings are reasonable in light of the record, viewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Reasonable evaluations of credibility and inferences of fact should not be disturbed upon review where conflict exists in the testimony. Absent a finding of manifest error, the judgment should be upheld. Peterson Contractors, Inc. v. Herd Producing Company, Inc., 35,567 (La.App.2d Cir.2/27/02), 811 So. 2d 130.
La. C.C. art. 2769 governs building contracts. It provides:
If an undertaker fails to do the work he has contracted to do, or if he does not *887 execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.
In construction contracts, Louisiana law implies that the contractor will construct the work in a good and workmanlike manner, the work will be suitable for its intended purpose, and the work will be free of defects in workmanship or materials. Peterson Contractors, Inc. v. Herd Producing Company, Inc., supra.
Accordingly, the jurisprudence dictates that a contractor is liable for damages if it is shown that he did not possess the necessary skill, efficiency or knowledge, or did not exercise ordinary care in performing work and is liable for losses, which the owner suffered because of the contractor's non-compliance with the contract. Austin Homes, Inc. v. Thibodeaux, XXXX-XXXX (La.App. 3d Cir.5/8/02) 821 So. 2d 10, writ denied, 2002-2324 (La.11/15/02), 829 So. 2d 436.
An owner seeking to recover from a contractor bears the burden of proving: 1) both the existence and nature of the defects; 2) that the defects were due to faulty materials or workmanship; and 3) the cost of repairing the defects. Guy T. Williams Realty, Inc. v. Shamrock Construction Company, 564 So. 2d 689 (La. App. 5th Cir.1990), writ denied, 569 So. 2d 982 (La.1990).
La. R.S. 9:2771 provides:
No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.
If the defect in the construction is caused by faulty or insufficient plans or specifications, the contractor is immune from liability upon constructing in compliance therewith, provided the specifications are not provided by him. Dumas v. Angus Chemical Company, 31,399 (La.App.2d Cir.1/13/99), 729 So. 2d 624; Peterson Contractors, Inc. v. Herd Producing Company, Inc., supra.
The plaintiff and the defendants have each claimed that the other party breached the contract and are liable for damages. As found by the trial court, in essence, both parties breached the contract. The church furnished Pannell's with a set of plans that lacked the necessary degree of specificity regarding many details. The church failed to retain the services of an architect to provide information as to the details of the plan and to consult when the plans were not workable. The presence of an architect, as contemplated by the contract between the parties, would have avoided many of the problems that eventually developed.
The church proceeded to change the plans and implemented those changes through Hines, often with no prior notification to or consultation with Pannell's. However, the record also shows that in numerous instances, the work performed by Pannell's was substandard and was not attributable to deficient plans or to changes made by the church. Therefore, *888 Pannell's breached the building contract by failing to perform in a good and workmanlike manner. Accordingly, the trial court did not err in finding that the contract was breached by Pannell's and in awarding judgment against the defendants.
CALCULATION OF DAMAGES
The defendants argue that the trial court erred in its calculation of the award to Pannell's. While they agree with the court's decision to make an award for the increase in concrete thickness, the sound system, and the failure to pay the final contract payment, they claim that they should also have recovered for all the changes required by the church, for lost profits, and for other items included in the reconventional demand. These arguments have some merit.
In awarding damages in this matter, the trial court considered the case to involve breach of contract, redhibition, and quantum merit. Although the court stated that it rejected the claim for redhibition, it found that a reduction in price was appropriate. We find that the trial court was erroneous in this reasoning. Concepts of redhibition apply in the context of sales. This case does not involve a sale. Rather, it involves a building contract between an owner, a contractor, and the contractor's surety. Where the relationship is that of a contractor-owner rather than that of a vendor-vendee, the principles for an action for redhibition or a reduction in price are not applicable. Davidge v. H & H Construction Company, 432 So. 2d 393 (La.App. 1st Cir.1983). Accordingly, the awards made by the trial court will be reviewed in the context of breach of a building contract.
The standard for reviewing the award of damages for breach of contract is whether the trial court abused its discretion. Hernandez v. Martinez, XXXX-XXXX (La.App. 5th Cir.2/28/01), 781 So. 2d 815. For a breach of a building contract under La. C.C. art. 2769, the appropriate measure of damages is the cost of repairing any defects or of completing the work. Guy T. Williams Realty, Inc. v. Shamrock Construction Company, supra.
Where the owner presents evidence of the cost of completion of the work or correction of the defective work, the contract price may be reduced by that amount. The factors to be considered in determining whether there has been substantial performance include the extent of the defect or non-performance, the degree to which non-performance has defeated the purpose of the contract, the ease of correction, and the use or benefit to the owner of the work already performed. Mayeaux v. McInnis, XXXX-XXXX (La.App. 1st Cir.9/28/01), 809 So. 2d 310, writ denied, XXXX-XXXX (La.3/8/02), 810 So. 2d 1164.
Under Louisiana law, a building contractor is entitled to recover the contract price even though defects and omissions are present when he has substantially performed the building contract. "Substantial performance" means that the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge. Mayeaux v. McInnis, supra.
The trial court allowed recovery to the church for liens filed against it. Several liens were filed against the church when subcontractors and suppliers were not paid. The defendants argue that the liens were caused by the church's cost overruns. Many of the deficiencies are attributable to the defendants. The defendants failed to show that the liens were filed solely as a result of the church's actions. The defendants have not adequately shown that the trial court erred in *889 this regard, therefore, this portion of the award is affirmed.
In this case, the trial court evaluated the various deficiencies in the church construction and made determinations as to whether they were caused by the faulty construction plans, the changes made by the church, or by Pannell's workmanship. The trial court noted that there were numerous deficiencies in the quality of work done by Pannell's. The court allowed recovery for seven areas it termed substantial deficiencies rather than items that would ordinarily be repaired on a punch list. The first of these is the uneven gable eave that juts out in an irregular fashion over a stone area on the front of the building. The court found this was due to improper construction and allowed the church recovery of $10,000.00 to repair this item. Patrick D. Bass, an architect, testified that this deficiency was not according to the plans furnished by the church. Therefore, we find that the trial court's award in this regard was proper.
The court awarded $5,000.00 to repair problems with the bricks. It found that there were holes in the walls where temporary electrical service had been installed, there was inconsistency in the mortar joints, and there were encroachments on the door frames causing the doors not to open properly. This appears to be an item of substandard work by Pannell's and the trial court did not err in making an award for these deficiencies.
The court noted that the carports or porte cocheres on the east and west sides of the church have deflections in their load-bearing beams. In other words, the roofs sag. The court allowed $6,000.00 for repair of this problem. However, Donald Willis, a general contractor who examined the church, testified that the problem with this portion of the structure was attributable to a design defect. Bass concurred in this assessment. There is nothing in the record to show that the sag is the result of poor workmanship. Therefore, we find that the trial court erred in allowing recovery for this repair. We amend the judgment to delete recovery for repair of the porte cocheres.
The trial court granted recovery to the church in the amount of $5,000.00 to repair laminated beams which were left outside, unprotected, during construction and which have now begun to mildew. This deficiency is attributable to substandard work by Pannell's. The trial court did not err in making an award for this item.
The trial court found that several items of finish work needed to be done due to Pannell's substandard work. These included finish work in bathrooms, unacceptable drywall work and improper finishing of wood trim and paneling. The court's finding is supported by the record. There is no showing that the factors were attributable to the faulty plans or to changes made by the church. The court did not err in awarding $12,500.00 to complete the finish work.
The court allowed recovery to the church for $10,000.00 for light cove that was improperly installed. According to Bass, the lighting trough purlins were not true and square and the framing was not properly installed. Insulation was exposed on the wall above the lights. This type of lighting was not included in the original plans and was added by the church. However, these deficiencies are all the result of poor workmanship by Pannell's. The trial court did not err in making this award.
The trial court further found that insufficient space was provided in passageways, stair risers were not properly constructed, and there was inadequate access to the baptistry. These factors are attributable to faulty design in the construction *890 plans. Therefore, the defendants are not liable for these deficiencies. Further, the trial court allowed recovery for drywall work and unlevel door trims. While these items are attributable to Pannell's, the trial court already made an award for finish problems such as drywall and wood trim. Therefore, we amend the trial court judgment to delete this $20,000.00 award to the church.
The trial court allowed the church a credit of $14,300.00 for a metal roof. The original plans called for a metal roof, but an asphalt shingle roof was installed instead. The cost of the shingle roof was much less than the expense of a metal roof. The church was entitled to a credit for this reduction in price. The trial court correctly granted a credit for this item.
The trial court allowed the church $33,003.59 to complete the project, excluding repairs required by the fire marshal. The necessary items for completion include repair of a sewer line cut by an electrician, completion of the electrical system, and equipment rental. These items were not required because of design defects in the building plans. Accordingly, the trial court did not err in making this award.
ENFORCEMENT OF THE PERFORMANCE BOND
The defendants assert that the trial court erred in finding that the church acted properly in seeking enforcement of the performance bond. They continue to argue that any defects in the construction were caused by compliance with the plans furnished by the church and the church's changes to those plans. Therefore, the church should not have sought enforcement of the performance bond. Pannell's seeks to recover damages for lost profits caused by the inability to obtain bonds for other jobs and for increases in premiums for performance bonds. This argument is without merit.
Although some of the problems in this case were caused by the lack of specificity in plans furnished by the church and by changes made by the church, other deficiencies and increases in costs were caused by substandard work by Pannell's. The agreement under the performance and payment bond includes the obligation of true and faithful performance of the building contract. The concept of breach of default on a contract is not limited to the obvious case of the nonperformance of the contract, but extends to any major departure from the contract even though the building itself is actually physically completed. This includes negligent performance of the building contract. See Congregation of St. Peter's Roman Catholic Church of Gueydan v. Simon, 497 So. 2d 409 (La.App. 3d Cir.1986).
As discussed above, there were some deficiencies in the performance of the building contract caused solely by Pannell's substandard work. Under these circumstances, the trial court did not err in finding that the church acted appropriately in seeking enforcement of the performance bond. Accordingly, the court did not err in denying Pannell's claim for lost profits and for his increase in bond premiums occasioned by the church's action in seeking to enforce the bond.
EXPERT WITNESS FEES
The defendants claim that all problems with the quality of work are due to changes made by the church or by the plans furnished by the church. They also assert that much of the work complained of as substandard was completed by other workers after Pannell's was shut out of the job. They claim that the church's experts did not look at the plans furnished by the *891 church and were not aware of the state of the work at the time Pannell's was put off the job. They contend that the experts could not adequately address whether the problems were caused by defective workmanship by Pannell's, or by the change in plans, or by other workers. Therefore, they insist that expert witness fees should not have been awarded.
Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La. R.S. 13:3666; Hammock ex rel. Thompson v. Louisiana State University Medical Center in Shreveport, 34,086 (La. App.2d Cir.11/1/00), 772 So. 2d 306. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. The trial judge is not required to set an expert fee at the amount charged by the expert witness. The trial judge has great discretion in awarding and fixing costs and expert fees. A trial court's assessment of costs can be reversed by an appellate court only upon a showing of abuse of discretion. Hammock ex rel. Thompson v. Louisiana State University Medical Center in Shreveport, supra.
Factors to be considered by the trial judge in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include the helpfulness of the expert's report and testimony to the court, the amount in controversy, the complexity of the problem addressed by the expert and awards to experts in similar cases. Hammock ex rel. Thompson v. Louisiana State University Medical Center in Shreveport, supra.
In the present case, the trial court taxed expert witness fees for a report outlining the deficiencies in the construction. The court also granted expert witness fees for the testimony of Patrick D. Bass and Donald Willis, who further outlined the deficiencies of the construction and offered guidance as to whether the deficiencies were the result of poor workmanship or design defects. The report and testimony was obviously helpful to the trial court in reaching its decision. We do not find that the trial court abused its discretion in taxing the cost of these items as expert witness fees in this case.
NO CAUSE OF ACTION
The defendants argue that the trial court erred in granting an exception of no cause of action filed by the pastor and members of the building committee. The defendants' claims against these defendants-in-reconvention were dismissed with prejudice. The defendants urge that the church changed its representative in violation of the terms of the contract. According to the defendants, the pastor and members of the church building committee were representatives of the church and were the individuals responsible for making changes to the plans. They also insisted that Hines be the foreman of the project. The defendants contend that, even if these individuals were not parties to the written contract, they entered into numerous oral contracts that were breached. The defendants assert that the award to the church should be adjusted to reflect the role of these individuals in causing the damages.
An exception of no cause of action is a peremptory exception intended to test the legal sufficiency of the petition. La. C.C.P. art. 927. Western Development *892 Group, Inc. v. Shlosman, 32,343 (La. App.2d Cir.9/22/99), 744 So. 2d 197. On hearing an exception of no cause of action, in addition to the well pleaded allegations of the petition, any annexed documents must be assumed as true, and any doubt should be resolved in favor of the petition. The exception generally must be overruled unless the allegations pled in the petition and annexed documents exclude every reasonable hypothesis other than the premise on which the defense is based or, in other words, unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Western Development Group, Inc. v. Shlosman, supra.
In the present case, the trial court did not err in granting the exception of no cause of action. The record shows that the plaintiffs dealt with Robert Boyd, Johnny Baylor, or members of the building committee only in their capacities as representatives of the church. Further, Boyd was designated in the building contract as the representative of the church. The record does not justify the imposition of personal liability on these individuals. The trial court did not err in granting the exception of no cause of action.
CONCLUSION
For the reasons stated above, we affirm the trial court's finding of liability against Pannell's based upon its breach of the building contract. We also affirm that portion of the trial court judgment finding that the church properly sought to enforce Pannell's performance and payment bond, awarding expert witness fees to the church, and granting the exception of no cause of action, dismissing the defendant's claims against the pastor and members of the church's building committee.
We amend the trial court's calculation of damages and its award to the church to delete recovery for porte cochere repairs, structure and drywall repair, and credit for a metal roof. However, we affirm that portion of the trial court judgment allowing a set-off to the defendants in the amount of $35,203.00. Accordingly, as amended, and allowing for the set-off, the defendants owe the plaintiff $112,620.04. Costs in this court are assessed one-half to the plaintiff and one-half to the defendants.
AMENDED, AND AS AMENDED, AFFIRMED.
APPLICATION FOR REHEARING
Before BROWN, C.J., WILLIAMS, GASKINS, PEATROSS, and KOSTELKA, JJ.
Rehearing denied.
NOTES
[1] The amounts allowed to the plaintiff are:
Labor and material liens 46,249.45
Gable eave repair 10,000.00
Brick work repair 5,000.00
Porte Cochere repair 6,000.00
Laminated beam repair 5,000.00
Interior finish repair 12,500.00
Light cove repair 10,000.00
Structure and drywall repair 20,000.00
Metal roof credit 14,300.00
Project completion credit 33,003.59
Expert fees 11,770.00
We note that these figures total $173,823.04 rather than $183,823.04 as found by the trial court.
[2] The set-off amounts allowed to the defendants are:
Concrete thickness 8,116.00
Sound system 18,087.00
Final contract payment 9,000.00
_________
35,203.00 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917465/ | 835 So. 2d 94 (2002)
Robert MANNING, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2001-KA-00627-COA.
Court of Appeals of Mississippi.
November 26, 2002.
*96 Phillip Broadhead, Jackson, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before KING, P.J., LEE and IRVING, JJ.
IRVING, J., for the court.
¶ 1. Robert Manning was convicted of murder and sentenced to life imprisonment by the Hinds County Circuit Court. In his appeal to this Court, he asserts the following assignments of error: (1) the State examined the venire to pledge a specific verdict, (2) the State was allowed to re-open voir dire to ask a question which commented upon Manning's right to remain silent, (3) one of the State's witnesses was allowed to give an improper lay opinion, (4) the trial court erred in refusing to grant an instruction on self-defense, (5) the prosecutor made an improper closing argument, and (6) the verdict was against the overwhelming weight of the evidence and insufficient as a matter of law.
¶ 2. Finding no reversible error, this Court affirms.
FACTS
¶ 3. Robert Manning and Louise Hilliard had lived together, off and on, for a number of years. On the day that Hilliard was killed, and prior to the discovery of her body, Manning voluntarily surrendered to authorities at the Jackson Police Department. He gave a taped confession in which he admitted shooting Hilliard but gave conflicting accounts of how the shooting occurred. At one point in the confession, Manning claimed to have acted in self-defense, while at another he claimed that Hilliard was shot accidentally as the two of them struggled for possession of the gun. The medical testimony contradicted both of these claims.
¶ 4. The medical testimony was that Hilliard was shot twice. One bullet entered the rear of her right forearm, exited the front of her forearm, and lodged in her hip. The other bullet entered her back and lodged in her sternum. The gunshot to the back produced the fatal wound. Manning did not testify at trial.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Specific Verdict Pledge from the Venire
¶ 5. Manning argues that the following questioning of the jury panel by the State was an improper jury examination, the aim of which was to extract a pledge from the venire to vote guilty even if the State failed to produce sufficient evidence to undergird a conviction:
PROSECUTOR WEINBERG: Is there anybody who would require the State before you could vote guilty in a murder case to produce eyewitnesses to what happened before you could vote guilty? The law doesn't require me to do that, but would any of you require me to do that?
*97 DEFENSE COUNSEL FORTNER: Objection, Your Honor. It's not appropriate for the prosecutor to tell the jury what the law requires or does not require him to do. That's a question for the Judge to instruct the jury on.
WEINBERG: May I rephrase Your Honor, to get their response to whether or not they would require more thanwould require eyewitnesses, independent eyewitnesses, which is all I'm trying to do here?
THE COURT: All right. I'll let you ask that one.
WEINBERG: Let me just make sure I get your responses if there are any. Is there anyone hereand I ask you to raise your hand, if you wouldwho would require me to produce independent eyewitnesses to what happened before you could vote guilty on a murder charge? If so, raise your hand, please.
* * * * * *
WEINBERG: Is there anybody here who feels like you would have to have some particular type of scientific proof that absolutely nails this case shut before you could vote guilty?
FORTNER: We're going to object to that question, Your Honor. The Court is to instruct the jury on what proof is required and what elements are required. The jury can't be placed in a position of making some promise about how they would render or reach a verdict or what evidence they would or would not require. That's an improper question.
WEINBERG: Your Honor, it's not improper to ask them about their attitude toward whether or not they would require scientific proof. Under De La Beckwith, that case that I've cited to Your Honor before, I'm entitled to ask that question.
THE COURT: All right. Overruled.
¶ 6. Manning argues that "the major problem presented by the [S]tate's voir dire examination is that the persistent extraction of a pledge to find guilt without certain facts in evidence would tend to encourage jurors not to follow the instructions of the court." A verdict, he claims, "could possibly be reached without the jury having followed the law of the case as instructed by the trial judge." Manning further contends that the error committed by the trial court in allowing the State's voir dire examination "is of constitutional dimension as it impacts on his fundamental right to a fair trial by a fair and impartial jury." He argues that "prejudice must be presumed by a reviewing court and a harmless error beyond a reasonable doubt review should be accomplished." This Court disagrees.
¶ 7. The standard of review for questions asked on voir dire is abuse of discretion. Hypothetical questions couched in the facts of the particular case asking the venire to pledge a specific verdict are impermissible. Harris v. State, 532 So. 2d 602, 606, 607 (Miss.1988). The Mississippi Supreme Court has further instructed that:
Trial courts have a responsibility to control voir dire but in doing so they must take care not to hinder a full exploration of a juror's predispositions, by hypothetical or otherwise. However, [t]he line between a proper and improper question is not always easily drawn; it is manifestly a process in which the trial judge must be given a considerable [amount of] discretion.
Evans v. State, 725 So. 2d 613 (¶ 128) (Miss.1997) (citations omitted).
¶ 8. This Court held in Forbes v. State, 771 So. 2d 942 (Miss.Ct.App.2000), that it *98 was proper for the State to query prospective jurors about whether a defendant's age would influence their verdict. We found that the prosecutor in that case only sought to highlight for the jurors the proper and improper considerations for determining guilt and innocence when it informed the jury that it would be improper to refuse to find guilt, despite being convinced beyond a reasonable doubt, because of sympathy for a teenaged defendant. Id. at (¶ 18). Similarly, our supreme court found no error occurred when the following question was permitted on voir dire:
With respect to the rape case, would the evidence for you to find somebody guilty of committing rape, would you require the State of Mississippi to prove or require that a victim come in here and say that she resisted until she was beaten to a bloody pulp and seriously injured before you could find someone guilty? We are talking about forcible rape here. I believe force is an element that we are going to have to prove. But would you require a victim resist until she is unconscious, fight and struggle dealing against overwhelming odds?
Simmons v. State, 805 So. 2d 452, 504 (¶¶ 146-147) (Miss.2002).
¶ 9. We find that in the case at bar the State was not seeking to secure a pledge from the jurors that they would return a certain verdict given a certain set of facts. We find, instead, that the State was trying to ascertain: (1) whether the jurors could put aside the fact that there were no eyewitnesses to the shooting, and (2) whether they had any preconceived notions that a certain type of scientific evidence should be presented. There was no abuse of discretion. This issue has no merit.
2. Comment on Right to Remain Silent
¶ 10. The jury panel was asked the following question during Manning's voir dire: "Mr. Manning is not required to testify; but if he does, is it anyone in here who would discredit his testimony before he even testifies and say that he's on trial for his life, so he's likely to say anything?" At the completion of Manning's voir dire, the State asked that it be allowed to reopen voir dire to ask one additional question. The circuit court granted the State's request, over objection by Manning, and the State posed the following:
During defense voir dire, Ms. Jackson asked you a question in which she prefaced it in terms of if the defendant were to testify. My question to you is if the defendant were to testify, would each of you agree towhatever criteria you personally would applyto weigh his testimony the same way you would weigh the testimony of any other witness? Is there anyone who would not do that? If so, raise your hand please.
¶ 11. The decision of whether to reopen voir dire is left to the discretion of the trial judge. Harrigill v. State, 381 So. 2d 619, 623 (Miss.1980). Manning contends that the trial court abused its discretion in reopening voir dire because it "allowed the State to make what was tantamount to an impermissible comment on the defendant's right to remain silent under the Fifth Amendment to the United States Constitution and under Article 3, Section 26 of the Mississippi Constitution." We do not find that to be the case.
¶ 12. The question posed on reopening was simply an inquiry into whether the jury would give Manning's testimony the same weight as any other witness's testimony, should he decide to testify. We see nothing ominous in that. Finding no impropriety in the question and no abuse of discretion on the part of the trial court in allowing the State to reopen voir dire, we hold that this issue is without merit.
*99 3. Lay Opinion
¶ 13. Richard Nations, the police detective who conducted the taped interview of Manning's confession, testified as follows on cross-examination by defense counsel:
Q. Okay. But he answered all your questions.
A. Yes, sir.
Q. And I went through the statement while the tape was playing, just like everybody else in here did, and [he] pretty much tells the same story from start to finish, answers the questions pretty much the same way doesn't he?
On redirect, the following occurred:
Q. Mr. Fortner asked you on cross-examination if the defendant told you pretty much the same story all the way through. Do you recall that question?
A. Yes, sir.
* * * * * *
Q. All right, sir. And is that the same story he kept all the way through or did he later
FORTNER: We're going to object, Your Honor. That invades the province of the jury. That's what the jury has the statement for, so they can make those decisions.
WEINBERG: It's a response to counsel's question that he told the same story all the way through, Your Honor.
COURT: Overruled.
FORTNER: We object again. It invades the province of the jury. He's asking the witness to determine what the facts are, not the jury. That's what juries are for, Your Honor.
THE COURT: Overruled.
WEINBERG: (Continuing)
Q. Did he stick with that story all the way through?
FORTNER: Objection, Your Honor, to the form of the question.
THE COURT: Sustained as to the form of the question.
WEINBERG: (Continuing)
Q. Just tell us whether or not every time he told the story it was the same or different than what
FORTNER: We object to the form of the question, Your Honor.
THE COURT: Overruled. Brought out on cross.
* * * * * *
WEINBERG: (Continuing)
Q. Did he tell you the same story all the way through?
A. Not the exact same.
¶ 14. Manning argues in his appellate brief that by allowing the final question and answer of the above-quoted passage the trial court, in effect, permitted Nations to express a lay opinion which was not, but should have been, in conformity with the provisions of Rule 701 of the Mississippi Rules of Evidence. This argument is made for the first time in this appeal. The Mississippi Supreme Court has repeatedly held that a trial judge cannot be put in error on a matter which was not presented to him for decision. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 389 (Miss.1994). Thus, this issue is procedurally barred. Procedural bar, notwithstanding, we address the issue on its merit.
¶ 15. This Court wrote in Greer v. State, 755 So. 2d 511, 516(¶ 14) (Miss.Ct. App.1999), that trial courts have broad discretion in allowing or disallowing redirect examination of witnesses and when the defense attorney inquires into a subject on cross-examination of the State's witness, *100 the prosecutor on redirect is unquestionably entitled to elaborate on the matter. Manning's counsel asked on cross-examination whether Manning told the same story throughout his taped statement. Since Manning's counsel opened the inquiry, it was not improper redirect for the prosecution to inquire on the same topic, even if the answers to the questions asked on redirect included an opinion of the person questioned. Accordingly, we find that this issue is without merit.
4. Self-Defense Instruction
¶ 16. Manning contends that his requested self-defense instruction was mandatory in view of the fact that the trial court charged the jury in two of its "elements-of the-crimes-charged" instructions that in order to find guilt it had to find that in the commission of the homicide Manning did not act in necessary self-defense. Manning claims that in order for the jury to make a finding as to whether he did or did not act in necessary self-defense, it was necessary that the jury be instructed on the legal definition of self-defense. Manning claims that the purpose of his proposed instruction was to provide that definition. The proposed instruction reads as follows:
The Court instructs the jury that to make a killing justifiable on the grounds of self-defense in this case, the danger to Robert Manning must be either actual, present and urgent, or he must have a reasonable ground to apprehend a design on part of Louise Hilliard to do him some great bodily harm. In addition to this Robert Manning must have reasonable ground to believe that there is an imminent danger of Louise Hilliard accomplishing that design. It is for the jury to determine whether Robert Manning acted reasonably in the circumstances presented by the evidence.
If you find that Robert Manning acted in self-defense, then it is your sworn duty to find him Not Guilty.
¶ 17. In refusing the instruction, the circuit court agreed with the State's position that the "common sense meaning" of self-defense was sufficient notice to the jury of what was meant by "self-defense" in the elements instructions and that since there was no claim of self-defense anywhere in the trial record it was not necessary to give the jury an extensive legal definition of self-defense. This Court agrees with that ruling.
¶ 18. The only hint of a self-defense claim throughout Manning's trial proceeding was contained in Manning's statement to the police that he wrestled the gun away from Hilliard. Even if that version of what transpired is accepted as true, once he gained control of the gun there was no indication, not even from Manning himself, that Hilliard posed any further threat to Manning's safety or well-being. In fact, the uncontested medical testimony was that Hilliard was shot while she was moving away from Manning. This Court finds that there was no basis in fact for a self-defense instruction and no need for a legal definition of "self-defense" as contained in the elements instructions. "Jury instructions are to be granted only where evidence has been presented which supports the instruction." Jackson v. State, 815 So. 2d 1196, 1200(¶ 7) (Miss.2002) (quoting Jones v. State, 797 So. 2d 922, 927 (Miss.2001)). This aspect of this issue is without merit.
¶ 19. Manning further contends in his appellate brief that self-defense was his sole theory of defense and refusal of the instruction denied him a fundamentally fair trial in violation of the Constitution of the United States and of the Constitution of the State of Mississippi. This argument was never raised before the trial court; *101 therefore, it is procedurally barred on appeal. Procedural bar aside, this claim has no merit. There is no constitutional right to have the jury instructed on a theory of defense that is not supported by the evidence.
5. Improper Closing Argument
¶ 20. Manning contends that the State made improper closing argument in several instances. First, Manning argues that the State traveled outside the confines of the record and urged the jury to disregard the court's instruction that manslaughter could be considered as an alternative verdict. The complained of comments were as follows:
WEINBERG: Ladies and gentlemen, of course, the defendant is asking you to find him guilty of manslaughter. As Ms. Jackson told you yesterday or perhaps the day before during voir dire, murder carries life in prison as a sentence. Manslaughter carries somewhere between two and twenty years as a sentence so
FORTNER: We're going to object, Your Honor, and ask to approach the bench.
(THE FOLLOWING BENCH CONFERENCE OCCURRED BETWEEN THE COURT, COUNSEL AND THE COURT REPORTER OUTSIDE THE HEARING OF THE JURY)
FORTNER: I'm sorry, Your Honor. We object and move for a mistrial. It is completely inappropriate and improper for them to mention sentencing to this jury. This jury has nothing to do with sentencing. It's no consideration for them whatsoever. Our Supreme Court on numerous occasion [sic] has condemned any party, defense or prosecution, from mentioning anything in this area, and we object and move for a mistrial.
WEINBERG: Our response is they've already done it, Your Honor. The jury is entitled to know the difference once they bring up the life imprisonment for murder.
FORTNER: We'll stand on the record on it.
WEINBERG: The record is clear on it.
FORTNER: Good.
COURT: It was brought up during voir dire. This is the first time since this Judge has been a judge that the penalty has been brought up like that. It was brought up during voir dire by the defendant. In view of that, the Court is going to overrule the objection and deny the motion for mistrial.
During voir dire, counsel for Manning made the following comment without objection: "Mr. Manning is facing a life sentence if he gets convicted of murder, it's very important that he gets jurors who are fair to him."
¶ 21. It is well established in Mississippi that attorneys are given wide latitude in arguing their cases to the jury; however, tactics which are inflammatory, highly prejudicial and reasonably calculated to unduly influence the jury are not permissible. Hiter v. State, 660 So. 2d 961, 966 (Miss.1995). Also, it is well settled in Mississippi jurisprudence that closing argument which discusses the possible penalty a defendant can receive is improper. See, e.g., Marks v. State, 532 So. 2d 976, 983 (Miss.1988).
¶ 22. This Court, however, because of two reasons, finds no reversible error with the remarks made by the State. First, as the trial court found, the matter of the penalty, which Manning could receive, was first brought up by the defense during voir dire. Second, the proof of Manning's guilt of murder is overwhelming. Accordingly, *102 we find this assignment of error to be without merit.
¶ 23. Manning's second contention regarding improper closing argument centers on comments made by the prosecutor regarding "deliberate design" murder. Specifically, Manning contends that the following remarks by the State are an incorrect statement of the law on deliberate design:
PROSECUTOR: So, yes, he could have gone there intending, but I'm telling you it doesn't matter whether he went there intending to or not because the defense definition of deliberate design to effect death is not what the Court tells you in this instruction. It's not what the Court tells you in this instruction. I'm as entitled to interpret that, and you are, as Ms. Jackson is, and deliberate design to effect death, I submit to you, means at the time he pulled that trigger, either time, either time, that at the time he pulled that trigger that he had formed the intent to kill her.
MS. JACKSON: Objection, Your Honor. That's an improper statement of the law. That's an improper statement of deliberate design.
PROSECUTOR: That he had formed the intent to kill her is a correct statement of the law, Your Honor.
THE COURT: Well, the objection is overruled because this is argument, just like the other ruling the Court made. It's argument by the attorneys.
¶ 24. It is Manning's contention that the comments fall outside the bounds of acceptable closing argument, and "the trial court's allowance ... warrants reversal of Manning's conviction and a remand for a new trial on the merits." This Court disagrees.
¶ 25. The record indicates that the following occurred during defense closing argument:
MS. JACKSON: Then you go down to number four. Here's where you've got the problem. This says with deliberate design to effect death. In order for it to be a deliberate design it's got to be planned and advanced with full awareness of everything involved. He would have had to premeditate
WEINBERG:object to this as a misstatement of the law, Your Honor. Plan in advance is not a correct statement of the law.
* * * * * *
MS. JACKSON: May I, Your Honor?
THE COURT: All right.
MS. JACKSON: It's deliberateand I have the American Heritage Dictionary, Your Honor. This is argument, and that is what deliberatethe instruction says with deliberate design, and this is deliberate design. I'm explaining to them what it is, and that is allowed in argument. I do have the American Heritage Dictionary if you want to look at it.
THE COURT: The Court will overrule it. It's argument.
¶ 26. It is clear from the foregoing record excerpt that the prosecutor was merely countering the defense's argument on what was meant by "deliberate design." This type of responsive reasoning does not overstep the bounds placed upon closing arguments. See Holmes v. State, 754 So. 2d 529, 538(¶ 22) (Miss.Ct.App.1999).
¶ 27. Manning further contends that the State crossed the line with the following remarks which were permitted to be made over his objection:
*103 As I was saying, I've been doing this a long time. I've been doing this twenty years. I've been prosecuting full-time for twenty years, and I have seen a lot of death cases, and they're always tragic, and this one falls in that category. It's just tragic when somebody is killed needlessly as Louise Hilliard was for not doing anything except having an argument.
Manning contends that the prosecutor, by making these comments, was able to improperly inject his own personal beliefs and experiences from prior cases into Manning's trial.
¶ 28. The record indicates that the jury was properly instructed on the law and was instructed that what was said in opening and closing argument was not evidence. The comments were innocuous. Finding that there was no abuse of discretion on the part of the circuit court in allowing them, we hold that this issue has no merit.
¶ 29. Finally, Manning contends that the totality of the separate instances of prosecutorial misconduct constitutes a course of conduct so egregious that a reversal and remand for a new trial on the merits is required. Needless to say, since this Court has found that there was no reversible error in any part, there is no reversible error to the whole. McFee v. State, 511 So. 2d 130, 136 (Miss.1987).
6. Sufficiency of the Evidence
¶ 30. Manning contends that the evidence presented at his trial was only sufficient as a matter of law to support a conviction for manslaughter, not murder, and the case should be reversed and remanded to the trial court for re-sentencing on manslaughter or in the alternative, reversed and remanded for a new trial on the merits.
¶ 31. Our supreme court has held on many occasions that, "[w]hen reviewing a challenge to the sufficiency of the evidence, [the appellate court] considers all of the evidence in the light most consistent with the verdict, giving the State the benefit of all inferences favorable to the verdict. When the evidence before the jury is such that reasonable jurors could have found the defendant guilty, the verdict is beyond our authority to disturb." Taylor v. State, 672 So. 2d 1246, 1255 (Miss.1996).
¶ 32. On the basis of the medical testimony alone, that Hilliard was shot at a time when she had her back to Manning, we are compelled to find that any reasonable juror could have found Manning guilty; therefore, the verdict is beyond our authority to disturb.
¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SENTENCE TO RUN CONSECUTIVELY TO ANY OTHER SENTENCES IMPOSED BY ANY OTHER COURT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569915/ | 29 So. 3d 298 (2010)
DELMAR
v.
STATE.
No. 2D09-4553.
District Court of Appeal of Florida, Second District.
February 17, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569913/ | 29 So. 3d 1217 (2010)
STATE of Florida, Appellant,
v.
Darion A. CARTER, Appellee.
No. 2D08-5449.
District Court of Appeal of Florida, Second District.
March 19, 2010.
*1218 Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
James F. Manderscheid, Gulfport, for Appellee.
KELLY, Judge.
The State appeals an order that dismissed the information against Darion Carter after the State was unable to produce the confidential informant who was present when Carter sold cocaine to an undercover police officer. In support of his claim that he was entitled to disclosure of the informant's identity, Carter filed a motion[1] stating: (1) the informant was "not only a material fact witness and potentially an exculpatory witness, but is a witness to the events that are alleged as probable cause for the arrest of the defendant"; and (2) disclosure is "essential to the preparation of [his] defense of misidentification." Based on these allegations, the trial court ordered the State to produce *1219 the informant for an in-camera hearing. When the State was not able to produce the informant, the trial court dismissed the charges against Carter.
The State has the privilege to withhold the identity of a confidential informant, and the defendant has the burden to show why disclosure should be compelled. State v. Borrego, 970 So. 2d 465 (Fla. 2d DCA 2007). The State's privilege of nondisclosure may be overcome if the State plans to call the informant as a witness at trial or when disclosure is "`essential to a fair determination of the cause at issue.'" Id. at 467 (quoting McCray v. State, 730 So. 2d 817, 817 (Fla. 2d DCA 1999)); see also Fla. R.Crim. P. 3.220(g)(2). Carter contends disclosure is essential to his ability to establish his defense of misidentification.
"When asserting that disclosure of information is necessary to establish a specific defense, `[t]he defendant must make a preliminary showing of the colorability of the defense prior to disclosure.'" Bailey v. State, 994 So. 2d 1256, 1257 (Fla. 2d DCA 2008) (quoting State v. Hernandez, 546 So. 2d 761, 762 (Fla. 2d DCA 1989)). If a defendant files a sworn motion or affidavit alleging facts regarding the informant's involvement that, if true, would support the possibility of a legally cognizable defense, before ordering disclosure, the trial court is required to conduct an in-camera hearing to consider the necessity of the informant's testimony and the State's interest in nondisclosure. Id., State v. Zamora, 534 So. 2d 864, 869 (Fla. 3d DCA 1988). On the other hand, if a defendant fails to make that initial showing, an in-camera hearing is not required. Munford v. State, 343 So. 2d 67 (Fla. 2d DCA 1977), quashed on other grounds, 357 So. 2d 706 (Fla.1978); see also Zamora, 534 So.2d at 869.
Carter failed to make the initial showing that would have triggered the need for an in-camera hearing. His motion was devoid of facts and in no way demonstrates that he may have a colorable claim of misidentification. Compare State v. Carnegie, 472 So. 2d 1329, 1330 (Fla. 2d DCA 1985) with McCray, 730 So.2d at 817. In addition, the record indicates that the transaction was videotaped by law enforcement, a fact that suggests the informant's testimony would not be material to Carter's defense. Finally, Carter's bare allegation that the informant is a "potentially exculpatory witness" is entirely speculative and hence insufficient to otherwise establish that the informant's testimony is essential to a fair determination of the cause. See State v. Mashke, 577 So. 2d 610, 612 (Fla. 2d DCA 1991) (holding that mere speculation that an informant's testimony would be useful is insufficient to overcome the State's privilege of nondisclosure).
The trial court erred when it ordered the State to produce the confidential informant for an in-camera hearing. Accordingly, we reverse the order dismissing the information and remand with instructions to reinstate the charges against Carter.
Reversed and remanded.
DAVIS, J., and FULMER, CAROLYN K., Senior Judge, Concur.
NOTES
[1] In its brief, the State points out that Carter's motion was not properly sworn. While we agree, we note that the State did not object in the trial court; thus, this point is not preserved for appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569952/ | 271 S.W.2d 600 (1954)
PRINCETON STATE BANK (Interpleader) Frank Wayman, Administrator of the Estate of Coleman Wayman, Deceased, and Anna Wayman, Frank Wayman, Administrator of the Estate of Coleman Wayman, Deceased, Appellant,
v.
Anna WAYMAN, Respondent.
No. 22078.
Kansas City Court of Appeals. Missouri.
October 4, 1954.
*601 John E. Powell, Princeton, E. D. Morrison, Washington, Iowa, Don Chapman, Chillicothe, for appellants.
P. M. Marr, Milan, for respondent.
BROADDUS, Judge.
This suit was commenced on September 5, 1953, by the plaintiff, Princeton State Bank, filing a bill of interpleader in the Circuit Court of Mercer County. Frank Wayman, administrator of the estate of Coleman Wayman, deceased, and Anna Wayman were the named defendants. In said bill plaintiff asked the court to determine the ownership of a deposit of $6,686.65 in said bank standing in the name of "Coleman Wayman or Anna Wayman."
On September 3, 1953, Frank Wayman served written notice on the plaintiff Bank that as such administrator he claimed the account as an asset of the estate of Coleman Wayman.
On September 9, 1953, said administrator filed his interplea alleging that Coleman Wayman died intestate on August 15, 1953; that on March 3, 1948, said Coleman Wayman issued his check against his then bank account in the plaintiff bank in the sum of $10,536.70, payable to himself and Anna Wayman; that at the time said deposit was made it was not made by him in form to create a fund to pass to the survivor as provided by Section 7996, Revised Statutes of Missouri for 1939, the law then in force and effect, being Section 362.470 of the Statutes of 1949, V.A.M.S.; that at the time of said deposit or at any other time did the said Coleman Wayman ever issue any order in writing or otherwise, that the deposit or deposits should pass to the survivor of said joint account, nor did he ever at any time instruct any of the officers of said bank that said deposit was to pass to the survivor of said joint account and that, therefore, the balance of the joint account at the time of the death of Coleman Wayman, totalling $6,686.65, passed to the administrator of the estate of Coleman Wayman.
On October 5, 1953, Anna Wayman filed her interplea. In it, she alleged: "that this defendant and the said Coleman Wayman set up said account in the said Princeton State Bank for the purpose and with the intention to create a joint account to be payable to the said Coleman Wayman or this defendant, it being the intention of the said Coleman Wayman and this defendant for the survivor to be the owner of said balance, and said account was carried in said bank in the name of `Coleman Wayman or Anna Wayman' for that purpose, *602 this defendant starting the account with a deposit therein of her own personal money on the 3rd day of March, 1948, in the sum of $1789.75; that after said account was set up this defendant and the said Coleman Wayman both made numerous deposits to said account of their joint earnings from the farm on which she and the said Coleman Wayman lived and where she kept house and cared for the said Coleman Wayman for many years and through his last illness; that under the law this defendant is entitled to said account, and said sum is her absolute property."
On December 15, 1953, the case came on for trial. The court sustained the bank's bill of interpleader. It also rendered judgment in favor of Anna Wayman on her interplea and against Frank Wayman, administrator of the estate of Coleman Wayman, deceased, on his interplea, and found Anna Wayman to be the sole owner of the deposit and entitled to the balance$6,686.65. The administrator appealed.
The facts are that for many years Ed Wayman, Fred Wayman and Coleman Wayman and their sister, the respondent Anna Wayman, lived on a farm of 350 acres about three miles north of Princeton, Missouri. None of the Wayman brothers ever married. The respondent lived with them taking care of their home, an eight room house, doing their laundry, cooking, gardening, canning, and helping with their business affairs. The Wayman brothers carried their bank account in the Princeton State Bank as "Wayman Brothers." Ed and Fred died prior to 1948. Fred died first leaving all of his property to his brothers Coleman and Ed. Upon Ed's death Coleman became the owner of the Wayman Brothers' account. Anna and Coleman were living on the farm at the time of Coleman's death in August, 1953. Anna took care of her three single brothers during their last illness.
Coleman continued to carry his account in the plaintiff bank as "Wayman Brothers". The respondent Anna had her own personal account in said bank. On March 3, 1948, Anna went to the bank, and after conferring with the president and cashier, the joint account was set up in the names of "Coleman Wayman or Anna Wayman". The cashier, Bob Overton, prepared the form of the account.
Respondent Anna then by check transferred her entire personal account of $1,789.75 to the joint account. Mr. Overton, the cashier, then wrote out a check on Wayman Brothers account for the balance therein, $10,536.70, payable to Coleman Wayman or Anna Wayman, which check was signed by Coleman Wayman and returned to the bank for deposit in the joint account the next day, March 4, 1948. Neither Anna Wayman nor Bob Overton, cashier, nor John Robbins, president of plaintiff bank, were permitted to testify as to what was said by any of them at the time the joint account was set up. Their testimony in that regard was offered.
Until the death of Coleman Wayman in August, 1953, he and Anna Wayman both made deposits in the joint account including Anna's poultry, chicken and egg money, and both wrote checks thereon. Neither had any other account. For many years before and up to the time the joint account was opened Anna wrote checks on the old "Wayman Brothers" account. She offered in evidence 27 of these cancelled checks. There was no change in the manner of doing business after the joint account was set up.
In June, 1953, in a conversation with the family doctor, Dr. J. M. Perry of Princeton, Coleman Wayman said that he and Anna Wayman had a joint account and had it for some time. It was also shown that between the date of Coleman's death, August 15, 1953, and September 3, 1953 (the date appellant administrator gave notice of his claim) Anna drew five checks, totalling $977.79, on the joint account. These checks were honored by the plaintiff bank. One of them in the amount of $843.80 was for Coleman's funeral expenses.
Ten witnesses, neighbors of Anna and Coleman Wayman testified that Anna had lived with her said bachelor brothers on the farm for many years doing all the housework, *603 laundry, cooking, gardening, canning, sewing, raising chickens, and helping the brothers in their business affairs, and had cared for all three of them through their final sickness.
The appellant administrator contends that the court erred in finding that respondent, Anna Wayman, was the sole owner of the balance of the deposit "because the evidence does not show any intention to create a joint account which is payable on the death of Coleman to Anna."
The deposit to "Coleman Wayman or Anna Wayman" does not fall within the purview of Section 362.470 RSMo 1949, V.A.M.S. It was not in "form to be paid to either, or the survivor of them". Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081. Thus the presumption which that statute gives rise to that a deposit made within its purview becomes the property of the depositors as joint tenants with the attendant right of survivorship does not arise in the instant case. However, as the Murphy case says: "It may very well be that the depositor by the use of the words, `payable to herself or G. N. Wolfe,' intended the deposits to be paid to either or the survivor of them * * *." But there being no statutory presumption, the burden was upon respondent to show by a preponderance of the evidence that the deposits were made with the intention of creating a joint tenancy therein between Coleman Wayman and herself with the right of survivorship.
