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https://www.courtlistener.com/api/rest/v3/opinions/3188649/ | Berlin v Jakobson (2016 NY Slip Op 02175)
Berlin v Jakobson
2016 NY Slip Op 02175
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.
621 152263/15
[*1]Douglas Berlin, etc., Plaintiff-Respondent,
vThomas Jakobson, et al., Defendants-Appellants.
Emery Celli Brinckerhoff & Abady LLP, New York (Zoe A. Salzman of counsel), for appellants.
Wrobel Markham Schatz Kaye & Fox LLP, New York (David C. Wrobel of counsel), for respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered December 8, 2015, which, to the extent appealed from, denied defendants' motion to dismiss the complaint in its entirety, unanimously modified, on the law, to dismiss the third cause of action insofar as asserted on behalf of 27-37 Management, to dismiss that part of the fourth cause of action as asserted on behalf of 27-37 Management for unjust enrichment, and to dismiss the fifth cause of action as to 27-37 Management, and otherwise affirmed, without costs.
The claim for breach of fiduciary duty, which described the relationship among the various companies and the role of defendants and identified a number of specific acts of misconduct, was pleaded with sufficient particularity (see Gall v Summit, Rovins & Feldesman, 222 AD2d 225, 226 [1st Dept 1995], lv dismissed 88 NY2d 919 [1996]; CPLR 3016 [b]). However, plaintiff's failure to identify any damages sustained by 27-37 Management requires dismissal of the fiduciary duty and unjust enrichment claims asserted on its behalf (see Coleman v Fox Horan & Camerini, 274 AD2d 308, 309 [1st Dept 2000], lv denied 95 NY2d 767 [2000]; Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). The dismissal of the fiduciary claim as to 27-37 Management also warrants dismissal of the accounting claim as to that defendant.
While defendants assert certain releases as a bar to the fiduciary duty claims asserted on behalf of Waverly Properties and 27-37 Management for the first time on appeal, we can consider the argument because it cannot be avoided, turns on a question of law, and can be resolved on the face of the record (Rojas-Wassil v Villalona, 114 AD3d 517, 517 [1st Dept 2014]). However, given the narrow construction to be given a release, we conclude that these claims are not barred by the releases (see Lexington Ins. Co. v Combustion Eng'g, 264 AD2d 319, 322 [1st Dept 1999]).
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/1543109/ | 39 F.2d 669 (1930)
In re WIETZEL et al.
Patent Appeal No. 2229.
Court of Customs and Patent Appeals.
April 14, 1930.
Rehearing Denied May 19, 1930.
*670 Hauff & Warland, of New York City (William E. Warland, of New York City, of counsel), for appellants.
T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for the Commissioner of Patents.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
HATFIELD, Associate Judge.
This is an appeal from the decision of the Board of Appeals affirming the decision of the Examiner denying appellant's claims 1 to 5, inclusive, for an alleged invention relating to a process of manufacturing formamid and hydrocyanic acid.
The claims in issue read as follows:
"1. The process of manufacturing formamid and hydrocyanic acid which consists in exposing alkyl formate vapor and ammonia to elevated temperatures in the presence of a contact mass.
"2. The process of manufacturing hydrocyanic acid which consists in exposing alkyl formate vapor and ammonia to a temperature of between about 200 degrees and 500 degrees Centigrade and in the presence of a contact mass of a dehydrating character and while contacting the gases with said mass sufficiently long to cause dehydration to hydrocyanic acid.
"3. The process of manufacturing form amid and hydrocyanic acid which consists in passing alkyl formate vapor and ammonia in a quantity exceeding the calculated one, over a contact mass at an elevated temperature.
"4. The process of manufacturing formamid and hydrocyanic acid which consists in passing alkyl formate vapor and ammonia and an inert gas over a contact mass at an elevated temperature.
"5. The process of manufacturing hydrocyanic acid which consists in passing a mixture of vaporized alkyl formate and formamid and ammonia over a contact mass of a dehydrating character, at a temperature of between about 200 degrees and 500 degrees Centigrade and at conditions causing the formation of hydrocyanic acid."
The claims were rejected on the following references: Textbook of Organic Chemistry, Holleman-Walker, 1920, pp. 100, 127, and 349; Chemical Society Journal, vol. 1, 1863, pp. 73-74; Organic Chemistry, Richter, vol. 1, pp. 227, 228, and 229; Handbook of Modern Chemistry, Tidy, p. 762.
It appears from appellants' specification and claims that, by the alleged novel process, formamid, hydrocyanic acid, or a mixture of these substances, may be produced by exposing alkyl formate and ammonia to elevated temperatures in the presence of a catalyst; and that, if a mixture is obtained, the mixed products may be separated.
In view of the fact that the Board of Appeals has reviewed the decision of the Examiner in the light of the criticisms made of it by counsel for appellants, we think it may be helpful to quote rather extensively from its decision:
"The Examiner cited the text book on Organic Chemistry by Holleman-Walker as disclosing on page 103 that nitriles can be formed by passing esters mixed with ammonia over alumina and on page 127 that amides, which will be intermediates formed by treating the esters as on page 103, can be converted into nitriles by heating (distilling) with a dehydrating agent, phosphorous pentoxide. See also Richter's Organic Chemistry, vol. 1, page 266 (3). That hydro-cyanic acid may be considered a nitrile of formic acid is disclosed on page 349, of Holleman-Walker.
"From these statements the Examiner deduces that, as alkyl formate is a formic ester and hydrocyanic acid is the nitrile of formic acid, the heating of alkyl formate vapor with ammonia over alumina would produce formamid as an intermediate product and that the formamide will be converted into hydrocyanic acid by treating with a dehydrating agent such as phosphorous pentoxid.
"The brief states that the only ester disclosed by the text book is an acetic acid ester and esters of higher members of the aliphatic series and that it could not be foreseen that the reaction could be carried out with esters of formic acid. While formic acid is the first *671 member of the group of fatty acids of which acetic acid is a higher member, it is contended that formic acid and its derivatives in most cases fail to conform to the characteristics of the series. It is to be noted that in the text book cited, the reaction is not limited to an ester of acetic acid or any other of the group of fatty acids, but is stated broadly with reference to acid amides, and at the bottom of page 127, acid amides are again mentioned and formamide is referred to as the only one which is liquid. It seems clear that the disclosure was not intended to be limited to acetamid nor to exclude formamide. In Richter's Organic Chemistry, Vol. 1, page 227, it is stated that formamide may be formed by heating formic ester with alcoholic ammonia to 100° and also that heated rapidly with P2O5 it liberates H.C.N. (Hydrocyanic Acid). The Examiner further cites the Journal of the Chemical Society, Vol. 1, 1863, pages 73, 74, as disclosing the making of formamide by heating ethyl formate with dry ammonia at 195° C. In view of these disclosures we are of the opinion that there is every reason to believe that the statement in Holleman-Walker text book applies to esters of formic acid as well as to other members of the fatty acid group.
"The brief then attacks the statement that hydrocyanic acid may be considered as the nitrile of formic acid, and cites a text book by Meyer-Jacobson as expressing a doubt whether hydrocyanic acid is to be represented by the nitrile formula H-C=N or by the isonitrile formula H-N=C
"In addition to the statement on page 349 of Holleman-Walker we find the same statement in Richter's Organic Chemistry on pages 228, 229, and in Handbook of Modern Chemistry by Dr. Meymott Tidy, page 762, and, in view thereof, we consider these disclosures sufficient to raise a presumption at least that the reactions disclosed would apply to formamid and to hydrocyanic acid as the nitrile of formic acid, and, where there is no real reason to suppose that the result would not be produced there is no invention in trying it and finding out that the process is successful."
It is contended that the references cited by the tribunals of the Patent Office "do not constitute anticipations," that it is evident from the decisions below that the Examiner and the Board of Appeals were in doubt as to whether the process disclosed in appellants' application involved invention, and that the claims in issue were rejected on the presumption only that they were anticipated by the references. It is further contended that the decisions below rest upon two assumptions; namely, first, that hydrocyanic acid is a nitrile of formic acid; and, second, that formic acid had all the attributes and characteristics of other members of the "fatty acid" group, and that, as the other members of the group could be used in the formation of acid amides and nitriles, invention was not involved in discovering that "in the case of formic acid an analagous reaction, viz.: the process of producing formamid or hydrocyanic acid or both by exposing alkyl formate and ammonia to elevated temperatures, can be carried out," and that neither of these assumptions is sufficiently well founded to warrant the rejection of appellants' process claims.
Several authorities on the subject agree that hydrocyanic acid is the nitrile of formic acid, whereas some contend that it is an isonitrile. In view of the fact that the authorities are not in entire harmony, it is argued that the Board of Appeals erred in adopting the views of one group and ignoring the views of the other.
Counsel for appellants, however, do not rest their case upon this proposition.
Granting, as counsel do, for the purpose of discussion, that hydrocyanic acid is the nitrile of formic acid, it is contended, nevertheless, that the claimed process is novel. We quote from the brief of counsel for appellants:
"* * * First it splits off alcohol from the starting material and produces formamid and then water is split off from the formamid and hydrocyanic acid produced. This fact alone in appellants' opinion marks a distinct advance in the art. The references do not show this. There is nothing in the references to indicate that one catalytic substance would fulfill both of these requirements."
Many other arguments are advanced in the brief of counsel for appellants in denying the soundness of the decision below.
In cases involving intricate and highly technical questions, such as those presented in the case at bar, and especially in the absence of evidence of those expert in the art, concurring decisions of the Patent Office tribunals will not be disturbed, unless it appears that they are manifestly wrong. In re Beswick's Appeal, 16 Ohio App. D. C. 345.
We have given the issues careful study in an effort to determine whether, as counsel for appellants contend, the decision of the Board of Appeals is clearly erroneous. We are unable to hold that such is the case.
*672 The Examiner and the Board of Appeals have discussed the issues and the references in detail. In view of the fact that we concur in the conclusion of the board, we deem it unnecessary to contribute to the discussion of the technical features of the case.
We are unable to agree with the contention that the decision of the Board of Appeals, in rejecting appellants' claims, was predicated on either presumptions or assumptions. It is true that, in referring to the authorities cited as references, the board said: "We consider these disclosures sufficient to raise a presumption at least that the reactions disclosed would apply to formamid and to hydrocyanic acid as the nitrile of formic acid." However, the meaning and purpose of this observation is made clear by the language immediately following: "And, where there is no real reason to suppose that the result would not be produced there is no invention in trying it and finding out that the process is successful."