It seems to us that the only purpose in setting up the joint account was to fix it so that on the death of one it would pass to the other. That the bank whose cashier had set up the form of the account, so understood the arrangement is evidenced by the fact that after the death of Coleman it honored the checks written by Anna until it was stopped by appellant's notice of September 3rd. There is not a scintilla of evidence that the joint account was set up for any other purpose. Appellant says the account was set up "for convenience," presumably to enable Anna to write checks. There is no basis for that contention what-soever, because the evidence conclusively shows that Anna had been writing checks on the old account of "Wayman Brothers" for many years, and also making deposits therein, the same as Coleman had. They both did the same in the joint account after they merged their personal accounts therein. Thus there was no change in that respect.
In the case of Mississippi Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W.2d 58, 63, the surviving claimant, S. S. Smith, had helped the deceased Caroline Frank, open the joint account, as in the instant case, in the names of "S. S. Smith or Mrs. Caroline B. L. Frank." The court stated:
"The transaction appears from all the evidence to have borne the absolute and complete ratification of Mrs. Frank during the several years of its continuance, and, to say the least, is strongly indicative of her intention to make a completed gift and donation of the account, during her lifetime, to the respondent Smith, who acquiesced in the transaction * * *."
That statement so well applies to the case at bar. Anna helped get the joint account set up. Both made substantial initial deposits of their personal funds. The account had been in existence and used by both of them over five years at the time of Coleman's death. There was a complete ratification by Coleman during the said period. This, "to say the least, is strongly indicative of his intention to make a completed gift and donation of the account during his life time."
Last, but not least, we must keep in mind the situation that existed between Anna Wayman and her three bachelor brothers on that 350 acre farm. For many, many years she worked there, as testified to by ten prominent and responsible people of that community. Time took its toll, and in addition to everything else she did, she nursed her brothers Ed and Fred until the end came for them. Only she and Coleman were left there on the farm. What Anna had done for them we know that Coleman knew. We know he knew to whom he must *604 look for help and assistance in the home and on that farm as the shadows gathered for him. Anna had received nothing from the estates of Ed and Fred. It is reasonable to infer from all the facts and circumstances that Coleman Wayman entertained the view that he was morally, if not legally, obligated to Anna for the work she had done, for her ministrations and kindnesses and freely and willingly intended to reward her therefor by fixing a joint bank account so she could have the funds in case of his death. His statement to the old family doctor, Dr. J. M. Perry, in June before he died in August, 1953, that he and Anna had a joint account and had it for some time, is very revealing. The very statement made under the circumstances disclosed by Dr. Perry indicates beyond doubt that the fact of the joint account was of prime importance to Coleman and uppermost in his mind. Even if Coleman did not have a "proper conception of the legal meaning of a joint tenancy with all its necessary incidents," as appellant says, yet if he believed he had his bank account fixed jointly with Anna so that if he died she could draw it, that is sufficient. It is the intention that controls. When he told Dr. Perry about the joint account Dr. Perry remarked: "That's nice, that's a nice way to do business; that's the way my wife and I do business." Those men understood each other perfectly well. They both meant they had their business affairs fixed to take care of the survivor. That is the layman's common conception of that situation.
Appellant repeatedly states that the account was set up "for convenience only", but fails to state what convenience. There was no evidence that the account was set up for any convenience other than for the convenience of the survivor. It was not for the convenience of Anna to have a place to deposit her money, because she already had her own account she had used for that purpose for many years. Neither was it for the convenience of Coleman to have a place to deposit his money because he already had his own account used many years for that purpose. It was not for the purpose of enabling Anna to write checks on Coleman's account, because she had been doing that for many years before the joint account was opened.
In practically all of the many cases we have read on the subject the money in question belonged entirely to one of the depositors. We are impressed with the statement of the annotator in 48 A.L.R. 189 that: "A difference in principle exists, however, between a case in which the money belongs wholly to one of the parties, and a case in which it belongs in part to each. In the latter case there is a consideration for the agreement of each to place it in the joint account which is lacking where the money belongs wholly to one of the parties." (Emphasis ours.)
Why did Anna put her $1,789.75 into the joint account? What was the consideration? What "benefit or advantage," (as the cases defining "consideration" say) was she to receive? The one advantage the evidence points to was her right to receive the balance of the account in the event she survived her brother. There was no other.
Certainly it can be said that the only fair and reasonable conclusion to reach under all the facts and circumstances in this case is that Coleman and Anna, being the last ones left on the farm and very close to each other, sought to fix their separate accounts into one joint account so as to protect the survivor. If Coleman believed that he and Anna had a joint account "and had for a long time", as he told Dr. Perry, then he intended it that way, and for the obvious purpose of protecting the survivor. As we have said, there is no evidence of any other purpose, and the judgment of the learned trial court sustaining the interplea of Anna Wayman should be affirmed. It is so ordered.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569862/ | 29 So.3d 828 (2009)
Danny Allen WESTBROOK, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-KA-00436-COA.
Court of Appeals of Mississippi.
September 29, 2009.
Rehearing Denied December 15, 2009.
Certiorari Denied March 11, 2010.
*830 Leslie S. Lee, Jackson, attorney for appellant.
Office of the Attorney General, by John R. Henry, attorney for appellee.
Before MYERS, P.J., ISHEE and MAXWELL, JJ.
MYERS, P.J., for the Court.
¶ 1. Danny Allen Westbrook was convicted in the Harrison County Circuit Court of the murder of George Wayne Sharpe. He was sentenced to life in the custody of the Mississippi Department of Corrections *831 (MDOC). Aggrieved by his conviction and sentence, Westbrook appeals arguing that: (1) the weight and legally sufficiency of the evidence do not support his murder conviction; (2) the trial court erred in refusing his manslaughter jury instruction; (3) the jury was not properly instructed on the difference between culpable-negligence manslaughter and depraved-heart murder; (4) the trial court erred in refusing a self-defense jury instruction; and (5) he received ineffective assistance of counsel. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. During the early morning hours of August 22, 2006, Sharpe was a patron at Buddy's Inn (Buddy's) in Gulfport, Mississippi. Witnesses testified that Sharpe and a female customer were arguing at Buddy's over money. The argument escalated into Sharpe and the female customer yelling at each other. At this point, Westbrook, who was working as a bouncer at Buddy's, escorted Sharpe out of the establishment. Witnesses testified that Sharpe and Westbrook exchanged words while Sharpe was being escorted out, but no physical confrontation occurred.
¶ 3. Approximately twenty minutes later, two other patrons entered Buddy's and informed Westbrook that Sharpe was outside in Buddy's parking lot. Upon hearing this, Westbrook approached the bar and stated: "[I'm] going to jail tonight." He then retrieved a baseball bat that was located behind the bar inside Buddy's and proceeded outside of the bar.
¶ 4. Several witnesses followed Westbrook outside of the bar to see the events that were occurring. One of the witnesses testified that Westbrook approached Sharpe who was in his truck and pulled Sharpe out of the vehicle. Another witness testified that Sharpe stated, "you do not want any of this son," and began walking toward Westbrook. Westbrook then swung the baseball bat at Sharpe, striking him around the back of his neck and head. This caused Sharpe to fall into a huddled position. Westbrook struck Sharpe again in the back of the head causing him to fall to the ground. Testimony revealed that this blow likely split Sharpe's skull open. Westbrook proceeded to strike Sharpe a third time in the head, which caused him to fall flat on the ground.
¶ 5. Witnesses testified that Westbrook reentered Buddy's after pummeling Sharpe and gave the baseball bat to the bartender, who took it into a back room at Buddy's. Westbrook warned one of the witnesses that she did not see anything. Several minutes passed before anyone called the police to report what had occurred outside Buddy's.
¶ 6. The police and paramedics arrived and transported Sharpe to the local hospital. Dr. Paul McGarry, an expert in forensic pathology, performed the autopsy on Sharpe's body. He testified that Sharpe was rendered brain dead on the day of the attack, but was placed on a ventilator until his passing on August 24, 2006. He also testified that Sharpe received three blows to the head-two to the left side of his head and one on the right side. He stated these blows were severe enough to cause injury and bleeding on the opposite side of the head from where the actual blow occurred. He concluded that Sharpe's cause of death was blunt head injuries causing a laceration of the scalp, a fracture of the skull, bruising of the brain, internal bleeding inside the head, and massive brain swelling.
¶ 7. Investigators with the Gulfport Police Department arrived on the scene the morning of the attack and began investigating the crime. Several witnesses identified Westbrook as the person who had *832 beaten Sharpe. This led to Westbrook being arrested and subsequently indicted for the murder of Sharpe. After a two-day jury trial, Westbrook was convicted of murder and sentenced to life in the custody of the MDOC. Westbrook filed a post-trial motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial; the trial court denied this motion. Westbrook timely filed this appeal.
STANDARD OF REVIEW
¶ 8. "[O]ur authority to interfere with a jury's verdict is limited[.] [W]e must view the evidence in the light most consistent with the verdict, and we must give the prosecution `the benefit of all favorable inferences that may reasonably be drawn from the evidence.'" Killen v. State, 958 So.2d 172, 174(¶ 3) (Miss.2007) (citations omitted).
DISCUSSION
I. LEGAL SUFFICIENCY AND WEIGHT OF THE EVIDENCE
¶ 9. Westbrook argues the legal sufficiency and the weight of the evidence do not support his murder conviction. We will address each argument separately.
A. Legal Sufficiency
¶ 10. In Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005), our supreme court established our standard of review regarding the legal sufficiency of evidence:
[T]he critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Citations omitted). "[I]f a review of the evidence reveals that it is of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id. (citations omitted).
¶ 11. Upon our review of the record, we find the evidence established the elements of murder beyond a reasonable doubt. Westbrook armed himself with a baseball bat with the intent to cause serious bodily injury or death to Sharpe and struck an unarmed Sharpe in the head three times with the baseball bat, the first of which would have knocked him unconscious and defenseless. These actions resulted in Sharpe's death.
¶ 12. Westbrook also argues that his actions amounted to justifiable homicide under Mississippi Code Annotation section 97-3-15(1)(e) and (3) (Rev. 2006). He states that the trial court should have given a justifiable homicide jury instruction sua sponte because it was readily apparent from the record that he was entitled to such instruction. However, "the trial court has no affirmative duty to offer jury instructions sua sponte or to suggest instructions for the parties to consider." McGregory v. State, 979 So.2d 12, 18(¶ 12) (Miss.Ct.App.2008) (Citing Giles v. State, 650 So.2d 846, 854 (Miss.1995)). "[N]o error may be predicated upon the Court's refusal to give an instruction defense *833 counsel never requested." Williams v. State, 566 So.2d 469, 472 (Miss.1990).
¶ 13. Lastly, Westbrook argues that his actions were justifiable under the "Castle Doctrine." See Miss.Code Ann. § 97-3-15(3) (Rev.2006) ("A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling . . . or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, . . . business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person's will from that dwelling, . . . business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred"). Westbrook argues that, as an employee of Buddy's, he had the right to defend Buddy's property.
¶ 14. We disagree. In Lester v. State, this Court noted the following:
The law regarding defense of habitation is not such that a mere trespasser, having been once warned to vacate the premises, may thereafter be killed by the premises' owner with impunity if he fails to leave the property soon enough to satisfy the desires of the owner. The law contemplates, rather, that deadly force may only be employed to repel a trespasser who demonstrates the apparent purpose of assaulting or offering violence to an occupant or committing some other crime on the premises.
862 So.2d 582, 585(¶ 11) (Miss.Ct.App.2004) (citing Bowen v. State, 164 Miss. 225, 227, 144 So. 230, 232 (1932)).
¶ 15. The evidence showed that Sharpe was not "in the process of unlawfully and forcibly entering, or had unlawfully and forcibly" entered Buddy's when Westbrook began attacking Sharpe. Moreover, there was no evidence that Sharpe was going commit an assault, offer violence to an occupant of Buddy's, or commit some other crime on the premises while he was in the parking lot at Buddy's. The evidence only established that Sharpe in the parking lot, unarmed, when Westbrook began attacking him. Therefore, we find that Westbrook's killing of Sharpe cannot be justified under the "Castle Doctrine." Accordingly, this issue is without merit.
B. Weight of the Evidence
¶ 16. In determining whether a jury's verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence that supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Brown v. State, 995 So.2d 698, 702(¶ 13) (Miss.2008). During such an inquiry, we afford the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. Reversal on these grounds is appropriate only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id.
¶ 17. Westbrook argues that his actions were spontaneous and not premeditated, which would support a manslaughter conviction. He cites to several cases involving "juke-joint killings" where the supreme court has reversed a murder conviction and remanded the case for resentencing for manslaughter.
*834 ¶ 18. The cases cited by Westbrook are distinguishable from the current factual scenario. In Dedeaux v. State, 630 So.2d 30, 31 (Miss.1993), witnesses gave conflicting statements between their testimony at trial and the statements they gave to police. Similarly, in Clemons v. State, 473 So.2d 943, 943 (Miss.1985), the court found the conflicting statements made it virtually impossible to reconstruct what happened on the night of the killing.
¶ 19. In the case at bar, the inconsistent statements are not to the same degree as the statements in Dedeaux and Clemons. There were inconsistent statements about whether Westbrook was inside or outside when he came to retrieve the bat, whether Sharpe fell to the ground after the first hit, and about Sharpe's position when Sharpe was struck the second time. There was also an inconsistent statement on whether Sharpe was standing, then walking toward Westbrook, or was pulled out of his truck before being struck by Westbrook. However, all of the witnesses testified that Westbrook struck an unarmed Sharpe in the head three times with a baseball bat.
¶ 20. "Conflicting testimony does not evince overwhelming evidence; [w]here the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty to resolve the conflict." Brown, 995 So.2d at 702(¶ 13) (citing Nicholson v. State, 523 So.2d 68, 71 (Miss.1988)). The jury heard the conflicting statements and resolved the statements in favor of the State.
¶ 21. Westbrook also cites two other cases involving "juke-joint" killings to support his assertion. In Wells v. State, 305 So.2d 333, 334 (Miss.1974), there were no eyewitnesses to the killing. Also, in Tait v. State, 669 So.2d 85, 87 (Miss.1996), the defendant was found sobbing and holding the victim, saying, "I killed him. Oh, my God, I killed him. I shot him."
¶ 22. Unlike the factual scenario in Wells, three eyewitnesses testified that they saw Westbrook strike Sharpe in the head three times with the baseball bat. Contrary to Tait, Westbrook was not conciliatory after the attack occurred. Witnesses testified that Westbrook re-entered Buddy's after the attack and warned the eyewitnesses that "they did not see anything." When the police arrived at Buddy's, Westbrook denied ever touching Sharpe.
¶ 23. Westbrook armed himself with a baseball bat and attacked Sharpe, who, all eyewitnesses testified, was unarmed. Dr. McGarry stated the first blow to Sharpe's head would have rendered him unconscious, yet Westbrook continued to strike Sharpe two more times. Given the evidence presented, we find that Westbrook's murder conviction does not sanction an unconscionable injustice. This issue is without merit.
II. REFUSAL OF WESTBROOK'S MANSLAUGHTER JURY INSTRUCTION
¶ 24. Westbrook proffered jury instruction D-19, which stated:
The Court instructs the jury that under the law of the State of Mississippi, the offense of Manslaughter has been defined as:
to unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed,
or the
killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without *835 authority of law, and not in necessary self-defense,
or as
every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law.
This instruction encompasses three different manslaughter theories: heat-of-passion manslaughter, resisting an effort to commit felony or an unlawful act, and culpable-negligence manslaughter.[1] We will address each theory separately.
¶ 25. The supreme court in Wallace v. State, 10 So.3d 913, 916(¶ 9) (Miss.2009) (citations omitted) set out our standard of review for jury instructions as follows:
The Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole. A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
A. Heat-of-Passion Manslaughter
¶ 26. Heat-of-passion manslaughter is defined as:
a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
McCune v. State, 989 So.2d 310, 319(¶ 15) (Miss.2008) (citations omitted). Westbrook argues that the court should have allowed a heat-of-passion jury instruction because: Sharpe and Westbrook had a verbal argument while Sharpe was getting escorted out of Buddy's; Sharpe was loud and aggressive; and Sharpe was allegedly walking toward Westbrook immediately prior to Westbrook's hitting Sharpe with the baseball bat.
¶ 27. As stated above, Sharpe and Westbrook exchanged words while Sharpe was being escorted out of the bar by Westbrook. Our supreme court has stated that "words alone and disagreements among people are not enough to invoke the passion required for this defense. Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter." Phillips v. State, 794 So.2d 1034, 1037(¶ 10) (Miss. 2001) (citations omitted). Therefore, the fact that Westbrook and Sharpe exchanged words while Sharpe was being escorted out of the bar, and possibly prior to the attack, is insufficient to warrant a heat-of-passion jury instruction.
¶ 28. There was also conflicting testimony on whether Sharpe was walking toward Westbrook prior to being hit, and whether Sharpe was sitting or standing. However, this Court has also found that "[p]ushing or shoving is also insufficient to require the [heat-of-passion] instruction absent testimony that the defendant was acting out of violent or uncontrollable rage." Burton v. State, 999 So.2d 379, *836 382(¶ 11) (Miss.Ct.App.2008). Assuming that Sharpe was walking toward Westbrook when Westbrook exited the bar, there was no evidence presented that Westbrook was in a state of violent or uncontrollable rage.
¶ 29. Additionally, when a defendant arms himself prior to an encounter with the victim and in preparation for an encounter with the victim, a heat-of-passion defense will not be supported. Dizon v. State, 749 So.2d 996, 1003(¶ 37) (Miss. 1999) (Smith, J., dissenting). Upon learning that Sharpe was still outside Buddy's, Westbrook went behind the bar, stated that he was going to jail that night, armed himself with a baseball bat, walked directly outside, and attacked Sharpe with the baseball bat. Westbrook clearly intended to attack Sharpe with the baseball bat when he learned that Sharpe was still outside Buddy's. He had sufficient time to contemplate hitting Sharpe, which evidences a deliberate design murder, not heat-of-passion manslaughter. See Givens v. State, 967 So.2d 1, 12(¶ 34) (Miss.2007). Accordingly, the trial court did not err in refusing Westbrook's proffered jury instruction for heat-of-passion manslaughter.
B. Justifiable Homicide
¶ 30. Westbrook argues the trial court erred in refusing a justifiable-homicide jury instruction. Mississippi Code Annotated section 97-3-31 (Rev.2006) states that an "unnecessary killing, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed," is manslaughter. Westbrook states that Sharpe was trespassing on Buddy's property after being removed from the bar, constituting an unlawful act. Westbrook argues that this trespassing gave him the right to resist the unlawful act, making Sharpe's death manslaughter rather than murder.
¶ 31. The supreme court has ruled that in order for this section to be applicable, the killing must be done while resisting an attack by the deceased which is done without malice or premeditated design. Wells, 305 So.2d at 336.
¶ 32. Here, as we stated above, this Court cannot say that this killing was done without malice or premeditated design. After hearing that Sharpe was outside Buddy's, Westbrook went behind the bar, grabbed a baseball bat, stated that he was going to jail that night, and went outside and attacked Sharpe. This evidences a malicious intent and a premeditated design to attack Sharpe with the baseball bat.
¶ 33. Additionally, malice or deliberate design may be inferred from the use of a deadly weapon. Phillips, 794 So.2d at 1037(¶ 11) (citations omitted). This Court has stated that a baseball bat can be deemed a deadly weapon, especially when used in the manner as it was used by Westbrook. See McLarty v. State, 842 So.2d 590, 593(¶ 12) (Miss.Ct.App.2003); Adams v. State, 726 So.2d 1275, 1278(¶ 6) (Miss.Ct.App.1998).
¶ 34. Accordingly, the trial court did not err in refusing to give a justifiable-homicide jury instruction when Westbrook acted with malice and a premeditated design in striking Sharpe.
C. Culpable-Negligence Manslaughter
¶ 35. After the judge and both attorneys engaged in a long discussion about which forms of manslaughter could be read to the jury, the court asked Westbrook's attorney which form of manslaughter he wanted the jury to be instructed on, to which Westbrook's attorney answered culpable-negligence manslaughter. On appeal, Westbrook argues that the trial court *837 compelled him into choosing culpable-negligence manslaughter over the other two manslaughter instructions. This, he argues, is reversible error.
¶ 36. On our review of the record, we do not find that Westbrook's attorney was compelled into selecting culpable-negligence manslaughter as his form of manslaughter instruction. When the trial court began discussing proffered jury instruction D-19, the prosecutor stated he did not think the evidence supported a manslaughter instruction. The trial court disagreed and a conversation ensued about culpable-negligence manslaughter, heat-of-passion manslaughter, and depraved-heart murder. The trial court did state that it believed the facts supported a culpable-negligence manslaughter jury instruction in place of a heat-of-passion manslaughter jury instruction. The following exchange subsequently took place:
[The Court]: [Do] you want a lesser included manslaughter [jury instruction]?
[Westbrook's attorney]: Yes, sir.
[The Court]: Under which subsection? Every other killing?
[Westbrook's attorney]: Every other killing.
[The Court]: Culpable negligence?
[Westbrook's attorney]: Yes, sir.
The trial court then instructed Westbrook's attorney to prepare a jury instruction outlining the elements for culpable-negligence manslaughter.
¶ 37. The trial court gave Westbrook's attorney the option of choosing which manslaughter instruction he wanted to be given to the jury. His attorney could have selected any other form of manslaughter that was supported by the evidence. He chose culpable-negligence manslaughter, which was given to the jury. We do not find that Westbrook's attorney was compelled or forced into choosing a culpable-negligence manslaughter instruction. Accordingly, this issue is without merit.
III. DEPRAVED-HEART MURDER AND CULPABLE-NEGLIGENCE MANSLAUGHTER
¶ 38. Westbrook argues the court's jury instruction on depraved-heart murder and culpable-negligence manslaughter did not properly and completely state and explain the law, conflicted with each other, and confused the jury. He argues this violated his Fifth, Sixth, and Fourteenth Amendment to the United State Constitution.
¶ 39. Mississippi Code Annotated section 97-3-19(1)(b) (Rev.2006) defines depraved-heart murder as a killing that is "done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual."
¶ 40. "Culpable negligence is defined in [Mississippi Code Annotated section] 97-3-47 as negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life." Hurns v. State, 616 So.2d 313, 320 (Miss.1993).
¶ 41. "Depraved-heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied." Windham v. State, 602 So.2d 798, 801 (Miss.1992).
¶ 42. Upon reading the jury instructions as a whole, we find the jury was properly informed on depraved-heart murder and culpable-negligent manslaughter. The court gave depraved-heart murder jury instruction S-4 which stated that if *838 the jury found that Westbrook killed Sharpe "while engaged in the commission of an act eminently dangerous to others and evincing a depraved heart, disregarding the value of human life, whether or not he had any intention of actually killing . . . Sharpe," then the jury should find Westbrook guilty of murder. Jury instruction D-51 defined culpable negligence as the "conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the willful creation of an unreasonable risk thereof. It is negligence of a degree so gross as to be tantamount to a wanton disregard of or utter indifference to the safety of human life."[2] This jury instruction was given in addition to D-50-A, which was a culpable-negligence manslaughter instruction. Accordingly, we find the jury instructions given fully explained the difference between depraved-heart murder and culpable-negligence manslaughter. This issue is without merit.
IV. SELF-DEFENSE JURY INSTRUCTIONS
¶ 43. Westbrook argues that the trial court erred in refusing his self-defense jury instructions. Westbrook states the jury could have reasonably found that he acted in self-defense because: (1) Sharpe was physically larger than Westbrook; (2) one witness stated that Sharpe was being "loud and aggressive;" and (3) one witness testified that Sharpe stated, "you do not want any of this son," and began walking toward Westbrook.
¶ 44. However, Westbrook's counsel withdrew his request to instruct the jury on self-defense and, thus, waived Westbrook's right to attack the denial of the instructions on appeal. Turner v. State, 910 So.2d 598, 603(¶ 19) (Miss.Ct.App. 2005). Procedural bar aside, there was insufficient evidence to support a self-defense instruction. Witnesses testified that Sharpe was either sitting in his truck, standing still, or walking toward Westbrook prior to Westbrook hitting Sharpe. All the witnesses testified that Sharpe was unarmed prior to the attack. Westbrook's strike completely incapacitated Sharpe, leaving him defenseless for the other two blows to his head. Therefore, we find that there was no evidentiary basis for the trial court to grant a self-defense jury instruction. This issue is without merit.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 45. "In order to prevail on the issue of whether his defense counsel's performance was ineffective, [the petitioner] must prove that his counsel's performance was deficient and that he was prejudiced by counsel's mistakes." Kinney v. State, 737 So.2d 1038, 1041(¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "There is a strong but rebuttable presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). Additionally, a petitioner is required to "allege both prongs of the above test with specific detail." Coleman v. State, 979 So.2d 731, 735(¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).
¶ 46. Westbrook offers a plethora of reasons why his attorney rendered ineffective assistance of counsel. We dismiss many of Westbrook's assertions as being part of defense counsel's trial strategy: counsel did not make an opening statement; counsel failed to call witnesses; counsel failed to inform the trial court that Westbrook did not have a criminal record; and counsel stated that Westbrook "killed the situation" in his closing argument. See *839 Bennett v. State, 933 So.2d 930, 943(¶ 36) (Miss.2006); Bolton v. State, 734 So.2d 307, 309-10(¶ 5) (Miss.Ct.App.1999).
¶ 47. Westbrook also claims that his counsel was ineffective because he did not adequately explain the law of self-defense to him. However, Westbrook does not offer any support for his proposition besides his assertion. Our supreme court has stated that in order for an appellate court to address a claim of ineffective assistance of counsel on direct appeal, the record must be fully developed to support the assertion. Wilcher v. State, 863 So.2d 776, 825 (¶ 171) (Miss.2003). Therefore, because the record does not provide any support for Westbrook's claim that his counsel failed to sufficiently explain the law of self-defense to him, this Court will not address the argument. See M.R.A.P. 22(b).
¶ 48. Westbrook also argues that his counsel was ineffective because he did not submit a manslaughter jury instruction based upon mutual combat. There was no evidence presented that Westbrook and Sharpe were engaged in mutual combat at the time Westbrook brutally beat Sharpe. Witnesses testified that, when Sharpe was being removed from the bar, there was only a verbal exchange, and no physical exchange took place. Witnesses also testified that, at most, Sharpe was walking toward Westbrook when Westbrook first struck Sharpe, but Sharpe was not carrying anything in his hands when he approached Westbrook in the parking lot. Witnesses testified that Sharpe did not try to fight back once attacked by Westbrook. Dr. McGarry's testimony indicated that the initial blow Sharpe received would have knocked him unconscious, leaving him defenseless. We cannot see how Westbrook and Sharpe could have been engaged in mutual combat given these facts. Accordingly, Westbrook's counsel was not ineffective for failing to submit a manslaughter jury instruction on mutual combat when there was no evidence to support such an instruction.
¶ 49. The remaining assertions by Westbrook that his counsel was ineffective have been addressed in previous issues in this opinion, and we find that they are matters of trial strategy: defense counsel did not present manslaughter theories to the jury; defense counsel did not submit proper jury instructions on culpable-negligence manslaughter and depraved-heart murder; defense counsel withdrew a self-defense jury instruction, defense counsel failed to submit a justifiable-homicide jury instruction. See Myhand v. State, 981 So.2d 988, 992(¶ 10) (Miss.Ct.App.2007) (the decision whether to request certain jury instructions is a matter of trial strategy).
¶ 50. Westbrook also argues the aggregate effect of these alleged errors results in a cumulative error that requires a reversal of his conviction. However, where no error by trial counsel can be found in these individual instances, a cumulative error cannot exist. See Gray v. State, 887 So.2d 158, 173(¶ 44) (Miss.2004). Accordingly, this issue is without merit.
¶ 51. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] Contrary to Westbrook's assertion in his brief, proffered jury instruction D-19 only contains three theories of manslaughter, not four theories. An imperfect self-defense theory was not submitted in D-19. See Chandler v. State, 946 So.2d 355, 362(¶ 29) (Miss.2006) (citations omitted) (explaining the imperfect self-defense jury instruction).
[2] D-51 is marked as refused in the record. However, the trial transcript and the parties' briefs lead us to conclude that D-51 was, in fact, given. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569971/ | 29 So. 3d 298 (2010)
DOUGLAS
v.
STATE.
No. 2D09-3669.
District Court of Appeal of Florida, Second District.
February 24, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454639/ | 259 P.3d 750 (2011)
STATE
v.
GWALTNEY.
No. 105531.
Court of Appeals of Kansas.
September 16, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1569981/ | 722 N.W.2d 237 (2006)
271 Mich. App. 409
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
James John GIOVANNINI, Defendant-Appellant.
Docket No. 261017.
Court of Appeals of Michigan.
Submitted June 7, 2006, at Detroit.
Decided June 20, 2006, at 9:00 a.m.
Released for Publication October 5, 2006.
*238 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Valerie M. Steer, Assistant Prosecuting Attorney, for the people.
John J. Holler III, Wyandotte, for the defendant.
Before: COOPER, P.J., and NEFF and BORRELLO, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted from sentences of five years' probation imposed for plea-based convictions of second-degree home invasion, MCL 750.110a(3), in each of two separate cases. At issue is whether the trial court erred in ruling that it was precluded from sentencing defendant under the Youthful Trainee Act (YTA), MCL 762.11 et seq., on the basis that defendant was convicted of more than one criminal offense. We hold that defendant was not ineligible for sentencing under the YTA solely because he was convicted of two criminal offenses. We therefore *239 reverse and remand for reconsideration of defendant's YTA request.
I. Background
Defendant was involved in a series of home invasions, culminating in a second-degree home invasion charge against defendant and another youth for an incident that occurred on August 19, 2003. Defendant was also separately charged with second-degree home invasion for an incident that occurred on August 14, 2003. The lower court records indicate that defendant was 17 years old when he committed the offenses.
Defendant sought to plead guilty in both cases and request assignment as a youthful offender under the YTA. The prosecutor objected, arguing that defendant was ineligible for sentencing under the YTA because his case involved more than one offense, contrary to the YTA statutory language that referred to "a criminal offense" and "the criminal offense" in the singular. The trial court reluctantly agreed on the basis that the Michigan Supreme Court had vacated in part People v. Harns, 227 Mich.App. 573, 576 N.W.2d 700 (1998) (Harns I), in which this Court concluded that the references in the singular in the YTA were not jurisprudentially significant and thus a defendant convicted of more than one crime may be placed on YTA status. People v. Harns, 459 Mich. 895, 587 N.W.2d 504 (1998) (Harns II). The trial court expressly stated that were it permitted to do so, it would grant defendant youthful trainee status.
II. Standard of Review
This Court reviews for an abuse of discretion a trial court's decision concerning a defendant's assignment under the YTA. People v. Bobek, 217 Mich.App. 524, 532, 553 N.W.2d 18 (1996); People v. Fitchett, 96 Mich.App. 251, 254, 292 N.W.2d 191 (1980).
Statutory interpretation is a question of law that is reviewed de novo on appeal. Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 62, 642 N.W.2d 663 (2002); Bobek, supra at 528, 553 N.W.2d 18. "In interpreting the YTA, our goal is to ascertain and give effect to the Legislature's intent. Statutory language should also be construed reasonably, keeping in mind the purpose of the act." Bobek, supra at 528, 553 N.W.2d 18 (citations omitted).
III. Analysis
"The YTA offers a mechanism by which youths charged with committing certain crimes between their seventeenth and twenty-first birthdays may be excused from having a criminal record." Bobek, supra at 528-529, 553 N.W.2d 18. This remedial legislation was "designed to alleviate problems with young offenders by permitting the use of rehabilitation procedures prior to conviction . . . ." People v. Perkins, 107 Mich.App. 440, 444, 309 N.W.2d 634 (1981). The act establishes an administrative procedure exercisable at the discretion of the trial judge when requested to do so by the affected youth. People v. Bandy, 35 Mich.App. 53, 58, 192 N.W.2d 115 (1971).
At the time defendant sought assignment under the YTA, the act provided, in pertinent part:[1]
If an individual pleads guilty to a charge of a criminal offense, other than a felony for which the maximum punishment is life imprisonment, a major controlled substance offense, or a traffic offense, committed on or after the individual's seventeenth birthday but before *240 his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee.... [MCL 762.11.]
The question raised is whether the statutory references to "a criminal offense" and "the criminal offense" in the singular preclude assignment under the YTA for a youthful defendant who pleads guilty of more than one offense. "This Court should first look to the specific statutory language to determine the intent of the Legislature," which "is presumed to intend the meaning that the statute plainly expresses." Institute in Basic Life Principles, Inc. v. Watersmeet Twp. (After Remand), 217 Mich.App. 7, 12, 551 N.W.2d 199 (1996). If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Id.; Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135-136, 545 N.W.2d 642 (1996). Statutory language is to be given its ordinary and generally accepted meaning, although if the statute defines a given term, that definition is controlling. Tryc, supra at 135-136, 545 N.W.2d 642.
Contrary to the prosecutor's argument, we do not find that the statute clearly and unambiguously limits granting youthful trainee status to those defendants who have committed a single offense. Because the provision necessarily includes placement for defendants who commit only a single offense, references to "criminal offenses" in the plural would not comport with the substantive intent of the act and would be grammatically cumbersome. Likewise, there is no language referring to more than one criminal offense. The statute is therefore ambiguous and subject to interpretation.
A. Harns II as Precedent
In Harns I, this Court held that despite references to "a criminal offense" and "the criminal offense," a defendant who pleads guilty of more than one offense is eligible for YTA consideration. Harns I, supra at 577-578, 576 N.W.2d 700. The Court further held that because the statute refers to a guilty plea, a defendant who pleads no contest is ineligible for YTA consideration. Id. at 579-580, 576 N.W.2d 700.
On appeal, the Supreme Court vacated the portion of this Court's opinion addressing one versus more than one conviction, finding it "unnecessary for the Court of Appeals to address this issue in light of its conclusion that the defendant could not be placed on Youthful Trainee Act status because he pled nolo contendere instead of guilty." Harns II, supra at 895, 587 N.W.2d 504.
To the extent the trial court determined that Harns II precluded it from finding defendant eligible for YTA status, it erred. Supreme Court orders that include a decision with an understandable rationale establish binding precedent. People v. Crall, 444 Mich. 463, 464 n. 8, 510 N.W.2d 182 (1993); People v. Phillips (After Second Remand), 227 Mich.App. 28, 38 n. 11, 575 N.W.2d 784 (1997). When the Supreme Court vacated the relevant portion of Harns I, it did not express agreement or disagreement with this Court's analysis or otherwise address the merits of the issue. Rather, the Supreme Court determined that consideration of the issue was unnecessary. Thus, the Supreme Court's order cannot be understood as expressing an opinion on how the issue should be decided.
This Court's decision in Harns I also no longer has precedential effect, because "[a] Court of Appeals opinion that has been vacated by the majority of the *241 Supreme Court without an expression of approval or disapproval of this Court's reasoning is not precidentially binding." People v. Akins, 259 Mich.App. 545, 550 n. 8, 675 N.W.2d 863 (2003). Thus the issue raised by defendant was essentially one of first impression, id. at 551, 675 N.W.2d 863, leaving the trial court free to decide the issue itself.
B. Ruling on the Merits
If Harns II were the only basis for the trial court's decision, a proper remedy would be to remand the case and permit the court to decide the issue in the first instance. Appellate review is generally limited to issues raised before and decided by the trial court. Fast Air, Inc. v. Knight, 235 Mich.App. 541, 549, 599 N.W.2d 489 (1999). However, this Court may consider an unpreserved issue "if the question is one of law and all the facts necessary for its resolution have been presented or where necessary for a proper determination of the case." Providence Hosp. v. Nat'l Labor Union Health & Welfare Fund, 162 Mich.App. 191, 194-195, 412 N.W.2d 690 (1987) (citations omitted).
In the relevant portion of its opinion, Harns I, supra at 577-578, 576 N.W.2d 700, the Court stated:
The Legislature has provided us with the necessary rule of statutory construction to decide this issue. MCL 8.3b; MSA 2.212(2) provides in pertinent part: "Every word importing the singular number only may extend to and embrace the plural number, and every word importing the plural number may be applied and limited to the singular number." See Empire Iron Mining Partnership v. Orhanen, 455 Mich. 410, 428, 565 N.W.2d 844 (1997); Crowley-Milner & Co. v. Macomb Circuit Judge, 239 Mich. 605, 615, 215 N.W. 29 (1927). Thus, the phrases "a criminal offense," or "the criminal offense," can be construed to mean "criminal offenses."
Furthermore, if the Legislature had meant to exclude individuals with more than one conviction from participation in the YTA, it could easily have done so. Where the Legislature has intended to limit similar measures to individuals who are charged or plead guilty of only one offense, it has expressly said so. The general expunction statute applies to "a person who is convicted of not more than 1 offense...." MCL 780.621; MSA 28.1274(101)(1). Likewise, the expunction statute in the Public Health Code states: "There may be only 1 discharge and dismissal under this section as to an individual." MCL 333.7411; MSA 14.15(7411)(1). The omission of similar language from the YTA indicates that the Legislature did not intend to exclude youthful offenders with more than one conviction from participation.2
2 We note in passing that there are a number of reported cases in which a defendant who was charged with more than one offense was assigned to, or found to be eligible for, YTA status. See, e.g., People v. Mahler, 156 Mich.App. 799, 402 N.W.2d 93 (1986); People v. Cochran, 155 Mich.App. 191, 399 N.W.2d 44 (1986); People v. Bracey, 124 Mich.App. 401, 335 N.W.2d 49 (1983); People v. Wilson, 97 Mich.App. 579, 296 N.W.2d 110 (1980); People v. Bandy, 35 Mich.App. 53, 192 N.W.2d 115 (1971). We recognize that this precise issue was not addressed in these cases. Nevertheless, the fact that the Legislature remained silent after the release of these cases suggests that it did not object to an interpretation of the YTA that permitted youthful trainee status to be granted to individuals that were convicted of more than one offense. See Craig v. Larson, 432 Mich. 346, 353, 439 N.W.2d 899 (1989).
We find the reasoning in Harns I a sound basis for declining to read a substantive *242 limitation into the YTA with respect to the references to the phrase "criminal offense." We agree that had the Legislature intended the references as a substantive limitation on eligibility under the YTA, the limitation would have been expressly stated, and not left to conjecture.
Further, we conclude that such a limitation would not be in keeping with the clear discretion granted a trial court in applying the YTA. A trial court has wide discretion in placing a youthful offender under the YTA, subject to review by the appellate courts. People v. Teske, 147 Mich.App. 105, 107-109, 383 N.W.2d 139 (1985); see also Bobek, supra at 531, 553 N.W.2d 18 (a court has discretion to amend a term of probation imposed under the YTA). The case law clearly reflects the trial courts' exercise of that discretion, and further reflects that the appellate courts have upheld decisions denying placement in appropriate cases in which YTA status was unwarranted because of the nature and severity of the offense and the circumstances of the offender. See, e.g., Teske, supra at 106-107, 383 N.W.2d 139 (trial court did not abuse its discretion in denying YTA status to armed robbery defendant with no prior convictions or criminal justice history and instead imposing a sentence of two to ten years' imprisonment); Fitchett, supra at 252, 254, 292 N.W.2d 191 (no abuse of discretion in denial of YTA status to defendant who pleaded guilty to breaking and entering an occupied dwelling with the intent to commit larceny, in exchange for dismissal of arson of a dwelling house charge, and in sentencing him to one to 15 years' imprisonment). This Court has also reversed the decision of the trial court if the exercise of its discretion was deemed to have been improper. See, e.g., Bobek, supra at 526, 531-532, 553 N.W.2d 18 (the trial court abused its discretion in terminating probation and YTA status of the defendant after 28 days of her two-year probationary term absent proof of rehabilitation). Interpreting MCL 762.11 to permit placement under the YTA only in cases involving a single offense would work contrary to the discretion invested in the trial court and to the overall purpose of the act. "The YTA is a remedial statute and should be construed liberally for the advancement of the remedy." Bobek, supra at 529, 553 N.W.2d 18.
IV. Disposition
Plaintiff argues that the trial court's denial of YTA status in this case should nonetheless be affirmed because defendant does not merit placement under the YTA given the nature of the crimes he has committed. Although the trial court indicated that it would grant YTA status to defendant if permitted by law, the trial court erroneously concluded that it was not permitted to do so. Because a court "by definition abuses its discretion when it makes an error of law," Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996), we remand this case to the trial court for a ruling on defendant's request for placement under the YTA.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
JESSICA R. COOPER, JANET T. NEFF and STEPHEN L. BORRELLO, JJ., concur.
NOTES
[1] The act was amended, effective October 1, 2004, to exclude individuals convicted of various criminal sexual conduct offenses or who are registered sex offenders. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570002/ | 271 S.W.2d 344 (1954)
Archle H. GORDON, Individually, etc., et al., Appellants,
v.
John E. PLEDGER, Appellee.
No. 12734.
Court of Civil Appeals of Texas, Galveston.
July 15, 1954.
Rehearing Denied October 7, 1954.
Aaron Goldfarb, Houston, for appellants.
John E. Pledger, Jr., A. C. Lesher, Jr., Houston, for appellee.
*345 GRAVES, Justice.
This appeal is from a judgment of the 55th District Court of Harris County Honorable Ewing Boyd presiding as judge without a juryawarding the appellee a money judgment for $1,683.75, with 6% per annum interest thereon after January 1st of 1948.
The court filed no separate findings of either fact or law in support of its decree, nor were any requested by either side.
As appellants recite in their brief, the suit was one by this appellee, John E. Pledger, to recover the $1,683.75 from the appellants, who were the surviving heirs of Abe Gordon, "because of accounting services alleged to have been performed by said John E. Pledger by virtue of a contract between John E. Pledger and Abe Gordon, entered into prior to the death of said Abe Gordon."
The accounting services so involved, and for which the court's judgment was entered, are thought to be, consistently with the record, as this Court has found it, thus detailed in the appellee's brief:
"The Appellee, John E. Pledger, and Abe Gordon, now deceased, entered into a written contract * * * (under) the terms of which Appellee was to prepare and file protests contesting the right of the Treasury Department of the United States * * * to collect from Abe Gordon, * * * and Archie H. Gordon, and Allied Motors Company and Fannie Gordon, widow of Abe Gordon, Appellants, $23,500.00 claimed by that Department for income taxes for the years of 1942, 1943, 1944 and 1945 * * *. Appellee did prepare and file the protests and Appellants, i.e., Archie H. Gordon individually and as surviving partner of Allied Motors Company and Fannie Gordon, as the widow of the deceased Abe Gordon, became liable for such services, under said contract, in the sum of $650.00 part of which was paid and the balance ($341.50) is conceded by the Appellants to be owed to Appellee * * *.
"The written contract further provided that Appellee be paid $250.00 additional for preparing any offer of settlement and conferences thereon with * * * (such) Treasury Department. The offers were prepared and the conferences were had but the Appellee did not have to go to Dallas * * *, and only charged $157.50 instead of the full $250.00 provided for in the written contract.
"* * * the written contract was entered into for the purpose of preparing protests and effecting a settlement for taxpayers who were using a `net worth' basis for their returns. That when all of such work was completed, including preparation of protests and conferences, Appellee discovered and called to Abe Gordon's attention the advantage of using the `installment basis' instead of the `completed sale' basis for computing tax. Such (latter basis) was not contemplated in the written contract, and entailed a substantial amount of labor to perfect such a system including the compiling of a set of books for the years of 1941, 1942, 1943, 1944 and 1945; * * * Appellee wanted compensation over and above the written contract to undertake this new project * * *.
"It is shown by the testimony of the witness Wm. H. Gardner that Abe Gordon agreed to pay for the extra time it would take to effect the contemplated saving. * * *. Forty-five days were spent in performing the oral agreement. * * *. By the performance of the oral contract Appellants got the benefit of a net saving in an amount of more than four times the amount of the benefits contemplated by the written contract."
In protest against the judgment so adverse to them, the appellants state some five points-of-error, the material substance of which, it is thought, may be thus stated:
(1) The judgment was based on an oral contract alleged by the appellee in a transaction with the deceased Abe Gordon, in reaching which it failed to exclude the testimony of appellee concerning a transaction with Abe Gordon, deceased;
(2) There was no evidence to support the judgment that an oral contract had been entered into between the appellee and the deceased Abe Gordon, and no proper pleadings *346 of any such contract, wherefore the court erred in permitting the appellee to attempt to prove an oral contract between himself and Abe Gordon, deceased;
(3) The court erred in rendering the judgment for a greater sum than was either plead or proven by the appellee;
(4) The trial court's judgment rested "on testimony and evidence which attempted to vary from the terms of a written contract, inasmuch as such testimony and evidence was received by the Trial Court in violation of the parol evidence rule."
(5) The trial court erred in awarding interest to appellee from January 1, 1948, rather than from the date of its judgment.
None of these presentments, it is determined, should be sustained.
In the first place, the statement of facts shows that the learned trial court did not base its judgment in any sense upon the testimony of the appellee herein upon his transaction direct with the deceased, Abe Gordon; upon the contrary, that such testimony should be and was stricken from the record in view of what is called the "dead man's statute", Art. 3716, V.A.T.S.
Furthermore, the record likewise contains the showing that the appellee carried on all of his transactions that are under review in this respect. In such attending circumstances, it would seem that the testimony of Wm. H. Gardner, who was a skilled certified public accountant, was receivable for such a purpose, under such authorities as Ragsdale v. Ragsdale, Tex.Civ.App., 172 S.W.2d 381 and Turner v. Hodges' Estate, Tex.Civ.App., 219 S.W.2d 522. Furthermore, it seems to have been held under such authorities as Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, that parol testimony as to circumstances, out of which contracts have grown, may be considered, not to vary the terms of the contract, but to apply the contract to the subjects with which the parties have dealt for the purpose of ascertaining their real intent.
In this instance, the trial court will be at least presumed to have found that the appellee had done the work contracted for and that Gordon himself, along with the appellants here, had accepted the benefits of that work, hence should be held liable therefor as incident to their applicable of it. City of Santa Anna v. Leach, Tex.Civ.App., 173 S.W.2d 193; City of Galveston v. O'Mara, Tex.Civ.App., 146 S.W.2d 416; Johnson Aircrafts, Inc., v. Eichholtz, Tex.Civ.App., 194 S.W.2d 815.
Finally, upon this subject, as indicated, supra, this cause was tried before the judge thereof, sitting without a jury, wherefore, it is presumed upon this appeal thereof that the trial judge disregarded all evidence which may have been improperly received and in no manner considered it in arriving at the judgment. Furthermore, in that connection, it would be a violent presumption that the evidence complained of here was prejudicial to the appellants or to their predecessor in interest. See Texas Jur., 41B, TrialCivil Cases page 840, Sec. 605, Footnote 17, and cited authorities.
It is further concluded that the trial court's judgment properly allowed interest on the debt found to be due under the contract between these parties from and after January 1, 1948.
Further discussion is deemed unnecessary since these conclusions determine the merits of the appeal. The judgment will, therefore, be affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570006/ | 271 S.W.2d 487 (1954)
PACIFIC MUTUAL INSURANCE COMPANY, Appellant,
v.
H. L. TALBERT, Appellee.
No. 4982.
Court of Civil Appeals of Texas, Beaumont.
June 24, 1954.
Motion for Rehearing Overruled September 29, 1954.
*488 Orgain, Bell & Tucker, Beaumont, for appellant.
D. H. O'Fiel, Beaumont, for appellee.
ANDERSON, Justice.
The basis of this suit is a Group Medical Expense Insurance Policy and a certificate of insurance issued thereunder by the appellant, Pacific Mutual Insurance Company. The appellee, H. L. Talbert, to whom the certificate was issued, sued on the group policy and the certificate to recover hospital, surgical, and medical expense incurred by him as a result of his wife's having undergone an operation on or about May 5, 1953. The appellant answered by general denial and a plea that, under the terms of the certificate declared upon, appellee's insurance terminated on April 15, 1953, at which time appellee ceased to be an employee of Kinsel Motors, Inc. The appellee undertook to establish that on April 15, 1953, at which time the insurance would have otherwise terminated, his wife was wholly disabled, and that therefore the insurance remained in effect under the following provision of the certificate and the group policy: "If the Employee's insurance with respect to a dependent terminates while the dependent is wholly disabled, the Employee's insurance with respect to such dependent will be extended, without payment of premiums, during such disability, but not beyond the period ending three months after such termination; provided, however, that this paragraph shall not be construed so as to extend insurance with respect to a dependent on account of pregnancy or resulting childbirth or miscarriage."
The case was tried to a jury, and, aside from an issue pertaining to a reasonable fee for appellee's attorney, the following were the only issues submitted:
"Special Issue No. 1: From a preponderance of the evidence, do you find that the plaintiff's wife, Mrs. Eugenia Harriet Talbert, was wholly disabled under date of April 15, 1953?
"Answer `yes' or `no'.
"If you have answered Special Issue No. 1 `yes', and only in such event, then answer the following:
"From a preponderance of the evidence, do you find that such disability, *489 if any you have so found, continued over a period commencing April 15, 1953 and terminating May 5, 1953?
"Answer `yes' or `no'."
The jury answered both special issues in the affirmative, and, the parties having stipulated as to the hospital, surgical and medical expense involved, the trial court rendered judgment for the appellee for such expense together with the statutory penalty and the attorney's fee fixed by the jury, an aggregate of $428.88.
The appellant has duly perfected its appeal, and by its first point assigns as error the action of the trial court in overruling its motion for judgment non obstante veredicto.
This motion set up that the certificate of insurance which was introduced in evidence by appellee did not purport to be the entire contract of insurance declared upon, but on its face showed that it was issued "under and subject to the terms" of enumerated group policies which constituted a part of the contract; that no evidence to prove the contents and provisions of the group policies had been introduced during the trial of the case; that if any evidence tending to establish the contents of the group policies had been introduced during the trial, it was of a secondary nature, for the introduction of which no proper predicate had been laid, and should be disregarded; and that in the absence of legal proof of the contents of the group policies the appellee was not entitled to recover.
We agree with appellant's contention that the certificate of insurance which was introduced in evidence was not the entire contract of insurance declared upon and that the group policies constituted a part of the contract, and it is true that the group policies referred to in the certificate were not introduced in evidence and their full contents were not proven upon the trial, but we are unable to agree that in this instance insufficient proof was made of the contract declared upon, or that such proof was not made by legal and competent evidence. We are of the opinion, on the contrary, that the certificate of insurance itself, which was issued by the appellant itself to the appellee, furnished all the proof of the full contract that was necessary to support the trial court's judgment.
The certificate consists of some eight pages of printed matter, and contains every commitment on the part of the insurance company that is essential to appellee's cause of action. Not only is this so, but the commitments and provisions of the certificate are represented by it to be also commitments and provisions of the group policies. The certificate commences as follows: "Pacific Mutual Life Insurance Company, Los Angeles, California By a Group Disability Insurance Policy No. GA-1631, and by a Group Medical Expense Insurance Policy No. GH-1631, contracts between the Insurance Company and the Trustees of the Insurance Fund of Texas Automotive Dealers Association, has insured certain Employees of Employers subscribing to said Trust. Certain terms of the group policies are described on this and the following pages of this certificate. Under and subject to the terms of the group policies, H. L. Talbert, an Employee of a Subscribing Employer, is insured for the following benefits:" (Emphasis supplied.) Then, under the captions, "Group Disability Policy Provisions, Insurance with respect to the Employee," "Group Medical Expense Policy Provisions, Insurance with respect to the Employee," "Insurance with respect to Dependents of the Employee," "Group Medical Expense Policy Provisions, Insurance with respect to Dependents of the Employee," and "Provisions relating to both Group Policies," there follow six pages of detailed provisions with reference to the benefits payable under the certificate and the group policies, the conditions under which such benefits are payable, proof of loss, termination of the insurance, and other kindred subjects. Whether these provisions of the certificate be considered as verbatim copies of the corresponding provisions of the group policies, or merely *490 as adaptations thereof, they must nevertheless be accepted as the appellant's own representation and admission that in substance and effect the same provisions are contained in the group policies.
The certificate was primary and not secondary evidence of the contents of the group policies and of the entire contract, because it is an integral and indivisible part of the entire contract. In support of the latter statement, see Wann v. Metropolitan Life Ins. Co., Tex.Com.App., 41 S.W.2d 50; Metropolitan Life Ins. Co. v. Worton, Tex.Civ.App., 70 S.W.2d 216, writ refused; Metropolitan Life Ins. Co. v. Barela, Tex.Civ.App., 44 S.W.2d 494. And, as we have already stated, all of the provisions of the group policy essential to appellee's cause of action were reflected by the certificate.
It was not necessary that appellee either plead or prove more of the entire contract than was essential to show appellant's liability on the facts relied upon and proved by appellee. See Ramsey v. Wahl, Tex.Com.App., 235 S.W. 838; Northwestern Mut. Life Ins. Co. v. Freeman, 19 Tex. Civ. App. 632, 47 S.W. 1025, writ refused; Automobile Ins. Co. v. Bridges, Tex.Civ.App., 5 S.W.2d 244; Kottwitz v. Bagby, 16 Tex. 656; Southern Travelers' Ass'n v. Shattuck, Tex.Civ.App., 2 S.W.2d 568, writ refused. Nor do we think that in Wann v. Metropolitan Life Ins. Co., supra, 41 S.W.2d 50, 52, the case which is primarily relied upon by appellant, the Commission of Appeals held or intended to hold that more was necessary. What the court there had in mind is exemplified by the following portion of the opinion: "In order for plaintiff in error to set up a cause of action under the terms of the certificate, it was incumbent upon him to allege and prove that the provisions of the group policy, when construed in connection with the certificate and rider, entitled him to recover for the disability resulting from the injuries sustained in the service of his employer." In other words, it was necessary for the insured to prove that on the entire contract he had a cause of action. The certificate did not in that instance purport to contain the provisions of the group policy, and there was a total absence of any proof of the terms of the group policy. The court merely held that the plaintiff had failed to prove enough of the contract to show the defendant's liability or the extent thereof on the facts before the court. The case at bar presents an entirely different situation.
The foregoing conclusions have not been in anywise prompted by the following provision of Rule 94, Texas Rules of Civil Procedure: "Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists."
We do not think such provision of the rule alters or affects the basic requirement of the Wann case that in suits upon or for breach of contract there must be proof of enough of the contract to establish liability. We are merely holding that in the case at bar there was sufficient proof of the entire contract.
By its third point, which is submitted in the alternative, to be considered in the event there was secondary evidence introduced of the contents of the group policy, the appellant assigns as error rulings of the trial court in admitting such evidence. We agree with appellant's primary contention that there was in fact no such evidence, and disregard the point.
By its second point appellant complains of the action of the trial court in overruling its motion for a mistrial because *491 of a part of the argument to the jury made by appellee's counsel. The argument complained of was the following: "Now there has been a lot of talk about the term `wholly disabled'about the question of whether Mrs. Talbert was wholly disabled. I guess you are wondering why there is so much talk about this. Well, I'll tell you whythis certificate of insurance provides that the benefits will continue after the insurance terminates if Mrs. Talbert was wholly disabled. That's why there's so much talk about whether she's wholly disabled. We have to prove she was wholly disabled to recover anything in this lawsuit." The appellant objected to the argument at the time it was made, on the ground that it informed the jury of the effect of their answers to certain of the special issues, and requested the court to instruct the jury to disregard it. This the court did, and counsel for appellee also withdrew the argument and requested the jury to disregard it. The appellant then made its motion for a mistrial, upon the theory that the argument was so prejudicial that its harmful effects could not be cured by the curative measures taken.
The only special issues submitted to the jury which could have basically affected the question of liability were the two hereinabove set out. The first of these inquired as to whether Mrs. Talbert had been "wholly disabled" on April 15, and the second was to be answered only in the event the first was answered "yes." Most of appellee's evidence had been directed toward proving that Mrs. Talbert had been "wholly disabled" at the times inquired about, and counsel for appellee was arguing to the jury that an affirmative answer should be given to Special Issue No. 1. We feel that in these circumstances the jury, as intelligent men, must have already known, before the argument which is complained of was made, what the effect of their answers to the special issues would be. Such being the case, the error was harmless. Arando v. Higgins, Tex. Civ.App., 220 S.W.2d 291, writ ref. n. r. e., and the cases therein collated.
No reversible error appearing, the judgment of trial court is affirmed.
On Rehearing.
We endeavored in our original opinion, apparently without complete success, to make clear that the cases first therein cited, Wann v. Metropolitan Life Ins. Co.; Metropolitan Life Ins. Co. v. Worton; Metropolitan Life Ins. Co. v. Barela, were cited only in support of the proposition that the certificate is an integral and indivisible part of the entire contract, and not as supporting our conclusion that the certificate was primary rather than secondary evidence of the contents of the group policies and of the entire contract. The latter conclusion, we think, necessarily follows upon the established principle in support of which the cases were cited. We are unable to see how the certificate can be an integral and indivisible part of the entire contract, and at the same time be other than primary evidence, to the full extent its terms and provisions suffice for the purpose, of the terms of the entire contract, including the terms of the group policies themselves. Neither the fact that the group policies are the basis of the insurer's liability, Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W.2d 43, 46, 173 A.L.R. 968, or are the "primary basis" of the certificate, Metropolitan Life Ins. Co. v. Worton, supra, 70 S.W.2d 216, nor the fact that in the event of a conflict, the terms of the group policies would control and prevail over the terms of the certificate, militate against the foregoing conclusions. We are here concerned only with a question of evidence, not with the matter of construing the entire contract.
In the second group of cases cited in our original opinion, Ramsey v. Wahl, and the cases cited with it, with the exception of Kottwitz v. Bagby, and Southern Travelers' Ass'n v. Shattuck, the courts, it is true, were passing upon the sufficiency of the pleadings rather than upon the sufficiency of the proof. However, we think it axiomatic that ordinarily neither more nor less need be pleaded than is required to be proved. The case of Kottwitz v. Bagby, supra, *492 is authority for the proposition that only the material and essential averments of a pleading need be proved; those which are not material and essential need not be proved and may be rejected as surplusage. See, also, 17 C.J.S., Contracts, § 566, page 1199. We know of no rule of law which requires that a contract in its entirety be introduced in evidence as a prerequisite to the establishment of liability under it. On the contrary, we have no doubt that the person who relies on the contract is the master of his own fate in selecting the portions of the contract he will plead and prove. Of course, when he pleads and proves less than the whole of the contract, he proceeds at the peril of perhaps having the tendered portion of the contract excluded from evidence because of a variance between his pleading and proof (assuming the entire contract has been placed before the court by the opposing party, and reflects such variance), or of ultimately being denied recovery, for failure to prove a cause of action under the entire contract (again assuming it to have been introduced in evidence by the opposing party). Results such as those suggested would follow a showing that under the contract the liability sought to be established is contingent upon conditions precedent, for the burden is upon the plaintiff to both plead and prove compliance with such conditions. However, the conditional nature of liability under the contract must be made apparent before it can avail the defendant. Automobile Ins. Co. v. Bridges, Tex.Civ.App., 5 S.W.2d 244. Therefore, if, by selective pleading and proof of parts only of a contract, a plaintiff should establish a positive duty on the part of the defendant, a breach of that duty, and damage resulting from the breach, and should recover judgment on such a showing, the mere fact that he had not introduced the entire contract and thereby displayed that the defendant's duty was conditional rather than positive would not, in our opinion, be grounds for setting aside the judgment. If the plaintiff should pursue such tactics, it would be up to the defendant to protect himself by making the true facts appear. This could be done by the defendant at whatever stage of the proceedings the protection of his rights dictated; it would entail no shift in the burden of either pleading or proof. For these reasons, we think it was not incumbent on the plaintiff to make proof of the group policy in its entirety; it was sufficient that he prove only so much of it as was necessary to demonstrate the validity of the cause of action he asserted. This, we think he did by introducing in evidence the certificate which contained the provisions of the group policy on which he relied.
Our conclusion that only so much of a contract or policy of insurance as is relied on need be introduced in evidence is inferentially supported by language appearing in Southern Travelers' Ass'n v. Shattuck, Tex. Civ.App., 2 S.W.2d 568, 571, writ refused. The by-laws of the Association were in that instance a part of the contract, and the court expressed itself to the following effect: "The certificate of membership issued to the insured does not purport to contain in itself and without reference to any other formal instrument any of the substantive terms of the contract of insurance. * * * Merely proving the certificate of membership and death of insured did not give the appellee any cause of action whatever. In order to establish a cause of action of any sort, she was compelled to prove a portion of the by-laws." (Emphasis supplied.) If the rule were otherwise, it would frequently be necessary to greatly encumber the record with wholly immaterial matter. For example, it would probably be necessary in a case such as the one at bar to introduce the group policy providing for death benefits, when no claim at all is being, or could be, asserted under it. The mere suggestion of such a possibility should suffice to demonstrate that the law imposes no such obligation.
As pointed out in our original opinion the certificate involved in the case of Wann v. Metropolitan Life Ins. Co., 41 S.W.2d 50, 52, did not purport to contain any of the provisions of the group policy. It was construed as merely evidencing the insured's "right to participate in the insurance provided by his employer under the terms and conditions imposed in the group policy when *493 construed in connection with the certificate." The court then pointed out that "the terms of the certificate may have been materially modified by stipulations contained in the group policy." The certificate involved in the case at bar does more than merely evidence the insured's right to participate in the insurance provided by his employer; it sets out sufficient of the stipulations of the group policy to establish plaintiff's right to recover under it in the absence of proof of some other provision of the policy that would defeat his right. If the policy contains any provision that would defeat his right of recovery, the plaintiff was under no legal duty in this instance of proving it.
Being of the opinion the case was correctly disposed of upon original submission, the appellant's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570015/ | 151 F. Supp. 124 (1957)
Annette H. SLAFF, Plaintiff,
v.
Maurice M. SLAFF, Defendant.
United States District Court S. D. New York.
May 9, 1957.
William J. Rapp, New York City, for plaintiff.
Benjamin A. Hartstein, New York City, Marcus Klein, New York City, of counsel, for defendant.
FREDERICK VAN PELT BRYAN, District Judge.
Defendant moves, pursuant to Rule 12, F.R.Civ.P. 28 U.S.C.A., to dismiss the counterclaim pleaded in plaintiff's reply on the ground that it fails to state a claim upon which relief can be granted.
The plaintiff wife is suing defendant husband for an accounting of the rentals of real property in Florida owned *125 by the parties as partners, title to the property being in the name of both husband and wife.
The answer admits the partnership but denies that plaintiff is entitled to an accounting. It also alleges that one Gertrude Chapman, who is defendant's sister and a stockholder of Slaff Realty Corporation which transferred the property to the plaintiff and defendant several years ago, claims an interest in it arising out of her stock ownership in this corporation, and seeks to set aside such transfer. The answer asserts that Mrs. Chapman is an indispensable party to this action and that in the event her claim is sustained plaintiff is not entitled to the relief which she now seeks.
On defendant's motion plaintiff was directed to serve a reply to the first separate defense in the answer which sets up the alleged claim of Mrs. Chapman and it is the counterclaim set forth in that reply which is the subject of the present motion.
This "Second Cause of Action" and "Counterclaim" alleges, in essence, that Gertrude Chapman has filed a bill in equity in the Florida courts against the two Slaffs, husband and wife, seeking to set aside the transfer to them by Slaff Realty Corporation of the Florida real estate involved in the instant action on the ground that it was transferred by the corporation in violation of Mrs. Chapman's rights as a stockholder. It further alleges that this Florida suit was instituted by Mrs. Chapman at the instigation of her brother, the husband Slaff, and is financed and controlled by him, and that he has never been served in the action though available in Florida for service. It claims that the Florida action was instituted "to harass, worry and injure the plaintiff", and that by injecting the alleged claim of Mrs. Chapman as an affirmative defense in the instant case and "fraudulently instituting the Florida suit", defendant has caused plaintiff "great mental anguish, pain and suffering", and "has thereby maliciously and deliberately injured the plaintiff herein in her good name and reputation". It also alleges that the Forida bill in equity contains unspecified "untruthful and libelous statements concerning plaintiff which were untrue, were maliciously made and were known to be untrue by the defendant" when defendant filed a copy of the Florida bill in equity in this Court as part of his papers on a motion for summary judgment. Plaintiff seeks damages of $50,000 "by reason of such fraudulent and conspiratorial acts of defendant".
The counterclaim is a confused melange of allegations of fact, characterizations and conclusions, some of which might be pertinent to a claim for malicious prosecution, some to a claim for libel, some perhaps to a claim for abuse of process, and some to a claim based on some vague theory of intentional tort. Plaintiff's counsel has not enlightened the Court on what his theory is, and a study of the pleading leaves this obscure. Taking the allegations of the counterclaim as true for purposes of this motion, and drawing from them the inferences favorable to the plaintiff, I am unable to discern any theory upon which the counterclaim could be sustained.
In so far as the counterclaim purports to allege claims based on the allegations of the answer interposed by defendant in this action, it is plain that it is fatally defective. A claim which might arise out of the bringing of the main action or out of allegations in the pleadings, or proceedings taken in the course of the main action, may not be made the subject of a counterclaim. Such a claim is premature and cannot ripen or mature until the main action has been determined. Park Bridge Corporation v. Elias, D.C.S.D.N.Y., 3 F.R.D. 94; Goodyear Tire & Rubber Co. v. Marbon Corp., D.C.Del., 32 F. Supp. 279; Mennen Co. v. Krauss Co., D.C.E.D.La., 37 F. Supp. 161, reversed on other grounds, D. C., 134 F. Supp. 348; Bach v. Quigan, D. C.E.D.N.Y., 5 F.R.D. 34; Ivey v. Daus, D.C.S.D.N.Y., 17 F.R.D. 319; 3 Moore's Federal Practice, 2d Ed., 36.
If the counterclaim be considered as an attempt to allege a claim in the nature *126 of malicious prosecution based on bringing the Florida bill in equity, it is fatally defective for similar reasons. It is a prerequisite to such a claim that the prosecution or action which is alleged to have been maliciously brought must have previously been determined in favor of the plaintiff. Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268; Fay v. O'Neill, 36 N.Y. 11; Smith v. Smith, 26 Hun, N.Y., 573; Lyons v. Scriber, Sup., 174 N.Y.S. 332; Marion Steel Co. v. Alderton Dock Yards, Ltd., 223 A.D. 741, 227 N.Y.S. 678; White v. Miami Home Milk Producers Ass'n, 143 Fla. 518, 197 So. 125; Restatement of the Law of Torts, Vol. III, Sec. 674.
In this case there has been no such determination of the Florida suit since it appears that the Florida suit is still pending. Thus, apart from the question of whether a claim for malicious prosecution could arise at all under the circumstances alleged here, such allegations of the counterclaim as may be claimed to support a theory of malicious prosecution are plainly insufficient.
There are allegations in the counterclaim which are based upon a theory that plaintiff was libeled by some of the allegations of the Florida bill though plaintiff points to no specific language which could be considered libelous. But even if she did the allegations of the Florida bill in equity seem to be plainly relevant to the subject matter of that litigation. It is well-settled that such allegations made in the course of a litigation are absolutely privileged. No claim based on the theory of libel has been alleged. Munzer v. Blaisdell, 268 A.D. 9, 48 N.Y.S.2d 355; People ex rel. Bensky v. Warden, 258 N.Y. 55, 179 N.E. 257; Mascal v. Shasta Realty Corp., Sup., 96 N.Y.S.2d 605; Zirn v. Cullom, 187 Misc. 241, 63 N.Y.S.2d 439; Restatement of the Law of Torts, Vol. III, Sec. 587.
If the counterclaim be considered as an attempt to allege a claim in the nature of abuse of process, it is equally defective.
The gist of such a claim is that there must be improper use of the process outside of and apart from its legitimate purpose. Bad motive is not enough. There must be a perversion of the process, some improper use made of it wholly apart from the object of the process itself. Facts showing such perversion must be alleged and proved no matter how evil it is claimed the motives are for bringing the action. There are no such allegations in this counterclaim and it plainly does not state a claim for abuse of process. Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E. 229; Hauser v. Bartow, supra; Restatement of the Law of Torts, Vol. III, Sec. 682.
Thus none of the theories upon which the plaintiff could possibly rely are sustained by the counterclaim. Such allegations as do not bear on any of these theories add nothing to the substance of the pleading any more than do the use of such adjectives as "fraudulent" or "conspiratorial". Cf. Lewis Invisible Stitch Mach. Co. v. Columbia Blindstitch Mach. Mfg. Corp., 2 Cir., 80 F.2d 862; Burns v. Spiller, D.C.D.C., 4 F.R.D. 299, affirmed 82 U.S.App.D.C. 91, 161 F.2d 377, certiorari denied, 332 U.S. 792, 68 S. Ct. 101, 92 L. Ed. 373; Posner v. Greenspan, 261 A.D. 979, 25 N.Y.S.2d 828. Nor is there any cause of action in tort for damages for "mental anguish" caused by the commencement of a suit or legal proceeding which is separate from and independent of the theories already discussed and disposed of.
This counterclaim is wholly without merit and the motion to dismiss it for failure to state a claim is granted.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570050/ | 29 So. 3d 1129 (2010)
WASSERMAN
v.
WASSERMAN.
No. 2D09-5261.
District Court of Appeal of Florida, Second District.
March 12, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038035/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3635
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kevin Jay Bruce, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 7, 2005
Filed: July 13, 2005
___________
Before BYE, RILEY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Kevin Bruce pleaded guilty to escape. See 18 U.S.C. § 751(a). His
sentencing hearing occurred after the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004), but before the Court announced in United
States v. Booker, 125 S. Ct. 738 (2005), that the federal sentencing guidelines
were effectively advisory in all cases. At sentencing, when Bruce challenged the
constitutionality of the Guidelines under Blakely, the district court1 stated: “I have
taken a position as to the guidelines that they are neither constitutional nor
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
unconstitutional, that if they are eventually found to be constitutional, I’m going to
sentence today on the grounds of those guidelines, and if they’re found to be
unconstitutional, I will have been sentencing on the ground that the guidelines
were unconstitutional, but I was using the guidelines as a guide only, not relying
on them as such.” (S. Tr. 6). The court then sentenced Bruce to 37 months, the
bottom of the applicable guidelines sentencing range. Bruce now challenges the
sentence.
We conclude that any error in applying the mandatory guidelines for one of
the two alternative sentences is harmless, as the district court clearly indicated that
it would impose the same sentence under an advisory system. See United States v.
Thompson, 408 F.3d 994, 996-97 (8th Cir. 2005) (per curiam). The sentence also
is not unreasonable with regard to 18 U.S.C. § 3553(a). Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1917388/ | 749 N.W.2d 664 (2008)
STATE
v.
SEPPEH.
No. 2006AP2372-CRNM.
Supreme Court of Wisconsin.
April 8, 2008.
Petition for review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917354/ | 835 So. 2d 1277 (2003)
STATE of Florida, Appellant,
v.
T.P., A Child, Appellee.
No. 4D01-4298.
District Court of Appeal of Florida, Fourth District.
February 5, 2003.
Charlie Crist, Attorney General, Tallahassee, and Sandra Braverman, Assistant Attorney General, Fort Lauderdale, for appellant.
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
*1278 STEVENSON, J.
The State of Florida appeals an order granting T.P.'s motion to suppress contraband found in his car and on his person. We reverse, finding that there was a sufficient basis under the Fourth Amendment to justify the detention and search.
On March 10, 2001, Deputy Robert B. Fawcett was patrolling an area in Pompano Beach known for heavy narcotics activity. Deputy Fawcett observed two males seated in an older-model Dodge sports utility vehicle ("SUV") backed into a small parking lot at a location known for narcotics activity. The SUV was not illegally parked, and the two males did not appear to be doing anything unusual in the car.
Deputy Fawcett became suspicious, however, because he did not recognize the two as residents of that location and they were not attempting to get out of the car to go anywhere. As Deputy Fawcett drove by, both males immediately exited the SUV and started walking rapidly towards the courtyard of a house. Sensing that their quick exit was due to his appearance on the scene, the deputy pulled up in front of the SUV and got out of his car. Upon approaching the SUV, he smelled an odor of what he believed to be burnt marijuana coming from the interior of the car. According to the deputy, his opinion that the odor came from marijuana was based upon twenty years of experience as a Pompano Beach police officer and having smelled the scent of marijuana hundreds of times.
Deputy Fawcett then attempted to detain both men. T.P. stopped upon request, but the other male continued walking very rapidly through the courtyard and exited through the bushes. During the patdown of T.P.,[1] Deputy Fawcett, based upon his experience, felt what he believed to be two packages of fiber-like material. He removed the packages from T.P.'s pocket and administered a field test, which yielded a positive result for marijuana. T.P. was arrested and a subsequent search of the SUV produced additional bags of marijuana on the driver's front floor board, where T.P. was seated. T.P. moved to suppress the evidence and statements made, alleging that the officer had no well-founded reason to detain and search him or his car. The court, relying on Romanello v. State, 365 So. 2d 220 (Fla. 4th DCA 1978), granted the motion to suppress.
First, Deputy Fawcett's decision to stop, exit his vehicle, and walk toward T.P.'s parked SUV does not give rise to any constitutional safeguards. Further, upon approaching T.P.'s car and smelling previously burnt marijuana, the officer had probable cause, based upon the smell alone, to detain and search T.P. and his vehicle for contraband. See State v. Betz, 815 So. 2d 627, 633 (Fla.2002)(stating that the odor of previously burnt marijuana certainly warranted a belief that an offense had been committed and unquestionably provided the police officers on the scene probable cause to search the person and the vehicle); see also State v. K.V., 821 So. 2d 1127 (Fla. 4th DCA 2002); State v. Williams, 739 So. 2d 717 (Fla. 5th DCA 1999); Harvey v. State, 653 So. 2d 1146 (Fla. 5th DCA 1995); Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991).
We, therefore, find the trial court's reliance on Romanello to be in error. Romanello stands for the proposition that a person's right against unreasonable search and seizure is violated where the officer smells the odor of marijuana, which created *1279 the probable cause to search, only after illegally detaining the defendant. In Romanello, officers approached and detained the defendants out of "curiosity" because they were having difficulty hoisting a boat on a trailer and asked for their motor vehicle and boater's registration information. See 365 So.2d at 221. It was only after following one of the defendants onto the boat to get the boater's registration that the officer smelled and saw marijuana. A subsequent warrantless search revealed additional quantities of marijuana. This court found that the officers were operating merely upon a "hunch" and that they lacked reasonable suspicion to justify the initial stop and discovered the marijuana only after the initial illegal detention. See id.; accord Mullins v. State, 366 So. 2d 1162 (Fla.1979); D.G. v. State, 714 So. 2d 644 (Fla. 4th DCA 1998); Lower v. State, 348 So. 2d 410 (Fla. 2d DCA 1977).
Unlike Romanello, here, Deputy Fawcett testified that he detained T.P. only after he first smelled the previously burnt marijuana coming from his car, giving him probable cause to search and detain. And, contrary to T.P.'s argument, there is no evidence in the record, and he points to none, that would support the position that the officer detained T.P. prior to smelling the odor of marijuana.
Our conclusion is consistent with previous decisions of this court, and our sister courts, finding that an officer has probable cause to search a defendant, or his vehicle, after smelling the odor of burnt marijuana emanating from that vehicle. In K.V., we found that an officer who was informed by a security guard that the defendant's car smelled like marijuana and who then observed a small cloud of smoke billow from the car as the passenger opened his door, and smelled the odor of marijuana as he approached the car, had probable cause to detain the occupants and seize the items found in the search. See 821 So.2d at 1128-29. In State v. Reed, 712 So. 2d 458 (Fla. 5th DCA 1998), the court found that an officer had probable cause to search and arrest the defendant who threw a cigar to the ground upon seeing deputies exit their car, where the officer picked up the discarded cigar, detected the smell of cannabis coming from the cigar and, after calling the defendant over, smelled cannabis on his clothing. See also State v. Hernandez, 706 So. 2d 66, 67 (Fla. 2d DCA 1998)(finding that officers had probable cause to stop and search each person present where officers, while driving with their car windows down, passed a large group and smelled a strong odor of marijuana emanating from the cluster of people).
Based upon the foregoing, we find that smelling the odor of burnt marijuana upon exiting his vehicle gave Deputy Fawcett probable cause to detain and search both T.P. and his car, and that the trial court erred in suppressing the fruits of that search.
REVERSED and REMANDED.
SHAHOOD and HAZOURI, JJ., concur.
NOTES
[1] Deputy Fawcett stated that he conducted the "pat down" because the area was known for violent crimes such as shootings, stabbings, and homicides. Despite Deputy Fawcett's dubious subjective reasons for the patdown, a search of T.P.'s person was justified under the circumstances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570017/ | 29 So. 3d 1256 (2010)
STATE ex rel. Rodney Wayne MACON
v.
STATE of Louisiana.
No. 2009-KH-1010.
Supreme Court of Louisiana.
March 26, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645093/ | 40 So. 3d 867 (2010)
Kelly R. COLEMAN, Appellant,
v.
688 SKATE PARK, INC., and Jay Turner, Appellees.
No. 2D09-1790.
District Court of Appeal of Florida, Second District.
July 21, 2010.
*868 Theo J. Karaphillis of Richards, Gilkey, Fite, Slaughter, Patesi & Ward, P.A., Clearwater, for Appellant.
Karen E. Maller of Powell, Carney, Maller, Ramsey & Grove, P.A., St. Petersburg, for Appellees.
CRENSHAW, Judge.
Kelly R. Coleman appeals the trial court's final order dismissing his complaint against Jay Turner. Coleman alleged in his complaint that Turner was personally liable as the signatory of a commercial lease agreement between Coleman and 688 Skate Park, Inc. Because the trial court erred in ignoring the plain meaning of the lease and dismissing Coleman's guaranty claim, we reverse.
The parties entered into a commercial lease agreement in January 2006. When the tenant, 688 Skate Park, Inc., allegedly failed to meet its rent obligations under the lease, Coleman brought an action against Turner claiming Turner was personally liable as signatory of the lease under a guaranty clause of paragraph 36(S) in the agreement. This portion of the lease agreement provides the following:
36. Miscellaneous Provisions
....
S) If the Tenant is a coporation [sic], limited liability company or limited partnership, the undersigned officer, manager or representative of the Tenant hereby certifies and warrants that said Tenant is in good standing and authorized to do business in the state of Florida and the individual executing this Lease on behalf of said corporation, limited liability company or limited partnership, guarantees the obligations of Tenant hereunder.
(Emphasis added.) In the section of the lease agreement labeled "LESSEE/TENANT: 688 SKATE PARK, INC.," Turner signed his name "as its President," which is type-written below the signature line.
*869 Turner filed a motion to dismiss with prejudice Coleman's complaint seeking relief against him individually. The trial court granted Turner's motion concluding that Turner was "not sufficiently set out as a party to the [lease] agreement in question so as to confer individual liability." A final order dismissing Coleman's complaint against Turner was entered, and this appeal followed.
"When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the material allegations as true and is bound to a consideration of the allegations found within the four corners of the complaint." Murphy v. Bay Colony Prop. Owners Ass'n, 12 So. 3d 924, 926 (Fla. 2d DCA 2009). We therefore review de novo the question of whether Coleman's complaint states a cause of action against Turner. See id. (stating "the question of whether a complaint states a cause of action is one of law and the standard of review is de novo"). Paragraph 36(S) of the parties' lease is incorporated into Coleman's complaint; the plain language of this paragraph explicitly provides that "the individual executing this Lease on behalf of said corporation... guarantees the obligations of Tenant hereunder." (Emphasis added.) The trial court, in its reliance on Onderko v. Advanced Auto Insurance, Inc., 477 So. 2d 1026 (Fla. 2d DCA 1985), ignored the plain meaning of the contract language when it concluded that Turner was "not sufficiently set out as a party to the agreement in question so as to confer individual liability." In Onderko, the trial court entered summary judgment in favor of the corporate officer, finding the officer could not be held personally liable. This court reversed based on the following language in paragraph 19 of the lease agreement:
19. If LESSEE is a corporation or a partnership, the person signing this Lease on behalf of such corporation or partnership hereby warrants that he has full authority from such corporation or partnership to sign this Lease and obligate the corporation or partnership hereunder and said person and the corporation or partnership shall be jointly and severally liable for all rent and any and all other amounts that may be due and owing to LESSOR under the terms of this Lease, including attorney's fees and costs.
Id. at 1027 (emphasis added). Here, the trial court distinguished the Onderko contract from the contract between Coleman and 688 Skate Park, Inc., because (1) the Onderko contract used the "joint and several liability" language and (2) the Onderko contract contained an admonition clause "further clarifying that the person signing was indicating by his signature that he had read the entire agreement." However, Onderko does not require that a guaranty clause contain "joint and several liability" language or an admonition clause before personal liability attaches. In the context of a motion to dismiss, the plain language of each contract must be scrutinized along with the complaint to determine if sufficient ultimate facts are pleaded to state a claim for relief. The plain language of this contract satisfies this requirement and states a claim for relief against Turner in his individual capacity.
We therefore reverse and remand for further proceedings including the filing of any defenses.
CASANUEVA, C.J., and MORRIS, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917381/ | 835 So.2d 134 (2002)
Robert E. QUIMBY
v.
MEMORIAL PARKS, INC.
1010334.
Supreme Court of Alabama.
May 17, 2002.
Bert W. Rice, Atmore; and Charles E. Johns, Jr., Brewton, for appellant.
J. David Jordan of Otts, Moore, Jordan & Coale, Brewton, for appellee.
HOUSTON, Justice.
This matter has been before the appellate courts of this State on two separate occasions. See Quimby v. Memorial *135 Parks, Inc., 667 So.2d 1353 (Ala.1995) ("Memorial Parks I"); Quimby v. Memorial Parks, Inc., 705 So.2d 430 (Ala.Civ. App.1997) ("Memorial Parks II"). Initially, the trial court entered a summary judgment for Memorial Parks, Inc. ("M.P.I."), holding that the oral agreements Robert E. Quimby contended existed between him and M.P.I. were barred by the Statute of Frauds. Upon appeal, this Court reversed the summary judgment and remanded the case, holding that "[b]ecause this agreement did not fall within the Statute of Frauds, summary judgment was improperly granted." Memorial Parks I, 667 So.2d at 1356. Upon remand, the case was tried in the trial court; the trial court found as follows:
"While the Court does not dispute Quimby's contention that he had an oral agreement with [M.P.I.] that [M.P.I.] would be responsible for the placement of all memorials sold prior to February 20, 1979, it is the opinion of the Court that Quimby has not satisfied the burden of proving that the agreement did not come within the Statute of Frauds....
"....
"Accordingly, the Court finds that the oral agreement between Quimby and [M.P.I.] comes within the Statute of Frauds and is, therefore, unenforceable."
(Emphasis added.) The trial court also found "that the oral agreement entered into by Quimby and [M.P.I.] that M.P.I. would be responsible for providing memorials sold by Quimby prior to February 20, 1979, is void under [Ala.Code 1975, § 8-9-2(1)]...." (Emphasis added.)
After the trial court denied a postjudgment motion to vacate the order, Quimby appealed to this Court. Pursuant to Ala.Code 1975, § 12-2-7(6), this Court transferred the case to the Court of Civil Appeals. In its unanimous opinion, the Court of Civil Appeals noted that this Court had previously reversed the judgment of the trial court and that a trial was conducted on remand:
"The case was tried without a jury on October 10, 1995. The record reveals that the issue before the trial court was whether the contract was capable of performance within one year. The trial court entered a judgment in favor of [M.P.I.], finding that the `oral agreement entered into by [the parties] ... is void under [the Statute of Frauds]
Memorial Parks II, 705 So.2d at 431. The Court of Civil Appeals reversed the trial court's judgment, holding that the trial court erred in finding that the oral agreement was void under the Statute of Frauds as being incapable of performance within one year, and remanded the case "for proceedings consistent with this opinion." 705 So.2d at 432.
On remand, the trial court, without hearing any additional evidence and in spite of its previous orders in this case, found that Quimby had not proven that an oral agreement existed between him and M.P.I. However, the trial court had previously found that such an agreement existed, and the law of the case will not permit the trial court to reverse itself:
"According to the doctrine of the law of the case, `whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.' Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987).... Because the trial court entered [its] judgment on the same record as that before the Court of Civil Appeals, the facts on which the Court of Civil Appeals' decision was predicated *136 continue to be the facts of the case, and, therefore, the Court of Civil Appeals' conclusions in its ... opinion are the law of the case."
Ex parte S.T.S., 806 So.2d 336, 341-42 (Ala.2001). The trial court's finding that Quimby and M.P.I. had entered into an oral agreement, as reflected in the Court of Civil Appeals' decision, is the law of the case; the trial court cannot subsequently, under the same facts and based on the same evidence, reverse its findings on remand and hold that no oral agreement existed.
We reverse the judgment of the trial court, and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.
MOORE, C.J., and SEE, J., dissent.
SEE, Justice (dissenting).
I disagree with the main opinion's determination that when this case was originally remanded to the trial court, the trial court found as a matter of fact that Quimby and M.P.I. had entered into an oral agreement. Therefore, I must respectfully dissent.
The trial court entered a summary judgment in favor of M.P.I. on February 4, 1993. In its summary-judgment order, the trial court found as a matter of law that "the alleged oral agreement entered into by Quimby and [M.P.I.] that M.P.I. would be responsible for memorials sold by Quimby prior to February 20, 1979 is void under [the Statute of Frauds]." On remand from this Court, the trial court again found that the alleged oral agreement was barred by the Statute of Frauds. The trial court's order stated in pertinent part:
"The alleged oral agreement between Quimby and [M.P.I.] contained no specific time within [which] the agreement was to be completed. Where the agreement expresses no specific time within which the contract is to be completed, it is a jury question as to the capability of complete performance within one year. Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709 (1970). This matter was tried before the [c]ourt without a jury[;] therefore, the [c]ourt becomes the fact-finder in this matter. The burden is upon Quimby to reasonably satisfy the [c]ourt by the evidence that the contract upon which his claim is founded is not void and does not come within the Statute of Frauds. While the [c]ourt does not dispute Quimby's contention that he had an oral agreement with [M.P.I.] that [M.P.I.] would be responsible for the placement of all memorials sold prior to February 29, 1979, it is the opinion of the [c]ourt that Quimby has not satisfied the burden of proving that the agreement did not come within the Statute of Frauds."
Upon a second remand of this case to the trial court, the trial court found that Quimby had not proven that there was an oral agreement between him and M.P.I. The trial court, referring to its order on the first remand, stated that "[o]n September 25, 1996, this [c]ourt issued its ruling again finding that the alleged oral agreement propounded by Quimby was violative of the Statute of Frauds." In a footnote, the trial court states that "[w]hile the [c]ourt does not dispute Quimby's contention that he had an oral agreement with [M.P.I.].... The [c]ourt clarifies that statement herein by pointing out that this [c]ourt ruled on September 25, 1996 that judgment was properly entered for [M.P.I.] based upon this [c]ourt's opinion that the oral agreement alleged by Quimby was void under [the Statute of Frauds]. *137 In other words, the [c]ourt made its ruling as a matter of law, and not of fact." The trial court emphasized that it did not reach the factual issue before it, but ruled in favor of M.P.I. as a matter of law. Further, the trial court stated that "[i]t was not the intention of this [c]ourt in its order of September 25, 1996 to rule, as a matter of fact, that Quimby did have an oral agreement with [M.P.I.]. To state otherwise is a misinterpretation of this [c]ourt's prior ruling."
The main opinion relies on the doctrine of the law of the case to hold that, because the trial court previously found that there was an oral agreement, the law of the case will not permit the trial court to reverse itself. See Ex parte S.T.S., 806 So.2d 336, 341-42 (Ala.2001). I do not read the trial court's initial order entering a summary judgment for M.P.I., or its September 25, 1996, order, to state as a finding of fact that an oral agreement existed. Indeed, in its final order, the trial court clarified that it had made no such factual finding. Because I do not conclude that the trial court found the existence of an oral contract, I see no occasion to apply the doctrine of the law of the case. Accordingly, I would affirm the trial court's finding that Quimby had failed to meet his burden of proving that there was an oral agreement between Quimby and M.P.I.
MOORE, C.J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917394/ | 288 B.R. 655 (2003)
In re Eric GROSS, Debtor.
Joel Stahl, Plaintiff,
v.
Eric Gross, Defendant.
Bankruptcy No. 101-22106-353, Adversary No. 01-1590-353.
United States Bankruptcy Court, E.D. New York.
February 6, 2003.
*656 *657 Michele Hauser, New York City, By Michele Hauser, for Plaintiff.
Gonshorek & Pludwin, Brooklyn, NY, By Eliot D. Gonshorek, for the Defendant.
DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
JEROME FELLER, Bankruptcy Judge.
INTRODUCTION
Joel Stahl ("Stahl") initiated the above-captioned adversary proceeding seeking a determination that a state court judgment for the tort of malicious prosecution is excepted from discharge pursuant to 11 U.S.C. § 523(a)(6). Stahl and the Debtor, Eric Gross ("Gross"), are long time combatants who have been engaged in lengthy civil and criminal litigation in the New York State courts. At the end of the day, Stahl prevailed in a cause of action for malicious prosecution and obtained a judgment against Gross, predicated on a jury verdict, for compensatory and punitive damages totaling $210,000.00 ("Judgment"). Thereafter, Gross commenced this Chapter 7 case, in the main, to discharge the Judgment.
Before the Court is a motion for summary judgment filed by Stahl. Stahl asserts that the Judgment is nondischargeable because it resulted from willful and malicious injury caused by Gross and that Gross is collaterally estopped from relitigating the issues of willfulness and malice in the bankruptcy forum. Gross opposes the motion. Gross does not dispute the collateral estoppel effect attributable to *658 the jury's finding of maliciousness. However, he does contend that the jury never considered the issue of willfulness as that term is defined under § 523(a)(6). Accordingly, Gross argues that collateral estoppel is inapplicable and the issue of willfulness must be litigated in the bankruptcy court.