The decision is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571807/ | 2 So.3d 1214 (2009)
Johnette WILCZEWSKI
v.
BROOKSHIRE GROCERY STORE.
No. WCA 08-718.
Court of Appeal of Louisiana, Third Circuit.
January 28, 2009.
*1216 Dale G. Cox, Lemle & Kelleher, LLP, Shreveport, LA, for Defendant/Appellant, Brookshire Grocery Store.
Joseph Payne Williams, Williams & Williams, Natchitoches, LA, for Plaintiff/Appellee, Johnette Wilczewski.
Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
SAUNDERS, Judge.
This is a workers compensation case wherein an employee was injured while lifting a crate of hams weighing approximately fifty to sixty pounds. The employee claimed to have suffered an injury and, subsequently, pain in the thoracic area of her back.
After undergoing several unsuccessful treatments, the employee was seen by a pain management specialist. The specialist, after failed treatments via prescription drugs and epidural steroid injection, sought the approval of a trial using a spinal cord stimulator. The employer denied this request and sent the employee to its own medical experts who disagreed with the employee's pain management specialist about the trial spinal cord stimulator. The employee then saw a independent medical examiner regarding the thoracic pain who disagreed with both the employee and the employer's physicians about the source of the employee's pain and how it should be treated.
*1217 The employee filed a disputed claim for compensation seeking approval of the spinal cord stimulator. In the meantime, during the course of treatment, the employee's pain management specialist became concerned for the employee's mental health and sent her to a psychologist. The psychologist recommended a behavioral pain management program. The employer denied this request and sent the employee to its own physicians who did not address whether the employee needed the program.
The workers' compensation judge ruled in favor of the employee receiving the trial of the spinal cord stimulator and the behavioral pain management program. Further, he also awarded the employee penalties and attorney's fees for the employer's refusal to approve each. The employer has appealed, alleging nine assignments of error. We find no merit to any of the assignments and affirm the workers' compensation judge's ruling in its entirety.
AFFIRMED.
FACTS AND PROCEDURAL HISTORY:
On December 22, 2005, Johnette Wilczewski (Wilczewski) claimed that she injured her mid-back when she lifted a case of hams while working for Brookshire Grocery Company (Brookshire). Unloading the boxes of hams, which weighed approximately fifty to sixty pounds, was a normal part of her regular duties in the meat market department for Brookshire.
Within twenty-four hours, Wilczewski saw her family physician, Dr. James Knecht, complaining of mid-back pain. Dr. Knecht's nurse took a history from Wilczewski wherein she indicated that she has suffered from back pain for about the last twenty-four hours, and, further, that she has suffered pain from her left arm, wrapping around her back for the last month. Dr. Knecht testified that the wrapping-around pain was not related to the work incident, but the posterior mid-back pain was due to her accident citing objective findings of muscle spasm.
Dr. Knecht continued to see Wilczewski into January of 2006. He referred her for physical therapy where a TENS unit was prescribed to help with the pain in her thoracic spine. Due to continued pain, Dr. Knecht referred her to an orthopedic specialist, Dr. Phillip Bacilla.
Dr. Bacilla ordered an MRI of Wilczewski's thoracic and lumbar spine as well as a bone scan. He interpreted an MRI and bone scan of Wilczewski's thoracic spine to be normal, but noted the MRI of the lumbar spine showed a bulging disc at L2-3 and L3-4. Dr. Bacilla felt that the bulges could be causing some of the pain in her upper lumbar region, but did not explain the pain in the thoracic region that radiates to the chest. He then referred her to Dr. Melanie Firmin, a pain management specialist, with Wilczewski to return to his office after seeing Dr. Firmin. Dr. Bacilla did not see Wilczewski again until February 2007, wherein he suggested she be seen by a neurosurgeon.
Dr. Firmin, a board certified anesthesiologist and pain management specialist, began treatment of Wilczewski in April of 2006 with various types of neuromodulator and anti-depressant medication in an attempt to discover the source of the thoracic pain. Dr. Firmin's treatment progressed to a thoracic spine epidural steroid injection. That injection temporarily relieved Wilczewski's pain, and also showed an immediate change in the discoloration pattern on the thoracic area of her spine. This lead Dr. Firmin to believe that a trial of a spinal cord stimulator would assist in both diagnosing the actual problem that Wilczewski had and in determining if a permanent spinal cord stimulator would be *1218 of any benefit. Given the unusual nature of this potential diagnosis, Dr. Firmin sought a second opinion of her idea to use the trial spinal cord stimulator from Dr. Steven A. Staires, an interventional pain management specialist.
Dr. Staires saw Wilczewski and wrote a report to Dr. Firmin with the results of his consultation. In the report Dr. Staires indicated that he did see signs of exaggeration of symptoms for secondary gain or desire to convince others of the seriousness of her plight. His impression was that Wilczewski suffered from chronic thoracic pain syndrome and possible complex regional pain syndrome in the thoracic spine. Further, Dr. Staires stated that he clearly saw no contraindication to the trial of the spinal cord stimulator that Dr. Firmin was considering recommending.
Eddie Crawford, the adjuster working on the workers' compensation claim filed by Wilczewski, received a copy of this report written by Dr. Staires. As a result of the findings by Dr. Staires, Dr. Firmin testified that her office requested the trial of the spinal cord stimulator in October of 2006. Eddie Crawford testified that he received no such request from Dr. Firmin's office, but he did remember getting the request in October, but was not sure whether it was October of 2006 or 2007.
In February of 2007, per the recommendation of Dr. Bascilla's office that Wilczewski see a neurosurgeon, Wilczewski obtained Brookshire's approval to see Dr. Cavanaugh. She did not see him and instead saw Dr. Anil Nanda, a neurosurgeon.
Dr. Nanda saw Wilczewski for two visits. On the first visit, he reviewed the MRI of her lumbar spine. He also saw the disc bulges at L2-3 and L3-4. He then requested a myelogram/CT with flexion and extension of her lumbar spine to better evaluate the area. In the second visit, he read the results of the myelogram/CT to show moderate lumbar stenosis for L2 to L4, but he did not feel the films were dramatic. He did suggest that, should Wilczewski not improve, he would recommend a laminectomy from L2 to L4. In the two visits, Dr. Nanda noted the redness of Wilczewski's back but attributed it to excessive use of a heating pad.
At Brookshire's request, Wilczewski saw Dr. Karl Bilderback, an orthopedic surgeon. Dr. Bilderback saw her one time and concluded that she was at maximum medical improvement. Further, he found no objective finding to support Wilczewski's complaints of thoracic pain. He opined that there was no reason for a spinal cord stimulator, that she was magnifying her symptoms, and that she could return to work without restrictions. With regards to the redness of Wilczewski's back, Dr. Bilderback did not have any particular diagnosis and felt it would be helpful for Wilczewski to see a dermatologist.
Brookshire then requested Wilczewski to see Dr. Phillip Bergeron, a dermatologist. He concluded that the redness of her back was the result of prolonged use of a heating pad.
At Brookshire's request, Wilczewski saw Dr. Keven Pauza, a spine specialist for an independent medical evaluation. Dr. Pauza's opinion was that Wilczewski was cooperative, honest and forthright in her evaluation. He concluded the following:
No objective evidence of thoracic or lumbar radiculopathy.
He strongly disagreed with Dr. Nanda's suggestion for a possible laminectomy.
Wilczewski did not benefit from the epidural steroid injection performed by Dr. Firmin because of the normal MRI of the thoracic spine.
No evidence of reflex sympathetic dystropy.
*1219 No indication for a spinal cord stimulator.
The most likely diagnosis was chemical pain originating from a torn thoracic intervertebral disc or a torn thoracic facet joint capsule or a combination of the two.
It was safe for Wilczewski to return to work should with restrictions on how she lifts.
Wilczewski needed and he prescribed her Norco for pain.
Wilczewski also saw Dr. Renee Culver, a psychiatrist. Dr. Culver concluded that Wilczewski was either suffering from a pain disorder associated with psychological factors or factitious disorder, or that she was malingering.
For the duration of these treatments, Dr. Firmin was still seeing Wilczewski even though she never received approval for the trial of the spinal cord stimulator. She referred her to Dr. James W. Quillin, a psychologist, in order to help Wilczewski with any mental aspect of dealing with her pain. Dr. Quillin diagnosed her with depression secondary to chronic pain. He recommended and requested authorization from Brookshire for a behavioral pain management program. Brookshire denied this request.
Rather, Brookshire sent Wilczewski to be seen by Dr. Darren M Strother, a psychologist. Dr. Strother diagnosed Wilczewski with malingering, pain disorder associated with psychological factors, and mood disorder.
Dr. Firmin continued to see Wilczewski, but she decided it would not be in Wilczewski's best interest if she were to continue to see her in November of 2007. Dr. Firmin ceased treating Wilczewski due to Brookshire's refusal to approve her recommendation that they attempt a trial of a spinal cord stimulator.
On June 11, 2007, the Plaintiff filed a 1008 against Brookshire seeking approval of the spinal cord stimulator and eventually evidence was allowed to be heard regarding the behavioral pain management recommended by Dr. Quillin. After a trial on the merits, the workers' compensation judge (WCJ) ruled that Wilczewski had proven that the trial of the spinal cord stimulator as well as the behavioral pain management program were reasonable and necessary for treatment of the workrelated injury she suffered.
Additionally, the WCJ awarded Wilczewski penalties and attorney's fees for Brookshire's failure to reasonably controvert the requested cord stimulator and pain management program. In a very through reasons for ruling, the WCJ opined that Brookshire had failed in its duty under La.R.S. 23:1201 when it denied the requested treatments by selectively focusing on parts of physician's reports that tended to help its position rather than by considering the totality of the reports and following through with its statutory duty.
Brookshire has appealed the WCJ's judgment. It is alleging the following nine assignments of error:
ASSIGNMENTS OF ERROR:
1. The WCJ erred in finding that Wilczewski proved her December 22, 2005, accident caused her to suffer a specific medical condition.
2 The WCJ erred in awarding Wilczewski judgment for the trial of a spinal cord stimulator.
3. The WCJ erred in placing the burden of proof on Brookshire to prove that Wilczewski did not suffer from a medical condition that justified the recommended treatments.