An examination of the jury instructions in the context of the applicable law governing the tort of malicious prosecution clearly demonstrates that the issue of willfulness within the meaning of § 523(a)(6) was actually and necessarily litigated in the earlier malicious prosecution action. Accordingly, collateral estoppel is applicable in the instant bankruptcy nondischargeability action and Stahl's motion for summary judgment is granted.
BACKGROUND
While the origin and specifics of the conflict between Stahl and Gross does not appear in the record before this Court and remains a mystery, relevant aspects of the state court litigation has been detailed.
Stahl was arrested in September 1995 on a criminal complaint filed by Gross. Gross also commenced a civil lawsuit against Stahl for the acts allegedly committed on September 13 and 14, 1995 that constituted the basis for his criminal complaint. Stahl, in turn, initiated his own civil lawsuit against Gross. Following a March 1996 bench trial, Stahl was convicted for menacing, a Class B misdemeanor, and three noncriminal harassment offenses. In addition to the aforesaid convictions, the criminal court issued an order of protection ("Order of Protection"). The Order of Protection, operative for one year, directed Stahl to stay away from Gross, the home and place of business of Gross, and to refrain from, among other things, harassing and menacing Gross. Ultimately, the menacing conviction of Stahl was overturned on appeal, but the noncriminal convictions were left in tact.
Meanwhile, in or around December 1996, Gross charged Stahl with violating the Order of Protection and Stahl was arrested on felony charges. Gross testified against Stahl before the grand jury[1] and Stahl was indicted. Gross testified that on November 28, 1996, at about 8:30 a.m., Stahl appeared in front of his house, staring at his front door. Gross further testified that on December 25, 1996, at about 8:15 a.m., while he was sitting in his car across the street from his place of business, Stahl again appeared. Gross described the ensuing events as follows:
Well, Mr. Stahl came walked up the block and he saw me and he gave me the finger and I gave him the finger back. He started coming at my car screaming and spitting that he was going to kill me. That I wouldn't get away with this. He would kill me first and on the vehicle spit a second time at me through the window which was opened. I realized that I better leave and I put my car in drive and drove away. He was running towards the car about to kick it.
Gross described his feelings at that time as "scared", "agitated", "annoyed" and "upset". As indicated above, Stahl was indicted.
The felony criminal case proceeded to trial and at the end of the prosecution's case, the criminal court judge dismissed the case without even submitting it to the jury. In dismissing the case, the judge observed that the case was the weakest he had ever seen and that it was his belief *659 that the complaining witness, Eric Gross, was using the Order of Protection as a sword rather then a shield to increase the damages in a pre-existing civil lawsuit.[2]
Following dismissal of the felony criminal case against him, Stahl amended the complaint in his civil lawsuit to add a cause of action for malicious prosecution. The Stahl and Gross civil actions were consolidated for trial. Before trial, Stahl voluntarily discontinued all causes of action against Gross, except the claim for malicious prosecution. The two civil actions were tried together before a jury in January-February 2001. The jury returned a unanimous verdict, finding that Gross did not have probable cause to believe that Stahl violated the Order of Protection and that Gross acted maliciously. The jury awarded Stahl compensatory damages in the amount of $60,000.00 and punitive damages in the amount of $150,000.00. On April 3, 2001, the Judgment was entered against Gross in the amount of $213,500.00, including interest and costs accrued as of that date.
THE JURY INSTRUCTIONS
The jury was given the following instructions in respect of Stahl's cause of action for malicious prosecution:
Joel Stahl seeks damages for injury he claims resulted from his prosecution for violating an order of protection. Eric Gross does not deny that he was responsible for the prosecution or contend that he acted in good faith and on reasonable grounds.
In order to recover, Joel Stahl must establish that at the time the prosecution was initiated, Eric Gross did not have probable cause to believe that Joel Stahl was guilty of violating the order of protection and that in initiating the prosecution, Eric Gross acted maliciously.
It is not in dispute that the Grand Jury, after investigation, indicted Joel Stahl. Eric Gross had probable cause to believe that Joel Stahl was guilty unless you find that the indictment was based upon evidence given by Eric Gross to the Grand Jury that was false in a material, that is important way.
If you find that Eric Gross did not falsify such evidence, your finding will be that Eric Gross had probable cause and you will find for Eric Gross.
If you find it was falsified, your finding will be that Eric Gross did not have probable cause and you may, although you are not required to, infer from that fact Eric Gross acted maliciously.
If you find Eric Gross did not act maliciously you will find for Eric Gross. If you find that Eric Gross did act maliciously, you will find for Joel Stahl and you will proceed to consider the question of damages as to Mr. Stall's claim.[3]
DISCUSSION
The Bankruptcy Code, in 11 U.S.C. § 523, provides exceptions to the discharge of a bankrupt from liability for his debts. Section 523(a)(6) of the Bankruptcy Code provides:
(a) A discharge under section 727, 1141, 1228(a) 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt.
. . . . .
(b) for willful and malicious injury by the debtor to another entity or to the property of another entity.
*660 The term "willful" in the context of § 523(a)(6) means deliberate or intentional. S.Rep. No. 989, 95th Cong., 2d Sess. 79 (1978), U.S.Code Cong. & Admin.News 1978, 5787, 5864-65; H. Rep. No. 595, 95th Cong., 2d Sess. 365 (1977), U.S.Code Cong. & Admin.News 1978, 5963, 6320-21. The Supreme Court has interpreted "willful" under § 523(a)(6) as requiring "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). The "willful" requisite for nondischargeability under § 523(a)(6) incorporates the category of intentional torts as distinguished from negligent or reckless torts. As further pointed out in Geiger, intentional torts generally require that the perpetrator intend the consequences of his act not just the act itself. Id.
There is no requirement that a debt previously established in a judicial proceeding to be of the type that is nondischargeable be relitigated in the bankruptcy court. On the contrary, the doctrine of collateral estoppel applies in bankruptcy nondischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). Collateral estoppel bars relitigation of an issue previously decided, if the party against whom the prior decision is asserted had "a full and fair opportunity to litigate that issue in the earlier case." Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citations omitted). Collateral estoppel treats as final only those issues "actually and necessarily determined" in the prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).
Stahl's motion for summary judgment hinges on the preclusive effect of the civil jury verdict obtained in the state court malicious prosecution action against Gross. The fact that Gross had a full and fair opportunity to litigate the matter is not disputed. Moreover, our review of the jury instructions and verdict leave no doubt that the willful nature of Gross's acts was litigated in the malicious prosecution action and necessarily determined by the jury when it ruled in favor of Stahl and awarded him damages, including substantial punitive damages.
Stahl sought damages for injury claimed to have resulted from his criminal prosecution, instigated by Gross for violations of the Order of Protection. Instructions to the jury included the following:
i) Gross does not deny that he was responsible for the prosecution or contend that he acted in good faith and on reasonable grounds;
ii) in order to recover, Stahl must establish that at the time the prosecution was initiated, Gross did not have probable cause to believe Stahl was guilty of violating the Order of Protection and that in initiating the prosecution, Gross acted maliciously;
iii) in order to conclude that Gross lacked probable cause, the jury must find that Gross falsified evidence submitted to the grand jury;
iv) if the jury finds that Gross falsified evidence and that therefore Gross did not have probable cause to believe Stahl was guilty of violating the Order of Protection, the jury may, although it is not required to, infer therefrom that Gross acted maliciously; and
v) should the jury determine that Gross did not have probable cause and acted maliciously, then the jury would proceed to the question of damages.
The evidence upon which the grand jury returned an indictment against Stahl was the testimony of Gross before that body. *661 The jury found that the evidence, i.e., the testimony, was falsified and accordingly concluded that Gross lacked probable cause to believe that Stahl was guilty of violating the Order of Protection. The jury further concluded that Gross acted maliciously and proceeded to award compensatory damages of $60,000.00 and punitive damages of $150,000.00.
The jury instructions, the jury verdict and the resultant Judgment must be viewed in totality. From that perspective, it is clear that the parties in the malicious prosecution lawsuit litigated an intentional tort that necessarily implicated issues of willfulness identical to those implicated in this § 523(a)(6) nondischargeability proceeding, and that those issues were actually litigated and necessarily determined in the state court proceeding. To relitigate those issues in the bankruptcy court would be duplicative and run afoul of the principles governing collateral estoppel.
THE POSITION OF ERIC GROSS
Gross vigorously opposes Stahl's motion for summary judgment, contending that collateral estoppel is inapplicable as the issues sought to be precluded in this nondischargeability adversary proceeding are not identical to those involved in the prior malicious prosecution action. Gross argues that the jury which rendered the malicious prosecution verdict was never charged, nor presented with the question of whether his conduct was intentional. According to Gross, the jury verdict could have been premised on information given to the grand jury that Gross reasonably believed to be true, i.e., an unintended falsehood. Furthermore, Gross asserts that nowhere in the charges or questions to the jury, or in the responses by the jury, is the issue as to whether he had a specific intention of causing injury which, according to Gross's reading of the Geiger case, is required for nondischargeability under § 523(a)(6).
In essence, Gross contends that the issue of "willful injury" under § 523(a)(6) was not at stake and thus not decided in the prior state court suit because it was not an element of the malicious prosecution cause of action. These arguments are devoid of merit. They overlook the requisites of malicious prosecution and misconstrue the Supreme Court decision in Geiger.
A brief review of the teleology and principles governing the tort of malicious prosecution is necessary and appropriate. While the tort of malicious prosecution protects against the consequences of wrongful prosecution, public policy favors bringing criminals to justice, and that accusers be allowed room for benign misjudgments. Accordingly, a plaintiff who is unjustifiably prosecuted suffers a number of harms that are worthy of redress, but such redress does not come easily. The law places a heavy burden on malicious prosecution plaintiffs requiring that they establish four elements, i) commencement or continuation of a criminal proceeding by the defendant against the plaintiff, ii) termination of the proceeding in favor of the accused, iii) absence of probable cause for the criminal proceeding; and iv) actual malice. Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 94, 335 N.E.2d 310 (1975), cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975). Since all of these elements are required to establish a claim, there is no such creature as a valid claim for negligent prosecution. 2 DAN B. DOBBS, THE LAW OF TORTS, § 430, at 1215 (West Group, 2001); Coleman v. Corporate Loss Prevention Assoc., Inc., 282 A.D.2d 703, 724 N.Y.S.2d 321 (N.Y.App.Div.2001). Nor can a malicious prosecution action be based upon the communication *662 of an unintended falsehood to a prosecutor. 2 DOBBS, § 431, at 1218.
Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstance to believe a malicious prosecution plaintiff to have been guilty of perpetrating a crime. Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248 (1983). Once a suspect has been indicted, however, the law is that the grand jury action creates a presumption of probable cause. Id.
Stahl was indicted at the behest of Gross. In light of the indictment, legal assumptions that the grand jury acted judicially and regularly were operative and Gross was the beneficiary of the presumption that he had probable cause to believe Stahl violated the Order of Protection. The presumption of probable cause arising once a suspect is indicted is rebuttable only where the malicious prosecution plaintiff establishes, fraud, perjury, misrepresentation of evidence or falsification of evidence. Broughton, 37 N.Y.2d at 456, 373 N.Y.S.2d at 92, 335 N.E.2d 310; Colon, 60 N.Y.2d at 83, 468 N.Y.S.2d at 456. In other words, for Stahl to have prevailed in his malicious prosecution action, Gross must have been found to have misled the grand jury by intentional misconduct in order to, in effect, forfeit the presumption of probable cause. In fact, the jury found that Gross was chargeable with intentional misconduct in the submission of falsified evidence that misguided the grand jury, and that he did so maliciously. To suggest that the resulting injury to Stahl was not intentional is just not to be believed.
In any event, Gross's interpretation of the Geiger case, as requiring a specific intent to cause injury for § 523(a)(6) nondischargeability, is incorrect. The Supreme Court, in Geiger, did not define the precise state of mind required to satisfy the § 523(a)(6) willfulness imperative. While the Supreme Court in the Geiger case precluded negligent or reckless conduct from the compass of § 523(a)(6), it did not require a specific intent to cause injury. An intentional wrongful act that necessarily causes injury meets the willfulness standard under Geiger. 4 COLLIER ON BANKRUPTCY ¶ 523.13[1], at 523-92 (Lawrence P. King, et al. eds., 15th ed.2001).
At the very least, the jury in the malicious prosecution action actually and necessarily determined that the intentional misconduct of Gross in submitting falsified evidence to the grand jury unavoidably caused injury to Stahl. Such misconduct falls within the ambit of willfulness as construed by the Supreme Court in Geiger.
CONCLUSION
For all of the foregoing reasons, the doctrine of collateral estoppel is applicable and bars relitigation of the issue of willfulness in the bankruptcy court. Therefore, there exists no genuine issue as to any material fact and Stahl is entitled to judgment as a matter of law. Accordingly Stahl's motion for summary judgment is granted and the Judgment in the amount of $213,500.00 entered on April 3, 2001, including interest and costs accrued as of that date, is nondischargeable under 11 U.S.C. § 523(a)(6).
IT IS SO ORDERED.
NOTES
[1] Relevant portions of the Gross grand jury testimony are set forth in the Statement of Undisputed Material Facts filed by Stahl pursuant to E.D.N.Y. LBR 7056-1, Exh. G. ("Stahl Statement").
[2] Stahl Statement, Exh. J at 154.
[3] Affidavit of Michele Hauser, Esq., Exh. F. at 13-14. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570024/ | 29 So. 3d 1184 (2010)
Willie David MADERSON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-5843.
District Court of Appeal of Florida, First District.
March 10, 2010.
Nancy A. Daniels, Public Defender and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
Appellant seeks review of his conviction and sentence for robbery with a weapon. He argues that the trial court erred in *1185 failing to consider and rule on his motion to discharge counsel and in admitting evidence of collateral crimes. We agree that the trial court erred with regard to the motion to dismiss counsel and reverse. We affirm Appellant's remaining claims without discussion.
Appellant filed his pro se motion to discharge counsel a few days before his trial alleging that his attorney was incompetent for, among other things, failing to prepare an adequate defense. Just before the trial began, Appellant inquired of the trial court as to his motion. The court replied that the motion was a nullity because Appellant was represented by counsel. When Appellant argued that defense counsel was unlikely to file a motion to dismiss himself, the court informed him that he could file a motion for postconviction relief if he was convicted. Appellant's defense counsel volunteered to address Appellant's concerns and said he had done everything he could. Appellant asserted that counsel did a little bit, but not all that Appellant asked of him. The court informed Appellant that counsel's choice whether to file the motion to dismiss counsel was his counsel's decision. Appellant then complained that counsel had done nothing other than show up for court and that the copies of depositions he had provided were incomplete. After a brief exchange with counsel, the trial court instructed Appellant to get dressed and "we'll go to trial."
This court has held, "[i]n deciding whether a trial court conducted an appropriate Nelson inquiry, appellate courts apply the review standard of abuse of discretion." Kearse v. State, 605 So. 2d 534, 536 (Fla. 1st DCA 1992); Augsberger v. State, 655 So. 2d 1202, 1204 (Fla. 2d DCA 1995). In this context, a trial court abuses its discretion when it fails to "provide the defendant with the opportunity to explain why he or she objects to counsel or fails to conduct the [required] inquiries." Kearse, 605 So.2d at 536.
The Florida Supreme Court adopted the procedure outlined by the Fourth District in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), to be followed when a defendant raises a motion to discharge his or her court-appointed trial counsel on grounds that counsel is incompetent. Hardwick v. State, 521 So. 2d 1071 (Fla.1988), superceded on other grounds as recognized in, McKenzie v. State, 29 So. 3d 272 (Fla.2010). Accordingly, the court stated:
If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.
Hardwick, 521 So.2d at 1074-1075 (citing Nelson, 274 So.2d at 258-259).
"Generally, a court's failure to conduct a Nelson inquiry is reversible error if the defendant has clearly alleged attorney incompetence and has unequivocally stated he wishes to discharge his counsel." Reid v. State, 826 So. 2d 414, 415 (Fla. 2d DCA 2002) (citing Davis v. State, 703 So. 2d 1055, 1058 (Fla.1997), and Branch v. State, 685 So. 2d 1250 (Fla.1996)). However, a *1186 defendant's broad complaints of dissatisfaction with his attorney are not sufficient to require such an inquiry. Morrison v. State, 818 So. 2d 432, 440 (Fla.2002); Addison v. State, 989 So. 2d 1252 (Fla. 1st DCA 2008). Here, the trial court failed to conduct a proper Nelson inquiry even though Appellant's motion clearly expressed a desire to discharge his attorney based upon more than mere general dissatisfaction with the attorney.
Initially, the court erred when it determined that the motion should be struck as a nullity because Appellant was represented by counsel. While, in general, pro se motions filed by represented defendants are nullities, they should not be stricken as such if a defendant unequivocally seeks to discharge counsel or where the defendant makes allegations that give rise to a clear adversarial relationship with counsel. Sheppard v. State, 17 So. 3d 275, 282 (Fla.2009); Murray v. State, 1 So. 3d 407, 408 (Fla. 2d DCA 2009) (citing Purnell v. State, 931 So. 2d 134, 135 (Fla. 2d DCA 2006)).
While the court entertained limited argument on the motion, the inquiry was insufficient. The record does not reflect that Appellant was given an adequate opportunity to address his claims to the court, nor did the court make a finding regarding the reasonableness of the claims. Further, the court did not inform Appellant that, should he choose to discharge counsel, a substitute counsel may not be appointed. Thus, reversal and remand for a new trial is required.
REVERSED and REMANDED.
LEWIS, THOMAS and WETHERELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917353/ | 288 B.R. 114 (2003)
LASALLE NATIONAL TRUST, N.A., Appellant,
v.
TRAK AUTO CORPORATION, Appellee.
No. CIV.A. 2:02CV466.
United States District Court, E.D. Virginia, Norfolk Division.
January 10, 2003.
*115 *116 Jesse Ellsworth Summers, Jr., Kaufman & Canoles PC, Norfolf, VA, for appellant.
James Thomas Lloyd, Jr., Norfolk, VA, for appellee.
Paul Kevin Campsen, Jesse Ellsworth Summers, Jr., Kaufman & Canoles PC, Norfolk, VA, for movant.
Debra F. Conlon, Office of the United States Trustee, Norfolk, VA, trustee.
MEMORANDUM OPINION AND ORDER
JACKSON, District Judge.
This matter is before the Court on appeal from the United States Bankruptcy Court for the Eastern District of Virginia, Chapter 11 Case No. 01-72167-DHA. Appellant LaSalle National Trust ("LaSalle") appeals from an April 24, 2002 Memorandum Opinion and Order (the "April 24 Order") denying LaSalle's request for reconsideration of the Bankruptcy Court's March 4, 2002 Memorandum Opinion and Order (the "March 4 Order") authorizing Appellee Trak Auto ("Trak Auto" or "Trak") to assume and assign to A & E Stores, Inc. ("A & E"), Trak Auto's nonresidential real property lease (the "Lease") covering the retail store number 331 (the "Premises") located in the West Town Shopping Center (the "Shopping Center"), in Chicago, Illinois.[1] For the reasons set forth below, the Bankruptcy Court's conclusions of law and findings of fact are AFFIRMED
I. FACTUAL & PROCEDURAL HISTORY
Trak Auto, prior to the commencement of this bankruptcy case on July 5, 2001, was in the business of retailing automotive parts and accessories. Trak operates out of 196 retail locations across nine states and the District of Columbia. In November 2001, in consultation with Congress, its Official Committee of Unsecured Creditors, *117 and with the court-appointed consultant retained by Trak Auto to assist with its business and financial decisions, Trak decided to withdraw from its Chicago-area market (Wisconsin, Illinois, Indiana and Michigan) and to close down operations at its associated retail locations, including the Premises. The Bankruptcy Court authorized Trak Auto's termination of operations in its Chicago-area market, and liquidation of its associated assets, by Order dated November 9, 2001.
Trak Auto hired a liquidator to facilitate the court-ordered liquidation of its Chicago-area assets by advertising and selling some or all of Trak's unexpired leases, including the Lease at issue in this appeal. Trak's liquidator received a bid of $80,000 from A & E to purchase Trak's rights under the Lease, including any option periods, and to assume all liability thereafter accruing under the Lease.
The Shopping Center, where the Premises is located, consists of twenty-five (25) commercial locations, nearly all of which are retail stores. The retail mix of the Shopping Center includes a large department store, a grocery store, several clothing stores, a couple of fast-food eateries, an optician, a bank branch, an instant cash outlet, an adult/intimate products store, a laundromat, a few merchandise vendors and a branch of the Chicago Public Library. Eight unrelated stores are located in the buildings directly contiguous to the Shopping Center. These eight stores are not owned or controlled by LaSalle, however, they appear virtually indistinguishable from the Shopping Center's stores to the average shopping consumer. An additional twenty-five stores are located directly across the street from the Shopping Center. These additional locations are not owned or controlled by LaSalle, but due to the interdependent nature of all the stores, the Bankruptcy Court found that these stores have a direct impact upon the retail mix of the Shopping Center.
On July 5, 2001, Trak Auto filed a Petition for Relief in the Bankruptcy Court under Chapter 11 of Title 11, United States Code (the "Bankruptcy Code"). On December 17, 2001, Trak filed its Motion of Debtor in Possession to Assume and Assign Certain Nonresidential Real Property Leases to A & E Stores, Inc., and Notice Thereof (the "A & E Motion").[2] The A & E Motion sought authority to assume and assign Trak's Lease for the Premises, along with another store location (Store No. 325), to A & E for the aggregate bid of $75,000.00. As a result of the assumption and assignment, A & E would replace Trak Auto with its retail clothing store "Pay Half."[3] Trak also simultaneously filed its Motion of the Debtor in Possession to Assume and Assign Certain Nonresidential Real Property Leases to Family Dollar Stores, Inc., and Notice Thereof (the "Family Dollar motion"), seeking authority to assume and assign the Premises, along with another store location (store no. 341), to Family Dollar Stores, Inc. ("Family Dollar") for the aggregate bid of $40,000.00. A hearing on both the A & E and Family Dollar Motions was scheduled for January 8, 2002 before the Bankruptcy Court.
On January 4, 2002, LaSalle filed its objection to the Family Dollar Motion, citing as grounds the "restrictive use" language *118 contained in the lease. Section 1.1(L) of the Lease expressly provides:
Permited Uses: Sale at retail of automobile parts and accessories and such other items as are customarily sold by Tenant at its other Trak Auto Stores.
Section 8.1(B) of the Lease provides, in pertinent part:
Affirmative Covenants: Tenant covenants at its expense at all times during the Lease term and such further times as Tenant occupies the Leased Premises or any part therof . . .
(B) Except as otherwise provided in this Lease, to use the Leased Premises only as a Trak Auto Store and for the Uses provided in Section 1.1(L). . . .
Brief of Appellant, p. 2. (citing Exhibit A)(emphasis in brief).
LaSalle did not separately object to the A & E Motion. On January 7, 2002, Trak Auto's liquidator conducted a telephonic auction sale of several of Trak's unexpired nonresidential real property leases, including those covered by both the A & E Motion and the Family Dollar Motion. During the auction, A & E submitted the last and highest bid for the Lease, $80,000 cash, which Trak accepted, subject to approval of the Bankruptcy Court.
Prior to the hearing scheduled for January 8, 2002, Trak Auto's counsel advised LaSalle that Trak was withdrawing the motion as it related to LaSalle's lease.[4] Apparently, Trak Auto decided not to withdraw the motion notwithstanding its prior communication to La Salle. Accordingly, on January 8, 2002, the Bankruptcy Court continued the hearing on approval of Trak's modified request to approve assumption and assignment of the Lease to A & E to January 11, 2002. At the January 11 hearing, Trak introduced, through live testimony and proffer, evidence concerning (i) the benefit to the Debtor's estate resulting form the proposed assumption and assignment of the Lease, (ii) Trak's ability to cure any sums in default under the Lease as part of such assumption and assignment, and (iii) adequate assurance of the various performance requirements of 11 U.S.C. § 365(b)(1), (b)(3) & (f)(2).
In response, LaSalle argued that its written grounds for objection to the Family Dollar Motion extended also to the A & E Motion. LaSalle proffered additional evidence including a listing of the tenants currently leasing LaSalle's other locations neighboring the Premises, and argued that Trak's proposed assignment of the Lease to A & E would upset the existing "tenant mix" at the Shopping Center. LaSalle asserted no other grounds for objection.
The Bankruptcy Court took under advisement the evidence and proffers produced at the January 11, 2002 hearing, and permitted the parties, including Congress, an opportunity to submit memoranda on the "restrictive use" and "tenant mix" objections asserted by LaSalle. On January 21, 2002, Trak and Congress each filed memoranda in support of the assumption and assignment of the Lease to A & E. On January 22, 2002, LaSalle filed its brief in opposition.
By the March 4 Order, the Bankruptcy Court provisionally granted Trak Auto authority to assume and assign the Lease to *119 A & E. The March 4 Order was expressly subject to LaSalle's opportunity to seek a rehearing at which time it might present further evidence. On March 14, 2002, LaSalle filed its Motion for Clarification and/or Reconsideration of Court's Memorandum Opinion and Order Dated March 4, 2002 (the "Motion for Reconsideration") and its brief in support thereof. On March 29, 2002, Congress filed its response to LaSalle's Motion for Reconsideration. On April 11, 2002, the Bankruptcy Court conducted an evidentiary hearing on LaSalle's Motion for Reconsideration.[5] At the hearing, LaSalle submitted testimony of its expert witness, Joan E. Primo ("Ms.Primo"), in support of its objection to the Debtor's assignment of the Lease to A & E. Ms. Primo testified that, in her opinion, the proposed assignment would disrupt the tenant mix at the Shopping Center. Ms. Primo also testified that the addition of A & E's store, "Pay Half," would result in an excessive amount, 20.8 %, of the Shopping Center being used for clothing sales. According to Ms. Primo, the national average for retail sales usage in a shopping center is 10%. Following the evidentiary hearing, however, the Bankruptcy Court issued its April 24 Order denying LaSalle's Motion for Reconsideration.
On June 20, 2002, after the parties presented argument during a May 10, 2002 hearing before the Bankruptcy Court, the Bankruptcy Court granted LaSalle's Emergency Motion for Stay, thereby staying Trak Auto's proposed assumption and assignment of the Lease pending appeal to this Court.[6]
II. JURISDICTION & STANDARD OF APPELLATE REVIEW
Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. § 158(a)(1). A district court reviews a bankruptcy court's decisions of law de novo. L & R Associates v. Curtis, 194 B.R. 407, 409 (E.D.Va.1996) (citing In re Johnson, 960 F.2d 396, 399 (4th Cir.1992)). A district court reviews a bankruptcy court's findings of fact under a clearly erroneous standard. F ED. R. BANKR. P. 8013; Lubrizol Enterprises v. Richmond Metal Finishers, 756 F.2d 1043, 1047 (4th Cir.1985).
When reviewing for clear error, an appellate court must give due regard to the opportunity of the trial court to judge the credibility of witnesses. See W.F. Magann Corp. v. Diamond Mfg. Co., Inc., 775 F.2d 1202 (4th Cir.1985). If the trier of fact's account of evidence is plausible in light of the record, viewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as trier of fact, it would have weighed evidence differently. Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988); Hall v. Marion School Dist. No. 2, 31 F.3d 183 (4th Cir.1994); see also, FED. R. CIV P. 52(a). Indeed, where there are *120 two permissible views of evidence, the fact finder's choice between them cannot be clearly erroneous even when the court's findings do not rest on credibility determinations but are based instead upon physical or documentary evidence or inferences from other facts. American Original Corp. v. Jenkins Food Corp., 774 F.2d 459 (Fed.Cir.1985).
III. DISCUSSION
Appellants seek review of the Bankruptcy Court's April 24 Memorandum Opinion & Order denying Appellee's Motion for Reconsideration of its March 4 Order, concluding that:
(A) The "permitted use" provisions of the Lease are de facto anti-assignment clauses subject to excision under § 365(f) of the Bankruptcy Code; and
(B) The assumption and assignment of the Lease will not disrupt the tenant mix of the Shopping Center under § 365(b)(3)(D) of the Bankruptcy Code; and
(C) Trak Auto's decision to assume and assign the Lease is in the best interest of the Debtor's Estate as a valid exercise of its business judgment under § 365 of the Bankruptcy Code.
A. De Facto Anti-Assignment Clauses
The Bankruptcy Court held that the "Permitted Use" and "Affirmative Covenants" provisions of the Lease were de facto anti-assignment clauses and, therefore, excised them from the Lease under § 365(f) of the Bankruptcy Code. The Bankruptcy Court noted that, although the debtor is required to assume its unexpired leases cum onere, and that courts cannot rewrite a debtor's lease, provisions therein that prohibit assignment outright are unenforceable under § 365(f)(1) of the Bankruptcy Code. March 4 Order, p. 23-24 (citing In re Rickel Home Centers, Inc., 240 B.R. 826, 831 (D.Del.1998)). Relying principally upon Rickel, the Bankruptcy Court concluded that the Lease's use restrictions, limiting use of the Premises to the sale of automobile parts and accessories, were so restrictive that they constitute de facto anti-assignment clauses. See id. LaSalle argues that the Bankruptcy Court's conclusion on this issue is erroneous and that the Court cannot excise a restrictive use provision in a nonresidential lease under § 365(b)(3). LaSalle relies heavily upon In re Sun TV & Appliances, Inc., 234 B.R. 356, 370-71 (Bankr.D.Del.1999) for the proposition that courts may not strike use provisions in leases even when those provisions prevent assignment of the lease. Brief of Appellant, p. 8. The Court concludes that the Bankruptcy Court's conclusion on this issue is correct.
In order to assume and assign a lease or executory contract, a debtor typically need only cure any arrearage and provide adequate assurance of future performance of the lease or contract. 11 U.S.C. § 365(b)(1). Section 365(b)(1) of the Bankruptcy Code provides:
(b)(1) If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee
(A) cures, or provides adequate assurance that the trustee will promptly cure, such default;
(B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default; and
*121 (C) provides adequate assurance of future performance under such contract or lease.
11 U.S.C. § 365(b)(1)(A)-(C).[7] In the case of shopping center leases, however, Congress has placed additional restrictions on the right to assume and assign. See 11 U.S.C. § 365(b)(3). Section 365(b)(3) of the Bankruptcy Code provides, in relevant part:
(3) For the purposes of paragraph (1) of this subsection and paragraph (2)(B) of subsection (f), adequate assurance of future performance of a lease of real property in a shopping center includes adequate assurance
(A) of the source of rent and other consideration due under such lease and in the case of an assignment, that the financial condition and operating performance of the proposed assignee and its guarantors, if any, shall be similar to the financial condition and operating performance of the debtor and its guarantors, if any, as of the time the debtor became the lessee under the lease;
(B) that any percentage rent due under such lease will not decline substantially;
(C) that assumption or assignment of such lease is subject to all the provisions thereof, including (but not limited to) provisions such as radius, location, use or exclusivity provision, and will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to such shopping center; and
(D) that assumption or assignment of such lease will not disrupt any tenant mix or balance in such shopping center.
11 U.S.C. § 365(b)(3)(A)-(D).
In order to determine if the additional restrictions of § 365(b)(3) apply to the Lease, the Court must determine whether the Lease is a "shopping center lease." In re Sun TV, 234 B.R. at 359-60. Despite Ms. Primo's testimony concerning community shopping center standards, Trak Auto points out that LaSalle failed to put on evidence indicating why the West Town Shopping Center is or should be analyzed like, a community shopping center under § 365(b)(3). Trak Auto argues that the West Town Shopping Center, though labeled a shopping center, does not resemble a typical suburban community-retail center. Trak argues that the Shopping Center is much more "like a downtown shopping district, within walking distance of offices and apartment buildings." Brief of Appellee, p. 4. Trak further contends that the Shopping Center is merely part of a cluster of buildings located next to and near each other, which are owned by different property owners. And, these various property owners have no ability to control the tenant mix of their neighbors. Id.
The United States Court of Appeals for the Third Circuit ("Third Circuit") has provided guidance concerning the factors to consider in determining whether a lease falls within § 365(b)(3). See In re Joshua Slocum Ltd., 922 F.2d 1081 (3d Cir.1990); see also, Sun TV, 234 B.R. at 360. According to the Third Circuit, "[w]hile it is true that the mall is the archetypal `shopping center,' all shopping centers do not necessarily take the form of shopping malls." Joshua Slocum, 922 F.2d at 1087-88. The court compiled several *122 factors taken from other bankruptcy cases and treatises noting that "[l]ocation is only one element in the determination of whether a group of stores can properly be described as a `shopping center.'" Id. The following factors are indicative of a shopping center:
(a) A combination of leases;
(b) All leases are held by a single landlord;
(c) All tenants engaged in the commercial retail distribution of goods;
(d) The presence of a common parking area;
(e) The purposeful development of the premises as a shopping center;
(f) The existence of a master lease;
(g) The existence of fixed hours during which all stores are open;
(h) The existence of joint advertising;
(i) Contractual interdependence of the tenants as evidenced by restrictive use provisions in their leases;
(j) The existence of percentage rent provisions in their leases;
(k) The right of the tenants to terminate their leases if the anchor tenant terminates its lease;
(l) Joint participation by tenants in trash removal and other maintenance;
(m) The existence of a tenant mix; and
(n) The contiguity of the stores.
Joshua Slocum, 922 F.2d at 1087-88 (citations omitted). The Court notes that the Bankruptcy Court failed to undertake a detailed analysis and make a specific finding of fact on this issue. Because this issue has not been specifically raised on appeal, however, for purposes of this appeal the Court assumes that the West Town Shopping Center is a "shopping center" under § 365(b)(3).[8]
Section 365(b)(3)(C) provides that the assumption and assignment of a shopping center lease must be cum onere, that is "subject to existing burdens." In re Chicago R.I. & Pac., 860 F.2d 267, 272 (7th Cir.1988); 11 U.S.C. § 365(b)(3)(C). This section has been interpreted to mean that the Debtor is not free to select only those lease terms which it deems to be favorable, but rather must assume and assign the lease as a whole and is not free to accept the favorable terms while discarding the unfavorable. United States v. Carolina Parachute Corp., 907 F.2d 1469, 1472 (4th Cir.1990); Lee v. Schweiker, 739 F.2d 870, 876 (3d Cir.1984). Section 365(b)(3) is not meant to be read in isolation, however. Section 365(b)(3) must be read in conjunction with the section that it cross references, § 365(f). In re Rickel Home Centers, Inc., 240 B.R. 826, 831 (D.Del.1998). Section 365(f)(1) provides, in relevant part:
Except as provided in subsection(c) of this section, notwithstanding a provision in an executory contract or unexpired lease of the debtor, or in applicable law, that prohibits, restricts, or conditions the assignment of such contract or lease, *123 the trustee may assign such contract or lease under paragraph (2) of this subsection. . . .
11 U.S.C. § 365(f)(1). Courts have interpreted § 365(f)(1) to permit the Court to excise actual and de facto anti-assignment clauses. De facto anti-assignment clauses are typically those lease restrictions that can only be met by the original tenant. Rickel Home Centers, 240 B.R. at 831 ("in interpreting § 365(f), courts and commentators alike have construed the terms not only to render unenforceable lease provisions which prohibit assignment outright, but also lease provisions that are so restrictive that they constitute de facto anti-assignment provisions.")
The Bankruptcy Court below found that the "permitted use" provisions of the Lease amounted to de facto anti-assignment provisions. April 24 Order, pp. 3-4. The Bankruptcy Court noted that:
While debtor is required to assume its unexpired leases cum onere and is not permitted to rewrite the terms of the lease in assuming it, when the provisions of the lease violate the explicit commands of the Bankruptcy Code, this Court must strike those offending portions but give effect to the remaining non-offending parts of the lease.
April 24 Order, pp. 3-4 (citing In re Washington Capital Aviation & Leasing, 156 B.R. 167, 172 (Bankr.E.D.Va.1993); In re Rickel Home Ctrs., Inc., 240 B.R. 826, 831 (D.Del.1998)). The Bankruptcy Court's conclusion of law is correct. Applying the law, the Bankruptcy Court relied upon its finding that the area surrounding the Shopping Center is saturated with auto parts stores such that no auto parts retailer even bid on the Lease and concluded, therefore, that the "market indicates that such a restriction would amount to an anti-assignment clause." April 24 Order, p. 4. Although the Bankruptcy Court relied heavily on indicia of market saturation, this Court need not rely on anything other than the plain language of the Lease to conclude that the restrictive use provisions prohibit assignment of the Lease to anyone other than the original tenant. Rickel Home Centers, 240 B.R. at 831.
As cited in Appellant's Brief, Section 8.1(B) of the Lease provides, in pertinent part:
Affirmative Covenants: Tenant covenants at its expense at all times during the Lease term and such further times as Tenant occupies the Leased Premises or any part thereof . . .
(B) Except as otherwise provided in this Lease, to use the Leased Premises only as a Trak Auto Store and for the Uses provided in Section 1.1(L). . . .
Brief of Appellant, p. 2. (citing Exhibit A)(emphasis in brief). Under this language, the "Leased Premises" may be used "only as a Trak Auto Store." Id. Clearly, no one other than Trak Auto could meet this requirement and, consequently, Trak would be ipso facto prohibited from assuming and assigning the Lease if this use restriction was enforced. Accordingly, the Bankruptcy Court properly excised the offending provisions of the Lease while giving effect to the remaining provisions regardless of the status of the relevant market area.
B. Tenant Mix
The Bankruptcy Court's finding that assumption and assignment of the lease will not disrupt the tenant mix of the shopping center is a factual finding that this Court reviews only for clear error. As stated above, clear error review does not authorize this Court to reverse the trier of fact below merely because it may have decided the factual question differently. *124 Hall v. Marion School Dist. No. 2, 31 F.3d 183 (4th Cir.1994). The Bankruptcy Court's factual findings, therefore, will be upheld if they are supported by the record. Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988). The Court concludes that the Bankruptcy Court's factual finding concerning the effect of the assumption and assignment of the Lease on the tenant mix of the Shopping Center are not clearly erroneous because they are supported substantially by the record.
First, LaSalle argues that the Bankruptcy Court's decision contravenes the legislative history of § 365(b)(3)(D) of the Bankruptcy Code. LaSalle points to a congressional statement that "the tenant mix in a shopping center may be as important to the lessor as the actual promised rent payments. . . ." Brief of Appellant, p. 15 (citing In re Joshua Slocum Ltd., 922 F.2d 1081 (3d Cir.1990))(legislative history citation omitted). LaSalle argues that Congress enacted § 365(b)(3)(D), which requires that "assumption and assignment of [a debtor's unexpired lease] will not disrupt any tenant mix or balance in such shopping center," with the above intent in mind. Therefore, the Bankruptcy Court's finding that adding an additional clothing store, A & E's "Pay Half," would not disrupt the tenant mix of the Shopping Center is erroneous. LaSalle's argument is unpersuasive.
LaSalle's treatment of the tenant mix existing prior to Trak Auto's default seems to conflict with the legislative history that it urges this Court to consider. According to Joan Primo, LaSalle's expert, that national average for retail clothing stores in a shopping center is 10%. See Testimony of Joan Primo, April 11, 2002 hearing. Yet, prior to Trak Auto's default, the tenant mix of the Shopping Center was almost 3% over the national average presented by its expert. This is a result of LaSalle's own contractual negotiations with its other tenants. In fact, the record supports a finding that the tenant mix was in excess of the national average by more than 5%.[9] Ms. Primo testified that the addition of A & E's Pay Half store would increase retail clothing usage to 20.8%, an excessive amount in her opinion. Id. Prior to Trak Auto's default, however, Ms. Primo indicated that the West Town Shopping Center was already operating with a conservative estimate[10] of 12.7% of its stores engaged in retail clothing sales. Id. Because Ms. Primo's estimate neglected space in other stores, the Bankruptcy Court ultimately found that 15.3% of the Shopping Center's tenants were engaged in retail clothing sales. April 24 Order, p. 6. Accordingly, it was not erroneous for the Bankruptcy Court to conclude that, notwithstanding the legislative history of § 365(b)(3)(D), LaSalle cannot credibly complain of a 5% increase (from 15.3% to 20.8%) in retail clothing scales, when LaSalle itself had already allowed the tenant mix to be disturbed by that same proportion.
Additionally, when reviewing the decision below for clear error, the Court must *125 give substantial deference to the trier of facts credibility assessment and the relative weight it accorded to a witnesses testimony. The record reveals several contradictions in Ms. Primo's testimony, any one of which would justify the Bankruptcy Court in finding Ms. Primo's testimony less than credible and, therefore, entitled to little or no weight at all. For example, even Ms. Primo testified that the configuration of the Shopping Center "is a little interesting and unusual in that part of the center is really, to the consumer, Milwaukee Street retailing." Brief of Appellant, p. 17 (quoting Testimony of Joan Primo at April 11, 2002 Hearing)(emphasis added). According to Ms. Primo's testimony, LaSalle has little control over the impact of tenant mix on its shopping center because "[t]here are a lot of other apparel retailers [on Milwaukee Street]." Id. Ms. Primo also testified that "not only do we have a good amount of apparel in the center per se, but you also have a fair amount right on the street, with a very large Rainbow Store at the corner and Payless Shoes and a number of other independents along the street." Id. This evidence would support a factual finding that the LaSalle lacks control over the impact of tenant mix on the Shopping Center and, therefore, does not come within the protection of § 365(b)(3)(D). This testimony also seems to contradict Ms. Primo's testimony on the detrimental impact assumption and assignment to A & E would have on the Shopping Center.
Moreover, Ms. Primo also testified that the addition of another apparel retailer like A & E's Pay Half store would "not enhance the mix at all and would detract further in that right now a Trak Auto or an auto store appeals to the male customer . . . [and] it brings a different customer to the center than is already coming to the center for those apparel retailers" Id. However, the record clearly establishes that other stores sell men's clothing. One of the Shopping Center's largest tenants, Big K, sells mens and women's clothing along with hardware and automotive items that appeal to "the male customer." Therefore, the record supports a finding that the absence or presence of an auto parts store, or its replacement with an apparel store, does not significantly impact the tenant mix of the Shopping Center. Furthermore, Ms. Primo testified that she believes that an auto parts store will attract a "substantially different customer." Id. On the other hand, her testimony conflicts with that point in that she admits that there is not likely to be much cross-over shopping at the Shopping Center. She states, "I don't go shopping for apparel and then just decide to pick up some spark plugs. That is an infrequent type of purchase." Id. at 19. Just as it is unlikely that a woman who goes shopping for panty hose will decide to "pick up some spark plugs," it is equally unlikely that a man who goes shopping for spark plugs will opt to purchase some panty hose or other apparel while at the Shopping Center. LaSalle cannot use the cross over argument as a sword and a shield.
Finally, as a predicate to finding that a Shopping Center is entitled to protection under § 365(b)(3)(D), the lessor must demonstrate that there was an intended tenant mix in the first instance. See In re Sun TV, 234 B.R. at 366-67. Intent to create a diverse tenant mix must be established in light of the lease terms. In re Ames Department Stores, Inc., 121 B.R. 160, 165 (Bankr.S.D.N.Y.1990). In order to establish that the proposed assignment to A & E would disturb the tenant mix of the Shopping Center, LaSalle must establish that the alleged tenant mix was part of the bargained-for-exchange of its lease and the leases of the other tenants. Id.
*126 LaSalle argues that the Lease contains exclusive use clauses which are binding on any subsequent assignee and, that these use provisions create a tenant mix. However, the Bankruptcy Court found that the lease contained restrictive use provisions, which as discussed supra at Part A., were properly excised under § 365(b)(1), because LaSalle failed to carry its burden of production on the existence of exclusive use clauses in its leases. April 24 Order, p. 8. As the Bankruptcy Court noted, the "purpose of an exclusive use clause is to provide protection to a single tenant." April 24 Order (citing In re Sun TV, supra). The Bankruptcy Court found that it lacked "any evidence relating to the intent behind the use provisions" and, therefore, held that the "debtors lease contained only restrictive use clauses." Id. at 9. Appellate review of the record reveals no evidence concerning the intent of the use provisions and Appellant's brief fails to assert any.[11]
The Bankruptcy Court also properly considered the restrictive use provisions in the leases and found that the "leases for this shopping center do not contain complementary restrictive use provisions that are designed to show the landlord's intent to create a diverse tenant mix." Id. at 10. Indeed, the Bankruptcy Court properly noted that "[n]one of the leases contain provisions that restrict the number of tenants that may have clothing as their only merchandise or that limit the square footage of the shopping center that may be devoted to the sale of clothing." Id. Accordingly, the Bankruptcy Court's finding that there was no intent to create a diverse tenant mix in the first instance, and consequently, that LaSalle is not entitled to protection under § 365(b)(3), is not clearly erroneous.
Accordingly, it was not erroneous to for the Bankruptcy Court to conclude that the addition of another apparel retailer would not disrupt the tenant mix.
C. Best Interest of the Debtor's Estate.
LaSalle argues that the Bankruptcy Court clearly erred by finding that the assumption and assignment of the Lease to A & E is in the best interests of the Debtor's Estate. Given the high level of deference a court must give to a debtor so long as the transaction appears to enhance the value of the estate, this Court will not reverse the Bankruptcy Court's findings unless it is apparent that the assumption and assignment will impair the value of the Debtor's Estate. Brief of Appellant, p. 23 (citing Richmond Leasing v. Capital Bank, 762 F.2d 1303, 1309 (5th Cir.1985)). Because LaSalle was successful in obtaining a stay of this action pending appeal to this Court, the amounts due under the lease shall not accrue from and after March 4, 2002. See June 20, 2002 Order Granting Stay Pending Appeal, ¶ C. Accordingly, LaSalle's assertion that the amount due under the lease, as of submission of its brief, has increased to $81,588.72 is incredulous and incorrect. Because the cure amount as of the Bankruptcy Court's Stay Order is undoubtedly less than the amount bid by A & E,[12] authorization of *127 the assumption and assignment transaction "appears to enhance the value of the estate." The Bankruptcy Court's finding, therefore, is not clearly erroneous.
IV. CONCLUSION
For the reasons set forth above, the Bankruptcy Court's conclusions of law are correct and its findings of fact are not clearly erroneous. Accordingly, the decision of the Bankruptcy transaction "appears to enhance the value of the estate." The Bankruptcy Court's finding, therefore, is not clearly erroneous.
V. CONCLUSION
For the reasons set forth above, the Bankruptcy Court's conclusions of law are correct and its findings of fact are not clearly erroneous. Accordingly, the decision of the Bankruptcy Court below is AFFIRMED and Appellant's appeal is DISMISSED.
The Clerk is DIRECTED to send a copy of this Memorandum Opinion & Order to the parties.
IT IS SO ORDERED.
NOTES
[1] Congress Financial Corporation (Central) ("Congress"), the principal secured lender and party in interest in the Chapter 11 case below, and A & E, who submitted the last and highest bid for the lease, join Trak Auto's brief in this appeal.
[2] Trak Auto remains in possession and control of its automobile parts and supply business and assets as a "debtor-in-possession" pursuant to § 1107 of the Bankruptcy Code.
[3] Pay Half is a discount family clothing retail store that offers approximately twenty percent men's wear, forty percent children's wear, and forty percent women's wear. April 24 Order, p. 6.
[4] In an e-mail from Jim Lloyd to Keith J. Ostrowski, sent January 7, 2002, 12:45 p.m., Trak's counsel stated that the motion was being withdrawn "since (a) the bidder would violate the use provisions of the lease in question, and (b) little benefit would enure to the Estate based on the current bid of $20,000 and cure of approximately $19,000 . . . and that counsel agreed that the Court cannot alter the use restriction in the lease through the motion to assume and assign." Brief of Appellant, Exhibit B.
[5] On March 5, 2002, LaSalle filed a motion for an order to compel Debtor to pay amounts due under § 365(d)(3) of the Bankruptcy Code as administrative relief, and for relief from the automatic stay to pursue state court proceedings or other relief. LaSalle amended that motion on March 12, 2002. That Motion was also set for hearing before the Bankruptcy Court on April 11, 2002.
[6] LaSalle filed its emergency motion because Congress indicated its intention to proceed with the closing on the sale of the Lease to A & E, notwithstanding LaSalle's Motion for Stay. As a condition of granting the Emergency Motion, the Bankruptcy Court required LaSalle to post a bond in the amount of $25,000, which LaSalle deposited with the Court on May 8, 2002. Also, the Order Granting Stay Pending Appeal, entered on June 20, 2002, required LaSalle to post a bond of $80,000 with the Bankruptcy Court.
[7] Although § 365 refers to the trustee, a debtor-in-possession may exercise the power of the trustee to assume executory contracts and unexpired leases. See 11 U.S.C. § 1107(a).
[8] Given the detailed analysis undertaken by other Bankruptcy Courts, see Sun TV, supra, the Court finds that a summary finding is not appropriate. Nevertheless, the Court concludes that a finding on this issue is immaterial to the outcome of this appeal. If the Bankruptcy Court had found that the West Town Shopping Center is a "shopping center" under Joshua Slocum, the Court would reach the same result it would reach if the Court were to find that it is not a shopping center. If it is a shopping center, then § 365(b)(3) applies and this Court finds, infra, that the Bankruptcy Court's conclusion that the use restrictions are anti-assignment clauses was proper. If it is not a shopping center, then § 365(b)(3) does not apply and the general and more liberal rule permitting assumption and assignment of unexpired leases applies and the Bankruptcy Court's decision would also be proper.
[9] See n. 9, infra
[10] The Bankruptcy Court found that Ms. Primo's testimony was based upon the total square footage of each store and does not take into account that the landlord has indicated that there is space available in two of the stores used to reach the reported result. Also, Ms. Primo's figures did not reflect that fact that Big K, one of the largest retailers in the plaza, would place the landlord "well above the average for a shopping center" even if only one-fifth of Big K's total square footage is presumed to be used for the sale of clothing, thus resulting in approximately 15.3% of the shopping center's space being used for clothing sales prior to the addition of Trak's proposed assignee, A & E's Pay Half.
[11] As the Appellee points out in its brief, Ms. Primo, LaSalle's only expert witness, "failed to address any lease terms with other tenants, but rather limited her opinion to `general notions of tenant mix'" which the Ames court, and the Bankruptcy Court below, held to be insufficient.
[12] The Bankruptcy Court noted in its April 24 Order that the overall positive impact for Debtor's estate was approximately $18,000. According to Appellant's brief, as of the April 11, 2002 hearing, the cure amount was $53,235.90. The Court has no evidence suggesting that the cure amount increased by $30,000 between April 11 and June 20, 2002. Accordingly, this Court accepts as fact that the cure amount as of the Bankruptcy Court's June 20, 2002 Order was less than the $80,000 bid by A & E, therefore, the assumption and assignment would result in a net benefit to the Debtor's estate. In any event, LaSalle has put forth no evidence, other than its incredible argument above, that the transaction will have a detrimental effect upon the estate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917360/ | 835 So. 2d 281 (2002)
Alvin HOWARD, Appellant,
v.
STATE of Florida, Appellee.
No. 2D02-1627.
District Court of Appeal of Florida, Second District.
November 6, 2002.
Rehearing Denied January 23, 2003.
*282 KELLY, Judge.
Alvin Howard appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Howard raised seven claims. We affirm the denial of claims one, two, three, six, and seven without discussion. We reverse the denial of claims four and five, which assert ineffective assistance of counsel.
Mr. Howard was charged with burglary of a dwelling and convicted of attempted burglary of a dwelling. He was sentenced to ten years in prison as a habitual felony offender and to a five-year mandatory minimum as a prison releasee reoffender.
In his fourth claim, Mr. Howard asserted that he committed a completed burglary, and that there was no evidence of an attempted burglary. He claimed his counsel should not have acquiesced to the giving of an instruction on attempted burglary.
Attempted burglary is not a necessarily lesser included offense of burglary of a structure or burglary. It is a category two lesser included offense. See Standard Jury Instructions in Criminal Cases, 723 So. 2d 123 (Fla.1998). An instruction on a category two lesser included offense is permissible only if the language of the charging document and the evidence in the case support the charge. See State v. Johnson, 601 So. 2d 219, 220 (Fla. 1992).
The limited record suggests that the evidence supported a completed burglary, not an attempt. Also because of the limited record, we cannot ascertain whether defense counsel acquiesced, failed to object, or perhaps affirmatively requested the instruction on attempted burglary. The record does not contain the information, the jury charge conferences, the actual jury instructions given, or the portions of trial testimony relevant to this claim.
Therefore, we reverse. On remand, if the trial court determines the claim should be summarily denied, it should attach portions of the record that demonstrate conclusively that Mr. Howard is not entitled to relief. See Armstrong v. State, 806 So. 2d 547 (Fla. 2d DCA 2001).
In his fifth claim, Mr. Howard asserted his defense counsel also was ineffective *283 for conceding guilt to attempted burglary of a dwelling in closing argument, and for doing so without his specific consent. A concession of guilt to a lesser charge can at times be good strategy and within defense counsel's discretion. See Atwater v. State, 788 So. 2d 223, 230-231 (Fla.2001). A trial court's finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. See Flores v. State, 662 So. 2d 1350, 1351 (Fla. 2d DCA 1995). Under the circumstances present here, we reverse and remand for an evidentiary hearing on this claim.
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and STRINGER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917365/ | 835 So. 2d 1032 (2002)
Shirley Diane JOHNSON
v.
Iris L. JOHNSON.
2010086.
Court of Civil Appeals of Alabama.
May 17, 2002.
*1033 Debra Bennett Winston, Birmingham, for appellant.
Andrew Laplante, Bessemer, for appellee.
PITTMAN, Judge.
This is an appeal from the trial court's judgment in a case involving the division and sale of property.
On November 15, 1995, shortly after the death of her husband, Shirley Diane Johnson (hereinafter referred to as "the wife") filed with the probate court a petition to administer the estate of the decedent. On February 10, 1998, the decedent's daughter, Iris L. Johnson (hereinafter referred to as "the daughter") sued the wife and the decedent's sons, Henry Lamar Johnson, Jr., and Brandon Earl Johnson (hereinafter referred to as "the sons") in circuit court seeking sale of property belonging to the decedent and a division of the proceeds. The complaint contained two counts, one for sale and division and one alleging that the wife had intentionally interfered with the daughter's interest in the decedent's estate, the bulk of which consisted of a house owned by the decedent at the time of his death.
On October 22, 1999, the wife filed with the circuit court a claim for homestead allowance, exempt property, and family allowance. On February 16, 2000, the wife filed a verified petition for removal of the estate to circuit court. The circuit court held a hearing on June 19, 2001; at that hearing the court took testimony and heard the arguments of counsel. It then took the matter under advisement and asked that any further arguments be submitted on briefs. On September 12, 2001, the trial court entered an order addressing the sale-and-division issue. This order was amended on October 5, 2001, and after the wife's postjudgment motions were denied, the wife appealed to the Supreme Court. The Supreme Court, pursuant to § 12-2-7(6), Ala.Code 1975, transferred the case to this Court.
This appeal is due to be dismissed as not being from a final judgment. *1034 Any ruling that adjudicates the rights and liabilities of fewer than all the parties in a case, or that disposes of fewer than all the claims, is ordinarily not final as to any of the parties or as to any of the claims. Rule 54(b), Ala. R. Civ. P.; see McGlothlin v. First Alabama Bank, 599 So. 2d 1137 (Ala.1992). In such a case, the trial court can direct the entry of a final judgment, pursuant to Rule 54(b). In the absence of a Rule 54(b) certification of finality, 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 close review of the record indicates that at the least, there remains pending at the trial court the daughter's claim that the wife intentionally interfered with the daughter's interest in the decedent's estate. In addition, there also remains the claim of the wife for her homestead allowance, exempt property, and family allowance. Last, there remains the administration of the decedent's estate, which was properly removed to the circuit court and given the same case number as the action filed by the daughter, and for which the circuit court has properly taken jurisdiction.
Therefore, we dismiss this appeal as not from a final order pursuant to Rule 54(b), Ala. R. Civ. P.
APPEAL DISMISSED.
CRAWLEY and THOMPSON, JJ., concur.
YATES P.J., and MURDOCK, J., concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454668/ | 253 P.3d 392 (2011)
171 Wash. 2d 1017
SWANK
v.
DUFFY.
No. 85506-4.
Supreme Court of Washington, Department I.
April 26, 2011.
Disposition of Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570111/ | 722 N.W.2d 399 (2006)
2006 WI App 194
STATE v. HAMPTON.
No. 2004AP2310.
Wisconsin Court of Appeals.
August 22, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917359/ | 288 B.R. 356 (2002)
In re NII HOLDINGS, INC. and NII Holdings (Delaware), Inc., Debtors.
No. 02-11505 MFW.
United States Bankruptcy Court, D. Delaware.
October 28, 2002.
Daniel J. DeFranceschi, Paul N. Heath, Rebecca L. Scalio, Richards, Layton & Finger, Wilmington, DE, Evan D. Flaschen, Patrick J. Trostle, William F. Govier, Bingham McCutchen LLP, Hartford, CT, for Debtors and Debtors in Possession.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONFIRMING REVISED THIRD AMENDED JOINT PLAN OF REORGANIZATION OF NII HOLDINGS, INC. AND NII HOLDINGS (DELAWARE), INC.
MARY F. WALRATH, Bankruptcy Judge.
Upon the Revised Third Amended Joint Plan of Reorganization of NII Holdings, Inc. and NII Holdings (Delaware), Inc. (Docket No. 207), dated July 31, 2002, as may be amended and/or modified at or in connection with the hearing on confirmation thereof (the "Confirmation Hearing") or pursuant to the terms of this Order (the "Plan"), which is (i) a further modified *357 version of that certain Joint Plan of Reorganization for NII Holdings, Inc. and NII Holdings (Delaware), Inc. (Docket No. 81), which was filed with this Court by the above-captioned debtors and debtors in possession (the "Debtors") on June 14, 2002, and (ii) described on the record of the Confirmation Hearing and in this Order; and upon the related Revised Second Amended Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code for the Revised Third Amended Joint Plan of Reorganization of NII Holdings, Inc. and NII Holdings (Delaware), Inc. (Docket No. 220) (the "Disclosure Statement"), which is a further modified version of that certain Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code for the Joint Plan of Reorganization of NII Holdings, Inc. and NII Holdings (Delaware), Inc. (Docket No. 145), filed by the Debtors on June 27, 2002; and upon the record of the hearing before the Court on July 31, 2002, where the Court entered the Order (A) Approving the Debtors' Disclosure Statement, Forms of Ballots and Proposed Solicitation Procedures and (B) Establishing Voting Procedures for the Debtors' Joint Plan of Reorganization (the "Solicitation Order") (Docket No. 215); and the Court, pursuant to the Solicitation Order, having, inter alia: (i) authorized the Debtors to solicit acceptances or rejections of the Plan; (ii) approved the forms of Ballots to be transmitted with the Disclosure Statement and the Plan for voting purposes; (iii) set the deadline for objections to the Plan as September 16, 2002 at 4:00 p.m.; and (iv) scheduled the Confirmation Hearing to commence on September 27, 2002 at 4:00 p.m. or as soon thereafter as counsel can be heard; and it appearing that due notice of the Confirmation Hearing has been given to holders of Claims against the Debtors and all other parties-in-interest in accordance with the Solicitation Order, the Bankruptcy Code and the Bankruptcy Rules; and an affidavit (Docket No. 231), dated August 14, 2002 (the "Affidavit of Mailing"), having been filed by Bankruptcy Services LLC. the balloting agent (the "Balloting Agent"), attesting to the mailing to the parties identified therein of the Plan, the Disclosure Statement, the applicable Ballot(s), and related solicitation materials and a notice of the Confirmation Hearing (collectively, the "Solicitation Package"), as appropriate, in accordance with the Solicitation Order; and a supplemental affidavit of mailing (Docket No. 235) having been filed by the Balloting Agent, dated August 20, 2002, attesting to the mailing to the parties therein of the Solicitation Package; and a supplemental affidavit of mailing (Docket No. 264) having been filed by the Balloting Agent, dated September 9, 2002, attesting to the mailing to the parties therein of the additional solicitation materials; and an affidavit (Docket No. 284) having been filed by representatives of The Wall Street Journal (National Edition) attesting to the publication of a notice of the Confirmation Hearing in such newspaper in accordance with the Solicitation Order (the "Affidavit of Publication") (Docket No. 284); and the Plan Supplement (Docket No. 259) having been filed in substantially final form on September 3, 2002 (the "Plan Supplement"); and upon the Affidavit of Miriam Bloom Certifying the Ballots Accepting or Rejecting the Plan (the "Vote Certification") (Docket No. 310); and upon the Affidavit of Robert J. Gilker, Vice President and General Counsel, in Support of the Plan (the "Gilker Affidavit") (Docket No. 308); and upon the Affidavit of John A. McKenna in Support of the Plan (the "McKenna Affidavit") (Docket No. 309); and objections to the Plan (the "Objections") having been filed by: (i) Cordillera Communications, Corp.; (ii) the Official Committee of Unsecured *358 Creditors; (iii) the office of the United States Trustee; (iv) The Bank of New York, as Indenture Trustee; and (v) First Miami Securities; and upon the Response of the Debtors and Debtors in Possession to Objections of Cordillera Communications Corp. (Docket No. 267), the Acting United States Trustee (Docket No. 270), the Official Committee of Unsecured Creditors (Docket No. 271), The Bank of New York (Docket No. 273), and First Miami Securities (Docket No. 286) to the Debtors' Revised Third Amended Joint Plan of Reorganization of NII Holdings, Inc. and NII Holdings (Delaware), Inc., dated October 15, 2002 (the "Response") (Docket No. 311); and upon the Affidavit of Robert J. Gilker, Vice President and General Counsel, in Support of the Response (the "Second Gilker Affidavit" and, together with the "Gilker Affidavit" the "Gilker Affidavits") (Docket No. 329); and such Objections having been ruled upon by the Court on the record of the Confirmation Hearing; and upon the Debtors' Memorandum of Law in Support of Confirmation of the Plan (Docket No. 307); and upon the Affidavit of Rich Lindahl in Support of the Plan (Docket No. 343); and upon the Affidavit of Steven Shindler in Support of the Plan (Docket No. 344); and upon the Affidavit of Thomas R. Kreller in Support of the Plan (Docket No. 342); and upon the Second Supplemental Affidavit of Miriam Bloom in Support of the Plan (the "Second Supplemental Vote Certification") (Docket No. 349); and the Court having reviewed the Plan, the Disclosure Statement, the Solicitation Order, the Vote Certification, the Affidavit of Mailing, the Supplemental Affidavit of Mailing, the Affidavit of Publication, the Plan Supplement, the Gilker Affidavits, the McKenna Affidavit, and the Objections; and upon all of the evidence adduced and the arguments of counsel made at the Confirmation Hearing; and upon the entire record of these cases, including all exhibits introduced into evidence at the Confirmation Hearing; and the Court having taken judicial notice of the papers and pleadings on file in the case; and the Plan having been modified i@n accordance with the Court's ruling at the Confirmation Hearing; and after due deliberation; and sufficient cause appearing therefor, the Court hereby makes the following Findings of Fact, Conclusions of Law and Order.[1] The Plan shall be filed by the Debtors pursuant to this Confirmation Order.
I. FINDINGS OF FACT.
A. Definitions.[2] All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Plan or the Plan Supplement.
B. Notice of Confirmation Hearing. Notice of the Confirmation Hearing and the relevant deadlines for submission of objections and ballots, as prescribed by this Court in the Solicitation Order, has been provided, as more fully reflected in the Affidavit of Mailing, the supplemental Affidavit of Mailing, and the Affidavit of Publication, and such notice is adequate and sufficient pursuant to section 1128 of the Bankruptcy Code, Bankruptcy Rules 2002(b) and 3020(b) and other applicable law and rules.
*359 C. Transmission of Ballots. Ballots were transmitted to holders of Claims in Classes eligible to vote on the Plan in accordance with the Solicitation Order.
D. Good Faith Solicitation. The Debtors solicited votes for the Plan in good faith and, with respect to those votes included to satisfy the requirements of section 1129(a)(7) of the Bankruptcy Code, in a manner consistent with the Bankruptcy Code.
E. Vote Certification (Bankruptcy Rule 3018). The Vote Certification and the Second Supplemental Vote Certification provided by the Balloting Agent are consistent with Bankruptcy Rule 3018.
F. COMPLIANCE WITH THE REQUIREMENTS OF SECTION 1129 OF THE BANKRUPTCY CODE.
1. Section 1129(a)(1) Compliance of the Plan with Applicable Provisions of the Bankruptcy Code.
The Plan complies with all applicable provisions of the Bankruptcy Code, as required by section 1129(a)(1) of the Bankruptcy Code, including, without limitation, sections 1122 and 1123 of the Bankruptcy Code. Therefore, the Plan satisfies the requirements of section 1129(a)(1) of the Bankruptcy Code.
a. Sections 1122 and 1123(a)(1)-(4) Classification and Treatment of Claims and Interests.
Pursuant to sections 1122(a) and 1123(a)(1) of the Bankruptcy Code, Article II of the Plan designates Classes of Claims and Interests, other than Administrative Claims, Priority Tax Claims and Fee Claims.[3] As required by section 1122(a), each Class of Claims or Interests contains only Claims or Interests that are substantially similar to the other Claims or Interests within that Class. The Plan establishes the following Classes of Claims and Interests: Class 1 (Unsecured Priority Claims); Class 2 (MEFA/SLA Claims); Class 3 (EFA Secured Claims); Class 4 (Handset Financing Claims); Class 5 (Trade Claims); Class 6 (Old Note Claims and Non-Funded Debt Unsecured Claims); Class 7 (Miscellaneous Secured Claims); Class 8 (Fine, Penalty and Forfeiture Claims); Class 9 (Subordinated Securities Claims); and Class 10 (Existing Equity Interests). Pursuant to sections 1123(a)(2) and 1123(a)(3) of the Bankruptcy Code, Articles II and III of the Plan specify all Classes of Claims and Interests that are impaired or not impaired under the Plan and specify the treatment of all Classes of Claims and Interests that are impaired under the Plan. Pursuant to section 1123(a)(4) of the Bankruptcy Code, Article III of the Plan also provides the same treatment for each Claim or Interest within a particular Class, unless the holder of a Claim or interest agrees to less favorable treatment of its Claim or Interest. Therefore, the Plan satisfies the requirements of section 1122 and 1123(a)(1) through (4) of the Bankruptcy Code.
b. Section 1123(a)(5) Adequate Means for Implementation of the Plan.
Article IV and various other provisions of the Plan provide adequate means for implementing the Plan, including (i) the continued corporate existence of NII as Reorganized NII and the vesting of assets in Reorganized NII; (ii) the execution of the Registration Rights Agreement, the New Spectrum Use and Build-Out Agreement, *360 the Global Release Agreement, the Amended and Restated Overhead Services Agreement, the Third Amended and Restated Trademark License Agreement, the Subscription Agreement and the Standstill Agreement; (iii) the issuance and distribution of the Subscription Rights, New Common Stock and the New Senior Notes; (iv) the general releases of the holders of Claims and Interests and the injunction related to those releases; (v) the continuation of substantially similar employee benefit policies, plans and agreements as were provided prior to the Petition Date; (vi) the release of liens; (vii) the assumption, assumption and assignment or rejection of Executory Contracts and Unexpired Leases; (viii) the cancellation of the Capital Subscription, the MEFA, the SLA, the Old Notes, and Prepetition Indentures; (ix) the execution of the New MEFA, the New EFA, and the New Senior Notes Indenture; (x) the preservation of the Debtors' rights of action by Reorganized NII; (xi) the substantive consolidation of the Debtors' estates; and (xii) the adoption, execution delivery and implementation of all contracts, leases, instruments, releases and other agreements or documents related to the foregoing. Moreover, the Debtors will have sufficient cash to make all payments required on the Effective Date pursuant to the terms of the Plan. Accordingly, the Plan satisfies the requirements of section 1123(a)(5) of the Bankruptcy Code.
c. Section 1123(a)(6) Prohibition Against the Issuance of Nonvoting Equity Securities and Adequate Provisions for Voting Power of Classes of Securities.
As set forth in Section IV.C.1.a of the Plan, as of the Effective Date the certificate of incorporation and bylaws of Reorganized NII will, inter alia, (i) prohibit the issuance of nonvoting equity securities to the extent required by section 1123(a) of the Bankruptcy Code; and (ii) authorize the issuance of the New Common Stock. Additionally, as of the Effective Date, all Interests issued by or relating to either of the Debtors and outstanding immediately prior to the Petition Date will be canceled. As of the Effective Date, Reorganized NII will be authorized to issue 100,000,000 shares, par value $0.001, of New Common Stock, 10,000,000 shares, par value $0.001, of preferred stock, and one share of Special Preferred Director Stock, par value $1.00 per share. The holders of New Common Stock will be entitled to one vote for each share of record on all matters submitted to a vote of stockholders. Accordingly, the Plan satisfies the requirements of section 1123(a)(6) of the Bankruptcy Code.
d. Section 1123(a)(7) Selection of Directors and Officers in a Manner Consistent with the Interests of Creditors and Equity Security Holders and Public Policy.
The initial board of directors of Reorganized NII will be selected by the Debtors and shall be divided into three classes, with the term of office of one class expiring each year. The three directors of Class I shall be elected to hold office for a term expiring at the next annual meeting following the Effective Date, the three directors of Class II shall be elected to hold office for a term expiring at the next succeeding annual meeting, and the three directors of Class III shall be elected to hold office for a term expiring at the next succeeding annual meeting. Commencing with the next annual meeting following the Effective Date, each class of directors whose term shall then or thereafter expire shall be elected to hold office for a three-year term. Exhibit IV.C.2 to the Plan identifies the nine initial directors of Reorganized NII and the class of which each *361 such director is a member. Any vacancies created by the death, resignation or removal of a director shall be filled in accordance with the form of the Amended and Restated Certificate of Incorporation. In light of the foregoing, the manner of selection of the initial directors and officers of Reorganized NII and the manner of selection of successor directors and officers of Reorganized NII are consistent with the interests of the holders of Claims and Interests and public policy and, therefore, satisfies the requirements of section 1123(a)(7) of the Bankruptcy Code.
e. Section 1123(b)(1)-(2) Impairment of Claims and Interests and Assumption, Assumption and Assignment or Rejection of Executory Contracts and Unexpired Leases.
In accordance with section 1123(b)(1) of the Bankruptcy Code, Article III impairs or leaves unimpaired, as the case may be, each Class of Claims or Interests. In accordance with section 1123(b)(2) of the Bankruptcy Code, Article V of the Plan provides for the assumption, assumption and assignment, or rejection of executory contracts and unexpired leases of the Debtors that have not been previously assumed, assumed and assigned, or rejected pursuant to section 365 of the Bankruptcy Code and appropriate authorizing orders of the Court. Accordingly, the Plan complies with section 1123(b)(1) and (2) of the Bankruptcy Code.
f. Section 1123(b)(3) Retention, Enforcement and Settlement of Claims Held by the Debtor.
Section IV.D of the Plan provides that, except as provided in the Plan or in any contract, instrument, release or other agreement entered into or delivered in connection with the Plan, in accordance with section 1123(b) of the Bankruptcy Code, Reorganized NII will retain and may enforce any claims, demands, rights and causes of action that the Debtors or their Estates may hold against any entity, including any Recovery Actions against any person or entity. Accordingly, the Plan satisfies section 1123(b)(3) of the Bankruptcy Code.
g. Section 1123(b)(5) Modification of the Rights of Holders of Claims.
Article III of the Plan modifies or leaves unaffected, as the case may be, the rights of holders of each Class of Claims and, therefore, the Plan satisfies section 1123(b)(5) of the Bankruptcy Code.
h. Section 1123(b)(6) Other Provisions Not Inconsistent With Applicable Provisions of the Bankruptcy Code.
(i) The Plan includes additional appropriate provisions that are not inconsistent with applicable provisions of the Bankruptcy Code, including: (i) the provisions of Article IV of the Plan regarding the means for implementing the Plan; (ii) the provisions of Article V of the Plan governing the assumption, assumption and assignment or rejection of Executory Contracts and Unexpired Leases (including the provisions of Section V.A.1 of the Plan allowing the Debtors to amend Exhibit V.A to the Plan at any time prior to the Effective Date); (iii) the provisions of Article VI of the Plan governing distributions on account of Allowed Claims, particularly as to the timing and calculation of amounts to be distributed; (iv) the provisions of Article VII of the Plan establishing procedures for resolving Disputed Claims and making distributions on account of such Disputed Claims once resolved; (v) the provisions of Article VIII of the Plan providing for the substantive consolidation of the Debtors for the purpose of implementing the Plan; *362 (vi) the provisions of Article XI of the Plan regarding the discharge of Claims and the termination of Interests; and (vii) the provisions of Article XII of the Plan regarding retention of jurisdiction by the Bankruptcy Court over certain matters after the Effective Date.
(ii) Section 1129(a)(2) Compliance with Applicable Provisions of the Bankruptcy Code.
The Debtors have complied with the applicable provisions of the Bankruptcy Code with respect to the Plan, as required by section 1129(a)(2) of the Bankruptcy Code, including section 1125 of the Bankruptcy Code and Bankruptcy Rules 3017 and 3018. The Disclosure Statement and the procedures by which the Ballots for acceptance or rejection of the Plan were solicited and tabulated were fair, properly conducted and in accordance with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018 and the Solicitation Order. The Court determined that the Debtors solicited the votes of certain parties (the "Designated Parties") in violation of section 1125(b) of the Bankruptcy Code and, accordingly, the Court has designated the Designated Parties pursuant to section 1126(c) of the Bankruptcy Code. The Debtors, the Debtors' officers, directors and professionals, have acted in "good faith," within the meaning of section 1125(e) of the Bankruptcy Code. The Designated Parties' votes have not been included as acceptances of the Plan, pursuant to section 1126(e) of the Bankruptcy Code. Accordingly, the Debtors have satisfied the requirements of section 1129(a)(2) of the Bankruptcy Code.
i. Section 1123(d) Cure of Defaults.
Section V.B of the Plan provides for the satisfaction of Cure Amount Claims associated with each Executory Contract and Unexpired Lease to be assumed pursuant to the Plan in accordance with section 365(b)(1) of the Bankruptcy Code. All Cure Amount Claims will be determined in accordance with the underlying agreements and applicable nonbankruptcy law.
j. Section 1129(a)(3) Proposal of the Plan in Good Faith.
The Debtors proposed the Plan in good faith and not by any means forbidden by law. In determining that the Plan has been proposed in good faith, the Court has examined the totality of the circumstances surrounding the formulation of the Plan. Based on the uncontroverted evidence presented at the Confirmation Hearing, the Court finds and concludes that the Plan has been proposed with the legitimate purpose of reorganizing the business affairs of each of the Debtors and maximizing the returns available to creditors of the Debtors. Accordingly, the Plan satisfies the requirements of section 1129(a)(3) of the Bankruptcy Code.
k. Section 1129(a)(4) Bankruptcy Court Approval of Certain Payments as Reasonable.
(i) Section III.A.1.f.ii of the Plan provides that, except as otherwise provided in the Ordinary Course Professionals Order, Professionals or other entities asserting a Fee Claim for services rendered before the Effective Date must file and serve on Reorganized NII and such other entities who are designated by the Bankruptcy Rules, this Confirmation Order, the Fee Order, or other order of the Court an application for final allowance of such Fee Claim no later than 60 days after the Effective Date. The Court will review such applications under sections 328 and 330 of the Bankruptcy Code and any applicable case law. Pursuant to the Fee Order, the Court has authorized periodic payments of the fees and *363 expenses of Professionals incurred in connection with these chapter 11 cases. All such fees and expenses, however, remain subject to final review by the Court. Additionally, any fee and expense claims of the Ad Hoc Noteholder Committee advisors shall be subject to Court review.
(ii) Section III.D sets forth special provisions regarding the payment of the Indenture Trustees' claims. Pursuant to the Plan, the Court will determine whether to approve the fees and expenses requested by each Indenture Trustee upon consideration of whether such amounts are appropriate under the terms of the applicable Prepetition Indenture and applicable law.
(iii) In connection with the foregoing, Article XII of the Plan provides that the Court will retain jurisdiction after the Effective Date to hear and determine all applications for allowance of compensation or reimbursement of expenses authorized pursuant to the Bankruptcy Code or the Plan. Accordingly, the Plan satisfies the requirements of section 1129(a)(4) of the Bankruptcy Code.
l. Section 1129(a)(5) Disclosure of Identity of Proposed Management, Compensation of Insiders and Consistency of Management Proposals with the Interests of Creditors and Public Policy.
In the Disclosure Statement and Exhibit IV.C.2 to the Plan, the Debtors have disclosed the identity of the initial proposed directors and officers of Reorganized NII and the identity and the compensation of insiders who will be employed or retained by Reorganized NII. The appointment or continuance of the proposed directors and officers is consistent with the interests of holders of Claims and Interests and public policy and, therefore, satisfies the requirements under section 1129(a)(5) of the Bankruptcy Code.
m. Section 1129(a)(6) Approval of Rate Changes.
The Debtors' current business does not involve the establishment of rates over which any regulating commission has jurisdiction or will have jurisdiction after confirmation.
n. Section 1129(a)(7) Best Interests of Holders of Claims and Interests.
With respect to each impaired Class of Claims or Interests, each holder of a Claim or Interest in such impaired Class has accepted or is deemed to have accepted the Plan, or as demonstrated by the liquidation analysis included as Exhibit IV to the Disclosure Statement, will receive or retain under the Plan on account of such Claim or Interest property of a value, as of the Effective Date, that is not less than the amount that such holder would receive or retain if the Debtors were liquidated under chapter 7 of the Bankruptcy Code on the Effective Date. Accordingly, the Plan satisfies the requirements of section 1129(a)(7) of the Bankruptcy Code.
o. Section 1129(a)(8) Acceptance of the Plan by Each Impaired Class.
Pursuant to sections 1124 and 1126 of the Bankruptcy Code: (a) as indicated in Article III of the Plan, Classes 1, 4, 5, and 7 are Classes of unimpaired Claims or Interests; and (b) as indicated in the Vote Certification and the Second Supplemental Vote Certification, impaired Class 6 has accepted the Plan. Because the holders of Claims and Interests in Classes 8, 9 and 10 will not receive or retain any property on account of such Claims or Interests. Classes 8, 9 and 10 are deemed not to have accepted the Plan pursuant to section 1126(b) of the Bankruptcy Code. The Holder of all Claims in Classes 2 and 3 has voted to accept the Plan, however, pursuant *364 to separate order of this Court, such Holder has been designated and its accepting votes shall not be counted as acceptances of the Plan. Classes 2 and 3 have not accepted the Plan for purposes of section 1129(a)(8) of the Bankruptcy Code, however, as demonstrated at the Confirmation Hearing, the Holder of Claims in Classes 2 and 3 has consented to its treatment under the Plan. Notwithstanding the lack of compliance with section 1129(a)(8) of the Bankruptcy Code with respect to Classes 2, 3, 8, 9 and 10, the Plan is confirmable because, as described below, the Plan satisfies the "cramdown" requirements of section 1129(b) of the Bankruptcy Code with respect to such Classes. Additionally, the Holder of Claims in Classes 2 and 3, as demonstrated at the Confirmation Hearing, will receive the "indubitable equivalent" with respect to their Claims.
p. Section 1129(a)(9) Treatment of Claims Entitled to Priority Pursuant to Section 507(a) of the Bankruptcy Code.
The Plan provides for treatment of Allowed Administrative Claims, Priority Claims and Fee Claims in the manner required by section 1129(a)(9) of the Bankruptcy Code. Accordingly, the Plan satisfies the requirements of section 1129(a)(9) of the Bankruptcy Code.
q. Section 1129(a)(10) Acceptance By at Least One Impaired, Non-Insider Class.
As indicated in the Vote Certification, the Second Supplemental Vote Certification and as reflected in the record of the Confirmation Hearing, impaired Class 6 has voted to accept the Plan, which acceptance has been determined without including any acceptance of the Plan by any insider of the Debtors. Accordingly, the Plan satisfies the requirements of section 1129(a)(10) of the Bankruptcy Code.
r. Section 1129(a)(11) Feasibility of the Plan.
Although the Debtors' business is highly competitive, and although it is impossible to predict with certainty the precise future profitability of the Debtors' business. confirmation is not likely to be followed by the liquidation of, or the need for further financial reorganization of the Debtors or Reorganized NII as demonstrated by the McKenna Affidavit and the description of the Debtors' financial projections contained in the Disclosure Statement. Upon the Effective Date, Reorganized NII will have sufficient cash flow and capital resources to pay its liabilities as they become due and to satisfy its capital needs for the conduct of its business. Accordingly, the Plan satisfies the requirements of section 1129(a)(11) of the Bankruptcy Code.
s. Section 1129(a)(12) Payment of Bankruptcy Fees.
The Plan provides that all fees payable to the United States Trustee pursuant to 28 U.S.C. § 1930 shall be paid in cash on or before the Effective Date. Accordingly, the Plan satisfies the requirements of section 1129(a)(12) of the Bankruptcy Code.
t. Section 1129(a)(13) Continuation of Retiree Benefits.
Prior to the Petition Date, the Debtors had no "retiree benefits" programs, as such term is defined by Section 1114(a) of the Bankruptcy Code.
u. Section 1129(b) Confirmation of the Plan over the Nonacceptance of Impaired Classes.
Pursuant to section 1129(b)(1) of the Bankruptcy Code, the Plan may be confirmed notwithstanding that Classes 8, 9 *365 and 10 are impaired and are deemed not to have accepted the Plan pursuant to section 1126(g) of the Bankruptcy Code. Additionally, the Holder of Claims voting in Classes 2 and 3 has been designated pursuant to section 1126(e) of the Bankruptcy Code and, as a result, there are no parties voting to accept or reject the Plan in Classes 2 and 3. Accordingly, Classes 2 and 3 have not voted to accept the Plan. Other than the failure to satisfy the requirement in section 1129(a)(8) of the Bankruptcy Code with respect to Classes 2, 3, 8, 9 and 10, all of the requirements of section 1129(a) of the Bankruptcy Code have been met. The Plan does not discriminate unfairly and is fair and equitable with respect to Classes 2, 3, 8, 9 and 10. No holders of Claims or Interests junior to the Claims or Interests of Classes 2, 3, 8, 9 and 10 will receive or retain any property under the Plan on account of their respective junior Claims or Interests and, as evidenced by the estimates contained in the Disclosure Statement and by the evidence in the record, no holders of Claims or Interests senior to Classes 2, 3, 8, 9 and 10 are receiving more than full payment on account of such senior Claims and Interests. Additionally, the Holder of Claims in Classes 2 and 3, as demonstrated at the Confirmation Hearing, has consented to the treatment provided to it pursuant to the Plan and will receive the "indubitable equivalent" with respect to its Claims.
v. Bankruptcy Rule 3016(a).
The Plan is dated and identifies the entities submitting the Plan.
w. Compliance with Bankruptcy Rule 3016(c).
In accordance with Bankruptcy Rule 3016(c), the Disclosure Statement describes in specific and conspicuous italicized language all acts to be enjoined and identifies the entities that would be subject to the injunction.
x. Section 1129(c) Only One Plan.
Other than the Plan (including previous versions thereof), no plan has been filed in these Cases. Accordingly, the requirements of section 1129(c) of the Bankruptcy Code have been satisfied.
y. Section 1129(d) Principal Purpose of the Plan.
The primary purpose of the Plan is not the avoidance of taxes or avoidance of the requirements of section 5 of the Securities Act, and there has been no objection filed by any governmental unit asserting such avoidance. Accordingly, the Plan satisfies the requirements of section 1129(d) of the Bankruptcy Code.
G. SETTLEMENTS, RELEASES AND INDEMNIFICATION.
1. Fairness and Necessity of Releases and Indemnification.
a. The releases set forth in Section IV.D.2.a of the Plan, including the release of nondebtor parties pursuant to the general releases by holders of Claims or Interests in Section IV.D.2 of the Plan, are (i) integral to the agreements that form the basis of the Plan, (ii) necessary for the reorganization of the Debtors, and (iii) supported by reasonable consideration.
b. The releases of the Debtors' post-petition and present directors, officers and employees contained in Section IV.D.2.a of the Plan are necessary and appropriate, among other things, to avoid the assertion of indemnification claims by such directors, officers and employees against Reorganized NII for liabilities arising prior to the Effective Date and to avoid distracting and disruptive litigation against such persons relating to the management of the Debtors' business prior to the Effective Date.
*366 c. The Debtors, Reorganized NII, NCI, the Ad Hoc Noteholder Committee, the Indenture Trustee, MCC, Motorola, as well as each creditor that voted to accept the Plan on their respective ballots, have specifically consented to the releases contained in Section IV.D.2 of the Plan. The Court's designation of the votes of MCC and the Ad Hoc Noteholder Committee shall have no effect on such consents given by such parties under the Plan.
d. In light of all of the circumstances, the releases in Section IV.D.2 of the Plan are fair to the releasing parties.
e. The releases contained in Section IV.D.2 are not binding upon or effective against the Securities and Exchange Commission.
H. SUBSTANTIVE CONSOLIDATION.
The substantive consolidation of the Debtors' Estates for the purpose of implementing the Plan, as described in Article VIII of the Plan, will promote a more equitable distribution of the Debtors' assets and is appropriate under section 105 of the Bankruptcy Code. Among the factors supporting the substantive consolidation of the Debtors' Estates are the following: (1) NII Holdings, Inc. is the direct parent corporation of NII Holdings (Delaware), Inc.; (2) virtually all of the Debtors' employees are employees of NII Holdings, Inc.; (3) the Debtors maintain consolidated financial statements and other consolidated books and records; (4) the Debtors generally have represented themselves to creditors as a single entity; and (5) no creditors will be substantially prejudiced by the aggregation of the Debtors' assets and liabilities.
II. CONCLUSIONS OF LAW.
A. JURISDICTION AND VENUE.
This Court has jurisdiction over these Cases pursuant to 28 U.S.C. §§ 157 and 1334. The Confirmation Hearing is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2), and this Court has jurisdiction to enter a Final Order with respect thereto. Venue of these chapter 11 Cases in this Court is proper pursuant to 28 U.S.C. §§ 1408 and 1409. Each of the Debtors is an entity eligible for relief under section 109 of the Bankruptcy Code.
B. MODIFICATIONS.
1. Section 1127(a) Modification of the Plan.
Attached hereto as Exhibit B is a list of the modifications (the "Modifications") that the Debtors have proposed to the Plan (the underlined portions are to be inserted into the applicable section or, where not underscored, all such language is to be inserted as indicated). In accordance with Bankruptcy Rule 3019, the Modifications comply with the Court's ruling at the Confirmation Hearing and either (i) have been agreed to by affected parties or (ii) do not (a) affect the classification of Claims or Interests or adversely affect the treatment afforded holders of Claims or Interests, (b) constitute material modifications of the Plan under section 1127 of the Bankruptcy Code, (c) cause the Plan to fail to meet the requirements of sections 1122 or 1123 of the Bankruptcy Code, (d) adversely change the treatment of holders of Claims who have accepted the Plan (other than holders of Claims who have accepted such Modifications in writing or in open court), or (e) require resolicitation of acceptances or rejections from any such holders nor do they require that any holders be afforded an opportunity to change previously cast acceptances or rejections of the Plan.
C. EXEMPTIONS FROM SECURITIES LAWS.
1. Pursuant to section 1125(d) of the Bankruptcy Code, the Debtors' transmittal *367 of Plan Solicitation Packages, their solicitation of acceptances of the Plan and their issuance and distribution of the New Common Stock, including, without limitation, pursuant to the Agreement Regarding Non-Recourse Assignment of Indebtedness and Liens, as set forth in the Plan Supplement, (the "Chase Settlement"), the New Senior Notes and any other securities pursuant to the Plan are not and will not be governed by or subject to any otherwise applicable law, rule or regulation governing the solicitation or acceptance of a plan of reorganization or the offer, issuance, sale or purchase of securities. Accordingly, the Debtors, Reorganized NII and their respective directors, officers, employees, agents and professionals (acting in such capacity) are entitled to the protection of section 1125(e) of the Bankruptcy Code.
2. Pursuant to section 1145(a)(1) of the Bankruptcy Code, the offering, issuance and distribution of the New Common Stock, including any shares issued pursuant to the Chase Settlement, the New Senior Notes, and any other securities issuable pursuant to the Plan shall be exempt from section 5 of the Securities Act and any state or local law requiring registration for the offering, issuance, distribution or sale of securities. In addition, pursuant to section 1145(a)(2) of the Bankruptcy Code, the offering, issuance and distribution of New Common Stock, including, without limitation, any shares issued pursuant to the Chase Settlement, and the New Senior Notes shall be exempted from section 5 of the Securities Act or any state or local law requiring registration for the offering, issuance, distribution or sale of securities.
3. Pursuant to, and to the fullest extent permitted by, section 1145 of the Bankruptcy Code, the resale of any New Common Stock, including, without limitation, any shares issued pursuant to the Chase Settlement, or New Senior Notes and any other securities issuable pursuant to the Plan (except as otherwise described in the Disclosure Statement) shall be exempt from section 5 of the Securities Act and any state or local law requiring registration for the offering, issuance, distribution or sale of securities.
D. GOOD FAITH SOLICITATION.
The Debtors and each of their Representatives have acted in good faith and in compliance with the applicable provisions of the Bankruptcy Code, pursuant to section 1125(e) of the Bankruptcy Code, with respect to the administration of the Plan, the solicitation of acceptances with regard thereto (except to the extent the Court has determined that votes cast by the Ad Hoc Noteholder Committee and MCC were not in compliance with Section 1125(b) of the Bankruptcy Code and therefore are not counted for purposes of determining acceptances or rejection of the Plan), and the property to be distributed thereunder.