4. The WCJ erred in failing to require Wilczewski to prove that she suffered from thoracic reflex sympathetic dystrophy *1220 to obtain the trial of the spinal cord stimulator.
5. The WCJ erred by misapplying the law regarding the admissibility of expert opinion.
6. The WCJ erred in placing the greatest weight on the opinion of Dr. Melanie Firmin, and rejecting the opinions of the other physicians.
7. The WCJ erred in awarding Wilczewski judgment for a program of behavioral pain management.
8. The WCJ erred in awarding Wilczewski penalties and attorney's fees for Brookshire's failure to approve the trial of the spinal cord stimulator.
9. The WCJ erred in awarding penalties and attorney's fees for Brookshire's failure to approve the behavioral pain management program.
ASSIGNMENT OF ERROR # 1:
Brookshire alleges that the WCJ erred in finding that Wilczewski proved her December 22, 2005, accident caused her to suffer a specific medical condition. We find this assignment lacks merit.
Whether a claimant proves that a work-related accident caused an injury is factual in nature and, thus, a finding of fact. The applicable standard of review for a finding of fact, that of manifest error, is set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In Banks, our Louisiana Supreme Court stated:
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong 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. Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Thus, if the [factfinder's] findings are reasonable in light of the record reviewed 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.
Id. at 556 (citations omitted)(alteration in original).
Brookshire argues that Wilczewski lacked credibility. As such, it claims that she cannot be found to have carried her burden of proving that she suffered a work-related injury by her testimony alone. Brookshire's argument regarding Wilczewski's credibility is unfounded.
Wilczewski's testimony that she suffered an accident at work that caused her to have pain is corroborated by the testimony of her family physician, Dr. James Knecht. Wilczewski went to see Dr. Knecht the day after the accident and told him that she had been suffering mid back pain for approximately twenty-four hours. Further, the following exchange occurred during Dr. Knecht's deposition:
Q So I want to make sure I understand. In your opinion the pain in the anterior chest wall was probably related to the pleurisy or the
A Costal chondral junction. Yes, sir.
Q Costal chondral junction syndrome. And the pain in the mid back was probably related to the trauma that [Wilczewski] described to you?
A Yes, sir. The accident. The injury.
Q And the objective symptom you found was spasm in the mid back?
A Spasm on the paraspinal muscles in the thoracic spine and also she was quite tender over that areas, yes, sir, on palpation. That's correct.
*1221 Given this testimony, we cannot find that Wilczewski's testimony was the sole source for the WCJ to find that she carried her burden of proof. As such, Brookshire's argument in this regard must fail.
ASSIGNMENT OF ERROR # 2:
Brookshire alleges that the WCJ erred in awarding Wilczewski judgment for the trial of a spinal cord stimulator. We disagree.
As in assignment of error # 1, the standard of review is that of manifest error. Brookshire points out that there was evidence that indicated that Wilczewski did not suffer any injury necessitating the trial of a spinal stimulator. This argument is not pertinent to a manifest error review. The question is not whether there was evidence that hindered Wilczewski's claim, rather, the question is whether there was sufficient evidence to support the WCJ's ruling to make that ruling reasonable.
After thoroughly reviewing the record, we find that there is ample evidence that Wilczewski had a work-related accident that caused her to suffer a medical condition that gave rise to the need for the trial of a spinal cord stimulator. The source of that evidence is in the testimony of Dr. Melanie C. Firmin.
Dr. Firmin was offered by Wilczewski as an expert in the field of medicine with specializations in anesthesiology and pain management. She saw Wilczewski from April of 2006 through November of 2007. Dr. Firmin first tried prescription medication and steroid injections. After these attempts provided only temporary or no relief to Wilczewski, Dr. Firmin sought find the source of Wilczewski's pain and a way to treat it. Dr. Firmin reached the point where she recommended a trial of spinal cord stimulation as evidenced by the following:
Q Okay. And so what was your though at this point after you've gotten her seen by Dr. Staires, and she comes back to you, what do you recommend?
A I mean, my next thought process is to try to get a trial stimulation. A trial stimulation is a diagnostic tool. If you get a good result, then you determine the level of the result, and you determine is it reasonable to go forth with a permanent placement. A trial stimulation may reveal no therapeutic benefit. At that point, you pull the trial out, and you try again.
This testimony makes the WCJ's finding that Wilczewski carried her burden of proving that she was entitled to judgment for the trial of a spinal cord stimulator. Accordingly, we find no error with the WCJ's decision in this regard.
ASSIGNMENT OF ERROR # 3:
Brookshire next contends that the WCJ erred in placing the burden of proof on it to prove that Wilczewski did not suffer from a medical condition that justified the recommended treatments. This contention is without merit.
Brookshire cites in brief the WCJ's reasons for judgment for its contention that the burden of proof was shifted to it. This court's review of the cited material, and record as a whole, reveals no such shift was made by the WCJ. Rather, it is quite clear that the WCJ placed the burden of proof on the proper party, Wilczewski, regarding the spinal cord stimulator when it stated the following:
I reviewed several cases in making a conclusion with regard to Ms. Wilczewski's claim, that is whether or not the spinal cord stimulator proposed by Dr. Firmin is reasonable and necessary. Of course, we all know that the injured worker must establish medical testing is *1222 reasonably necessary for a diagnostic purpose.
Moreover, it is also clear that the WCJ did not shift the burden to Brookshire with regard to the behavioral pain management program it awarded to Wilczewski when it stated, "[t]he Court, therefore, believes that Ms. Wilczewski has proven by a preponderance of the evidence that she is entitled to the pain management program recommended by Dr. Quillin."
As such, we find that Brookshire's claim that the WCJ improperly shifted the burden of proof to it completely unsubstantiated. The record reveals no such shift was made by the WCJ.
ASSIGNMENT OF ERROR # 4:
Brookshire next puts forth the argument that the WCJ erred in failing to require Wilczewski to prove that she suffered from thoracic reflex sympathetic dystrophy to obtain the trial of the spinal cord stimulator. This argument is baseless.
Louisiana Revised Statutes 23:1203(A) states:
In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. Medical care, services, and treatment may be provided by out-of-state providers or at out-of-state facilities when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs.
Our reading of La.R.S. 23:1203 does not necessitate that a claimant need prove a specific diagnosis in order to obtain medical treatment. This court, in Gibson v. Shaw Global Energy Services, 04-547, p. 8 (La.App. 3 Cir. 10/27/04), 885 So.2d 707, 713, writ denied, 04-2920 (La.2/4/05), 893 So.2d 876, succinctly describes what La.R.S. 23:1203 requires of an employer with regards to paying for medical treatment when it stated:
La.R.S. 23:1203(A) requires an employer to provide all necessary medical treatment stemming from an employee's work-related injury. See Schindler v. Orleans Reg'l Sec., 03-522 (La.App. 4 Cir. 12/3/03), 862 So.2d 1032. To recover medical expenses under La.R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Id. In addition, an injured employee may recover expenses for medically necessary diagnostic tests recommended by his treating physician when needed to ascertain the appropriate course of treatment. McCrary v. New Orleans Health Corp., 01-1632 (La.App. 4 Cir. 9/26/01), 798 So.2d 1085.
Brookshire argues in brief that Wilczewski "must prove by a preponderance of the evidence that her accident caused a specific medical condition for which the requested treatment is needed." (Emphasis added.) Brookshire cites no authority for its position. Perhaps no authority is cited because any such authority, and such does not exist to this court's knowledge, would be inapplicable for the case sub judice.
At its root, Brookshire's contention is that Wilczewski needs to prove that she actually had a specific medical condition before it would be responsible for a diagnostic test deemed necessary by her treating physician. This argument is flawed. Clearly, a claimant cannot prove the existence of a specific condition prior to being *1223 tested to determine if that claimant has that condition.
As such, we uphold the WCJ's judgment related to this issue. Wilczewski had no duty to prove that she suffered from a specific medical condition, here namely thoracic reflex sympathetic dystrophy, in order for her to receive a trial of the spinal cord stimulator.
ASSIGNMENTS OF ERROR #5 and #6:
Brookshire claims that the WCJ erred in misapplying the law regarding the admissibility of expert opinion and in placing the greatest weight on the opinion of Dr. Melanie Firmin and rejecting the opinions of the other physicians. We do not agree.
The trier of fact has broad discretion when choosing to give greater weight to the testimony and opinion of one medical expert over another. Pendleton v. Barrett, 97-570 (La.App. 3 Cir. 12/23/97), 706 So.2d 498. Generally, the opinion and testimony of a treating physician should be given greater weight that those of a physician that merely saw the patient for the purpose of diagnosis. Winch v. Double M, Inc., 99-1793 (La.App. 3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La.6/16/00), 765 So.2d 339.
Brookshire first argues that the WCJ erred in placing great weight on the testimony of Dr. Firmin and rejecting the testimony of the numerous doctors who examined Wilczewski. Brookshire supports its argument by pointing out that Dr. Firmin admitted that she had never treated a case of thoracic reflex sympathetic dystrophy and that she had never implanted a spinal cord stimulator to treat thoracic pain.
Brookshire's assertions regarding Dr. Firmin's experience are technically accurate. However, these assertions are weakened by the fact that Dr. Firmin has treated several cases of reflex sympathetic dystrophy in both the lumbar and cervical parts of the spine. Moreover, Dr. Firmin has implanted a spinal cord stimulator into both of those other areas of the spine. Given the great latitude afforded to the trier of fact when conflicting expert medical opinions are expressed, we cannot find that the WCJ's reliance on Dr. Firmin's testimony was unreasonable given that Dr. Firmin saw Wilczewski more than any other physician whose opinion was put forth by Brookshire.
Brookshire next argues that the WCJ erred in misapplication of the standard concerning the admission of expert testimony, citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Brookshire contends that because Dr. Firmin had never treated, nor was there any literature available on, thoracic reflex sympathetic dystrophy, the WCJ should have not have accepted Dr. Firmin's opinions.
As noted above, while it is true that Dr. Firmin had not ever treated thoracic reflex sympathetic dystrophy, she had treated reflex sympathetic dystrophy in both the cervical and lumbar areas of the spine. Further, "when the objecting party fails to request a Daubert hearing, objections to the admissibility of an expert witness's testimony under Daubert are not preserved for appeal." Brown v. Schwegmann, 05-830, p. 6 (La.App. 4 Cir. 4/25/07), 958 So.2d 721, 724, writ denied, 07-1094 (La.9/21/07), 964 So.2d 333 (citing State v. Pickett, 03-1492 (La.App 3 Cir. 5/26/04), 878 So.2d 722).