E. EXEMPTIONS FROM TAXATION.
Pursuant to section 1146(c) of the Bankruptcy Code, the following shall not be subject to any document recording tax, stamp tax or stamp act, conveyance, filing or transfer fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax or other similar tax or governmental assessment (collectively, "Transfer Taxes and Charges"): (1) the issuance, distribution, transfer or exchange of the New Common Stock, the New Senior Notes and any other securities issuable pursuant to the Plan; (2) the creation, modification, assignment, consolidation, filing or recording of any mortgage, deed of trust, lien, security agreement, financing statement, release or similar instrument; (3) the securing of additional *368 indebtedness by such means or by other means or the additional securing of existing indebtedness by such means or by other means; (4) the creation, modification, assignment, delivery, filing or recording of any lease or sublease; or (5) the creation, modification, assignment, delivery, filing or recording of any deed or other instrument of transfer under, in furtherance of or in connection with the Plan. The appropriate state or local governmental officials or agents are hereby directed to forego the collection of any Transfer Taxes and Charges and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such Transfer Taxes and Charges.
F. COMPLIANCE WITH SECTION 1129 OF THE BANKRUPTCY CODE.
As set forth in Section I.F above, the Plan complies in all respects with the applicable requirements of section 1129 of the Bankruptcy Code.
G. APPROVAL OF THE SETTLEMENTS AND RELEASES PROVIDED UNDER THE PLAN AND CERTAIN OTHER MATTERS.
1. Pursuant to section 1123(b)(3) of the Bankruptcy Code, the releases, waivers, discharges and injunctions set forth in the Plan (including Sections IV.D.2 and Article XI of the Plan) are approved as integral parts of the Plan and are fair, equitable, reasonable and in the best interests of the Debtors, Reorganized NII and their respective Estates and the holders of Claims and Interests.
2. In approving the releases, waivers, discharges and injunctions of and from such potential claims, as described above, the Court has considered, among other things: (a) the identity of interests between the Debtors and certain third parties; (b) the substantial contribution by certain nondebtors of assets to the reorganization; (c) the essential nature of the releases, waivers, discharges and injunctions to the reorganization; (d) the complexity, cost and delay of litigation that would result in the absence of these releases, waivers, discharges and injunctions; (e) the acceptance of the Plan by an overwhelming majority of the holders of Claims, as set forth in the Vote Certification and the Second Supplemental Vote Certification; and (f) that the Plan, which gives effect to the releases, waivers, discharges and injunctions, is the product of extensive arms-length negotiations among the Debtors, the Ad Hoc Noteholder Committee, NCI, MCC and Motorola and other parties in interest.
3. All releases, waivers, discharges and injunctions of claims and causes of action against nondebtor entities set forth in the Plan, which are approved herein as an integral part of the Plan and as fair, equitable, reasonable and in the best interests of the Debtors. Reorganized NII and their respective Estates and the holders of Claims and Interests, are effective and binding in accordance with their terms, provided, however, that Section IV.D.2.a. of the Plan shall not be binding upon or effective against the Securities and Exchange Commission.
H. ASSUMPTIONS, ASSUMPTIONS AND ASSIGNMENTS AND REJECTIONS OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
Each assumption, assumption and assignment or rejection of an executory contract or unexpired lease pursuant to Sections V.A and V.C of the Plan, including any assumption, assumption and assignment or rejection effectuated as a result of *369 any amendment to Exhibit V.A. to the Plan, as contemplated by Section V.A of the Plan, shall be legal, valid and binding upon the Debtor or Reorganized NII and all nondebtor parties to such executory contracts or unexpired leases, all to the same extent as if such assumption, assumption and assignment or rejection had been effectuated pursuant to an appropriate authorizing order of the Bankruptcy Court entered before the Confirmation Date under section 365 of the Bankruptcy Code.
I. AGREEMENTS AND OTHER DOCUMENTS.
The Debtors have disclosed all material facts regarding: (1) the Restructuring Transactions; (2) the adoption of an amended and restated certificate of incorporation and by-laws by Reorganized NII; (3) the initial selection of directors and officers of Reorganized NII; (4) the entry into the New MEFA and the New EFA and the guarantees thereof by Reorganized NII; (5) the distribution of cash pursuant to the Plan; (6) the issuance and distribution of the New Common Stock, including, without limitation, shares to be issued pursuant to the Chase Settlement, and New Senior Notes pursuant to the Plan; (7) the adoption, execution, delivery and implementation of all contracts, leases, instruments, releases and other agreements or documents related to any of the foregoing; (8) the adoption, execution and implementation of employment, retirement and indemnification agreements, incentive compensation programs, retirement income plans, welfare benefit plans and other employee plans and related agreements; and (9) the other matters provided for under the Plan involving the corporate structure of Reorganized NII or corporate action to be taken by or required of Reorganized NII.
III. ORDER.
NOW, THEREFORE, THE COURT HEREBY ORDERS THAT:
A. CONFIRMATION OF THE PLAN.
The Plan and each of its provisions are confirmed in each and every respect pursuant to section 1129 of the Bankruptcy Code; provided, however, that if there is any direct conflict between the terms of the Plan and the terms of this Confirmation Order, the terms of this Confirmation Order shall control. All of the Objections and other responses to, and statements and comments regarding the Plan, other than those withdrawn with prejudice in their entirety prior to, or on the record at, the Confirmation Hearing are overruled.
B. EFFECTS OF CONFIRMATION.
1. Immediate Effectiveness; Successors and Assigns.
Subject to the provisions of Article IX of the Plan, and notwithstanding any otherwise applicable law, immediately upon the entry of this Confirmation Order, the terms of the Plan and this Confirmation Order are deemed binding upon the Debtors, Reorganized NII, any and all holders of Claims or Interests (irrespective of whether such Claims or Interests are impaired under the Plan or whether the holders of such Claims or Interests accepted, rejected or are deemed to have accepted or rejected the Plan), any and all nondebtor parties to executory contracts and unexpired leases with any of the Debtors and any and all entities that are parties to or are subject to the settlements, compromises, releases, discharges and injunctions described above and the respective heirs, executors, administrators, successors or assigns, if any, of any of the foregoing.
*370 2. Continued Corporate Existence; Vesting of Assets.
Except as otherwise provided in the Plan, the Debtors shall, as Reorganized NII, continue to exist after the Effective Date, with all the powers of a corporation under applicable law and without prejudice to any right to alter or terminate such existence (whether by merger, dissolution or otherwise) under applicable state law. Except as otherwise provided in the Plan, as of the Effective Date, all property of the respective Estates of the Debtors, and any property acquired by a Debtor or Reorganized NII under the Plan, shall vest in Reorganized NII, free and clear of all Claims, liens, charges, other encumbrances and Interests. On and after the Effective Date, Reorganized NII is authorized to (a) operate its business; (b) use, acquire and dispose of property; and (c) compromise or settle any Claims or Interests, in each case without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules, other than those restrictions expressly imposed by the Plan or this Confirmation Order. Without limiting the foregoing, Reorganized NII is authorized to pay the charges that it incurs on or after the Effective Date for professionals' fees, disbursements, expenses or related support services (including fees relating to the preparation of Professional fee applications) without application to the Bankruptcy Court.
3. Cancellation and Surrender of Instruments, Securities and Other Documentation.
Except as provided in any contract, instrument or other agreement or document created, entered into or delivered in connection with the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to Article III of the Plan, all obligations of the Debtors under the Capital Subscription, the MEFA, the SLA, the Old Notes, and the Prepetition Indentures will be canceled and be of no further force and effect against the Debtors, without any further action on the part of any Debtor or Reorganized NII. Solely to the extent provided in Section III.D of the Plan, the provisions of the Prepetition Indentures which authorize the Indenture Trustees to assert a charging lien for unpaid fees and expenses against distributions to be made to the Holders of the Old Notes will survive the cancellation of the Prepetition Indentures. In addition, on the Effective Date, the Interests are deemed canceled and of no further force and effect. The holders of or parties to such canceled instruments, securities and other documentation shall have no rights arising from or relating to such instruments, securities and other documentation or the cancellation thereof, except the rights provided pursuant to the Plan; provided, however, that no distribution under the Plan shall be made to or on behalf of any holder of an Allowed Claim evidenced by such canceled instruments or securities unless and until such instruments or securities are received by the applicable Disbursing Agent to the extent required by Section VI.J of the Plan.
4. Release of Liens.
Except as otherwise provided in the Plan or in any contract, instrument, release or other agreement or document entered into or delivered in connection with the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to Article III of the Plan, all mortgages, deeds of trust, liens or other security interests against the property of any Estate are fully released and discharged, and all right, title and interest of any holder of such mortgages, deeds of trust, liens or other security interests, including *371 any rights to any collateral thereunder, shall revert to Reorganized NII and its successors and assigns.
C. CLAIMS BAR DATES.
1. Bar Dates for Administrative Claims.
a. General Bar Date Provisions.
Except as otherwise provided in Sections III.A.1.f and III.D of the Plan and this Confirmation Order, unless previously filed, requests for payment of Administrative Claims must be filed and served on Reorganized NII, pursuant to the procedures specified in the Confirmation Notice (as such term is defined below), no later than thirty (30) days after the Effective Date. Holders of Administrative Claims that are required to file and serve a request for payment of such Administrative Claims and that do not file and serve a request by the applicable bar date shall be forever barred from asserting such Administrative Claims against the Debtors, Reorganized NII or their respective property and such Administrative Claims shall be deemed discharged as of the Effective Date. Objections to such requests must be filed and served on Reorganized NII and the requesting party by the later of (i) 90 days after the Effective Date or (ii) 60 days after the filing of the applicable request for payment of Administrative Claims.
b. Bar Dates for Certain Administrative Claims.
(i) Professional Compensation.
Professionals or other entities asserting a Fee Claim for services rendered before the Effective Date must file and serve on: (i) Reorganized NII, (ii) counsel for the Debtors, (iii) the Office of the United States Trustee for the District of Delaware and (iv) such other entities that are designated by the Fee Order, an application for final allowance of such Fee Claim no later than sixty (60) days after the Effective Date; provided, however, that any professional who may receive compensation or reimbursement of expenses pursuant to the Ordinary Course Professionals Order may continue to receive such compensation and reimbursement of expenses for services rendered before the Effective Date, without further Court review or approval, pursuant to the Ordinary Course Professionals Order. Objections to any Fee Claim must be filed and served on Reorganized NII, the requesting party and the other parties set forth in the Fee Order by the later of (A) ninety (90) days after the Effective Date or (B) thirty (30) days after the filing of the applicable request for payment of the Fee Claim. To the extent necessary, entry of this Confirmation Order shall amend and supersede any previously entered order of the Bankruptcy Court, including the Fee Order, regarding the payment of Fee Claims.
(ii) Ordinary Course Liabilities.
Holders of Administrative Claims based on liabilities incurred by a Debtor in the ordinary course of its business, including Administrative Trade Claims, Administrative Claims of governmental units for Taxes (including Tax audit Claims arising after the Petition Date) and Administrative Claims arising from those contracts and leases of the kind described in Article V of the Plan, shall not be required to File or serve any request for payment of such Administrative Claims. Such Administrative Claims shall be satisfied pursuant to Section III.A.1.c of the Plan.
2. Bar Date for Rejection Damages Claims and Related Procedures.
a. The Debtors or Reorganized NII shall provide written notice to each nondebtor party to an Executory Contract or *372 Unexpired Lease being rejected pursuant to the Plan of (i) the applicable Executory Contract or Unexpired Lease being rejected, (ii) the bar date for any claim based upon or arising from such rejection, and (iii) the procedures for such party to File and serve a proof of Claim for any Claims that may arise from such rejection (the "Rejection Bar Date Notice"). The Rejection Bar Date Notice shall be in substantially the form attached hereto as Exhibit C and incorporated herein by reference and shall be served on each nondebtor party or parties to an Executory Contract or Unexpired Lease rejected by the Debtors by the later of (i) 15 Business Days after the Confirmation Date or (ii) if the Debtors amend Exhibit V.A to the Plan after the Confirmation Date to add any Executory Contract or Unexpired Lease identified thereon, 15 Business Days after the date of such amendment.
b. Notwithstanding anything in the Bar Date Order to the contrary, if the rejection of an Executory Contract or Unexpired Lease pursuant to the Plan gives rise to a Claim by the other party or parties to the Executory Contract or Unexpired Lease, such Claim shall be forever barred and shall not be enforceable against the Debtors, Reorganized NII, their respective successors or their respective properties unless a proof of Claim is filed and served on Reorganized NII, pursuant to the procedures specified in this Confirmation Order and the Rejection Bar Date Notice, no later than 30 days after the Effective Date or 30 days after the date of service of the applicable Rejection Bar Date Notice.
D. MATTERS RELATING TO IMPLEMENTATION OF THE PLAN.
1. Restructuring Transactions.
a. The merger of NII Holdings (Delaware), Inc. with and into NII Holdings, Inc. is hereby authorized and approved in all respects without requirement of any further action by the stockholders or board of directors of either Debtor.
b. The adoption of an amended and restated certificate of incorporation and by-laws by Reorganized NII; its initial selection of directors and officers; its guarantees of the New MEFA and New EFA; its delivery of documents and instruments to create and perfect the security interests contemplated by the Indenture and the New MEFA and the New EFA; its distribution of cash pursuant to the Plan; its issuance and distribution of the New Common Stock and New Senior Notes pursuant to the Plan; its execution and delivery of the Indenture and its guarantee of the New Notes; its adoption, execution, delivery and implementation of all contracts, leases, instruments, releases and other agreements or documents related to any of the foregoing or otherwise contemplated by the Plan; its adoption, execution and implementation of incentive compensation programs, retirement income plans, welfare benefit plans and other employee plans and related agreements contemplated by the Plan, including, without limitation, the Management Incentive Plan and a 401(K) plan in the form determined by the Responsible Officers (as defined below) or any one or more of them; and the other matters provided for under the Plan involving the corporate structure of the Debtors or Reorganized NII or corporate action to be taken by or required of the Debtors or Reorganized NII shall occur and be effective as of the date specified in the documents effectuating the applicable transaction (or the Effective Date, if no such other date is specified in such documents), and are authorized and approved in all respects and for all purposes without any requirement of further *373 action by the stockholders or board of directors of any of the Debtors.
c. Pursuant to section 1142(b) of the Bankruptcy Code and section 303 of the Delaware General Corporation Law (collectively, the "Reorganization Effectuation Statutes"), without further action by the Court or the stockholders or board of directors of any of the Debtors or Reorganized NII, the Debtors and Reorganized NII are authorized to: (i) cause to be filed with the Secretary of State of the State of Delaware (A) any and all certificates, agreements or plans of merger, necessary or appropriate to effectuate the provisions of the Plan and (B) certificates of incorporation, by-laws or similar constituent documents or certificates or articles of amendment thereto, as applicable (collectively, the "Governance Documents"); and (ii) take or cause to be taken all such other actions, including the making of appropriate filings or recordings as may be required under appropriate provisions of applicable state business corporation laws or any other applicable law, or as any of the Chief Executive Officer, any Vice President, Chief Financial Officer. Treasurer, or any Secretary (collectively, the "Responsible Officers") of the appropriate Debtor or Reorganized NII may determine are necessary or appropriate in connection with the provisions of the Plan and the Governance Documents. Each federal, state and local governmental agency or department is authorized and directed to accept the filing of any Governance Document or other document related to the implementation of the Plan. Without limiting the generality or effect of the foregoing, this Confirmation Order is declared and determined to be in recordable form and shall be accepted by any filing or recording officer or authority of any applicable governmental authority or department without any further orders, certificates or other supporting documents. After the Effective Date or the effective time of any applicable Restructuring Transaction, Reorganized NII is authorized to amend or restate its certificate of incorporation or by-laws or similar constituent documents as permitted by applicable state law, subject to the terms and conditions of such constituent documents.
d. The Responsible Officers of each Debtor or Reorganized NII are authorized to execute, deliver, file or record such contracts, instruments, releases, and other agreements or documents, including any Governance Documents or other documents related to the implementation of the Plan, and take such actions as may be necessary or appropriate to effectuate and implement the provisions of the Plan, including those contemplated by this Confirmation Order. The Secretary of each Debtor or Reorganized NII is authorized to certify or attest to any of the foregoing actions. The execution of any such document or the taking of any such action is deemed conclusive evidence of the authority of such person to so act.
2. Directors and Officers; Employment-Related Agreements and Compensation Programs.
a. Directors and Officers of Reorganized Debtors.
i. The appointment of the initial directors and officers of Reorganized NII, as set forth in Exhibit IV.C.2 to the Plan, and the process for filling any vacant directorship as of and immediately following the Effective Date is approved.
ii. Each such director and officer shall serve from and after the Effective Date until his or her successor is duly elected or appointed and qualified or until such director's or officer's earlier death, resignation or removal in accordance with the *374 terms of the certificates of incorporation and by-laws or similar constituent documents of Reorganized NII and applicable state law. The initial term for the three directors comprising Class I shall be until the next meeting of stockholders in accordance with the provisions of Reorganized NII's certificate of incorporation and by-laws or similar constituent documents. The initial term for the three directors comprising Class II shall be until the second meeting of stockholders in accordance with the provisions of Reorganized NII's certificate of incorporation and by laws or similar constituent documents. The initial term for the three directors comprising Class III shall be until the third meeting of stockholders in accordance with the provisions of Reorganized NII's certificate of incorporation and by laws or similar constituent documents. Each director elected at each such meeting of stockholders shall serve a three year term.
b. Approval of New Employment, Retirement, Indemnification, and Other Related Agreements and Incentive Compensation Programs.
Pursuant to section 1142(b) of the Bankruptcy Code and the Reorganization Effectuation Statutes, without further action by the Court or the stockholders or board of directors of Reorganized NII, and without limiting the power or authority of Reorganized NII following the Effective Date to take any and all such actions as may be permitted or required by applicable nonbankruptcy law, Reorganized NII is authorized, as of the Effective Date, to: (i) maintain, amend or revise existing employment, retirement, welfare, incentive, severance, indemnification and other agreements with their active directors, officers and employees, subject to the terms and conditions of any such agreement; (ii) enter into new employment, retirement, welfare, incentive, severance, indemnification and other agreements for active and retired employees, including, without limitation, a new 401(K) plan in the form approved by the Responsible Officers or any one or more of them; and (iii) make the initial grants under the Management Incentive Plan.
3. Approval of Executory Contract and Unexpired Lease Provisions and Related Procedures.
a. Except as otherwise modified herein, the Executory Contract and Unexpired Lease provisions of Article V of the Plan are specifically approved. Except as otherwise provided in the Plan or in any contract, instrument, release or other agreement or document entered into in connection with the Plan, on the Effective Date, pursuant to section 365 of the Bankruptcy Code, the applicable Debtor or Debtors shall reject each of the Executory Contracts and Unexpired Leases listed on Exhibit V.A to the Plan, as such contracts and leases may be amended or modified; provided, however, that the Debtors shall have the right, at any time prior to the Effective Date, to amend Exhibit V.A to the Plan to: (i) delete any Executory Contract or Unexpired Lease listed therein, thus providing for its assumption or assumption and assignment pursuant to Section V.A of the Plan, or (ii) add any Executory Contract or Unexpired Lease thereto, thus providing for its rejection pursuant to Section V.A.1 of the Plan. The Debtors or Reorganized NII shall provide notice of any amendments to Exhibit V.A to the parties to the Executory Contracts or Unexpired Leases affected thereby and to the parties on the then-applicable service list in the Reorganization Cases (including counsel to the Creditors' Committee). Each contract and lease assumed or assumed and assigned shall be assumed only to the extent that any such contract or *375 lease constitutes an Executory Contract or Unexpired Lease. Listing a contract or lease on Exhibit V.A to the Plan shall not constitute an admission by the Debtors or Reorganized NII that such contract or lease is an Executory Contract or Unexpired Lease or that the Debtors or Reorganized NII have any liability thereunder.
b. As of the effective time of an applicable Restructuring Transaction, any Executory Contract or Unexpired Lease to be held by either Debtor or another surviving, resulting or acquiring corporation shall be deemed assigned to the applicable entity, pursuant to section 365 of the Bankruptcy Code.
c. This Confirmation Order shall constitute an order approving the assumptions and assignments described in Sections V.A and V.F. of the Plan, pursuant to section 365 of the Bankruptcy Code, as of the Effective Date. The Debtors or Reorganized NII shall provide notice to each party whose Executory Contract or Unexpired Lease is being assumed or assumed and assigned pursuant to the Plan of: (i) the contract or lease being assumed or assumed and assigned; (ii) the name of the proposed assignee, if any; (iii) the Cure Amount Claim, if any, that the applicable Debtor or Reorganized NII believes it (or its assignee) would be obligated to pay in connection with such assumption; and (iv) the procedures for such party to object to the assumption or assumption and assignment of the applicable contract or lease or the amount of the proposed Cure Amount Claim. Notice shall be served on each nondebtor party or parties to an Executory Contract or Unexpired Lease by the later of (i) 15 Business Days after the Confirmation Date or (ii) if the Debtors amend Exhibit V.A to the Plan after the Confirmation Date to add any Executory Contract or Unexpired Lease identified thereon, thus providing for its rejection pursuant to Section V.A. of the Plan. 15 Business Days after the date of such amendment.
d. If any party disputes the assumption or assumption and assignment of its Executory Contract or Unexpired Lease or the amount of the proposed Cure Amount Claim, such party must file and serve on the Debtors or Reorganized NII, as applicable, a written objection setting forth the basis for such dispute no later than 30 days after the date of service of any cure amount notice. If the parties are unable to resolve such a dispute, either (i) such dispute shall be determined by the Court after appropriate briefing and a hearing scheduled on not less than 30 days notice or (ii) the applicable Debtor or Reorganized NII may reject the Executory Contract or Unexpired Lease at issue in accordance with this Confirmation Order. If the nondebtor party to an Executory Contract or Unexpired Lease does not timely and properly object to the proposed Cure Amount Claim identified in any cure amount notice, the proposed amount shall become the final Allowed Cure Amount Claim without further action by the Court, the Debtors or the Reorganized Debtors, and the Proposed Cure Amount Claim shall be paid or satisfied in accordance with the Plan and this Confirmation Order. Until a Cure Amount Claim becomes Allowed in accordance with the procedures set forth above and any cure amount notice, such Claim shall be treated as a Disputed Claim for purposes of making distributions under the Plan.
e. To the extent that such Claims constitute monetary defaults, the Cure Amount Claims associated with each Executory Contract and Unexpired Lease to be assumed or assumed and assigned pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, at the option of the Debtor or Reorganized *376 NII assuming such contract or lease or the assignee of such Debtor or Reorganized NII, if any: (i) by payment of the Cure Amount Claim in cash on the Effective Date or (ii) on such other terms as are agreed to by the parties to such Executory Contract or Unexpired Lease. If there is a dispute regarding (i) the amount of any Cure Amount Claim, (ii) the ability of the applicable Reorganized NII or any assignee to provide "adequate assurance of future performance" (within the meaning of section 365 of the Bankruptcy Code) under the contract or lease to be assumed or (iii) any other matter pertaining to assumption of such contract or lease, the payment of any Cure Amount Claim required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order (or the Filing of a stipulation or other agreement by the parties) resolving the dispute and approving the assumption. For assumptions of Executory Contracts or Unexpired Leases between Debtors, Reorganized NII may cure any monetary default (i) by treating such amount as either a direct or indirect contribution to capital or distribution (as appropriate) or (ii) through an intercompany account balance in lieu of payment in cash.
f. Subject to the provisions of this Confirmation Order below, the obligations of each Debtor or Reorganized NII to indemnify any person serving as one of its directors, officers or employees, prior to, as of or following the Petition Date by reason of such person's prior or future service in such a capacity or as a director, officer or employee of another corporation, partnership or other legal entity, to the extent provided in the applicable certificates of incorporation, by-laws or similar constituent documents, by statutory law or by written agreement, policies or procedures of or with such Debtor, are deemed and treated as executory contracts that are assumed by the applicable Debtor or Reorganized NII pursuant to the Plan and section 365 of the Bankruptcy Code as of the Effective Date. Accordingly, such indemnification obligations shall survive and be unaffected by entry of this Confirmation Order, irrespective of whether such indemnification is owed for an act or event occurring before or after the Petition Date.
4. Distribution Record Date.
a. The Distribution Record Date shall be the Effective Date. Distributions of cash, New Common Stock and New Senior Notes will be made on the Effective Date or as promptly thereafter as practicable, but in any event no later than: (a) 45 days after the Effective Date, or (b) such later date when the applicable conditions of Section V.C, Section VI.E.2 or Section VI.J are satisfied.
b. The Disbursing Agent shall have no obligation to recognize the transfer of, or the sale of any participation in, any Allowed Old Note Claim that occurs after the close of business on the Distribution Record Date and shall be entitled for all purposes herein and in the Plan to recognize and make distributions only to those holders of Allowed Old Note Claims that are holders of such Claims, or participants therein, as of the close of business on the Distribution Record Date.
c. As of the close of business on the Distribution Record Date, the respective transfer registers for the Old Notes, as maintained by the Debtors or the Indenture Trustee, shall be closed. The Disbursing Agent shall have no obligation to recognize the transfer or sale of any Old Note Claim that occurs after the close of business on the Distribution Record Date and shall be entitled for all purposes herein to recognize and make distributions only to those holders of Old Note Claims that *377 are holders of such Claims as of the close of business on the Distribution Record Date.
d. Except as otherwise provided in a Final Order of the Bankruptcy Court, the transferees of Disputed Class 6 Claims that are transferred pursuant to Bankruptcy Rule 3001 on or prior to the Distribution Record Date shall be treated as the holders of such Claims for all purposes, notwithstanding that any period provided by Bankruptcy Rule 3001 for objecting to such transfer has not expired by the Distribution Record Date.
E. SUBSTANTIVE CONSOLIDATION OF THE DEBTORS.
The substantive consolidation of the Debtors for the purpose of implementing the Plan, including for purposes of voting, Confirmation and distributions to be made under the Plan, is approved. Accordingly, for purposes of implementing the Plan, (1) all assets and liabilities of NII Holdings, Inc. and NII Holdings (Delaware), Inc. are deemed merged; (2) all guarantees by one Debtor of the obligations of any other Debtor are deemed eliminated, and any Claim against any Debtor and any guarantee thereof executed by any other Debtor and any joint or several liability of any of the Debtors are deemed to be one obligation of the consolidated Debtors; and (3) each and every Claim Filed or to be Filed in the Reorganization Case of any of the Debtors is deemed Filed against the consolidated Debtors and is deemed one Claim against and a single obligation of the consolidated Debtors.
F. ACTIONS IN FURTHERANCE OF THE PLAN.
The approvals and authorizations specifically set forth in this Confirmation Order are nonexclusive and are not intended to limit the authority of any Debtor or Reorganized NII or any officer thereof to take any and all actions necessary or appropriate to implement, effectuate and consummate any and all documents or transactions contemplated by the Plan or this Confirmation Order. In addition to the authority to execute and deliver, adopt or amend, as the case may be, the contracts, leases, instruments, releases and other agreements specifically granted in this Confirmation Order, the Debtors and Reorganized NII are authorized and empowered, without action of their respective stockholders or boards of directors, to take any and all such actions as any of their Responsible Officers may determine are necessary or appropriate to implement, effectuate and consummate any and all documents or transactions contemplated by the Plan or this Confirmation Order. Pursuant to section 1142 of the Bankruptcy Code and the Reorganization Effectuation Statutes, no action of the stockholders or boards of directors of the Debtors or Reorganized NII shall be required for the Debtors or Reorganized NII to: (1) enter into, execute and deliver, adopt or amend, as the case may be, any of the contracts, leases, instruments, releases and other agreements or documents and plans to be entered into, executed and delivered, adopted or amended in connection with the Plan, including, without limitation, the Chase Settlement, the Indenture, the New Notes and guarantees thereof, guarantees of the New MEFA and New EFA, and all documents and instruments providing security for the New Notes, the New MEFA and the New EFA, all with such changes or modifications as a Responsible Officer shall approve (such approval to be conclusively determined by the execution thereof) and, following the Effective Date, each of such contracts, leases, instruments, releases and other agreements shall be a legal, valid and binding obligation of Reorganized NII, enforceable against Reorganized *378 NII in accordance with its terms subject only to bankruptcy, insolvency and other similar laws affecting creditors' rights generally, and subject also to general equitable principles; (2) issue shares of New Common Stock pursuant to the Plan, including, without limitation, shares issued pursuant to the Chase Settlement, and, upon issuance, all such shares of New Common Stock shall be duly authorized, validly issued and fully paid and nonassessable shares of New Common Stock of Reorganized NII; or (3) authorize Reorganized NII to engage in any of the activities set forth in this paragraph or otherwise contemplated by the Plan. Each of the Responsible Officers of each Debtor and Reorganized NII is authorized to execute, deliver, file or record such contracts, instruments, financing statements, releases, mortgages, deeds, assignments, leases, applications, registration statements, reports or other agreements or documents and take such other actions as such officer may determine are necessary or appropriate to effectuate or further evidence the terms and conditions of the Plan, this Confirmation Order and any and all documents or transactions contemplated by the Plan or this Confirmation Order, all without further application to or order of the Court and whether or not such actions or documents are specifically referred to in the Plan, the Disclosure Statement, the Disclosure Statement Order, this Confirmation Order or the exhibits to any of the foregoing, and the signature of a Responsible Officer on a document executed in accordance with this Confirmation Order shall be conclusive evidence of the Responsible Officer's determination that such document and any related actions are necessary and appropriate to effectuate or further evidence the terms and conditions of the Plan, this Confirmation Order or other documents or transactions contemplated by the Plan or this Confirmation Order. The Secretary of each Debtor or Reorganized NII is authorized to certify or attest to any of the foregoing actions. Pursuant to section 1142 of the Bankruptcy Code and the Reorganization Effectuation Statutes, to the extent that, under applicable nonbankruptcy law, any of the foregoing actions otherwise would require the consent or approval of the stockholders or the boards of directors of any of the Debtors or Reorganized NII, this Confirmation Order shall constitute such consent or approval, and such actions are deemed to have been taken by unanimous action of the stockholders and directors of the appropriate Debtor or Reorganized NII.
G. RELEASES AND INDEMNIFICATION.
1. The releases and indemnification obligations contained in Section IV.D.2 of the Plan are approved in all respects.
2. As further provided below, the commencement or prosecution by any entity, whether directly, derivatively or otherwise, of any claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities released pursuant to Section IV.D.2 of the Plan are permanently enjoined.
3. The provisions of Section IV.D.2 of the Plan shall not be binding upon or effective against the Securities and Exchange Commission, notwithstanding any other provisions of this Confirmation Order or the Plan.
H. DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS.
1. Discharge of Claims and Satisfaction and Termination of Interests.
a. Except as provided in the Plan or in this Confirmation Order, the rights afforded under the Plan and the treatment of *379 Claims and Interests under the Plan shall be in exchange for and in complete satisfaction, discharge and release of all Claims and termination of all Interests arising on or before the Effective Date, including any interest accrued on Claims from the Petition Date. Except as provided in the Plan or in this Confirmation Order, Confirmation shall, as of the Effective Date and immediately after cancellation of all Interests issued by or relating to either Debtor immediately prior to the Effective Date: (i) discharge the Debtors from all Claims or other debts that arose on or before the Effective Date, and all debts of the kind specified in section 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not (A) a proof of Claim based on such debt is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code, (B) a Claim based on such debt is allowed pursuant to section 502 of the Bankruptcy Code or (C) the holder of a Claim based on such debt has accepted the Plan; and (ii) terminate all Interests and other rights of equity security holders in the Debtors.
b. In accordance with the foregoing, except as provided in the Plan or in this Confirmation Order, this Confirmation Order constitutes a judicial determination, as of the Effective Date and immediately after the cancellation of all Interests issued by or relating to either Debtor immediately prior to the Effective Date and the issuance of the New Common Stock, of a discharge of all Claims and other debts and liabilities against the Debtors and termination of all Interests and other rights of equity security holders in the Debtors, pursuant to sections 524 and 1141 of the Bankruptcy Code, and such discharge shall void any judgment obtained against a Debtor at any time, to the extent that such judgment relates to a discharged Claim or terminated Interest.
2. Injunctions.
a. Except as provided in the Plan or this Confirmation Order, as of the Effective Date, all entities that have held, currently hold or may hold a Claim or other debt or liability that is discharged or an Interest or other right of an equity security holder that is terminated pursuant to the terms of the Plan are permanently enjoined from taking any of the following actions on account of any such discharged Claims, debts or liabilities or terminated Interests or rights: (i) commencing or continuing in any manner any action or other proceeding against the Debtors, Reorganized NII or their respective property, other than to enforce any right pursuant to the Plan to a distribution; (ii) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order against the Debtors, Reorganized NII or their respective property, other than as permitted pursuant to (i) above; (iii) creating, perfecting or enforcing any lien or encumbrance against the Debtors, Reorganized NII or their respective property; (iv) asserting a setoff (except to the extent inconsistent with treatment of Class 7 Creditors as provided elsewhere in the Plan) or right of subrogation of any kind against any debt, liability or obligation due to the Debtors or Reorganized NII; and (v) commencing or continuing any action, in any manner, in any place that does not comply with or is inconsistent with the provisions of the Plan.
b. As of the Effective Date, all entities that have held, currently hold or may hold any claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities that are released pursuant to the Plan are permanently enjoined from taking any of the following actions against any released entity or its property on account of such released claims, obligations, suits, judgments, damages, demands, *380 debts, rights, causes of action or liabilities: (i) commencing or continuing in any manner any action or other proceeding; (ii) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order; (iii) creating, perfecting or enforcing any lien or encumbrance; (iv) asserting a setoff; (except to the extent inconsistent with the treatment of Class 7 Creditors as provided elsewhere in the Plan) or right of subrogation of any kind against any debt, liability or obligation due to any released entity; and (v) commencing or continuing any action, in any manner, in any place that does not comply with or is inconsistent with the provisions of the Plan.
c. By accepting distributions pursuant to the Plan, each holder of an Allowed Claim receiving distributions pursuant to the Plan shall be deemed to have specifically consented to the injunctions set forth in this Confirmation Order.
3. Termination of Subordination Rights and Settlement of Related Claims and Controversies.
a. The classification and manner of satisfying all Claims and Interests under the Plan take into consideration all subordination rights, whether arising under general principles of equitable subordination, contract, section 510(c) of the Bankruptcy Code or otherwise, that a holder of a Claim or Interest may have against other Claim or Interest holders with respect to any distribution made pursuant to the Plan. All subordination rights that a holder of a Claim may have with respect to any distribution to be made pursuant to the Plan are discharged and terminated, and all actions related to the enforcement of such subordination rights are permanently enjoined. Accordingly, distributions pursuant to the Plan to holders of Allowed Claims shall not be subject to payment to a beneficiary of such terminated subordination rights or to levy, garnishment, attachment or other legal process by a beneficiary of such terminated subordination rights.
b. Pursuant to Bankruptcy Rule 9019 and in consideration for the distributions and other benefits provided under the Plan, the provisions of the Plan shall constitute a good faith compromise and settlement of all claims or controversies relating to the subordination rights that a holder of a Claim may have with respect to any Allowed Claim or any distribution to be made pursuant to the Plan on account of any Allowed Claim. The entry of this Confirmation Order constitutes the Bankruptcy Court's approval, as of the Effective Date, of the compromise or settlement of all such claims or controversies and the Bankruptcy Court's finding that such compromise or settlement is in the best interests of the Debtors, Reorganized NII and their respective property and Claim and Interest holders and is fair, equitable and reasonable.
I. PAYMENT OF STATUTORY FEES.
On or before the Effective Date, the Debtors shall pay all fees payable pursuant to 28 U.S.C. § 1930 and shall continue to pay such fees as they come due after the Effective Date until a final decree is entered closing the Reorganization Cases in accordance with section 350(a) of the Bankruptcy Code and Bankruptcy Rule 3022.
J. SUBSTANTIAL CONSUMMATION.
The substantial consummation of the Plan, within the meaning of section 1127 of the Bankruptcy Code, is deemed to occur on the Effective Date.
*381 K. RETENTION OF JURISDICTION
Notwithstanding the entry of this Confirmation Order and the occurrence of the Effective Date, the Court shall retain such jurisdiction over the Reorganization Cases after the Effective Date as is legally permissible, including jurisdiction over the matters set forth in Article XII of the Plan, which provisions are incorporated herein by reference.
L. NOTICE OF ENTRY OF CONFIRMATION ORDER.
1. Pursuant to Bankruptcy Rules 2002(f)(7) and 3020(c), the Debtors or Reorganized NII are directed to serve a notice of the entry of this Confirmation Order and the establishment of bar dates for certain Administrative Claims hereunder, substantially in the form of Exhibit D attached hereto and incorporated herein by reference (the "Confirmation Notice"), on all parties that received notice of the Confirmation Hearing, no later than 15 Business Days after the Confirmation Date; provided, however, that the Debtors or Reorganized NII shall be obligated to serve the Confirmation Notice only on the record holders of Claims or Interests as of the Confirmation Date.
EXHIBIT A
REVISED THIRD AMENDED JOINT PLAN OF REORGANIZATION OF NII HOLDINGS, INC. AND NII HOLDINGS (DELAWARE), INC.
EXHIBIT B
MODIFICATIONS OF THE PLAN
Insert as new heading for Table IV.C.2.
Officers and Proposed Directors of Reorganized NII; Initial Terms of Proposed Directors
Insert as new Section I.A.52.
"Issuer" means NII Holdings (Cayman), Ltd., an affiliate of Reorganized NII, which entity is the issuer of the New Senior Notes and which entity, together with all guarantors under the New Senior Notes Indenture, join with the Debtors as proponents of the Plan.
Insert underlined language in Section I.A.63.
"New Senior Notes" means those certain new senior discount notes of the Issuer in the aggregate principal amount of $180,820,856 to be issued pursuant to the New Senior Notes Indenture in the Rights Offering.
Insert underlined language, and strike bracketed in Section I.A.93.
"Standstill Agreement" means the Standstill Agreement among NII, NCI and the Backstopping Noteholders, substantially in the form included in the Plan Supplement, pursuant to which (a) NCI agrees to take no action that would result at any time in its holding in excess of 49.9% of the common equity of Reorganized NII on a fully diluted basis without the prior approval of a majority of the [non NCI] members of Reorganized NII's board of directors who are not "affiliates" (as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934 as in effect on the date of the Plan) of NCI and (b) NII agrees not to take any action that would cause NCI to hold more than 49.9% of the common equity of Reorganized NII on a fully diluted basis.
Insert underlined language and strike the bracketed language in Section III.A.1.e.
Upon the Effective Date and subject to Bankruptcy Court review [for reasonableness] under applicable law, any claims of the advisors to the Ad Hoc Noteholder *382 Committee against either of the Debtors for payment for services rendered to the Ad Hoc Noteholder Committee (or costs or expenses incurred in connection therewith) in or in connection with the Reorganization Cases or in connection with the Plan and incident to the Reorganization Cases, shall be paid in full. Those advisors are Milbank, Tweed, Hadley & McCloy LLP ("Milbank") Morris, Nichols, Arsht & Tunnell ("MNAT") and Chanin Capital LLC ("Chanin"). The Debtors support payment in full of Milbank's, MNAT's, and Chanin's fees, costs and expenses.
Insert underlined language in Section III.C.1.
Class 2 Claims (MEFA/SLA Secured Claims) are impaired. On the Effective Date, Allowed Claims in Class 2 will be satisfied in full by the execution and delivery of the New MEFA. Additionally, on the Effective Date, MCC shall receive from Reorganized NII (i) a cash payment of $56.650 million plus an additional amount for any pre- or post-petition interest that may be due and owing under the SLA or the MEFA up to and including the Effective Date, which amounts are currently escrowed by NII, and (ii) preferred stock which (together with Class 3 of the Plan) is entitled, as provided in Section IV.C.2 hereof, to designate one member of the board of directors of Reorganized NII.
Insert underlined language in Section III.C.2.
Class 3 Claims (EFA Secured Claims) are impaired. On the Effective Date, Allowed Claims in Class 3 will be satisfied in full by the execution and delivery of the New EFA. Additionally, MCC shall receive, at such time as interest may be paid in accordance with the New EFA (i) from MIBL, a cash payment for any pre- or post-petition interest that may be due and owing under the EFA up to and including the Effective Date, and (ii) from Reorganized NII, preferred stock which (together with Class 2 of the Plan) is entitled, as provided in Section IV.C.2 hereof, to designate one member of the board of directors of Reorganized NII.
Insert as new Section III.D.1.
Except to the extent any such Allowed Claims may be satisfied through the Segregated Securities Account, as defined in Section III.D.2 below, in full satisfaction of each Indenture Trustee's Claim, including such Claims secured by any charging lien under the applicable Prepetition Indenture, each Indenture Trustee will receive from Reorganized NII cash equal to the amount of such Claims in accordance with the procedures described in Section III.D.2 below, and any charging lien held by such Indenture Trustee will attach solely to such property as described in Section III.D.2, and be released in accordance with the provisions thereof. Distributions received by holders of Old Note Claims pursuant to the Plan will not be reduced on account of the payment of the Indenture Trustees' Claims from the Segregated Cash Account (as defined below).
Insert as new Section III.D.2.
Within 30 days after the Effective Date, each Indenture Trustee will submit to Reorganized NII appropriate documentation in support of the fees and expenses incurred by such Indenture Trustee in connection with the Reorganization Cases through the Effective Date, whether incurred prior to or subsequent to the Petition Date, together with a detailed, reasonable estimate of any fees and expenses to be incurred following the Effective Date; provided, however, that neither the Debtors nor Reorganized NII shall be obligated to pay more than $60,000.00 in the aggregate for the Indenture Trustees' pre-Effective Date and post-Effective Date fees *383 and expenses. Within ten Business Days after receiving the appropriate documentation referred to above, Reorganized NII will place $60,000.00 in a segregated, interest bearing money market account (the "Segregated Cash Account"). Additionally, prior to any distribution of New Common Stock to the members of the Ad Hoc Noteholder Committee hereunder, such members of the Ad Hoc Noteholder Committee shall permit to be set aside in a segregated account (the "Segregated Securities Account", and, together with the Segregated Cash Account, the "Segregated Accounts"), on a pro rata basis according to each such member's proportionate holdings of the Old Notes, shares of New Common Stock equal to, in the aggregate, $40,000.00. Solely in accordance with the procedures described below, the Indenture Trustees' reasonable fees and expenses will be paid first, from the Segregated Cash Account, and, second, from the Segregated Securities Account; provided, however, that the Indenture Trustees' fees and expenses shall be satisfied from the Segregated Securities Account solely to the extent that such fees and expenses are not satisfied first from the Segregated Cash Account; provided, further, that in no event shall payment to the Indenture Trustees exceed the amounts comprising the Segregated Accounts. The Confirmation Order will provide that the Indenture Trustees' charging liens will attach first, to the cash placed in the Segregated Cash Account until the funds in such account are distributed in accordance with this Section III.D.2, and second, to the shares of New Common Stock held in the Segregated Securities Account. Immediately upon satisfaction of the Indenture Trustees' reasonable fees and expenses, any charging lien will be deemed released.
Insert as new Section III.D.3.
No later than 30 days after the funding of the Segregated Accounts as described in Section III.D.2, above, each Indenture Trustee will (a) File a motion with the Bankruptcy Court seeking approval of its fees and expenses incurred through the Effective Date under the terms of the applicable Prepetition Indenture and (b) serve such motion on (i) Reorganized NII, (ii) the record Holders of the series of Old Notes on whose behalf it served as Indenture Trustee as of the Distribution Record Date, and (iii) the United States Trustee. The Bankruptcy Court will determine whether to approve the fees and expenses requested in such motion based upon consideration of whether such amounts are appropriate under the terms of the applicable Prepetition Indenture and applicable law, which, notwithstanding the cancellation of such Prepetition Indenture pursuant to Section IV.G hereof, will govern this determination. Promptly upon approval by the Bankruptcy Court, an Indenture Trustee's approved fees and expenses for the period prior to the Effective Date will be treated as Allowed Claims and will be satisfied from the respective Segregated Account in accordance with the procedures described in this Section III.D, together with interest held in such Segregated Account on account of such approved fees and expenses.
Insert as new Section III.D.4.
All amounts remaining in the Segregated Cash Account on the later of (a) the date that all of the Indenture Trustee's fees and expenses have been paid from the Segregated Cash Account, as certified by each Indenture Trustee in a written notice to Reorganized NII, and (b) 90 days after the Effective Date, or such later date as Reorganized NII shall determine in its sole discretion, will be immediately returned to Reorganized NII. If the funds in the Segregated Cash Account are insufficient *384 to satisfy all of the applicable Indenture Trustee's fees and expenses incurred after the Effective Date or if the Segregated Cash Account otherwise is closed, the Indenture Trustee may seek the payment of any additional amounts from the Segregated Securities Account in accordance with the procedures described in Section III.D.2. Any shares of New Common Stock remaining in any Segregated Securities Account on the later of (a) the date that all of the Indenture Trustee's fees and expenses have been paid from the Segregated Securities Account in the manner prescribed in Section III.D.2, above, as certified by each Indenture Trustee in a written notice to Reorganized NII, and (b) 90 days after the Effective Date, or such later date as Reorganized NII shall determine in its sole discretion, will be immediately distributed, on a pro rata basis, to those members of the Ad Hoc Noteholder Committee that originally set aside shares of New Common Stock to fund the Segregated Securities Account.