Here, while Brookshire did object during Dr. Firmin's deposition and preserved those objections when the deposition was entered into the record at trial, at no point did it request a Daubert hearing. As such, we cannot make a determination *1224 of Dr. Firmin's status under Daubert for the first time on appeal.
Additionally, as the WCJ pointed out several times, the issue in the case was not whether Wilczewski actually had thoracic reflex sympathetic dystrophy, the issue is whether it was reasonable and necessary that she would benefit either diagnostically, or by obtaining relief, or both, from the trial of the spinal cord stimulator. As such, whether Dr. Firmin had ever treated anyone with reflex sympathetic dystrophy to that particular area of the spine is not of the utmost pertinence.
Accordingly, we find that Brookshire's contentions raised in these two assignments to be without merit. The WCJ was well within the discretion given to a trier of fact in weighing expert testimony.
ASSIGNMENT OF ERROR # 7:
Brookshire asserts that the WCJ erred in awarding Wilczewski judgment for a program of behavioral pain management. We do not agree.
Whether Wilczewski carried her burden to prove that she was entitled to the pain management program is factual in nature. Therefore, the standard of review in this assignment will again be that of manifest error as expressed in assignment of error #1.
The sole medical opinion as to whether Wilczewski needed a behavioral pain management program was given by Dr. James W. Quillin, Wilczewski's treating psychologist. He found that she had depression secondary to her chronic pain and that a behavioral pain management program could benefit her with both her pain and depression.
Brookshire points out that when Dr. Renee Culver, a psychiatrist, reviewed Wilczewski's records and performed a psychiatric evaluation, part of her diagnosis was possible malingering. Brookshire also points out that other physicians felt that Wilczewski was either malingering or greatly exaggerating her symptoms for secondary gain. These arguments are unconvincing.
Dr. Culver's actual diagnosis included three possibilities: (1) pain disorder associated with psychological factors; (2) factitious disorder; or (3) malingering. Brookshire's argument regarding Dr. Culver is curious as Dr. Culver did not discuss any recommendation relative to a pain management program or depression. Rather, Brookshire avers that Dr. Culver's report helps to show that Wilczewski did not prove that she was injured at work. Thus, according to Brookshire, Dr. Quillin's diagnosis that she needed the pain management secondary to that initial work injury was clearly incorrect. We have already concluded in assignment of error # 1 that the WCJ's finding that Wilczewski suffered a work-related injury was reasonable. Thus, this argument by Brookshire must fail.
Given the above, it is clear that the WCJ's decision to find that Wilczewski was entitled to a program of pain management was very reasonable. As such, we uphold his ruling in this regard.
ASSIGNMENTS OF ERROR #8 and #9:
Finally, Brookshire argues that the WCJ erred in awarding Wilczewski penalties and attorney's fees for Brookshire's failure to approve both the trial of the spinal cord stimulator and the behavioral pain management program. These arguments are without merit.
An employer is subject to penalties and attorney's fees should it fail to reasonably controvert an employee's claim. La.R.S. 23:1201(F); See also Leger v. A-1 Nursing Registry, 98-1731 (La.App. 3 Cir. 4/28/99), 737 So.2d 142, writ denied, 99-1555 *1225 (La.9/24/99), 749 So.2d 633. The standard of review for whether penalties and attorney's fees were appropriately assessed in a workers' compensation case is that of manifest error. See Bennett v. Pilgrim's Pride, 07-753 (La.App. 3 Cir. 12/12/07), 972 So.2d 423, writ denied, 08-103 (La.3/7/08), 977 So.2d 907.
When discussing the issue of penalties and attorney's fees, the WCJ stated the following:
[T]he employer, from it's own physician's reports, wanted to pick and choose those items which seemed to be favorable to itself without comparing those amongst themselves and seeing if they were even consistent or inconsistent. The depositions were not taken until shortly before this trial occurred in February of 2008 despite the fact the litigation was pending since June of 2007. The reports were in everybody's hands at least by September of 2007. There was ample time to go all the way to ... having noted all the inconsistencies in their own records and their own findings, and trying to find because it's the duty of the employer to investigate to find out what is going on, what is a medical condition, is there a medical condition and how do you get it diagnosed and how do you get it treated, and this they stopped short of doing by simply relying on the inconsistent reports and conclusions of the physicians in September of 2007, not going all the way.
After reviewing the record, we agree with the WCJ. Dr. Firmin testified that she requested the spinal cord stimulator in October of 2006 after first receiving a letter from Dr. Steven K. Staires dated August 16, 2006. Dr. Firmin sent Wilczewski to Dr. Staires, an interventional pain management specialist, for a second opinion because she was attempting to bolster her opinion that Wilczewski may benefit from trial use of a spinal cord stimulator in the thoracic spine. Eddie Crawford, the adjuster on Wilczewski's claim, testified that he was sure he got the request in October, but was not sure if it was in October of 2007 or 2006. However, Crawford did admit to receiving a copy of Dr. Staires' letter. In Dr. Staires' letter he wrote his impressions about chronic thoracic pain syndrome and possible complex regional pain syndrome, thoracic spine. Dr. Staires' letter further went on to read, "[r]ecommendations in view of the patient's chronicity and severity of symptoms, as well as her poor response to medication and other interventional treatments, I clearly see no contraindication to a trial of spinal cord stimulation with leads placed in the mid thoracic area."
This evidence supports the WCJ's position that Brookshire knew of the requested spinal cord stimulator in October of 2006, had ample time to investigate the matter, yet did not perform its statutory duty. As such, we uphold the award of penalties and attorney's fees related to the trial of the spinal cord stimulator.
Moreover, we also uphold the WCJ's decision to penalize and award attorney's fees on the denial of the behavioral pain management program. Dr. Quillin was the only expert medical evidence presented about whether Wilczewski needed this treatment. Brookshire attempted to hinge its denial of the pain management program on its belief that Wilczewski suffered no work-related injury and on the reports it received from evaluations made in preparation for litigation that did not even address the reasonableness of a behavioral pain management program. This is clearly a shirking of its duty to provide Wilczewski all reasonable and necessary medical care for her injury. Accordingly, we dismiss these assignments as without *1226 merit and uphold the WCJ's ruling in this regard.
ANCILLARY MATTER:
Wilczewski has asked that we award attorney's fees for work performed on appeal. We think that the resolution of this case warrants such an award.
Generally, when an award for attorney's fees is granted at the trial level, additional attorney's fees are proper for work done on appeal. This is to keep the appellate judgment consistent with the underlying judgment. See Bennett, 972 So.2d 423.
We have reviewed the appellate record and note that counsel for Wilczewski has successfully defended her award given by the WCJ, in its entirety. Given this fact, coupled with the number of issues Brookshire raised, we award $3,500.00 for work done on this appeal.
CONCLUSION:
Brookshire raised nine assignments of error. We found that all assignments lack merit. As such, we affirm the WCJ's judgment. Further, we award Wilczewski $3,500.00 in attorney's fees for work done on this appeal. All costs of this proceeding are assessed to Brookshire.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2319050/ | 32 A.3d 989 (2011)
TAYLOR
v.
DAVIS.
No. 200,2011.
Supreme Court of Delaware.
November 10, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584894/ | 187 P.3d 269 (2008)
163 Wash.2d 1039
STATE
v.
LAGERWEY.
No. 80657-8.
Supreme Court of Washington, Department I.
June 3, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571776/ | 2 So. 3d 936 (2006)
DARRYL LEE DAVIS
v.
STATE.
No. CR-05-1264.
Court of Criminal Appeals of Alabama.
October 6, 2006.
Decision of the Alabama Court of Criminal Appeal without opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576961/ | 325 N.W.2d 288 (1982)
STATE of South Dakota, Plaintiff and Appellee,
v.
Jan McNAMARA, Defendant and Appellant.
No. 13625.
Supreme Court of South Dakota.
Considered on Briefs September 7, 1982.
Decided October 20, 1982.
*289 Mikal Hanson, Asst.Atty.Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty.Gen., Pierre, on brief.
Catherine G. Ortner, Hot Springs, for defendant and appellant.
DUNN, Justice.
This is an appeal from a conviction of grand theft of livestock under SDCL 22-30A-17.[1] We affirm.
Jan McNamara (appellant) was employed by the Fall River Feedlot (feedlot), a commercial cattle feeding operation, as an assistant to the feedlot yard foreman. Appellant's duties at the feedlot included riding pens, doctoring and moving cattle, taking care of horses, and, in the event heifers in the feedlot had calves, selling those calves.
On or about August 30, 1980, appellant had a discussion with the lot manager at the feedlot concerning the possibility of a purchase of calves for appellant's mother. The lot manager testified that he told appellant a purchase could be arranged so long as they knew which cattle were involved and what pens they were out of so they could establish a price.
The following day, August 31, 1980, appellant sold five calves to Rick Roberts, a Nebraska rancher. Roberts originally made out a check payable to the feedlot for the full amount of $325. Thereafter, at appellant's direction, Roberts destroyed the check and made out two checks, one to the feedlot for $135, and the other for $190, with the payee slot left blank. Supposedly, separate checks were required because the calves came from separate pens. Appellant subsequently filled in his own name as payee on the second check and cashed it.
On September 26, 1980, Roberts received a phone call from appellant who told him the feedlot had objected to the way he sold the calves. To correct the situation appellant stated he was having the feedlot take the value of the calves out of his paycheck. This required appellant to return to Roberts the $135 check payable to the feedlot, and it required Roberts to make out a new check in the amount of $90 payable to appellant. Appellant stated his status as an employee allowed him to purchase the calves at a cheaper rate and he would pass along the savings to Roberts.
Several days later, Roberts received the $135 check in the mail along with a note and a self-addressed stamped envelope from appellant. Later that same day, Roberts received his bank statement and saw that appellant had filled in his own name on the *290 $190 check and had cashed it. Roberts became suspicious and called the feedlot general manager, who investigated the matter. The inquiry revealed no record of the sale and no knowledge of the sale by the feedlot management. Thereafter, appellant was charged with five counts of grand theft of livestock. That charge was later amended to one count of grand theft of livestock.
At trial, appellant claimed he had purchased three of the calves from the feedlot for his mother. Appellant testified he received authorization to purchase three calves for $190 from the lot manager during their August 30, 1980, conversation. Appellant then claimed he resold the three calves to Roberts for $190 and he believed the feedlot was going to take the sale price of those calves out of his paycheck. As to the other two calves, appellant claimed he forgot to turn in the $135 check and upon discovering it he decided to embezzle it. Appellant claimed he never intended to steal livestock and thus he should not be guilty of grand theft. The jury found appellant guilty of grand theft.
Appellant contends the trial court erred in failing to charge the jury with the lesser included offenses of petty theft for the $190 check and attempted petty theft for the $135 check. We do not agree.
In State v. Oien, 302 N.W.2d 807 (S.D.1981), this court stated that there are two tests for determining whether an offense is "necessarily included" in a greater offense, one legal and the other factual. Both tests must be satisfied before a "necessarily included" offense instruction is given. To meet the legal test, the trial court must be satisfied that:
(1) the elements of the included offense must be fewer in number than the elements of the greater offense, (2) the penalty for the included offense must be less than the greater charged offense, and (3) the two offenses must contain common elements so that the included offense must be such that the greater offense cannot be committed without also committing the lesser.
Id. at 809.
The third component is not met in this case. This component requires that the two offenses contain common elements, or, in other words, for the offense to be a necessarily included offense, it must be such that the greater offense cannot be committed without committing the lesser. While petty theft is limited to those cases where the property taken is valued at less than $200, value is not a consideration in grand theft of livestock. Thus, the greater offense of grand theft of livestock can be committed without committing the lesser offense of petty theft. We conclude the trial court did not commit reversible error in denying appellant's requested jury instructions on petty theft and attempted petty theft.[2]
Appellant next contends the trial court erred when it denied appellant's motion for mistrial. The motion for mistrial was based on statements made by the prosecutor in his closing argument. We find no support for appellant's contention in the record.
Since we have nothing other than appellant's paraphrased summary of the statements to review, we cannot conclude a clear abuse of discretion took place here. Counsel for both parties waived the recording and transcribing of the closing argument, so we cannot independently assess the conduct of the prosecutor. Since appellant's motion for a mistrial was denied, we have no choice but to conclude the trial court's assessment immediately following the alleged misconduct was correct. This, coupled with counsel's failure to request a specific instruction regarding this alleged improper statement, State v. Kidd, 286 N.W.2d 120 (S.D.1979) (Henderson, J., concurring), leads us to conclude it was not reversible error for the trial court to deny the motion to dismiss.
Appellant contends the trial court erred in denying his motion for mistrial when the *291 jury initially concluded it could not reach a unanimous decision. Appellant in effect argues that the trial court's instruction to "[p]lease continue your considerations of facts and law in an effort to arrive at a verdict" coerced the jury into reaching a unanimous decision. We cannot agree.
We believe the length of time a jury is to deliberate is within the wide latitude of discretion vested in the trial court. Error is only committed when the verdict is coerced by the trial court. Karell v. West, 616 S.W.2d 692 (Tex.Civ.App.1981) aff'd 628 S.W.2d 48 (Tex.1982). We do not find the trial court's charge to continue deliberating after the jury reported it could not reach a unanimous decision invaded the province of the jury, amounted to coercion, or denied the appellant a fair trial. The trial court's action did not rise to the type of coercion discussed in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) or in State v. Ferguson, 84 S.D. 605, 175 N.W.2d 57 (1970).[3]
Appellant contends the trial court erred in denying him the opportunity to call four witnesses to testify concerning the memory of one of the prosecution's rebuttal witnesses. We disagree.
The lot manager at the feedlot was called to testify on rebuttal regarding the August 30, 1980, conversation in which appellant indicated an interest in buying some calves. The lot manager testified that, contrary to appellant's statements, no authorization was given to purchase three calves for $190. Instead, the lot manager said he told appellant that any sales to appellant were contingent upon identifying the calves and getting a price. Appellant's counsel requested the opportunity to call four witnesses to testify as to the lot manager's capacity for remembering details. The request was denied. Appellant believes this testimony would have assisted the jury's determination as to the weight to accord to the lot manager's recollections.
Questions as to the relevance of proffered testimony, such as that available from appellant's witnesses, are committed to the discretion of the trial court and are not grounds for reversal or a new trial unless abuse is clearly demonstrated. Weiby v. Wente, 264 N.W.2d 624 (Minn.1978). Opinions of others as to the lot manager's memory were immaterial to the question of guilt or innocence of grand theft of livestock. Appellant had ample opportunity to cross-examine the lot manager's memory and additional testimony on the subject was not crucial to appellant's case. Thus, we reaffirm our view that the question of whether evidence is immaterial, conjectural or remote must be left to the practical judgment of the trial court and rests largely in its discretion. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977).
Finally, appellant contends there was insufficient evidence introduced at trial to support a verdict of guilty of grand theft. We recently stated that, in determining the sufficiency of the evidence on appeal, the Supreme Court is to examine whether there is evidence in the record which, if believed by the jury, is sufficient to establish a finding of guilt beyond a reasonable doubt. State v. Gallegos, 316 N.W.2d 634 (S.D.1982). Here, the record establishes that appellant sold Roberts five calves, which belonged to the feedlot, and kept the proceeds. The feedlot, on the other hand, did not receive any proceeds and was not even aware the transaction took place. The jury heard appellant's defenses that he did not intend to steal cattle; that he intended to pay for three head of the cattle out of his pay check; and that he decided to embezzle the $135 paid for the other two head of cattle. After due deliberation, the jury found defendant guilty of grand theft and there was sufficient evidence in the record to support this verdict.
We affirm.
*292 WOLLMAN, MORGAN and HENDERSON, JJ., concur.
FOSHEIM, C.J., dissents.
FOSHEIM, Chief Justice (dissenting).
The majority erroneously applies the third component of the legal test of a necessarily included offense. The opinion holds that the greater offense of grand theft of livestock can be committed without committing the lesser offense of petty theft. I disagree. In State v. Faulk, 22 S.D. 183, 116 N.W. 72, 74 (1908), we said:
But it seems to be generally held under the law applicable to larceny in this class of cases, where the value of the property alleged to have been stolen is not material, proof of its value is not necessary, as courts and jurors will presume from the nature and character of the property proved to have been stolen that it had some value. (citations omitted)
It is obvious from the nature and character of the property that livestock has some value. Otherwise livestock stealing would unlikely be a felony. If the stolen livestock have a valueunder two hundred dollarsthen under the legal test the greater offense of grand theft cannot be committed without committing the lesser offense of petty theft which covers property of any value up to two hundred dollars. SDCL 22-30A-17.
The majority opinion therefore should reach the factual test. Since the factual test is not discussed, I withhold comment as to that component.
NOTES
[1] SDCL 22-30A-17 provides:
Theft is grand theft, if:
(1) The value of the property stolen exceeds two hundred dollars;
(2) The property stolen is livestock or a firearm;
(3) Property of any value is taken from the person of another; or
(4) In the case of theft by receiving stolen property, the receiver is a dealer in stolen property, the value of the property stolen exceeds two hundred dollars in value, or the property stolen is livestock or a firearm.
Theft in all other cases is petty theft. Grand theft is a Class 4 felony. Petty theft is divided into two degrees. Petty theft of one hundred dollars or more is in the first degree and is a Class 1 misdemeanor. Petty theft of less than one hundred dollars is in the second degree and is a Class 2 misdemeanor.
[2] Since the legal test has not been met, we find it unnecessary to review the factual test as set forth in State v. Oien, 302 N.W.2d 807 (S.D.1981).
[3] We note appellant's assertion that the verdict was the result of fatigue, exhaustion and weariness of some of the jurors. We cannot accept this interpretation of the jury deliberations, however, since there is no credible evidence in the record to substantiate the allegations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584814/ | 187 P.3d 269 (2008)
163 Wash.2d 1039
STATE
v.
VAN TRENT.
No. 80681-1.
Supreme Court of Washington, Department I.
June 3, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917781/ | 178 B.R. 683 (1995)
In re Bill NORWOOD a/k/a William Norwood, Debtor.
Bankruptcy No. 94-12845 SR.
United States Bankruptcy Court, E.D. Pennsylvania.
March 3, 1995.
*684 Gail J. Edwards, Philadelphia, PA.
Angus Love, Pennsylvania Institutional Law Project, Philadelphia, PA.
Frederick L. Reigle, Reading, PA.
MEMORANDUM OPINION
STEPHEN RASLAVICH, Bankruptcy Judge.
Introduction
Presently before the Court is the objection of Creditor Sylvester Allen Porter ("Porter") to the confirmation of the amended Chapter 13 plan ("Amended Plan") proposed by debtor Bill Norwood a/k/a William *685 Norwood ("Debtor").[1] A hearing on the objection was held on January 27, 1995, after which the Court took the matter under advisement for disposition by memorandum decision.
Jurisdiction
The Court has jurisdiction over the parties and subject matter of this core proceeding pursuant to 28 U.S.C. §§ 1334, 157(a), 157(b)(1), 157(b)(2)(A) and (L).
Background
On April 6, 1994 Debtor filed a petition for relief under Chapter 13 of the United States Bankruptcy Code (11 U.S.C. §§ 101-1330) ("Code") in the Bankruptcy Court for the Eastern District of Pennsylvania ("Court"). Debtor initially filed a proposed Chapter 13 plan on the same day. The first meeting of creditors pursuant to Code § 341 was held on July 1, 1994. The hearing on confirmation of the Debtor's proposed plan was originally scheduled for October 21, 1994.
Porter is an unsecured creditor of Debtor by virtue of a civil judgment he obtained in the District Court for the Middle District of Pennsylvania ("Judgment") (Exhibit P-1). The Judgment, in the amount of $60,000, was entered on July 7, 1993. The Judgment was awarded to Porter on the basis of a sexual assault committed against him by Debtor on August 31, 1987 at the Camp Hill state correctional facility. At the time of the sexual assault Debtor was a civilian employee at Camp Hill, engaged as a tailoring trades instructor. Porter was an inmate there in August 1987. After the incident on August 31, 1987, Debtor was suspended from his position pending investigation, and was subsequently dismissed, effective October 15, 1987, for Department of Corrections Code of Ethics violations, concerning, inter alia, improper contact and fraternization with inmates, and breaches of correctional facility policy concerning the control of security keys by personnel. Exhibit P-6 (Appeals Board Decision at pp. 1-2, and Dismissal Letter of October 14, 1987).