Insert underlined language to first sentence in Section IV.B.1.
As part of the Plan, holders of Allowed Class 6 Claims, including Old Note Claims, will receive Subscription Rights to purchase at a discount, on a Pro Rata basis in proportion to their respective Allowed Claims, up to an aggregate principal amount of $180,820,856 of New Senior Notes and up to an additional 15,680,000 shares of New Common Stock constituting 78.4% of the fully diluted equity ownership of Reorganized NII (excluding equity to be issued pursuant to the Management Incentive Plan).
Insert as new Section IV.C.2.
The initial board of directors of Reorganized NII shall be divided into three classes, with the term of office of one class expiring each year. The three directors of Class I shall be elected to hold office for a term expiring at the next annual meeting following the Effective Date (as defined in the Plan of Reorganization), the three directors of Class II shall be elected to hold office for a term expiring at the next succeeding annual meeting, and the three directors of Class III shall be elected to hold office for a term expiring at the next succeeding annual meeting. Commencing with the next annual meeting following the Effective Date, each class of directors whose term shall then or thereafter expire shall be elected to hold office for a three-year term. The nine individuals that comprise the three classes of the initial board of directors of Reorganized NII are listed on Exhibit IV.C.2 hereof.
Insert underlined language in Section IV.C.4.
The Restructuring Transactions; the adoption of a new or amended and restated certificate of incorporation and bylaws or similar constituent documents for Reorganized NII; the initial selection of directors and officers for Reorganized NII; the issuance and distribution of the Subscription Rights, New Common Stock and New Senior Notes; the consummation of the Rights Offering; the distribution of cash pursuant to the Plan; the execution and delivery of the New MEFA, the New EFA, the New Senior Notes Indenture, the New Spectrum Use and Build-Out Agreement, the Global Release Agreement, the Registration Rights Agreement, the Third Amended and Restated Trademark License Agreement, the Amended and Restated Overhead Services Agreement, the Subscription Agreement and the Standstill Agreement; the adoption, execution, delivery and implementation of all contracts, leases, instruments, releases and other agreements or documents related to any of the foregoing; the adoption, execution *385 and implementation of employment, retirement and indemnification agreements, incentive compensation programs, retirement income plans, welfare benefit plans and other employee plans and related agreements; and the other matters provided for under the Plan involving the corporate structure of any Debtor or Reorganized NII or corporate action to be taken by or required of any Debtor or Reorganized NII will occur and be effective as of the date specified in the documents effectuating the applicable Restructuring Transactions or the Effective Date, if no such other date is specified in such other documents, and will be authorized and approved in all respects and for all purposes without any requirement of further action by stockholders or directors of any of the Debtors, and, pursuant to the Confirmation Order, with like effect as if such actions had been taken by unanimous action of such stockholders and directors.
Insert as new Section IV.D.2.a. and strike bracketed language
As of the Effective Date, in consideration for the obligations of the Debtors and Reorganized NII under the Plan and the cash, New Common Stock, New Senior Notes, and other contracts, instruments, releases, agreements or documents to be entered into or delivered in connection with the Plan, each holder of a Claim or Interest that votes in favor of the Plan (notwithstanding any designation of any such vote under section 1126 of the Bankruptcy Code), will be deemed to forever release, waive and discharge all claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action and liabilities (other than the right to enforce the Debtors' or Reorganized NII's obligations under the Plan and the contracts, instruments, releases, agreements and documents delivered thereunder), whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising in law, equity or otherwise, that are based in whole or in part on any act, omission, transaction or other occurrence taking place on or prior to the Effective Date in any way relating to a Debtor, the Reorganization Cases or the Plan that such entity has, had or may have against either Debtor, Reorganized NII, NCI, the Ad Hoc Noteholder Committee and each of its members, the Indenture Trustee, MCC and Motorola, and each of their respective present or former directors, officers, employees, attorneys, accountants, underwriters, investment bankers, advisors, agents and subsidiaries, acting in such capacity (which release will be in addition to the discharge of Claims and termination of Interests provided in the Plan and under the Confirmation Order and the Bankruptcy Code).
Insert as new Section IV.G.
Except as provided in any contract, instrument or other agreement or document entered into or delivered in connection with the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to Article III, the Capital Subscription, the MEFA, the SLA, the Old Notes, and the Prepetition Indentures will be canceled and of no further force and effect, without any further action on the part of either Debtor or Reorganized NII. Solely to the extent provided in Section III.D hereof, the provisions of the Prepetition Indentures which authorize the Indenture Trustees to assert a charging lien for unpaid fees and expenses against distributions to be made to the Holders of the Old Notes will survive the cancellation of the Prepetition Indentures. All Interests issued by or relating to either Debtor and outstanding immediately prior to the Petition Date shall be deemed canceled *386 and of no further force and effect on the Effective Date. The holders of or parties to such canceled instruments, securities and other documentation will have no rights arising from or relating to such instruments, securities and other documentation or the cancellation thereof, except the rights provided pursuant to the Plan; provided, however, that no distribution under the Plan will be made to or on behalf of any holder of an Allowed Claim evidenced by such canceled instruments or securities unless and until such instruments or securities are received by the applicable Disbursing Agent to the extent required in Section VI.J.
Strike bracketed language in Section VI.E.1.b.
Subject to the requirements of Section VI.J, distributions to holders of Allowed Old Note Claims will be made by a Disbursing Agent to the record holders of the Old Notes as of the Distribution Record Date, as identified on a record holder register to be provided to the Disbursing Agent by the Indenture Trustee, within five Business Days after the Distribution Record Date. This record holder register (i) will provide the name, address and holdings of each respective registered holder of Old Notes as of the Distribution Record Date and (ii) must be consistent with the Indenture Trustee's Allowed proof of Claim. Each entry on the record holder register will be treated as an Allowed [Disputed] Class 6 Claim for purposes of distributions made pursuant to this Article VI.
Insert as new Section VII.A.2.
After the Effective Date, the Debtors or Reorganized NII will have the authority to File, settle, compromise, withdraw or litigate to judgment objections to Claims, including pursuant to any alternative dispute resolution or similar procedures approved by the Bankruptcy Court. Any party in interest may object to a Claim, or the compromise or settlement thereof in accordance with section 502 of the Bankruptcy Code. Creditors holding Secured Claims are not subject to this Section of the Plan. After the Effective Date, Reorganized NII may settle or compromise any Disputed Claim up to $100,000 without the approval of the Bankruptcy Court. For Disputed Claims above $100,000, Reorganized NII may move for authority to settle or compromise any Disputed Claim within a fixed class or classes of controversy. Notice of such motion will be made to the UST and any other party in interest who requests such notification from Reorganized NII.
Insert as last sentence in Section VII.B.
Reorganized NII shall create and fund such other Disputed Claims reserves as may be necessary pending resolution of all other Disputed Claims.
Insert underlined language, and strike bracketed language in Section XI.B.1.
Except as provided in the Plan or the Confirmation Order, as of the Effective Date, all entities that have held, currently hold or may hold a Claim or other debt or liability that is discharged or an Interest or other right of an equity security holder that is terminated pursuant to the terms of the Plan will be permanently enjoined from taking any of the following actions on account of any such discharged Claims, debts or liabilities or terminated Interests or rights: (a) commencing or continuing in any manner any action or other proceeding against the Debtors, Reorganized NII or their respective property, other than to enforce any right pursuant to the Plan to a distribution; (b) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order against the Debtors, Reorganized NII or their respective *387 property, other than as permitted pursuant to (a) above; (c) creating, perfecting or enforcing any lien or encumbrance against the Debtors, Reorganized NII or their respective property; (d) asserting a setoff (except to the extent inconsistent with the treatment of Class 7 Creditors as provided elsewhere in the Plan) or right of subrogation [or recoupment] of any kind against any debt, liability or obligation due to the Debtors or Reorganized NII; and (e) commencing or continuing any action, in any manner, in any place that does not comply with or is inconsistent with the provisions of the Plan.
Insert underlined language, and strike bracketed language in Section XI.B.2.
As of the Effective Date, all entities that have held, currently hold or may hold any claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities that are released pursuant to the Plan will be permanently enjoined from taking any of the following actions against any released entity or its property on account of such released claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities: (a) commencing or continuing in any manner any action or other proceeding; (b) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order; (c) creating, perfecting or enforcing any lien or encumbrance; (d) asserting a setoff (except to the extent inconsistent with the treatment of Class 7 Creditors as provided elsewhere in the Plan) or right of subrogation [or recoupment] of any kind against any debt, liability or obligation due to any released entity; and (e) commencing or continuing any action, in any manner, in any place that does not comply with or is inconsistent with the provisions of the Plan.
Insert as new Section XIII.B.
None of the Debtors, Reorganized NII, NCI, the Creditors' Committee, the Ad Hoc Noteholder Committee, MCC and Motorola or any of their respective members, officers, directors, employees, advisors, professionals or agents shall have or incur any liability to any holder of a Claim or Interest for any act or omission in connection with, related to, or arising out of, the Reorganization Cases, the pursuit of confirmation of the Plan, the consummation of the Plan or the administration of the Plan or the property to be distributed under the Plan, except for willful misconduct or gross negligence, and, in all respects, the Debtors, Reorganized NII, NCI, the Creditors' Committee, the Ad Hoc Noteholder Committee, MCC and Motorola and each of their respective members, officers, directors, employees, advisors, professionals and agents shall be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under the Plan.
Insert as new Section XIII.H.1.
Robert J. Gilker, Esq.
Vice President and General Counsel
NII HOLDINGS, INC.
10700 Parkridge Boulevard
Suite 600
Reston, VA 20191
Fax: (703) 390-5191
Daniel J. DeFranceschi, Esq.
RICHARDS, LAYTON & FINGER,
P.A.
One Rodney Square
P.O. Box 551
Wilmington, DE 19899
Fax: (302) 658-6548
Evan D. Flaschen, Esq.
Patrick J. Trostle, Esq.
William F. Govier, Esq.
BINGHAM McCUTCHEN LLP
One State Street
Hartford, CT 06103
Fax: (860) 240-2800
*388 (Counsel to the Debtors and Reorganized NII)
EXHIBIT C
REJECTION BAR DATE NOTICE
Insert as new Section XIII.H.2.
Gerry F. Facendola
THE BANK OF NEW YORK, AS
TRUSTEE
101 Barclay Street
New York, N.Y. 10286
Fax: (212) 328-7302
Randolph Houchins
SCHLUMBERGERSEMA TELECOMS,
INC.
30000 Mill Creek Avenue 100
Alpharetta, GA 30022
Fax: (678) 258-1686
Dennis S. Meir, Esq.
Todd C. Meyers, Esq.
KILPATRICK STOCKTON LLP
Suite 2800
1100 Peachtree Street
Atlanta, GA XXXXX-XXXX
Fax: (404) 815-6555
Mark Minuti, Esq.
Saul Ewing LLP
Suite 1200
222 Delaware Avenue
Wilmington, DE 19899
(Counsel to the Creditors' Committee)
NOTICE REGARDING (A) EXECUTORY CONTRACTS AND UNEXPIRED LEASES TO BE REJECTED PURSUANT TO SECTION 365 OF THE BANKRUPTCY CODE AND (B) BAR DATE FOR CLAIMS ARISING THEREFROM
PLEASE TAKE NOTICE OF THE FOLLOWING:
1. Executory Contracts and Unexpired Leases to Be Rejected. Pursuant to Section V.A. of the Revised Third Amended Joint Plan of Reorganization of NII Holdings, Inc. and NII Holdings (Delaware), Inc. as modified (the "Plan"),[1] section 365 of the Bankruptcy Code, 11 U.S.C. §§ 101-1330 (the "Bankruptcy Code"), and the Order of the Bankruptcy Court confirming the Plan (the "Confirmation Order"), the above-captioned debtors and debtors in possession (collectively, the "Debtors") will reject, as of and conditioned upon the occurrence of the effective date of the Plan (the "Effective Date"), each of the Executory Contracts and Unexpired Leases entered into by a Debtor prior to May 24, 2002 that have not previously expired or been terminated pursuant to their own terms, except for an Executory Contract or Unexpired Lease that was previously assumed or rejected by an order of the Bankruptcy Court or that is assumed pursuant to Section V.A. of the Plan (including any related agreements assumed pursuant to Section V.A.2. of the Plan). The Executory Contracts and Unexpired Leases to be rejected include the Executory Contracts and Unexpired Leases listed on Exhibit V.A to the Plan. The Executory Contracts and Unexpired Leases to which you are a party that appear on Exhibit V.A to the Plan (and thus have been identified for rejection) are listed on the attached Annex A.
2. Bar Date for Proof of Claims. Notwithstanding anything in the Bar Date Order to the contrary, if the rejection of an Executory Contract or Unexpired Lease pursuant to Section V.A. of the Plan gives rise to a Claim by the other party or parties to such contract or lease, such Claim will be forever barred and will not *389 be enforceable against the Debtors, Reorganized NII, their respective successors or their respective properties unless a proof of Claim is: (a) filed with the Reorganized Debtors' claims and noticing agent, BSI, LLC, by sending the executed proof of Claim by mail to NII Claims Processing, c/o Bankruptcy Services LLC, FDR Station, P.O. Box 5015, New York, New York XXXXX-XXXX, or by overnight delivery or hand delivery to NII Claims Processing, c/o Bankruptcy Services LLC, 70 E. 55th Street, Sixth Floor, New York, New York 10022; and (b) served on the Reorganized Debtors' counsel. Richards, Layton & Finger, One Rodney Square, P.O. Box 551, Wilmington, Delaware 19899 (Attn: Paul N. Heath, Esq.) so that, in each case, the proof of Claim is actually received no later than 30 days after the date of this Notice indicated below. For your convenience, a copy of a proof of Claim form is included with this Notice.
3. Reservation of Rights. In accordance with the Plan and the Confirmation Order, the Debtors reserve the right, at any time prior to the Effective Date, to amend Exhibit V.A. to the Plan to add any Executory Contract or Unexpired Lease currently identified for rejection (including any Executory Contract or Unexpired Lease listed on the attached Annex A), thus providing instead for the assumption of such Executory Contract or Unexpired Lease, pursuant to Section V.A. of the Plan and section 365 of the Bankruptcy Code.
Daniel J. DeFranceschi (DE 2732)
Paul N. Heath (DE 3704)
Rebecca L. Scalio (DE 3997)
RICHARDS, LAYTON & FINGER,
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302)658-6541
- and -
Evan D. Flaschen (CT 10660)
Patrick J. Trostle (CT 20301)
William F. Govier (CT 20930)
BINGHAM McCUTCHEN LLP
One State Street
Hartford, Connecticut 06103
(860)240-2700
ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION
EXHIBIT D
CONFIRMATION NOTICE
NOTICE OF ENTRY OF ORDER CONFIRMING THE REVISED THIRD AMENDED JOINT PLAN OF REORGANIZATION OF NII HOLDINGS, INC. AND NII HOLDINGS (DELAWARE), INC.
PLEASE TAKE NOTICE OF THE FOLLOWING:
1. Confirmation of the Plan. On October [__], 2002, the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") entered an order (the "Confirmation Order") confirming the Revised Third Amended Joint Plan of Reorganization of NII Holdings, Inc. and NII Holdings (Delaware), Inc., as modified (the "Plan"), in the chapter 11 cases of the above-captioned debtors and debtors in possession (collectively, the "Debtors"). Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Plan and the Confirmation Order.
2. Bar Dates.
a. Except as otherwise provided in Sections III.A.1.f. and III.D. of the Plan and the Confirmation Order, unless previously filed, requests for payment of Administrative Claims must be filed and served on Reorganized NII, pursuant to the procedures specified in the Plan (as such term is defined above), no later than *390 thirty (30) days after the Effective Date. Holders of Administrative Claims that are required to file and serve a request for payment of such Administrative Claims and that do not file and serve a request by the applicable bar date will be forever barred from asserting such Administrative Claims against the Debtors, Reorganized NII or their respective property and such Administrative Claims shall be deemed discharged as of the Effective Date. Objections to such requests must be filed and served on Reorganized NII and the requesting party by the later of (i) ninety (90) days after the Effective Date or (ii) sixty (60) days after the filing of the applicable request for payment of Administrative Claims.
b. Professionals or other entities asserting a Fee Claim for services rendered before the Effective Date must file and serve on (i) Reorganized NII, (ii) counsel for the Debtors, (iii) the Office of the United States Trustee for the District of Delaware, and (iv) such other entities that are designated by the Bankruptcy Rules, the Confirmation Order, Fee Order or other order of the Bankruptcy Court, an application for final allowance of such Fee Claim no later than sixty (60) days after the Effective Date; provided, however, that any Professional who may receive compensation and reimbursement of expenses pursuant to the Ordinary Course Professionals Order may continue to receive such compensation and reimbursement of expenses for services rendered before the Effective Date, without further Court review or approval, pursuant to the Ordinary Course Professionals Order. Objections to any Fee Claim must be filed and served on Reorganized NII, the requesting party, and the other parties set forth in the Fee Order by the later of (A) ninety (90) days after the Effective Date or (B) thirty (30) days after the filing of the applicable request for payment of the Fee Claim. To the extent necessary, entry of the Confirmation Order shall amend and supersede any previously entered order of the Bankruptcy Court, including the Fee Order, regarding the payment of Fee Claims.
c. Holders of Administrative Claims based on liabilities incurred by a Debtor in the ordinary course of its business, including Administrative Trade Claims, Administrative Claims of governmental units for Taxes (including Tax audit Claims arising after the Petition Date) and Administrative Claims arising from those contracts and leases of the kind described in Article V. of the Plan, shall not be required to file or serve any request for payment of such Administrative Claims. Such Administrative Claims shall be satisfied pursuant to Section III.A.1.c. of the Plan.
3. Bankruptcy Court Address. For purposes of filing requests for payment of Administrative Claims and applications for allowance of Fee Claims, the address of the Bankruptcy Court is 824 North Market Street, Wilmington, Delaware 19801.
4. Effective Date. A separate notice of the occurrence of the Effective Date will be served on all record holders of Claims and Interests as of the Confirmation Date no later than fifteen (15) Business Days after the Effective Date.
5. Copies of Confirmation Order. Copies of the Confirmation Order may be obtained by written request from the following copy service: Parcels, Inc., 4 East Seventh St., P.O. Box 27, Wilmington, DE 19899 (phone number XXX-XXX-XXXX; fax number XXX-XXX-XXXX).
Daniel J. DeFranceschi (DE 2732)
Paul N. Heath (DE 3704)
Rebecca L. Scalio (DE 3997)
RICHARDS, LAYTON & FINGER,
One Rodney Square
*391
P.O. Box 551
Wilmington, Delaware 19899
(302)658-6541
- and -
Evan D. Flaschen (CT 10660)
Patrick J. Trostle (CT 20301)
William F. Govier (CT 20930)
BINGHAM McCUTCHEN LLP
One State Street
Hartford, Connecticut 06103
(860)240-2700
ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION
NOTES
[1] This Confirmation Order constitutes the Court's findings of fact and conclusions of law under Fed.R.Civ.P. 52, as made applicable herein by Bankruptcy Rules 7052 and 9014. Any finding of fact shall constitute a finding of fact even if it is stated as a conclusion of law, and any conclusion of law shall constitute a conclusion of law even if it is stated as a finding of fact.
[2] Headings are included for reference only and shall not constitute a part of this Confirmation Order for any other purpose.
[3] Pursuant to section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, Priority Tax Claims and Fee Claims are not required to be classified.
[1] Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Plan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917364/ | 288 B.R. 104 (2002)
In re COMMUNITY MANAGEMENT CORPORATION OF MARYLAND, Debtor.
Community Management Corporation of Maryland, Plaintiff,
v.
Benjamin B. Weitz, et al., Defendants.
No. CIV.A.PJM-01-2848, Bankruptcy No. 00-11625-PM, Adversary No. 00-1595-PM.
United States District Court, D. Maryland.
October 11, 2002.
Alvin I. Frederick, Baltimore, MD, David D. Hudgins, Alexandria, VA, for Plaintiffs.
*105 Janet D. Neese, Alan I. Baron, Washington, D.C., for Defendants.
OPINION
MESSITTE, District Judge.
Bardyl R. Tirana, Esquire, appeals from an Order entered by the Bankruptcy Court on August 23, 2001, imposing sanctions upon him as counsel for Community Management Corporation of Maryland (CMC), a company in bankruptcy. Benjamin B. Weitz et al. cross-appeal from that Order. The Court will REVERSE the Order.
I.
In 1991, Weitz, the owner of CMC, an apartment holding management company, sold it to two of his former employees, Margaret Bessette and Arvind Shah. At the time, Weitz was also the managing partner of four partnerships that owned apartment buildings managed by CMC, all of whose management contracts passed with the sale: Jefferson House Associates Limited Partnership (Jefferson), Leesburg Manor Associates Limited Partnership (Leesburg), Shenandoah Associates Limited Partnership (Shenandoah) and Woodstock Associates Limited Partnership (Woodstock) (collectively, the Partnerships). The sale of CMC and the transfer of the management contracts did not proceed smoothly, eventually spawning multiple suits by and against CMC in federal and state courts.
At all times, Tirana, a member of the Maryland Bar, served as CMC's counsel.
In September 1997, Weitz' assignee, Trust Company of America (Trustco), filed suit in this Court against CMC, Bessette, Shah and Quantum Property Management Corporation (Quantum), a competitor of CMC owned by Bessette and Shah (PJM 97-CV-3187).[1] The suit alleged, among other things, that each defendant was liable on a $1.1 million promissory note executed as part of the CMC sale. On May 13, 1998, CMC filed its own suit in the Circuit Court for Montgomery County claiming that Weitz, the Partnerships and others had wrongly terminated their management agreements with CMC (Civil Action No. 186683). As set forth in the Second Amended Complaint in that case,[2] CMC asserted, inter alia, claims for breach of contract regarding the sale of CMC (Count II), breach of the covenant of good faith and fair dealing (Count III), fraud in the inducement (Count IV), tortious interference with contractual rights (Count V), conspiracy to interfere with contractual rights (Count VI) and breach of contract regarding the partnership management contracts (Counts VIII, IX, XII).
In that litigation, CMC, as before, was represented by Tirana.
In July 1998, this Court heard argument in the Trustco suit and granted defendants' motion to dismiss for lack of jurisdiction, finding that Weitz rather than Trustco was the real party in interest. Weitz et al. thereafter refiled the action in the Circuit Court for Montgomery County (Civil Action No. 190210). Not long after, on December 8, 1998, the Montgomery County Circuit Court consolidated Weitz et al.'s Civil Action No. 190210 with CMC's suit already pending in that court, Civil *106 Action No. 186683.[3] CMC then filed a counterclaim in Civil Action No. 190210, incorporating by reference its complaint filed in Civil Action No. 186683.
CMC's counsel, again, was Bardyl Tirana.
In a series of rulings, the Montgomery County Circuit Court undertook to decide the pending claims in Civil Action No. 190210. On March 18, 1999, it dismissed CMC's claims of breach of duty of good faith and fair dealing (Count III), tortious interference with contractual rights (Count V) and conspiracy to interfere with contractual rights (Count VI). On October 27, 1999, it granted summary judgment in favor of Jefferson and Shenandoah on CMC's claims for breach of the partnership contracts (Counts VIII and IX). On November 5, 1999, it granted summary judgment in favor of Weitz on CMC's claim of fraud in the inducement (Count IV). And, finally, on February 4, 2000, the court entered partial summary judgment against CMC and a partial dismissal in favor of Leesburg on CMC's breach of partnership contract claim (Count XII).
Then, on February 17, 2000, CMC filed a Chapter 11 bankruptcy proceeding in this District.[4] The immediate effect of the filing, of course, was automatically to stay the proceedings against CMC in the state litigation. At a hearing before Judge Ann S. Harrington of the Montgomery County Circuit Court on February 22, 2000, the following colloquy took place between the court, Tirana, and Alan Baron, counsel for the Partnerships:
Tirana: There has been, I believe, a change in my status. CMC filed a bankruptcy petition some time after close of business on February 17. I believe that that means that I no longer represent CMC unless and until the Bankruptcy Court approves me as special counsel. I am not counsel for CMC in the bankruptcy proceeding.
Court: But I think it means not that you are no longer legal counsel of record, but that all proceedings either brought by CMC or against CMC are stayed pending the lifting of the stay, which would have to be done in the Bankruptcy Court.
Tirana: Whatever the law I can represent to the Court that while I have appeared in Bankruptcy Court in several jurisdictions, what I know will fill at most a thimble. So I don't know what it means.
Baron: We have discussed it with bankruptcy counsel, Your Honor. Our understanding is that the Court is correct, and that essentially we go forward here today without any action. You know, we cannot pursue anything against CMC. It is out of the case.
Court: And CMC's claim is also stayed.
Baron: Yes.
Court: And so Mr. Tirana may leave.
Baron: Yes.
From that point forward, neither CMC nor Tirana participated in the state court proceeding.[5] The same day, however, Judge *107 Harrington granted summary judgment in favor of Weitz et al. on the breach of contract claim that CMC's co-counter-plaintiffs had filed against Weitz et al. in that proceeding (Count II) and thereafter denied the Motion for Reconsideration that had been filed with respect to all the other claims as to which the court had earlier found in favor of Weitz et al.
That same day, Judge Harrington also began a jury trial on Weitz at al's claims for breach of the promissory note that comprised the basis of their original lawsuit. Three days later, the jury returned a verdict against all of CMC's co-defendants (Bessette, Shah and Quantum) for $581,484.00. On February 29, 2000, judgment was entered on the verdict.[6] On June 27, 2000, CMC's co-defendants took an appeal from the verdict and judgment.
CMC, of course, escaped any finding of liability in the Montgomery County case by reason of the automatic bankruptcy stay. Since the stay, however, did not affect CMC's right to bring suits on its behalf,[7] Tirana eventually, on December 14, 2000, filed a nine-count Complaint in the bankruptcy proceeding against Weitz et al. for breach of contract of redemption agreements (Count I), breach of the covenant of good faith and fair dealing (Count II), fraud in the inducement (Count III), tortious interference with contractual rights (Count IV), conspiracy to interfere with contractual rights (Count V), and breach of contract regarding the partnership management agreements (Counts VI, VII, VIII and IX). These claims looked all too familiar to Weitz et al.[8] In response, they moved to dismiss CMC's suit for failure to state a claim or, in the alternative, for summary judgment, arguing that Tirana had asserted the same claims in various forms during each of the prior lawsuits. Specifically, they argued that, prior to the filing of CMC's complaint in the Bankruptcy Court, the Montgomery County Circuit Court had ruled upon issues underlying seven of the nine counts. Principles of res judicata and collateral estoppel, they said, precluded re-litigation of the issues.
The Bankruptcy Court agreed, holding that Counts I-V, VII and IX of the Complaint in the bankruptcy proceeding were identical or nearly identical to claims already adjudicated by the state court.[9] The court found that, although CMC was not technically a party to these judgments, it was sufficiently in privity with Bessette and Shah as to cause it to be bound by the *108 judgments against them. The court, therefore, dismissed CMC's complaint. CMC took no appeal from this dismissal.
In conjunction with their Motion to Dismiss, however, Weitz et al. had submitted a Motion for Rule 11 sanctions, seeking an award of reasonable attorneys' fees and other expenses. Tirana, they claimed, by reason of his multiple filings had harassed them, needlessly increasing the cost of litigation. Construing the Rule 11 request as one for sanctions under Bankruptcy Rule 9011,[10] the Bankruptcy Court again agreed with Weitz et al. Tirana was individually sanctioned in the amount of $33,248.68, which represented fifty percent of Weitz et al.'s attorneys' fees.[11]
Tirana has brought this appeal, arguing that any award of sanctions against him is unjustified. Weitz et al. cross-appeal on the grounds that the award is not substantial enough. The Court considers these arguments.
II.
A district court reviews a bankruptcy court's determinations under Rule 9011 for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990); In re Weiss, 111 F.3d 1159, 1169 (4th Cir.1997). "Abuse" signifies "an erroneous view of the law or a clearly erroneous assessment of the evidence." Cooter & Gell, 496 U.S. at 405, 110 S. Ct. 2447. The bankruptcy court's findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Fed. R. Bankr. P. 8013; In re Tudor Assocs., Ltd., II, 20 F.3d 115, 119 (4th Cir.1994).
Generally speaking, Rule 9011 sanctions are appropriate when a complaint has been filed that is barred by res judicata or collateral estoppel. See King v. Hoover Group, Inc., 958 F.2d 219, 223 (8th Cir.1992) (res judicata); Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir.1988) (res judicata and collateral estoppel); Napier v. Thirty or More Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080, 1091 (3d Cir.1988) (res judicata).[12] In assessing conduct alleged to violate the Rule, the court evaluates the attorney's *109 actions under an objective standard of reasonableness, i.e., it considers whether the conduct was "reasonable under the circumstances." See In re Weiss, 111 F.3d at 1171; In re Kunstler, 914 F.2d 505, 514 (4th Cir.1990); In re Allnutt, 1995 WL 222067, at *5 (D.Md. Apr.10, 1995).
III.
In his argument before this Court, Tirana assigns three errors. First, he contends that the Bankruptcy Court abused its discretion when it awarded sanctions against him because, when he filed the adversary proceeding in the Bankruptcy Court, he could reasonably and objectively have believed that the judgment of the Montgomery County Circuit Court was not final for purposes of res judicata and collateral estoppel. Next, he claims that the Bankruptcy Court abused its discretion when it refused to allow his proffered expert witness, a Montgomery County attorney, to testify that Tirana had acted objectively reasonably in filing the repetitive claims. Finally, Tirana argues that sanctions were awarded against him not as a deterrent to future Rule 9011 violations but rather as an improper fee-shifting mechanism. For all these reasons, he asks this Court to reverse and vacate the Bankruptcy Court's Order or, in the alternative, to vacate the Order and remand the case with instructions to enter a reprimand against him without monetary sanctions.
IV.
Tirana claims that on at least two accounts it was objectively reasonable for him to believe that the judgment of the Montgomery County Circuit Court was not final, hence that it was reasonable for him to have filed the adversary proceeding. First, Maryland Rule 2-602 provides that "an order or other form of decision, however designated, . . . that adjudicates the rights and liabilities of fewer than all the parties to the action . . . is not a final judgment." Md. Rule 2-602(a)(1). Because the Montgomery County proceedings had been stayed as to CMC and because no express written order had been entered finding that there was no just reason for delay in entering a final order against fewer than all of the parties, see Md. Rule 2-602(b)(1), the court's judgment, he contends, was against "fewer than all parties"; thus under Rule 2-602(a)(1) it was not a final judgment. Second, Tirana says, even if CMC was somehow in privity with other parties as to the state court judgment, he could also have objectively reasonably believed that the fact that the judgment against the other parties was on appeal militated against its finality for res judicata and collateral estoppel purposes. This Court finds both arguments convincing.
Both parties have apparently overlooked Starfish Condominium Ass'n v. Yorkridge Service Corp., 292 Md. 557, 440 A.2d 373 (1982). There, the Maryland Court of Appeals held that when proceedings against one of multiple defendants in a civil case have been stayed by reason of the automatic bankruptcy stay, even the judgment of the trial court as to the remaining defendants is not final for appeal purposes, unless the trial court enters an express written order finding no just cause for delay in entering final judgment against fewer than all the defendants pursuant to Maryland Rule 2-602(b). 292 Md. at 566, 440 A.2d at 378. But if that is so, a fortiori the judgment would not be final as to the party under the stay. As the Starfish Condominium court noted, "a stay under [then] Bankruptcy Rule 401(a)[13] of *110 a suit pending in a nonbankruptcy court against the bankrupt `is not a dismissal of the suit nor does it deprive the court of jurisdiction over the matter; it merely suspends the proceedings.'" 292 Md. at 563, 440 A.2d at 377 (citing David v. Hooker, Ltd., 560 F.2d 412, 418 (9th Cir.1977)). Indeed, any decision of the trial court involving the bankrupt that pre-dated the suggestion of bankruptcy would remain subject to plenary revision by the court at any time. Md. Rule 2-602(a)(3). In the present case, the Montgomery County Circuit Court never entered an order pursuant to Maryland Rule 2-602(b). Tirana, therefore, is quite correct in his argument as to the non-finality of that court's judgment. But, for present purposes, Tirana does not have to be correct in the final analysis. It is enough that he could reasonably have concluded that the state court judgment might not be final as to CMC. That test he passes quite easily.
The same is true with regard to the appeal taken by the parties with whom CMC was supposedly in privity. It may be assumed, despite Starfish Condominium, that the judgment of the Montgomery County Circuit Court was appealable by other defendants in the Montgomery County case. Even so, as of the time of the filing of the adversary proceeding, no Maryland appellate court had held (nor has one held as of today) that a trial court judgment on appeal is final for res judicata or collateral estoppel purposes. In fact, both the Maryland Court of Appeals and Court of Special Appeals have expressly stated that this point remains undecided. As the Maryland Court of Appeals said in Badders v. Uhler, 233 Md. 441, 197 A.2d 120 (1964),
The first contention of the appellant is that since there was an appeal pending in the previous suit, there was no final judgment and the court erred in applying the rule of res judicata and in granting the summary judgment. The point appears to be a novel one in Maryland. Green v. State, 170 Md. 134, 142, 183 A. 526, relied on by the appellant, was not a case of res judicata and is distinguishable on the facts. It is, of course, well settled that the rules of res judicata do not apply unless there is a final judgment. Surrey Inn, Inc. v. Jennings, 215 Md. 446, 454-455, 138 A.2d 658. But on the precise point as to the effect of an appeal there is a broad split of authority. The cases pro and con are collected in Annotation, 9 A.L.R. 2d 984[, 1950 WL 7140]. See also 2 Freeman, Judgments (5th ed.1925), § 722, and Restatement, Judgments § 41, Comment (d). Some courts have solved the problem by granting a continuance or stay until the pending appeal is decided. We find it unnecessary to decide the question here. . . .
233 Md. at 442-43, 197 A.2d at 121. The Court of Special Appeals reiterated the point in Davis v. Frederick County Bd., 25 Md.App. 68, 73 n. 4, 334 A.2d 165, 168 n. 4 (1975), stating that "[w]hile it is well settled that the rules of res judicata do not apply unless there is a final judgment on the merits, the effect of the pendency of an appeal on the applicability of that doctrine has never been decided in Maryland." Accordingly, the Bankruptcy Court's reliance on Planned Parenthood of the Columbia/Willamette, Inc. v. Bray (In re Bray), 256 B.R. 708 (Bankr.D.Md.2000),[14] a bankruptcy *111 court decision reached after Tirana filed the adversary proceeding in this case, was erroneous. It was erroneous not only because the case post-dated what Tirana did, cf. Matter of Excello Press, Inc., 967 F.2d 1109, 1112 (7th Cir.1992) (proper analysis for frivolousness under Rule 9011 is whether attorney "conducted an adequate inquiry into the facts and the law before he filed the claim.") (emphasis added); it was also inappropriate because in diversity litigation regarding matters of res judicata and collateral estoppel, federal courts follow the law of the state where they sit. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); In re Genesys Data Techs., Inc., 204 F.3d 124, 127 (4th Cir.2000) ("[28 U.S.C.] § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken."). In the present case, what the Maryland appellate courts had to say in Badders and Davis before Tirana acted was and is far more relevant for purposes of the "reasonableness determination" involved in passing upon sanctions than what the Bankruptcy Court said in In re Bray after Tirana acted.
The Court, therefore, concludes-respectfully to be sure-that the Bankruptcy Court abused its discretion in sanctioning Tirana under Rule 9011. His actions under the circumstances were sufficiently reasonable to avoid that result. In light of this determination, there is no need to address Tirana's remaining arguments or Weitz et al.'s cross-appeal.
V.
The Court will REVERSE the decision of the Bankruptcy Court awarding Rule 9011 sanctions against Tirana in the amount of $33,248.68.
*112
*113
NOTES
[1] Trustco had filed an earlier suit against the same defendants (Civil No. PJM 97-2845), but voluntarily dismissed the case before CMC filed its Answer.
[2] The original Complaint and Amended Complaint are not a part of the record. The Court assumes that any differences between the Second Amended Complaint and the prior pleadings are irrelevant to this appeal.
[3] Maryland, as it happens, was not the only venue where the parties were doing battle. In 1998, Jefferson, Leesburg and Shenandoah had each filed suit in various Virginia state courts against CMC, Bessette, Shah and a CMC officer to recover monies allegedly removed by CMC from the Partnerships' trust accounts. CMC filed essentially identical Cross-Bills in each of these cases, in one case alleging precisely the same claims asserted by it in the Maryland litigation.
[4] The case was ultimately converted to a Chapter 7 bankruptcy.
[5] The record is unclear regarding the status of the Virginia litigation as of then or now. On January 27, 2000, the Circuit Court for the City of Lynchburg sustained Jefferson's demurrer to CMC's Cross-Bill for Counts I-VIII and X without leave to amend. Final resolution of the Shenandoah and Leesburg cases is not apparent from the record. However, on February 13, 2001, each partnership filed a Notice of Removal to the Maryland Bankruptcy Court where their claims were pending as adversary proceedings within CMC's main case as numbers 01-1044 (Jefferson), 01-1045 (Shenandoah) and 01-1046 (Leesburg).
[6] On April 17, 2000, the judgment was recorded in the Judgment Index in the amount of $887,829.00, which included interest, costs and attorneys' fees.
[7] At the February 17, 2000 hearing at which Tirana advised Judge Harrington of the bankruptcy filing, the court incorrectly stated that the automatic stay also extended to claims that CMC brought or might bring, as opposed to proceedings brought against it. See Koolik v. Markowitz, 40 F.3d 567, 568 (2d Cir.1994); Farley v. Henson, 2 F.3d 273, 274 (8th Cir.1993); Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1991); In re Allnutt, 1995 WL 222067, at *3 (D.Md. Apr.10, 1995).
[8] Attachment A shows how the claims in the state proceedings corresponded to the claims in the Bankruptcy Court proceeding.
[9] The court abstained from exercising jurisdiction over Counts VI and VIII, finding them duplicative of other claims.
[10] In relevant part, Bankruptcy Rule 9011 provides
By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Fed. R. Bankr. P. 9011(b).
[11] Prior to filing the Motion, Weitz et al.'s counsel telephoned Tirana to give him an opportunity to withdraw his Complaint or face a Rule 11 Motion. Counsel followed up by serving Tirana with a draft Motion, as required by Rule 9011(c)(1)(A). When Tirana failed to withdraw the Complaint, Weitz et al. filed their Motion with the Bankruptcy Court.
[12] Because both Rule 11 and Rule 9011 seek to prevent the filing of pleadings for improper purposes, cases interpreting conduct violative of Rule 11 have been deemed relevant when assessing conduct under Rule 9011. See In re Weiss, 111 F.3d at 1170.
[13] Bankruptcy Rule 401(a) existed under the former Bankruptcy Act, which Congress altered when it enacted the modern-day version of the Bankruptcy Code in 1978. See generally Pub.L. No. 95-598, Title I, § 101 et seq., 92 Stat. 2549. That Rule, as amended, is now codified at 11 U.S.C. § 362(a) (2002).
[14] The Bankruptcy Court there held that "the pendency of an appeal does not affect the finality of a judgment for purposes of res judicata or collateral estoppel." In re Bray, 256 B.R. at 711. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645106/ | 994 So. 2d 312 (2008)
McCLELLAND
v.
KEPLER.
No. 2D07-4451.
District Court of Appeal of Florida, Second District.
November 7, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570158/ | 722 N.W.2d 385 (2006)
2006 WI 115
In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Todd J. BEATSE, Attorney at Law.
Office of Lawyer Regulation, Complainant,
v.
Todd J. Beatse, Respondent.
No. 2005AP2826-D.
Supreme Court of Wisconsin.
October 11, 2006.
*386 ¶ 1 PER CURIAM.
ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.
We review the referee's recommendation that Attorney Todd Beatse be publicly reprimanded for his professional misconduct.
¶ 2 Neither the Office of Lawyer Regulation (OLR) nor Attorney Beatse has appealed the referee's recommendation. Thus, the matter is submitted to the court for its review pursuant to SCR 22.17(2).[1] In conducting our review, we will affirm the referee's findings of fact unless they are clearly erroneous. See In re Disciplinary *387 Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). We review the referee's conclusions of law, however, on a de novo basis. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. Finally, in accordance with our authority to supervise the practice of law in this state, we determine the level of discipline that is appropriate under the particular circumstances, independent of the referee's recommendation, but benefiting from it. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶ 3 After our independent review of the record, we adopt the referee's findings of fact and conclusions of law. Further, we agree with the referee's recommendation that a public reprimand is appropriate discipline in this case.
¶ 4 Attorney Beatse was admitted to the practice of law in May 2000. At the times relevant to this matter, he was an assistant district attorney for Monroe County.
¶ 5 According to the OLR's complaint, on January 24 or 25, 2005, Attorney Beatse left his office to attend court hearings. While he was out of his office, the district attorney's office received notification that its computer system had to be shut down for maintenance purposes. When Attorney Beatse's secretary went to shut down his computer, she discovered pornographic images that had been downloaded from the Internet and minimized on the bottom of his screen.
¶ 6 Attorney Beatse told various individuals, including his supervisor, Monroe County District Attorney Daniel Cary, that the images had come from his son's use of a home computer, that he had copied them onto a memory stick, and that he had loaded them onto his work computer to determine what files or websites his son had been accessing at home. This story was false.
¶ 7 When the district attorney ordered an investigation of the matter, a review of Attorney Beatse's state-provided computer showed that during the preceding 55 days (on 29 of which Attorney Beatse had been at work), he had browsed pornographic Internet sites for 36 hours, and that 12 of the 20 sites visited most by Attorney Beatse were pornographic sites.
¶ 8 Attorney Beatse thereafter admitted that he had lied to District Attorney Cary about his son having been the source of the pornography and that he himself had been improperly viewing pornography with his work computer, contrary to various state and local work rules. Attorney Beatse, however, stated that he had not viewed pornography after the discovery on January 24 or 25. This was false because the audit of his computer showed that he had spent over a half hour viewing pornography on January 26 and 27, 2005.
¶ 9 Attorney Beatse was suspended without pay and given a disciplinary letter advising him that further misuse of the state computer system would lead to further disciplinary action.
¶ 10 While on disciplinary suspension, Attorney Beatse used the state e-mail system from his home computer to send a number of improper e-mail messages, including messages to two female government employees, one of whom was a court reporter. In those messages he made comments about having touched the breasts of a third Monroe County employee and about the court reporter's breasts. The court reporter also stated that Attorney Beatse had made a number of similar inappropriate oral comments about her breasts on previous occasions. In addition to all of these comments, the audit of the computer system disclosed that Attorney Beatse had sent a number of e-mails about *388 his sexual activities and other sexual topics. Attorney Beatse initially denied having sent sexually explicit e-mails using the state computer system, except when the sexual content was "part of a joke." This was not true.
¶ 11 In light of these additional facts, the district attorney's office terminated Attorney Beatse's employment. After a period of not practicing law, Attorney Beatse now works as a private attorney.
¶ 12 The OLR's complaint alleged that by lying to his co-workers and his supervisor about the source of and reason for the pornography on his work computer, by lying about his continued viewing of pornography on his work computer after January 24 or 25, and by lying about sending and receiving sexually explicit e-mails, Attorney Beatse had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).[2]
¶ 13 The second count of the OLR's complaint alleged that by making offensive comments to the court reporter about her breasts and by using the state e-mail system to send and receive numerous messages containing inappropriate sexual and other offensive content, Attorney Beatse had violated the attorney's oath, including the requirement to "abstain from all offensive personality," see SCR 40.15, thereby also violating SCR 20:8.4(g).[3]
¶ 14 Attorney Beatse filed an answer pleading no-contest to the two counts in the OLR's complaint. He objected, however, to the OLR's request for a public reprimand, arguing that a private reprimand was sufficient discipline.
¶ 15 Russell L. Hanson was appointed as a referee and conducted a hearing on the appropriate sanction. The referee's subsequent report concluded that Attorney Beatse's no-contest pleas to the allegations of the complaint were a sufficient basis to find that he had violated SCR 20:8.4(c) and SCR 20:8.4(g).
¶ 16 With respect to the question of the appropriate level of discipline, the referee concluded that a public reprimand was warranted. He acknowledged that there were some mitigating factors in Attorney Beatse's favor, including that Attorney Beatse had already suffered significant consequences, such as the loss of his job, that he had cooperated with the OLR in its investigation, and that he appears to have genuine remorse for his misconduct. On the other hand, the referee concluded that Attorney Beatse's conduct was so outrageous that it required public, rather than private, discipline. He stated that it was disturbing not only that Attorney Beatse had lied and attempted to place undeserved blame on his son, but also that his repeated lies had caused his employer and co-workers additional work. In addition, the referee stated that he believed that Attorney Beatse still did not fully understand that because someone shares questionable or inappropriate stories with him, he did not have the right to comment on that person's anatomy.