Debtor did not defend against the District Court action. In the Memorandum and Order issued by the District Court on or about the same day that the Judgement was entered ("Memorandum and Order") (Exhibit P-3), the court noted that: "By letter dated February 3, 1993, Defendant's counsel advised the Court that Defendant would not defend or contest the action (doc. of record 77)." Id. at p. 2, n. 2. Having already entered judgment against Debtor on the issue of liability because Debtor did not contest the action, id. at p. 2, the District Court proceeded to the issue of damages in the Memorandum and Order. Id. Despite the fact that Debtor did not appear at the trial on the issue of damages, the District Court heard the testimony of Porter and incorporated the following findings into the Memorandum and Order:
Plaintiff testified that during the course of the rape he felt `inhuman like an animal; was in pain; was humiliated and the episode was a period of craziness.' Since the episode, his personality has changed in that he is afraid of people and tries to stay away from people. He experiences nightmares and what he calls `daymares'[.] He explains his daymares as flashbacks whenever he sees a correctional officer wearing a brown shirt. Plaintiff was committed to solitary confinement after reporting the episode.
Exhibit P-3, at p. 2 (In a footnote the District Court states that the Defendant, the Debtor herein, "wore an institutional shirt which was tan or brown.").
Based on the above findings, the District Court concluded that "Plaintiff is entitled to compensatory damages in the sum of $50,000 and punitive damages in the sum of $10,000, plus an award of counsel fees." Id. It does *686 not appear from the record presented before this Court that Debtor ever appealed or sought reconsideration of the District Court Judgment.
At the hearing before this Court on January 27, 1995, Debtor admitted the entry of the Judgment against him. Debtor asserts that he did not defend against the action because he was not working at that time and could not afford to do so. Transcript at pp. 7-8. At the hearing, Debtor also denied ever having raped or sexually assaulted Porter. However, Debtor has not challenged the competency of the District Court to have entered the Judgment against him, nor has he asserted any other possible basis for collaterally attacking the Judgment in this Court. Accordingly, this Court is bound by the determinations made by the District Court on the issues of liability and damages. See In re Garafano, 99 B.R. 624 (Bankr.E.D.Pa.1989).
On or about December 6, 1993, Porter filed a motion for writ of execution to enforce the judgment against Debtor. See Order of the District Court entered on February 16, 1994 (Exhibit P-4). The District Court later deemed this motion to have been withdrawn, after having previously suggested to Porter by letter that he file and serve interrogatories on Debtor to discover what assets the Debtor might have in order to satisfy the Judgment. Id. Having apparently served such interrogatories without response, Porter subsequently moved for, and obtained an Order from the District Court on June 27, 1994 (Exhibit P-5), directing the Debtor to respond to the interrogatories on or before July 27, 1994, or face sanctions or contempt of court. Id. Prior to entry of this Order, however, Debtor filed his petition under Chapter 13 on May 6, 1994. The date on which Porter initially filed the motion to compel answers to his interrogatories was not made a part of the record in this proceeding.
Debtor testified at the hearing that he is currently employed as a private security guard and that he earns approximately $665.00 per month in net take home pay. In amended Schedule I, however, filed on December 2, 1994, Debtor lists monthly gross income of $1116.00 less payroll deductions for taxes and social security in the amount of $284.00, leaving him with net monthly take home pay of $832.00. This discrepancy may be explained by a pay increase Debtor testified having recently received earning him another $1.75 per hour. Extending this out on a monthly basis, Debtor now earns about another $262.50 per month gross, based on the 37.5 hour work week he testified having. Debtor also testified that he has approximately another $200.00 per month available to him from both his mother and his sister to assist him in making the payments under his proposed plan. Debtor included the $200.00 contribution from family members as additional monthly income in both the original and in Amended Schedule I.
On October 28, 1994, Trustee filed a motion to dismiss the case on the basis that Debtor's plan did not appear to be feasible. At the hearing on confirmation, however, Counsel for the Trustee represented that Debtor filed an amended plan on January 20, 1995,[2] which substantially resolved the Trustee's objection.[3] Under the Amended Plan, Debtor now proposes paying $278.94 per month to the Trustee for a period of 54 months for payment in full of secured claims, totalling $11,370.87, and payment of priority unsecured claims in the amount of $3,236.63. Like the original plan, the Amended Plan calls for no payments to unsecured nonpriority creditors whose claims are listed in Debtor's Schedule F as $64,864.16.[4]
Porter filed his objection to the original plan on July 19, 1994. Porter's objection was heard at the January 27, 1994, hearing on confirmation. While acknowledging that the discharge afforded debtors under Chapter 13 is broader than that provided under Chapter 7 and generally allows for the discharge of obligations that would not otherwise be dischargeable in Chapter 7 pursuant to Code *687 § 523(a), Porter contends that the Amended Plan was proposed for the improper purpose of frustrating his ability to ever collect on the Judgment and was therefore not proposed in good faith as required by Code § 1325(a)(3). Accordingly, Porter contends that the proposed plan, as amended, must be denied confirmation. Debtor contends that he filed his Chapter 13 petition and proposed the Amended Plan for the purpose of saving his home from loss due to foreclosure and sheriff's sale.
Discussion
Bankruptcy Code § 1325(a) requires the bankruptcy court to confirm a proposed Chapter 13 plan if the six criteria set forth in that subsection are satisfied. See e.g. In re Pearson, 90 B.R. 638, 644 (Bankr.D.N.J. 1988). Porter has objected to confirmation of Debtor's Amended Plan on the ground that the plan does not satisfy the "good faith" requirement contained in subsection (a)(3).[5] In relevant part, this provision states:
(a) Except as provided in Subsection (b), the court shall confirm a plan if
(3) the plan has been proposed in good faith and not by any means forbidden by law;
Id.
The debtor, as with each of the other confirmation criteria specified in Code § 1325(a), bears the burden of establishing that its plan is proposed in good faith. See e.g. In re Stewart, 172 B.R. 14 (W.D.Va. 1994); In re Thomas, 118 B.R. 421, 423 (Bankr.D.S.C.1990); c.f. In re Hines, 723 F.2d 333 (3rd Cir.1983) (objecting party has burden of proving facts negating debtor's good faith in proposing the plan where the report of the standing trustee states that the plan satisfies the requirements of Code § 1322 and § 1325 and trustee recommends confirmation). However, the term "good faith" is not defined by the Code, nor was it defined in the predecessor section of the former Bankruptcy Act of the United States ("Bankruptcy Act"). See 5 Collier on Bankruptcy, ¶ 1325.04 (15th ed. 1994).
As noted in In re March, 83 B.R. 270, 273 (Bankr.E.D.Pa.1988), the determination of what factors should be applied by a court in evaluating good faith has long been a source of dispute among the courts. Prior to the Bankruptcy Amendments and Federal Judgeship Act of 1984 ("BAFJA") many of the Circuit Courts of Appeals had compiled lists of factors which were to be considered when conducting this evaluation.[6]See e.g., In re Estus, 695 F.2d 311 (8th Cir.1982); Deans v. O'Donnell, 692 F.2d 968 (4th Cir. 1982); In re Goeb, 675 F.2d 1386 (9th Cir. *688 1982); In re Rimgale, 669 F.2d 426 (7th Cir.1982). These courts, and others, generally agreed, however, that the term good faith as used in Code § 1325(a)(3) was to be accorded no broader meaning than that which the term previously had under the former Bankruptcy Act. See In re Johnson, 708 F.2d 865 (2d Cir.1983); Barnes v. Whelan, 689 F.2d 193 (D.C.Cir.1982). Broadly speaking, this inquiry related to "whether or not under the circumstances of the case there has been an abuse of the provisions, purpose, or spirit of [Chapter 13] in the proposal or plan. . . ." Deans v. O'Donnell, supra, 692 F.2d at 972 (citations omitted).
Many of the factors previously considered to be relevant to the good faith determination were eliminated by passage of BAFJA. Educational Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987); In re March, supra, 83 B.R. at 274. As a result of the 1984 amendments the inquiry into whether a Chapter 13 plan was proposed in good faith has taken on a more narrow focus, Zellner, supra, 827 F.2d at 1227, and now principally concentrates on the following factors: a) whether the debtor has stated his debts and expenses accurately; b) whether he has made any fraudulent misrepresentations to mislead the bankruptcy court; c) or whether he has unfairly manipulated the Bankruptcy Code. Id.; In re Carsrud, 161 B.R. 246, 251 (Bankr.D.S.D.1993); In re March, supra, 83 B.R. at 275; In re Gathright, 67 B.R. 384 (Bankr.E.D.Pa.1986), appeal dismissed, 71 B.R. 343 (E.D.Pa.1987). The inquiry, however, still has at its heart the determination of whether under the circumstances of the entire case, there has been an abuse of the "`provisions, purpose, or spirit of [Chapter 13]'" in the proposed plan. See Matter of Smith, 848 F.2d 813, 818 (7th Cir.1988) (quoting In re Rimgale, supra, 669 F.2d at 431; Thomas, supra 118 B.R. at 423. The determination is one which must be made on a case by case basis. Thomas, supra, 118 B.R. at 423.
In conducting this analysis, however, the court must be cautious not to engage in "moralizing" egregious conduct committed by the debtor prepetition. See generally In re Chura, 33 B.R. 558, 560 (Bankr.D.Colo. 1983); Cf. In re Gathright, supra, 67 B.R. at 387-88 (while not agreeing with this court that the nature of how a particular debt arose is irrelevant for purposes of determining good faith under Code § 1325(a)(3), the Gathright court notes that a bankruptcy court must not get caught up "in the heat of outrage against a particular debtor" seeking a discharge in Chapter 13 of debts which would be nondischargeable in Chapter 7). It must be borne in mind that one of the primary purposes of the bankruptcy discharge is to provide the honest but unfortunate debtor with a fresh start unencumbered by a mountain of insurmountable debt. A court must therefore be careful to see to it not only that the legitimate purposes of bankruptcy are served, but also that these legitimate purposes are not abused by one who would employ the benefits of a discharge for an improper purpose, such as to hinder, delay, or frustrate a particular creditor. See e.g. In re March, supra, 83 B.R. at 275; c.f. In re Julius Roehrs, Co., 115 F.2d 723, 724 (3rd Cir.1940) (stating that the test of good faith of a plan filed under Chapter X of the Bankruptcy Act was "whether it was reasonable to expect that [the plan could be effected]; that there was opportunity and need for reorganization and that the petition was filed with the honest intention of effecting it and not for the purpose of hindering and delaying creditors." (emphasis added)). The foregoing principles in mind, the Court now considers the Amended Plan proposed by Debtor and the objection thereto interposed by Porter.
In the matter sub judice, while Porter contends that Debtor misstated his debts by failing to include certain tax obligations in his bankruptcy schedules,[7] the thrust of his objection *689 is that the Amended Plan constitutes an attempt by Debtor to manipulate the Bankruptcy Code to his personal advantage for the purpose of frustrating his ability to ever collect the judgment. Thus, Porter's objection focusses primarily on the third factor cited above. To wit, whether Debtor has unfairly manipulated the Bankruptcy Code.
Porter, whose claim is based on a civil judgment awarding damages against Debtor stemming from a sexual assault on Porter, is the Debtor's single largest creditor. Debtor's Amended Plan proposes no payments to Porter on account of that Judgment. Because the Chapter 13 discharge is broader than that provided in Chapter 7, Chapter 13 affords Debtor the opportunity to discharge this debt even though such debt would likely be nondischargeable in a Chapter 7 proceeding under Code § 523(a)(6). See generally, In re Short, 176 B.R. 886, 888-89 (Bankr.S.D.Ind.1995); In re Chase, 28 B.R. 814, 818-19 (Bankr.D.Md.1983) ("Chase I"). That the Debtor has resorted to a section of the Code that would afford him a discharge of a debt that would be nondischargeable in Chapter 7 does not in and of itself provide a sufficient basis from which to conclude that the plan was proposed in bad faith. See Matter of Smith, supra, 848 F.2d 813; Nuefeld v. Freeman, 794 F.2d 149, 152-53 (4th Cir.1986); Thomas, supra, 118 B.R. at 423. However, "Resort to the more liberal discharge provisions of Chapter 13 . . . may well signal an `abuse of the provisions, purpose, or spirit' of the [Code], especially where a major portion of the claims sought to be discharged arises out of pre-petition fraud or other wrongful conduct and the debtor proposes only minimal repayment of these claims under the plan." Nuefeld, supra, 794 F.2d at 152-53; see also Noreen v. Slattengren, 974 F.2d 75, 77 (8th Cir.1992) (affirming denial of confirmation where debtor filed Chapter 13 case, in part, to prevent victim of sexual abuse from proceeding with civil law suit brought against him); In re Carsrud, supra, 161 B.R. 246 (Chapter 13 plan denied confirmation on good faith grounds where, inter alia, plan proposed payment of only 2.4% of civil judgment entered against Debtor for sexual assault and rape of his natural sister); In re Chase, 43 B.R. 739 (D.Md.1984) ("Chase II") (reversing order confirming plan proposing payment of approximately one third of consent judgment agreed to by debtor in exchange for creditor's agreement not to testify at sentencing hearing following debtor's conviction for sexual assault of minor child. Debtor entered into consent judgment without intention of honoring it, made no attempt to pay, and filed for Chapter 13 relief immediately after garnishment proceedings were commenced).
When viewed as a whole, it is apparent that Debtor has proposed the Amended Plan primarily as a means of sidestepping any responsibility whatsoever for the civil judgment entered against him for sexually assaulting Porter. Debtor's plan proposes full payment to secured creditors and unsecured priority creditors, whose claims comprise only approximately 18% of Debtor's total debt, while proposing no payment whatsoever to Porter, his most substantial creditor, whose claim comprises approximately 76% of the total debt in this case. While Debtor testified that he did not defend against the civil suit because he could not afford to do so, the Court finds this explanation implausible since Debtor's poor finances should not have prevented him from appearing pro se and putting in a defense, or at least answering the complaint with some form of general denial.[8] On the contrary, as the District Court noted, it was Debtor's counsel that notified the court that Debtor would not "defend or contest the action. . . ." Exhibit P-3. Debtor's real reason for not defending the action would appear to be the belief that he had nothing to lose at that time by simply not defending the action and just letting a judgment be entered against him. On direct examination in response to the *690 question "what did [your attorney] Mr. Diti advise you with respect to defending [the] action", Transcript, at p. 16, Debtor testified:
[A]t that time, I was renting and he asked me did I own anything? I told him, no, which I did not. . . . [A]t that time I was just renting an apartment and I didn't own anything, don't have a car. . . . And I felt at that time . . . that if [Porter] wanted to file a . . . claim against me . . . and because I could not afford to hire an attorney to fight [it], that I told him that I could not fight it; I wouldn't because I don't own anything and if he wanted to sue me, he could sue me.
Id.
Debtor further testified that he was advised by his counsel to "just let the case go." Id. In response to whether he had been advised to file a bankruptcy rather than defend the action, Debtor admitted that his attorney had so advised him, but added that since he did not own anything at the time there was no sense to filing a bankruptcy. Id. While this may have been the case at the time of the civil proceeding, Debtor testified on cross-examination that in or about 1992 he acquired his current residence, the real property listed in Schedule A[9] which is located at 1318 North Hunting Park Avenue in Philadelphia. Debtor testified that while he had lived at this address for fourteen years, by renting it, he commenced purchasing the property in or about 1992, and entered into a mortgage to purchase same.
Debtor testified that the only reason he filed his Chapter 13 petition when he did was to prevent the loss of his residence at a sheriff's sale. Even assuming this to be the case[10] and assuming that debtor had a valid reason for initially filing the petition, these factors can not save a plan which has been proposed for an improper purpose. Cf. In re Chura, supra, 33 B.R. 558, 559-60 (although finding that the debtor had experienced financial difficulties, the court concluded that the debtor's overall purpose was not to effect rehabilitation, but rather to evade responsibility for a nondischargeable judgment by absolving it through bankruptcy rather than the appellate process). Rather, it appears to the Court that the Chapter 13 plan has been proposed for the purpose of preventing Porter from ever recovering on the Judgment from any property now owned or subsequently acquired by Debtor. From Debtor's testimony it is apparent that he did not bother to defend against the District Court action because at the time he did not own anything of value which Porter could seize if judgment were entered against him. Debtor also apparently never considered himself obligated to Porter for the Judgment amount as Porter had been attempting, without success, to collect on the Judgment at least since December of 1993, when he filed a motion for a writ of execution. See Exhibit P-4. Subsequently, Porter served interrogatories on Debtor in an attempt to discover what property Debtor might have to satisfy the Judgment. However, after the interrogatories went unanswered, Porter was again required to seek the assistance of the District Court and obtained an Order compelling Debtor to respond. Exhibit P-5. But by the time that this Order was entered it was too late for Porter because Debtor had already filed his Chapter 13 petition.
Aside from the $60,000 claim of Porter, the only other unsecured nonpriority claims of Debtor are for debts owed to several utilities totaling $4,699.71. Having failed to defend the District Court action believing that he was judgment proof, it is evident that the Debtor chose Chapter 13 as a means of absolving himself of liability from an otherwise nondischargeable debt without the need of making any payment thereon while still retaining the benefit for himself of the property he acquired after entry of the Judgment. On balance, it appears that the effort here is not toward financial rehabilitation, but rather it is an effort to evade responsibility *691 from ever having to pay the Judgment. The Court also notes that in filing amended bankruptcy schedules on December 2, 1994, Debtor omitted both his residence and personal property from the assets column in the Summary of Schedules. Whether this was by design or was merely a careless error, as it stands now, however, the Amended Summary of Schedules now misstates Debtor's financial picture.[11]
Based on the foregoing the Court concludes that Debtor proposed the instant Chapter 13 plan for the purpose of avoiding any liability to Porter based on the Judgment, and has therefore not proposed the Amended Plan in good faith as required by Code § 1325(a)(3). Accordingly, confirmation of the Amended Plan must be denied.
Additionally, based on the Court's independent duty to determine if a proposed plan complies with the provisions of Code § 1325, see In re Szostek, 886 F.2d 1405 (3rd Cir.1989); In re Fricker, 116 B.R. 431 (Bankr.E.D.Pa.1990), the Court finds that the Amended Plan can not be confirmed because it also fails to satisfy the feasibility requirement of Code § 1325(a)(6). In the Amended Plan, Debtor proposes that his living expenses and or plan payments will be funded in part by gratuitous contributions from both his mother and his sister in the amount of $200.00 per month. Without these contributions Debtor does not have sufficient disposable income to both fund the plan and to pay his living expenses.
While it is possible that contributions from close family members can be included by a debtor as income available for distribution under a Chapter 13 plan, see In re Rowe, 110 B.R. 712, 717-18 (Bankr. E.D.Pa.1990), it is incumbent on the debtor to satisfactorily establish that the contributions are sufficiently "stable and regular to enable [the debtor] to make payments under a plan under Chapter 13. . . ." Code § 101(30); see also, In re Sigfrid, 161 B.R. 220, 221-22 (Bankr.D.Minn.1993); Code § 109(e).
The record before the Court is devoid of any relevant information which the Court would need in order to determine if the payments from his mother and sister are sufficiently stable and regular so as to allow the Debtor to rely on them in funding the Amended Plan. In the first instance, Debtor's own description of the availability of the payments to him, essentially that they are to be provided on an as needed basis, is telling in and of itself. Contributions that are only available to Debtor when they are needed are by their very nature not stable and regular. Moreover, while Debtor testified that his mother's income is derived from payments she receives from Social Security, he did not disclose the amount of these payments on a monthly basis. Similarly, Debtor did not disclose the source and amount of his sister's income. Also, Debtor did not provide any information concerning the expenses and liabilities that both his mother and sister are already burdened with. In the absence of such information it is not possible to determine whether the contributions Debtor expects to receive from these family members may be considered sufficiently stable and regular for purposes of funding the Amended Plan. See In re Sigfrid, supra, 161 B.R. at 222-23. Debtor also failed to provide any proof, such as by sworn affidavits or testimony from his mother and sister, demonstrating that they have the requisite commitment and ability to provide the funding to him on a consistent basis for the duration of the Amended Plan. C.f. In re Campbell, 38 B.R. 193 (Bankr.E.D.N.Y.1984) (confirming Chapter 13 plan funded in part by contributions from the debtor's sister, who was liable with the debtor, and daughter, who was dependent on the debtor and resided with her, conditioned on submittal of affidavits demonstrating their commitment and ability to make such contributions). Accordingly, Debtor has failed to establish that he has sufficient income with which to fund all of the payments called for under the Amended Plan, and also that the Amended Plan is feasible. Thus, the Amended Plan fails to meet the requirements of Code § 1325(a)(6).