¶ 17 After reviewing the record and in light of Attorney Beatse's no-contest plea, we adopt the referee's factual findings based on the allegations of the OLR's complaint. We also adopt the referee's legal conclusions that Attorney Beatse violated SCR 20:8.4(c) by his multiple false statements and that he violated his oath as an *389 attorney, thereby also violating SCR 20:8.4(g). We further agree that the repeated nature and seriousness of Attorney Beatse's misconduct warrants a public reprimand. Finally, we decide that Attorney Beatse should be required to pay the costs of this proceeding, which were $6693.98 as of May 11, 2006.
¶ 18 IT IS ORDERED that Todd J. Beatse is publicly reprimanded for his professional misconduct.
¶ 19 IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Todd J. Beatse pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Todd J. Beatse to practice law in Wisconsin shall be suspended until further order of the court.
NOTES
[1] SCR 22.17(2) provides: Review; appeal.
(2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.
[2] SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
[3] SCR 20:8.4(g) provides that it is professional misconduct to "violate the attorney's oath." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570147/ | 722 N.W.2d 389 (2006)
2006 WI App 180
ANDREWS CONSTRUCTION, INC., Plaintiff-Appellant,
v.
TOWN OF LEVIS, Defendant-Respondent.
No. 2004AP3338.
Court of Appeals of Wisconsin.
Submitted on Briefs February 6, 2006.
Opinion Filed August 3, 2006.
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Charles V. Feltes of Charles V. Feltes, S.C., Osseo.
On behalf of the defendant-respondent, the cause was submitted on the briefs of *390 David A. Piehler and Eric C. Pease of Piehler & Strande, S.C., Wausau.
Before LUNDSTEN, P.J., VERGERONT and DEININGER, JJ.
¶ 1 LUNDSTEN, P.J.
This case involves a bid proposal on a municipal road construction project for the Town of Levis. The issue presented is whether Andrews Construction's proposal complied with the statutory requirement that its bid proposal include a sworn statement that it "examined and carefully prepared the proposal from the plans and specifications and has checked the same in detail before submitting the proposal or bid to the municipality."[1] WIS. STAT. § 66.0901(7) (2003-04).[2] Andrews argues that its bid proposal "substantially" complied with this statute because the proposed work listed in the bid proposal effectively communicates the assurances required by the statute. We disagree and, consequently, affirm the circuit court's summary judgment order dismissing Andrews' breach of contract claim against the Town of Levis.
Background
¶ 2 The Town of Levis published a bid notice for a road construction project. Andrews Construction submitted a bid proposal providing some details as to the work it would perform, but not including a sworn statement of the sort described in WIS. STAT. § 66.0901(7). The Town Board accepted Andrews' proposal.
¶ 3 About one week later, a county highway department official called Andrews Construction and informed Andrews that its bid proposal was not acceptable because the proposal did not include "bid and performance bonds." Andrews also received a letter from the Town stating that Andrews' bid proposal was not acceptable and that the Town was going to re-bid the project. After new bids were submitted, the contract was awarded to a different company.
¶ 4 Andrews Construction filed suit against the Town seeking damages for lost profits based on the Town's alleged breach of contract. The Town moved for summary judgment. The circuit court granted that motion, dismissing Andrews Construction's claim. Andrews appealed.
¶ 5 The parties' initial briefing on appeal focused on several issues, but not on whether Andrews Construction complied with WIS. STAT. § 66.0901(7). At our direction, the parties submitted supplemental briefs addressing whether Andrews Construction's bid proposal complied with § 66.0901(7).
Discussion
¶ 6 We review summary judgment decisions de novo, applying the same method as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That method is well established and need not be repeated here.
¶ 7 The content of Andrews Construction's bid proposal is undisputed. It contains a brief description of the work Andrews was offering to perform and the amount Andrews would charge for that work. It is also undisputed that Andrews Construction did not submit with its bid proposal a statement of any kind containing *391 assurances of the type required by WIS. STAT. § 66.0901(7).
¶ 8 WISCONSIN STAT. § 66.0901(7) imposes a bidder's certificate requirement on bid proposals for public contracts. That statute provides that "the bidder shall incorporate and make a part of the bidder's proposal ... a sworn statement by the bidder ... that the bidder ... has examined and carefully prepared the proposal from the [municipality's] plans and specifications and has checked the same in detail before submitting the proposal or bid to the municipality."[3]
¶ 9 The parties agree that WIS. STAT. § 66.0901(7) applies to Andrews Construction's bid proposal. And Andrews does not challenge the Town's reliance on Bechthold v. City of Wauwatosa, 228 Wis. 544, 560, 280 N.W. 320 (1938) (on rehearing), for the proposition that the Town had no power to enter into a contract with Andrews unless Andrews' bid proposal complied with § 66.0901(7). See Bechthold, 228 Wis. at 562, 277 N.W. 657 ("[A] municipality has no power to make contracts for public improvements unless it proceeds in the manner prescribed by law, and ... a contract entered into without complying with the charter provisions is void."). Thus, if Andrews' bid proposal did not comply with § 66.0901(7), the contract between the Town and Andrews is void.
¶ 10 Andrews Construction admits that it did not submit a bidder's certificate, but relies on the doctrine of substantial compliance. Andrews argues that its bid proposal substantially complied with WIS. STAT. § 66.0901(7) because the contents of its proposal show that Andrews checked the specifications and carefully prepared its proposal to match them. Andrews argues that a review of the bid notice when compared with Andrews' bid proposal "does indicate that the signed bid does reflect the project's specifications as set forth in the bid notice." We reject Andrews' argument.
¶ 11 The doctrine of substantial compliance "contemplates `actual compliance in respect to the substance essential to every reasonable objective of the statute.'" Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 200, 405 N.W.2d 732 (Ct.App.1987) (citation omitted). Thus, the Andrews bid proposal complies with WIS. STAT. § 66.0901(7) only if it complies with the statute's objectives. It does not.
¶ 12 Andrews did not submit any statement that arguably makes the assurances required by WIS. STAT. § 66.0901(7). For example, Andrews' bid proposal included no statement regarding its "checking" of plans and specifications. Thus, there was complete noncompliance with the statutory requirement that bids be accompanied by a bidder's certificate.
¶ 13 Moreover, even if Andrews Construction's bid proposal perfectly tracked all bid specifications, the bidder's certificate statute requires more. That statute requires a statement with an assurance from an identifiable person that all "plans and specifications" were checked, and that the bid proposal was examined before the proposal was submitted. WIS. STAT. *392 § 66.0901(7). This requirement helps "insure that the public receives the best work or supplies at the most reasonable price practicable." Aqua-Tech, Inc. v. Como Lake Prot. & Rehab. Dist., 71 Wis. 2d 541, 550, 239 N.W.2d 25 (1976). It also reduces the possibility that a contract will be awarded to a contractor who later fails to perform or who seeks to renegotiate because he or she failed to take into account all "plans and specifications."
¶ 14 Andrews Construction contends that its alleged substantial compliance is comparable to compliance found sufficient in Luebke v. City of Watertown, 230 Wis. 512, 284 N.W. 519 (1939). At issue in Luebke was whether a bid complied with the predecessor bidder's certificate statute, WIS. STAT. § 66.29(7).[4] Similar to the current version, § 66.29(7) required "a sworn statement that [the bidder] has examined and carefully prepared his bid from the plans and specifications and has checked the same in detail before submitting said proposal." See Luebke, 230 Wis. at 518, 284 N.W. 519. The bidder in Luebke submitted a statement reciting that the bidder had "personally and carefully examined the plans, specifications and form of contract for the construction of [the] sewers [involved] ... and ... made such examination understandingly." Id. The Luebke court concluded that this statement substantially complied with the former bidder's certificate statute even though the statement did not expressly say that the bidder had "checked" the plans and specifications in detail and even though the statement was not sworn. Id.
¶ 15 Regardless why the Luebke court considered the particular statement in that case to be in substantial compliance, here there was no compliance. Andrews Construction submitted no statement providing any of the assurances required by WIS. STAT. § 66.0901(7). Accordingly, the Andrews bid proposal did not comply with § 66.0901(7), and the Town had no authority to enter into a contract with Andrews based on that proposal. If there was a contract, it was void at its inception. See Bechthold, 228 Wis. at 562, 277 N.W. 657.
¶ 16 In closing, we briefly address a dispute that was the focus of the parties' arguments before the circuit court and in their initial briefing in this court. The published bid notice for this road construction project did not include a requirement that bidders include "bid and performance bonds" with their bid proposal. A separate list of specifications did contain that requirement, and the parties disagree as to whether Andrews Construction's proposal needed to comply with this requirement. Among other arguments, Andrews Construction contends that it should not have been required to comply with the bonding requirement because, prior to submitting its bid proposal, the president of Andrews Construction telephoned the town board chairman and asked if there were specifications in addition to those listed in the published notice. Andrews asserts that it was told: "[N]o ... just give us a bid."[5] We need not resolve this issue because, regardless whether Andrews' proposal was defective for want of bid and performance bonds, the proposal failed to comply with the bidder's certificate requirement in WIS. STAT. § 66.0901(7).
*393 ¶ 17 Furthermore, to the extent Andrews Construction may be pointing to this conversation with the town board chairman as justification for not submitting a bidder's certificate, such an argument contains an unsupported assumption. That assumption is that bidders need not comply with WIS. STAT. § 66.0901(7) when municipal project specifications do not list compliance with the statute as a requirement. Because Andrews Construction does not acknowledge this necessary link, it does not present developed argument on the issue. We therefore do not address this argument further.[6]
Judgment affirmed.
NOTES
[1] The parties refer to Andrews Construction's bid proposal, alternately, as a "bid" or a "bid proposal." We refer to it as a "bid proposal" or "proposal" both because that more closely tracks the statutory language and because the document Andrews Construction submitted to the Town of Levis containing its bid was titled "proposal."
[2] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[3] WISCONSIN STAT. § 66.0901(7) provides, in pertinent part:
BIDDER'S CERTIFICATE. When bidding on a public contract, the bidder shall incorporate and make a part of the bidder's proposal for doing any work or labor or furnishing any material in or about any public work or contract of the municipality a sworn statement by the bidder, or if not an individual by one authorized, that the bidder or authorized person has examined and carefully prepared the proposal from the plans and specifications and has checked the same in detail before submitting the proposal or bid to the municipality.
[4] WISCONSIN STAT. § 66.29 was the previous incarnation of WIS. STAT. § 66.0901. See 1999 Wis. Act 150, §§ 328-334 (renumbering sections of § 66.29 as § 66.0901).
[5] Although the parties tell us that this is a disputed fact, we recite it in the text as fact because, even assuming that Andrews Construction's version of this conversation is true, the summary judgment order dismissing Andrews Construction's claim was proper.
[6] Andrews Construction also argues that, after this project was re-bid, the winning bidder's submission did not contain a bidder's certificate. Andrews points out that its competitors in the initial bidding process also did not submit bidder's certificates. However, the only question before this court is whether a contract was formed between Andrews and the Town of Levis. The validity of other contracts or transactions is not before this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/232921/ | 208 F.2d 685
UNITED MERCHANTS & MANUFACTURERS, Inc.v.SOUTH CAROLINA ELECTRIC & GAS CO.
No. 6652.
United States Court of Appeals Fourth Circuit.
Argued November 24, 1953.
Decided December 10, 1953.
Andrew B. Marion, Camden, S. C. (C. F. Haynsworth, Jr., W. Francis Marion, and Haynsworth & Haynsworth, Greenville, S. C., on the brief), for appellant.
G. L. B. Rivers, Charleston, S. C. (W. C. McLain and Arthur M. Williams, Jr., Columbia, S. C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
1
South Carolina Electric and Gas Company (hereinafter called Carolina Electric) was supplying United Merchants and Manufacturers, Inc. (hereinafter called United) with electric power under a five-year contract expiring April 30, 1952. Carolina Electric was a public utility company, with its rates subject to control by the South Carolina Public Service Commission (hereinafter called the Commission).
2
United, in its complaint, alleged that, in 1950 it was advised by Carolina Electric that Carolina Electric was going to apply to the Commission for a rate increase which would affect all consumers and it wished to obtain the agreement of United not to oppose such rate increase. United felt that the increase was unwarranted and unjustified and so advised Carolina Electric.
3
When the application for a rate increase was made, United entered its objections before the Commission. After these objections had been entered by United, United alleges that Carolina Electric, through its duly authorized officers, approached United and offered to work out a compromise to the effect that while Carolina Electric had applied for a 15% increase before the Commission, if United would withdraw its objections to this increase, United could enter into the same type of agreement which Carolina Electric had with the Graniteville Company for the same length of time, which agreement was for an 8% general rate increase instead of a 15% increase, and the compromise agreement would run for approximately eight years. United states that it relied upon this representation of Carolina Electric, withdrew its appearance before the Commission and thereby waived any right it had to contest the application of Carolina Electric for a general rate increase. United further states that immediately after it withdrew its objections from the Commission, Carolina Electric put into effect an 8% increase in the rate during the months of February, March and April, but that during the latter part of April Carolina Electric advised United that its contract was expiring on April 30 and on May 1 the general rate increase of 15% which had been approved by the Commission would be put into effect.
4
United alleges that the representations made by Carolina Electric through its duly authorized agent relating to the rate of increase to United were false; that the agent of Carolina Electric knew of their falsity and that he intended that United should act upon these material representations; that United was unaware that these representations were false and that relying upon such false and fraudulent representations, United withdrew its objections to the general rate increase.
5
Elaborate hearings were held by the Commission on the application of Carolina Electric for a general rate increase of 15%. There were many objectors, represented by counsel, and extensive evidence was heard. On January 16, 1952, the Commission granted in substance the application of Carolina Electric for the general rate increase.
6
The South Carolina law gives any customer of an electrical utility the right at any time to apply for a revision in utility rates, and gives the Public Service Commission the right at any time to change electrical utility rates after a hearing. Carolina Electric agreed with United that if the Commission changed the existing rate that Carolina Electric would refund the amount of any reduction in rates to United back to the date that the reduction was made effective.
7
Under this provision of the South Carolina law, United subsequent to the general rate order, applied to the Commission for relief, alleging the rates charged United were discriminatory. United, in connection with this application, brought before the Commission the facts set out in the complaint of United in the instant civil action in the United States District Court, though no charge of fraud on the part of Carolina Electric was made before the Commission. This application of United was denied by the Commission. The record of the Proceedings brought by United before the Commission was made a part of the record of this case by mutual consent on this motion to dismiss and portions of this record have been printed as appendices to both briefs.
8
Further, United had a right under South Carolina law, to appeal from this decision to the courts of that State. United failed to prosecute this appeal and brought the instant civil action, based on fraud, in the United States District Court for the Eastern District of South Carolina.
9
United, in its complaint, alleges that as a result of the false and fraudulent representations of Carolina Electric which caused United to withdraw its objections before the Commission, United is now having to pay the increased rates which were put into effect by the Commission, to-wit: a 15% increase in its basic rates rather than an 8% increase as was represented by Carolina Electric, and that it will have to pay on the basis of the 15% increase over a period of some eight or nine years instead of having to pay the 8% increase over that period of years; and that United as a result of such fraudulent representations has been damaged in the sum of Two Hundred Thousand ($200,000.00).
10
United has admitted that all of the alleged fraudulent representations and agreement referred to in its complaint were verbal, and that there is no writing of any kind to evidence this agreement.
11
The District Judge dismissed the complaint, D.C., 113 F. Supp. 257, and United has duly appealed to us. We think this dismissal was quite correct and that the judgment below must be affirmed.
12
We think this was a case for the Commission, with the right of appeal to the South Carolina courts. The jurisdiction of the Commission over public utility rates is plenary. Even had Caroline Electric given to United the contract claimed by United, this contract would have required approval by the Commission.
13
It is not necessary for us to rule technically that United's civil action against Carolina Electric is a collateral attack upon a decision of the Commission. It is, at least, under the guise of a civil action for fraud, an attempt to by-pass the Commission, which should not be permitted. And there are many reasons justifying the refusal of a federal court to interfere, through the instant civil action, with the orderly functioning of the machinery set up by South Carolina for the control of rates to be charged by a public utility.
14
It is at least an open question whether the alleged contract here between United and Carolina Electric is opposed to public policy. Certainly such contracts should be viewed with suspicion by the courts.
15
And, finally, we agree with the District Judge that United cannot prove damages resulting from the alleged fraud of Carolina Electric. There could hardly be a showing that but for the withdrawal of United's objections, the Commission would have denied, rather than approved, the application of Carolina Electric for the general rate increase. Particularly is this true in the light of the fact previously stated, that there were numerous other objectors to this application, represented by able counsel to the Commission the case against the rate increase.
16
No case directly in point has been cited by counsel, nor have we been able to find such a case. Stern Bros. Inc. v. New York Edison Co., 251 A.D. 379, 296 N.Y.S. 857, upon which United heavily relies, can readily be distinguished. In the Stern Bros. case, the alleged fraud, held to be actionable, consisted of a representation by the electric company that consumer's adoption of a new service classification would result in a saving to the consumer of only $1,500.00 over use of classification then being used. This representation induced the consumer to continue the same classification, when the actual saving under new classification would have been over $6,000.00. The court held that rejection by the Public Service Commission of consumer's claim for refund of overcharge was a defense to consumer's claim for refund for overpayment from the service rendered, but was not an adjudication which would constitute a defense to the consumer's cause of action against the electric company for its alleged fraud which induced the consumer to continue using the same classification. In the Stern Bros. case, there was no question of discrimination. Further, the rate charged the consumer was lawful, under the rules of the Commission, for the classification chosen by the consumer.
17
The judgment of the District Court is affirmed.
18
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/8304521/ | PORTRUM, J.
The purpose of this suit was to collect an alleged indebtedness of $4579.46 claimed by the complainants to be due them for electrical equipment installed by them in the manufacturing plant of the defendant, Whittle Trunk & Bag Company, and for work claimed to have been done on said equipment. A recovery was sought for this sum and the declaration of a mechanic’s lien to secure and enforce the same. The complainants allege a special contract with the defendant, Whittle Trunk & Bag Company and Whittle Trunk & Bag Corporation, its successor; they installed, constructed and equipped an electrical system consisting of a generator, switchboard, concrete foundation, and electric motor, and that in the installation of said electrical equipment they reconnected a large generator and switchboard and furnished the necessary materials incident thereto. Boyd Ford and J. E. Shumaker were co-partners doing business in Knoxville, under the name of Armature & Motor Works. They allege the terms of their special contract to be: They were to be paid for the necessary labor and materials which they used in the installation, equipment and rearrangement of said electrical system when said labor was performed and said materials furnished. The bill made no reference to a provision of the contract for the profit of those doing the work, but in the answer to the cross-bill it is said the contract contained the further provision that the compensation was measured by 33-J per cent of the cost of the work and materials furnished. Originally ’there was a contract for a stipulated sum for specified work but it became necessary to amend this contract to provide for additions and alterations found necessary. It was further averred *488that the work was completed, accepted and put into use by the defendant, and the account was due and unpaid.
In the defendant’s answer it admits the execution of the original contract and the supplemental agreement in reference to the changes made necessary by the addition of. motors and the incidental rewiring. But it says the foreman of their plant aiíthorized a rewiring of the building without authority and when the bill for the re-wiring, along with the account under the original contract was presented, the general manager, Mr. Rule, objected to the exces iveness of the account for the re-wiring and also notified the complainants that the work -was done without authority. He then and there notified them to do no more work without his express direction further than complete the job Under the original agreement and its supplement. It is averred that notwithstanding this express direction to the complainants, and after they had asked for the work of re-wiring- the generator and rebuilding the switchboard and had been told to submit a bill or an estimate to determine this cost, so the general manager could determine whether to'permit them to do the work, they failed to submit the estimates but went to the foreman in charge, and represented to him that they had authority from Mr. .Rule to do the work, and told the foreman that it would cost about $800 to re-wire the generator; under this representation, the foreman permitted them to begin work upon the installation of this generator and switchboard in the plant wh,ere they were then completing the original contract and supplement. It is averred that tliey did the work without authority and in a surreptitious manner, and no liability arose on the part of the defendant. Tt is insisted, in the event of liability, that the charges are grossly excessive and that the accounts for supplies are padded, and as a result the profits or percentage upon the cost are greatly increased. At the time the account for the unauthorized re-wiring was presented objection was made to its excessiveness but the account was paid with the understanding that there was to be no work done without express authority from the general manager. The company filed a cross-bill Reeking to surchange and falsify this settlement and purge it of its alleged excessive charges and also to recover for a generator said to have been converted by the partnership. These issues were put at issue by the answer of the partnership.
Upon the main issue the chancellor found in favor of the complainant. The partnership was engaged in rewinding the motor and installing the switchboard over a period of several months, and • during this period the general manager of the corporation was present and in and about the building; the presence of the workmen and their engagement in installing the equipment was apparent. The court held, “ . .he (Rule) was bound *489to have taken notice of the doing of said work and the furnishing of said materials, and that in fact, he knew about it; . . . said materials were furnished and said work done under the eye of the general manager and with his knowledge and consent . . . ”
In reference to the cross-bill the court declined to reopen the settlement made in November for the re-wiring of the house; he granted a recovery for the conversion of the generator in an amount of $75; and as for the excessiveness of the charges, he said: “ . . . under the facts of this case the contract did not authorize a charge by the complainant for overtime and work done on Sunday, and that in order to reach the equities of the ease, the bill of the complainants, 'after the deduction of said sum of $75, the value of said generator thereof, should be further reduced to the extent of five per cent.” He entered judgment in favor of the complainants for the sum of $4,279.24, with interest from the date of the filing of the bill, and declared a mechanic’s lien and ¡ordered the property sold, under terms specified in the decree. From this decree, the defendant has appealed.
The first error'is,-“The chancellor erred in holding and finding that the defendant entered into a contract with the complainants for the doing of the work and furnishing of the materials sued for in this case, and in finding that the general manager of the defendant company knew that said work was being done and said material being furnished.”
Originally there was a special contract entered into by the parties without question. The contract price was specified but it became necessary to do additional work and install additional motors, as for this, it was to be done on a force account basis, that is, cost of the work and materials plus a certain per cent for the contractor. While this work was being done, the foreman directed the complainants to re-wire the building, in order that the wiring would conform to the new arrangement. When the bills for this work were present the first dispute arose. The complainants admit that Mr. Rule countermanded any additional work and expressly directed them to do no work without liis expressed order. They were to do the work at hand, that is, complete the work they had undertaken. -About this time they had a contract to go to Campbell County and remove a generator, which had been used in a coal mine, to the plant of the defendant; it was the purpose of the defendant to electrify its plant and generate its own motor power, since it could do this more cheaply from the refuse of this plant than purchase its electricity from the Knoxville Power & Light Company. The complainants were paid an agreed price for the removal of this generator from Campbell County to the plant in Knox County, but this generator generated voltage of 2200 volts, and in order to use it in the plant it was necessary to do one of *490two things: first, to re-wire it so that it could generate 260 volts and to adjust its switchboard to conform with this voltg'age, or, second, to purchase a transformer which would step down the voltage from 2200 to 250, at a price of at least $3,000. If the company purchased a transformer, it would not have been necersiry to employ the partnership to re-wire the generator and adjust the switchboard. The partnership applied for this work, and Mr. Rule told them to submit an estimate. They did not submit the estimate, but complainants went to the foreman, Mr. Graham, and told him they would re-wire the generator. He asked if they had authority from Mr. Rule and they assured him they did. With this assurance Mr. Graham permitted them to begin the work, and they worked for a period of several months, that is, from the fall until March in the following year. They had not removed the switchboard into the plant of the company but had taken it to their own shop. At the time of the conversation with Mr. Graham, he asked for an estimate of its cost, and was told it would cost about $300 to re-wire the generator. When the work was completed and the bill submitted for re-wiring the generator and adjusting or rebuilding the switchboard, the account amounted to more than $4500; however, a part of this was for work done in finishing up the original contract. The complainants’ proof establishes the fact that the rebuilding of the switchboard amounted to as much as the cost of 'a new switchboard, and the re-wiring of the generator was less than the estimated price of $300. The cost of a transformer was $3,000, so it is apparent the company would have saved money had it purchased the transformer, and abandoned the re-wiring of the generator and the rebuilding of the switchboard. If the complainants’ bill is fair and if they had submitted an estimate, in all probability the corporation would have followed the other course. By following the course they did, they secured the work. The question now is: Are they entitled to recover for the work done?
Mr. Rule was present in and about the shop and saw the workmen at work there, rewinding the motor. He said he thought they were engaged in completing the work they had agreed to complete; they were there for a long time under his observation, and they had a right to believe that he knew they were there upon the job; had he exercised reasonable prudence he would have discovered what they were about and have stopped them, since he did not and the work was put in use by his corporation and is now in use, it is not equitable to permit the corporation to escape without paying the just value for the work done. If he did not know the work was being done, he must have closed his eyes, but if he did, he knew it was being done 'without expressed authority. When the bill was finally presented he did not then raise the question of the corporation’s liability. We concur with the holding of the chancellor *491that he knew that the work was being clone, on the ground that a reasonable man would have known it and he should have known it too. It does not necessarily follow that since he knew the work was being done that that raised a special contract, and we do not concur with the holding of the chancellor that there was a special contract upon which to base a mechanic’s lien. Upon the facts stated in the decree, the recovery was granted upon the faith of an estoppel, or since the work was done with the company’s knowledge, then upon a quantum meruit basis. If there were a special contract, then what were the terms of the agreement? .A member of the partnership states that he and Mr. Graham, the foreman, agreed upon the cost plus basis of thirty-three and one-third per cent, but he had been expressly advised that Mr. Graham did not have authority to make any other agreement. He had stated to Mr. Graham that the estimate for rewinding the motor would be $300, but had said Mr. Rule had áuthorized it. The partnership could not rely upon this as a part of the contract, because Mr. Rule had not authorized it. So if there was a special contract, then it was without terms nor provisions unless the terms of the supplemental agreement made to the original contract is incorporated as the terms of the new contract.. No one with authority ever agreed to it.
"We think the complainants are entitled to recovery, but that the chancellor erred in holding there was a special contract and the recovery was secured by a mechanic’s lien. The mechanic’s lien statutes are construed strictly as to the existence of the lien but liberally as to effectuate it if once it had been established. Shannon’s Code, Section 3531 and Note 16, with authorities. At most, there could be only an implied contract arising out of the conduct of the parties. We doubt if it could be said to be an implied contract, for it is not proper to imply unknown provisions; this is a recovery based upon the equities of estoppel.
We think the assignment of error, questioning the refusal of the chancellor to open up the settlement made in November, 1926, is not well taken. At the time, Mr. Rule complained at the exeessiveness of the charges, but he was content to pay the bill with the understanding there would be no other work done unless he directed it. If the charges were excessive, he should have corrected it then, and the fact that other work was doné without his instruction does not give him the right to reopen the settlement he made with full knowledge of the controverted facts.
We are also of the opinion that the assignment questioning the recovery of $75 for the converted motor is not well taken; the weight of the proof appears to support the conclusion as found by the chancellor. '
The chancellor decreed a right of recovery. He then fixed the amount upon the basis claimed by the complainants, after making *492a horizontal deduction to satisfy the complaints made by the defendant on the ground of excessive charges and unauthorized work done. His action is assigned as error. The methods were, cost of material, cost of labor plus 33-J per cent, equalling the amount, less 5 per cent. There is no complaint made to this method of determining the amount of recovery provided the cost of the material and of the labor is accurately determined. The complaint is that the cost ¡of the material and of the labor is excessive and that the horizontal deduction does not meet the equities. So in event the cost of labor and material cannot be accurately determined, then the court will necessarily have to fall back upon a quantum meruit basis. But how is this court to determine if the cost of labor and material is excessive? And how can the court tell whether the horizontal cut made by the chancellor is a correct method of determining the excessiveness or the overcharges and illegal items? The only way this can be done is for the court to state ■ an account.. The chancellor adopted the horizontal cut in preference to an accounting; so, if this court states an account there will be no concurrence to relieve the Supreme Court from a like labor. This court would be greatly handicapped in an attempt to state an account because of the condition of the record; the exhibits are sent up in the original - form, and compose a package containing, hundreds of separated papers. For instance, one of the assignments refers to Exhibit D to the testimony of a ¡certain witness; in reply it is stated the Exhibit D referred to is an exhibit to the direct examination, and the one covering the item is Exhibit D to the cross-examination. The exhibits are so numerous, they are numbered as follows: 12-J, etc. If it were practicable it is not incumbent upon this court to state an account, and where the chancellor has determined the main issue and fails to refer the controversy over the items to the master, then this court will remand the case for an accounting and reference. Provident Life & Accident Insurance Company v. Globe Indemnity Company, 156 Tenn., 571, 3 S. W. (2d), 1057.
We think an accounting is necessary to meet the ends of justice, and we are not satisfied with the horizontal cut made by the chancellor, because we have no way of determining if this is correct without stating an account.
The appellant assigns more than twenty errors questioning different items of charges, and the total aggregate for overcharges is the sum of $2311.44; the overcharge on labor alone is claimed to be $1295.63. These different items of account are evidenced by orders numbered consecutively and run as high as 827. This court is not called upon to make minutial examination of so many papers, but this matter ought to be thoroughly investigated. The profits were dependent upon the cost of the work, and the lower the cost the lower the profit. One of the partners was asked;
*493“Q. Did lie work the hours charged in this order about which I am asking? A. Those hours he turned in by time-tickets.”
But they admit that many of the time-tickets are lost and the employer is compelled to adopt their books. They did not present invoices representing their purchases, and account for it by saying that they took the supplies from their own stock. It seems to us if they were going to 'do this they should have rendered a statement to the corporation periodically and not wait for months and after the work was done. The charge for one item of $98.20 is made from the express charges and not from the invoices. The final result is for a large part of these charges the defendant must take the account as made by the complainants for there are no invoices and no time-tickets to establish the truth of the original charge. In view of the fact that the remodelling of the switchboard cost as much as a new switchboard would cost, and the work on it and the generator amounted to considerably more than the cost of a new transformer which would have answered the purpose, it is apparent that the corporation was involved in an unprofitable undertaking.
It is true the complainants introduced certain witnesses who testified that the work done was worth the price fixed, but this is not convincing, for it is unreasonable to say that people would have the old repaired under a cost plus basis when the price equals the cost of the new. We think that if the work had been let on a contract it would have been done cheaper than the cost of the instruments repaired. It is true this motor originally cost about $20,000 and when it was reconditioned it was a valuable motor worth probably $10,000, but that is no reason for the complainants making excessive charges and appropriating to themselves part of the profits made in the purchase. When a firm is doing business of this character upon a cost account basis and does not keep its books in a manner fairly indicating, by invoices and labor tickets which will show the correct status, it has no grounds to complain if the matter is referred for reasonable investigation. With its records in this state, the burden is upon it to show clearly the correctness of each charge.
The judgment of the lower court is affirmed to the extent of granting a recovery for some amount, but a reference is ordered to determine the amount. The settlement of November, 1926, will not be reopened, nor will the question of the converted motor. The complainants are not entitled to a mechanic’s lien to secure their recovery. The cost of the appeal is divided equally.
Snodgrass and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/497214/ | 833 F.2d 309Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Willis BAILEY, Jr., Plaintiff-Appellant,v.Officer RIESS, I.D. Number 1199 of the Prince George'sCounty Government of Maryland, Police Department; thePrince George's County Government of Maryland, the PrinceGeorge's County Government of Maryland Police Department,Defendants-Appellees.
No. 87-2099.
United States Court of Appeals, Fourth Circuit.
Submitted July 27, 1987.Decided Oct. 27, 1987.
Willis Bailey, Jr., appellant pro se.
John Trahey Beamer, II, County Attorney's Office, for appellees.
Before JAMES DICKSON PHILLIPS, WILKINSON, and WILKINS, Circuit Judges.
PER CURIAM:
1
Willis Bailey filed a complaint alleging that Officer Riess of the Prince George's County Police Department (1) falsely arrested and imprisoned him, (2) abused "legal processes," and (3) maliciously searched his home and took his property. The district court allowed Bailey to amend his complaint to add the "Prince George's County Government of Maryland" and the "Prince George's County Government of Maryland Police Department" as defendants, then dismissed the action as to both defendants. Subsequently, the district court withdrew its order allowing the amendment of the complaint because Bailey had failed to serve the amendment on opposing counsel. Bailey filed a letter certifying that he had now served counsel with a copy of the amended complaint. Bailey also filed a motion to appeal. In his notice of appeal Bailey indicated that he wished to appeal the dismissal of the police department as a defendant.
2
Under 28 U.S.C. Sec. 1291, this Court has jurisdiction to review final decisions of the district court. A final decision disposes of all issues in dispute as to all parties. "Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). The record before us indicates that final judgment has not yet been entered. Nor do we have jurisdiction under any exception to the final judgment rule.
3
Accordingly, we dismiss this appeal for lack of jurisdiction. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument.
4
DISMISSED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1917408/ | 749 N.W.2d 663 (2008)
TORRES
v.
WELLS.
No. 2007AP0112.
Supreme Court of Wisconsin.
March 18, 2008.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1570184/ | 29 So. 3d 307 (2010)
CODDINGTON
v.
STATE.
No. 4D09-1330.
District Court of Appeal of Florida, Fourth District.
February 24, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454678/ | 259 P.3d 748 (2011)
IN RE QUILLEN.
No. 104720.
Court of Appeals of Kansas.
September 9, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1542362/ | 122 F.2d 347 (1941)
BROWN-ROGERS-DIXSON CO.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 4805.
Circuit Court of Appeals, Fourth Circuit.
August 26, 1941.
*348 J. B. Grice, of Washington, D. C., for petitioner.
Louise Foster, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to the Atty. Gen., on the brief), for respondent.
Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.
NORTHCOTT, Circuit Judge.
This is a petition to review a decision of the United States Board of Tax Appeals sustaining the determination, by the Commissioner of Internal Revenue, of a deficiency in the income taxes of the petitioner, Brown-Rogers-Dixson Company, a North Carolina corporation, for the years 1936 and 1937 in the sums of $4,172.58 and $3,619.65.
After a hearing the Board, in November, 1940, entered a decision affirming the determination of the Commissioner and fixed the amount of the deficiencies in income of $4,048.37 for the year 1936 and $3,495.44 for the year 1937. The corporation then filed this petition to review the Board's action.
Petitioner is engaged in the wholesale and retail hardware business, in WinstonSalem, North Carolina. Its charter provided for an existence of ninety-nine years from the date of its organization in June, 1904.
On January 6, 1936, the taxpayer's board of directors adopted a resolution providing in part as follows:
"Resolved, That in the opinion and best judgment of the Board of Directors of Brown-Rogers-Dixson Company it is advisable and advantageous to amend the charter of said corporation so as to provide for an increase in the authorized capitalization of said corporation from $500,000.00 of common stock to $750,000.00 Capital stock, said stock consisting of the following classes: First, debenture preferred stock eight per cent (8%) $400,000.00; common class `A' stock with voting power $100,000.00; common class `B' non-voting stock $250,000.00; the $400,000.00 of debenture preferred stock to be obligations or evidences of indebtedness in the face amount of $100.00 at eight per cent (8%), the form of which is hereinafter set out; all other stock hereinbefore mentioned to be of $100.00 par value per share.
"Be it further resolved, That the present common stockholders of Brown-Rogers-Dixson Company are hereby granted the privilege of exchanging their present shares of common stock for the eight per cent (8%) debenture preferred stock obligations, share for share, on the basis of $100.00 par value, before offering any of the eight per cent (8%) debenture preferred stock for public sale.
"And be it further resolved, That all the common stock now issued and outstanding be returned, retired and cancelled upon the books of the corporation upon its surrender in payment of stockholders' notes receivable, given in exchange for the eight per cent (8%) debenture preferred stock obligations.
"And be it further resolved, That the eight per cent (8%) debenture preferred stock obligations hereinbefore referred to shall be non-voting and in no way participate in the surplus or profits of the corporation, and have no control over the affairs of the corporation and no relationship to the corporation other than that specifically set out in the debenture certificate. * * *"
On the same date the stockholders of taxpayer also adopted the same resolution and assented to the changes brought about by it. On December 25, 1936, the amendment of the certificate of incorporation was filed with the Secretary of the State of North Carolina.
The back of the certificates of 8 per cent debenture preferred stock bore the title "Debenture Preferred Stock", and the material part of the face of the certificates reads as follows:
"This is to Certify that Brown-Rogers-Dixson Company, Winston-Salem, N. C., hereby acknowledges itself indebted to ____ in the sum of ____ Dollars, principal payable at the expiration of the corporate existence of the corporation, interest at the rate of eight per cent (8%) per annum, payable annually on the thirty-first (31st) day of December in each year, in gold coin of the United States of America, of the present standard of weight and fineness, represented by ____ shares of debenture stock of the corporation, each of the par value of one hundred dollars. In the payment of their several claims, all *349 creditors, other than the stockholders of the corporation, shall rank superior to the holders of the debenture stock, but all holders of debenture stock shall rank pari passu with each other, and superior to the stockholders of the corporation, with respect to their common stock, either Class `A' or Class `B'. The corporation shall, nevertheless, have the right, the interest on the debenture stock having been paid, from time to time to declare and pay dividends out of the net earnings, upon any of the common stock or share capital of the corporation. The debenture stock shall be subject to redemption by the corporation upon any interest date, upon the affirmative vote of two-thirds in amount of the voting capital stock of the corporation then issued and outstanding, at the rate of One Hundred and One Dollars per share for each One Hundred Dollars of the principal or par value, plus all unpaid accrued interest, including interest at the aforesaid rate of eight per cent (8%) per annum up to the time of redemption. Neither the corporation or its shareholders shall have power to mortgage the property or franchises of the corporation, except by the written consent of the then registered holders of at least two-thirds in amount of the debenture stock."
On January 10, 1936, $300,000 of the new 8 per cent debenture preferred stock was issued to the common stockholders of taxpayer, share for share. This was accomplished by the stockholders giving taxpayer notes which they then paid by surrendering their old shares of common stock. Taxpayer did not receive any cash.
In January, 1936, taxpayer issued $30,000 of new Class A common stock and in December, 1937, it issued $54,000 par value of Class B common stock to holders of Class A common stock for 30-day notes which had previously been given to them as dividends.
The earned surplus of taxpayer was $201,982.06 on December 31, 1936, and $191,801.40 on December 31, 1937.
On taxpayer's capital stock tax return for 1937, taxpayer's capital stock was designated as $300,000 preferred stock and $30,000 common stock. On its income tax returns for each of the years 1936 and 1937, taxpayer deducted $24,000 as interest paid to holders of the 8 per cent debenture stock.
Taxpayer kept its books on an accrual basis in 1936 and 1937.
The Commissioner disallowed the claimed deduction and treated such amount as dividends.
The only question involved is whether the amounts designated as interest and paid by the petitioner on its debenture preferred stock for the years 1936 and 1937 were in fact dividends and not deductible from taxable income.
The Statute and Regulations involved are:
Revenue Act of 1936, c. 690, 49 Stat. 1648:
"§ 23. Deductions from gross income.
"In computing net income there shall be allowed as deductions:
* * * * *
(b) Interest. All interest paid or accrued within the taxable year on indebtedness, except on indebtedness incurred or continued to purchase or carry obligations (other than obligations of the United States issued after September 24, 1917, and originally subscribed for by the taxpayer) the interest upon which is wholly exempt from the taxes imposed by this title [chapter]. * * *." 26 U.S.C.A. Int.Rev.Code, § 23(b).
Treasury Regulations 94, promulgated under the Revenue Act of 1936:
"Art. 23(b) 1, Interest. * * *
* * * * *
"So-called interest on preferred stock, which is in reality a dividend thereon, cannot be deducted in computing net income."
The names used in the resolution of taxpayer's board of directors to designate the certificates issued and to designate the amount annually paid to the holders of the certificates are not controlling in determining their true nature. Helvering v. Richmond, F. & P. R. Co., 4 Cir., 90 F.2d 971, and Dayton & Michigan R. Co. v. Commissioner, 4 Cir., 112 F.2d 627.
In these cases will be found a complete discussion by Judge Parker, of this Court, of the principle here involved and an analysis of the decisions.
The title, "Debenture Preferred Stock", given the certificates is in itself contradictory. "Debenture" is used to denote certificates of indebtedness, "Stock" to denote investment in the enterprise.
The "Debenture Preferred Stock" certificates issued by the petitioner had no preference, either as to principal or interest, *350 over the creditors of the corporation. There was no due or maturity date fixed for the payment of the principal. It has been repeatedly held that one of the fundamental characteristics of a debt is a definite determinable date on which the principal falls due. Elko Lamoille Power Co. v. Commissioner, 9 Cir., 50 F.2d 595; Commissioner v. Proctor Shop, 9 Cir., 82 F.2d 792; Dayton & Michigan R. Co. v. Commissioner, supra; United States v. South Georgia Ry. Co., 5 Cir., 107 F.2d 3; Commissioner v. Schmoll Fils Associated, 2 Cir., 110 F.2d 611.
In the South Georgia case [107 F.2d 5], the Court said: "* * * There is, thus, an entire absence here of the most significant, if not the essential feature of a debtor and creditor as opposed to a stockholder relationship, the existence of a fixed maturity for the principal sum with the right to force payment of the sum as a debt in the event of default."
No money was received by the petitioner for these certificates but, although done in a roundabout way, they were merely exchanged for common stock certificates originally representing a capital investment. As was said by the Board of Tax Appeals: "They were issued not for money loaned but in lieu of common shares, and were therefore a new evidence of money originally invested in and at the risk of the business."
That the petitioner treated the new stock as a part of its capital structure and not as a debt is shown by the fact that the stock was carried on its general ledger as capital stock and in its tax return for the year 1937 this stock was designated as capital.
There was no provision made in the certificates to enforce the payment of the eight per cent (8%) annually in case of default. If the eight per cent (8%) could be considered as interest and therefore deductible the question at once arises as to the usurious nature of the transaction. Ellington v. Supply Co. 196 N.C. 784, 147 S.E. 307. However, in view of our conclusion as to the main point in the case, it is not necessary to discuss that question. It is undoubtedly true that the claim for the annual payment of the eight percent (8%) could not be enforced as prior to the claims of general creditors in the event of insolvency.
"In calculating net income for taxation a deduction from gross income is allowable only if there is clear statutory provision therefor." Deputy, Administratrix, et al. v. DuPont, 308 U.S. 488, 60 S. Ct. 363, 84 L. Ed. 416.
If the amount claimed as deductible was interest then the claim should be allowed. Interest has been defined by the Supreme Court as "the amount which one has contracted to pay for the use of borrowed money." Old Colony Railroad Co. v. Commissioner, 284 U.S. 552, 52 S. Ct. 211, 214, 76 L. Ed. 484.
The amounts paid by the petitioner in the years in question partook more of the nature of dividends than of interest and were not deductible. The decision of the Board is accordingly affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/702817/ | 64 F.3d 661
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Gloria NWOSU, a/k/a Gloria Laurence, Defendant-Appellant.
No. 93-5967.
United States Court of Appeals, Fourth Circuit.
Submitted June 27, 1995.Decided Aug. 17, 1995.
Alan Fischler, Bethesda, MD, for appellant.
Robert Eugene Sims, Christine Manuelian, Office of the United States Attorney, Baltimore, MD, for appellee.
Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Gloria Nwosu appeals from a sentence of ninety-seven months imposed after she pleaded guilty to fifteen counts related to a heroin distribution conspiracy and the making of false statements to the Immigration and Naturalization Service. Her attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising three issues but stating that in his view there are no meritorious issues for appeal. Although notified of her right to do so, Nwosu has not filed a pro se supplemental brief. We find no error.
2
Nwosu contends that the district court erred in attributing 8.9 kilograms of heroin to her for purposes of determining her base offense level of thirty-four. Nwosu claims that the actual amount was 7.55 kilograms. We reject this argument because, as the district court correctly determined, Nwosu's base offense level remains unchanged so long as the amount of heroin fell between three and ten kilograms. United States Sentencing Commission, Guidelines Manual, Sec. 2D1.1(c)(5) (Nov.1992).
3
Nwosu next contends that the district court erred in failing to accord her a further unspecified downward departure for her personal characteristics and in failing to further depart downward for her timely acceptance of responsibility under USSG Sec. 3E1.1(b) (Nov.1992). We reject these arguments because claims of dissatisfaction with the extent of a court's downward departures are not reviewable on appeal unless the district court was unaware of its authority to depart. United States v. Jones, 18 F.3d 1145, 1148-49 (4th Cir.1994). The district court was clearly aware of its authority to further depart in this case, it merely refused to exercise that authority.
4
Nwosu argues that her counsel at sentencing was ineffective because he was not fully apprised of all relevant facts. This court will not consider a claim of ineffective assistance of counsel raised on direct appeal unless the record conclusively demonstrates ineffectiveness. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.1991), cert. denied, 503 U.S. 997 (1992). The record does not so demonstrate here.
5
In accordance with the requirements of Anders, we have examined the entire record in this case and find no other meritorious issues for appeal. Accordingly, we affirm the conviction and sentence. This court requires that counsel inform his client, in writing, of her right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy of the motion was served on the client.
6
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court, and oral argument would not aid the decisional process.
7
AFFIRMED IN PART; DISMISSED IN PART. | 01-03-2023 | 04-17-2012 |
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