Based on the foregoing, the Amended Plan can not be confirmed under Code *692 § 1325(a)(1) because it was not proposed in good faith, and therefore does not satisfy the requirements of Code § 1325(a)(3), and also because Debtor failed to sufficiently prove that the Amended Plan is feasible pursuant to Code § 1325(a)(6). Debtor shall be provided the opportunity to address these deficiencies, and therefore may file an amended plan within twenty days after entry of this Memorandum Opinion. If an amended plan is not filed at the end of twenty days, the case will be dismissed.
An order consistent with the terms of this Memorandum opinion shall be entered.
ORDER
AND NOW, this 3rd day of March 1995, upon consideration of the objection of Creditor Sylvester Allen Porter to the confirmation of the Amended Chapter 13 Plan proposed by Debtor, and after a hearing and consideration of the evidence presented, it is hereby
ORDERED that the findings of fact and conclusions of law contained in the Court's Memorandum Opinion issued of even date with this Order are incorporated herein; and it is further
ORDERED that the Amended Chapter 13 Plan proposed by Debtor is denied confirmation for the reasons stated in the Memorandum Opinion; and it is further
ORDERED that debtor shall have 20 days from entry of this Order to file an amended plan, or if an amended plan is not filed at the end of such period then the case will be dismissed.
IT IS SO ORDERED.
NOTES
[1] Also before the Court is the motion of the Chapter 13 trustee ("Trustee") to dismiss the case on the basis that the proposed plan does not appear to be feasible. At the hearing, however, counsel for the Trustee represented to the Court that Debtor had filed an amended plan which substantially addressed Trustee's concerns and that while a further "technical correction" would still be required in order to fully fund the plan, the Trustee "would in all likelihood, recommend confirmation [to] give the debtor an opportunity to perform under the plan . . ." Transcript of Hearing of January 27, 1995 ("Transcript") at p. 3. In light of this, the Court shall consider Trustee's motion to dismiss the case as having been withdrawn.
[2] A review of the docket in this case reveals that Debtor had previously filed an amended plan on December 2, 1994.
[3] The Court therefore deems Trustee's motion as having been withdrawn. See note 1, supra.
[4] Upon examination of Schedule F, however, it appears that the total amount listed is incorrect and the actual total of the debts listed is the sum of $64,699.71.
[5] Code § 1325(a) states:
(a) Except as provided in subsection (b), the court shall confirm a plan if
(1) the plan complies with the provisions of this chapter and with the other applicable provisions of this title;
(2) any fee, charge, or amount required under chapter 13 of title 28, or by the plan, to be paid before confirmation, has been paid;
(3) the plan has been proposed in good faith and not by any means forbidden by law;
(4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date;
(5) with respect to each allowed secured claim provided for by the plan
(A) the holder of such claim has accepted the plan;
(B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and
(ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or
(C) the debtor surrenders the property securing such claim to such holder; and
(6) the debtor will be able to make all payments under the plan and to comply with the plan.
[6] The most notable of the pre BAFJA decisions is In re Estus, supra, 695 F.2d at 317, wherein the 8th Circuit noted the following factors:
(1) the amount of the proposed payments and the amount of the debtor's surplus; (2) the debtor's employment history, ability to earn and likelihood of future increases in income; (3) the probable or expected duration of the plan; (4) the accuracy of the plan's statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court; (5) the extent of preferential treatment between classes of creditors; (6) the extent to which secured claims are modified; (7) the type of debt sought to be discharged and whether any such debt is nondischargeable in Chapter 7; (8) the existence of special circumstances such as inordinate medical expenses; (9) the frequency with which the debtor has sought relief under the Bankruptcy [Code]; (10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; and (11) the burden which the plan's administration would place upon the trustee.
Id.
[7] Debtor testified that he amended his schedules and the Plan to include the tax liability once he became aware of his liability for back taxes. It does not appear that the original omission was intended to be deceptive since the inclusion of the tax liability does not materially affect the treatment of any claims under the Amended Plan.
[8] While it is not fully clear from the record before the Court, it appears that Porter may well have prosecuted the District Court action himself appearing pro se. At the very least, however, it seems relatively certain that the action was commenced by Porter pro se since the Complaint, Exhibit P-2, was not signed by counsel, but rather by Porter himself.
[9] In Debtor's amended summary of schedules, filed on December 2, 1994, Debtor failed to include his ownership of any real property. The residence was previously listed in schedule A and was included on Debtor's original summary of schedules filed with the petition.
[10] Debtor introduced no evidence to substantiate that a foreclosure had occurred or that a sheriff's sale was imminent at the time that the petition was filed.
[11] See also note 4, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917784/ | 178 B.R. 853 (1995)
In re HIGGINS SLACKS COMPANY.
Bankruptcy No. 91-40270.
United States Bankruptcy Court, N.D. Alabama.
March 10, 1995.
Robert L. Shields, III of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, AL, for debtor.
Harvey Wachsman of Gordon, Silberman, Wiggins & Childs, Birmingham, AL, for Unsecured Creditors' Committee.
MEMORANDUM OPINION
JAMES S. SLEDGE, Bankruptcy Judge.
FACTS
On February 21, 1995, this case under chapter 11 of the Bankruptcy Code came before this Court for confirmation of the debtor in possession's ("DIP") plan of reorganization. Appearing before the Court were Robert Shields, attorney for the DIP, David Evans, attorney for BancBoston, Harvey Wachsman, attorney for the unsecured creditors committee, Olin Brooks for the bankruptcy administrator, and Jules Stine as *854 chief executive officer of the debtor in possession. An objection to the plan was filed and subsequently withdrawn. Pre-petition, the DIP was engaged in the production and sale of men's pants and shorts. The DIP was the largest employer in a small community. During the pendency of the case, the DIP conducted a liquidation which the plan proposes to complete. The DIP, creditors, and the local community cooperated to sell the principal assets to a new company formed to continue the business and preserve the employees' jobs. Despite this coordinated effort, there remained approximately $5.5 million in general unsecured claims.
Prior to the confirmation hearing, the debtor filed with the Court a summary and report of balloting. The summary of ballots submitted by the DIP's attorney indicated that all impaired classes which voted had accepted the plan. Class 8, representing the existing shareholders of the DIP, was deemed not to have accepted the plan pursuant to 11 U.S.C. § 1126(g). The ballot summary also indicated that classes 1, 4, 5, and 7 which are impaired under the plan, failed to return any ballots either accepting or rejecting the plan.[1] Class 1, holders of administrative claims and expenses, was to receive on the confirmation date, or as soon as practicable thereafter, cash in the amount of their claims or, if a professional employed at the expense of the estate, cash in the amount awarded by order of the Bankruptcy Court. Under the plan, payments payable to Class 1 claimants had been limited and these claimants waived part of their claims. Class 4, the allowed unsecured claims against the debtor for contributions to an employee benefit plan entitled to priority pursuant to 11 U.S.C. § 507(a)(4), was to receive a pro rata distribution from the Liquidation Fund expected to be approximately $45,000.00. The $45,000.00 was a reduction of the amount claimed by members of this class. Class 5, consisting of priority tax claims, had been limited to $10,000.00.
At the hearing, the DIP presented testimony establishing that the plan as filed complied with all of the requirements of 11 U.S.C. § 1129(a)(1)-(7) and § 1129(a)(10)(12). On the ballot summary and at the confirmation hearing, the DIP sought to treat the classes that failed to vote either for or against the plan as having been deemed to accept the plan. The DIP's contention was that a class had to actually cast a negative ballot in order to count as not accepting the plan. Thus, the requirement of 11 U.S.C. § 1129(a)(8)[2] would be met for classes 1,4, and 5. If the DIP were correct, only classes 7 and 8 would be deemed not to have accepted the plan (pursuant to 11 U.S.C. § 1126(g)) and the plan could be confirmed pursuant to § 1129(b) (commonly referred to as a "cramdown").
DISCUSSION
The issue to be addressed is how to treat classes that neither vote to accept or reject a chapter 11 plan. There are two lines of cases on this issue. The line of cases, represented by In re Ruti-Sweetwater, Inc., 836 F.2d 1263 (10th Cir.1988), holds that when a class fails to vote either to accept or reject a plan, the class is deemed to accept the plan. The other line of cases, represented by In re Townco Realty, Inc., 81 B.R. 707 (Bkrtcy. S.D.Fla.1987), holds that when a class of creditors fails to vote either to accept or reject a plan, the class is not deemed to accept. The Eleventh Circuit Court of Appeals has not addressed this issue. Upon review of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, the Court follows the line of cases represented by In re Townco Realty, Inc. as better reasoned.
*855 IN RE RUTI-SWEETWATER, INC.
The Court in Ruti-Sweetwater was dealing with a complicated reorganization of eight related entities which were engaged in the business of vacation timesharing. At the time the debtors filed their petitions, they were facing demands by both secured and unsecured creditors in the millions of dollars as well as the obligations owed to the timeshare owners. The debtors filed a complicated 120 page plan with 83 separate classes of secured claims and 40 classes of timeshare owners. The Bankruptcy Court established the dates by which written objections to the plan were to be filed and votes cast.[3] The Bankruptcy Court held a confirmation hearing on the debtors' plan after the bar dates for filing objections and voting.[4] At the confirmation hearing, the Bankruptcy Court ruled that non-voting creditors were deemed to have accepted the plan for purposes of 11 U.S.C. § 1129(b)(1).[5] The Bankruptcy Court confirmed the debtors' plan based upon this assumption.
The Heins were secured creditors who held a judgment lien in the amount of $30,000.00 plus $8,000.00 in interest. The judgment lien had attached to a parcel of real estate known as the Ferrell Spencer property. As part of the plan of reorganization, the Ferrell Spencer property was to be sold and the Heins' lien would be transferred to unsold timeshare units.[6] The plan of reorganization classified the Heins as a separate subclass entitled to vote as a separate class. The Heins had not voted or objected prior to confirmation.
After confirmation of the debtors' plan, the Bankruptcy Court held a hearing concerning the proceeds of the sale of the Ferrell Spencer property; it was at this hearing that the Heins first challenged the plan. At the hearing, the Bankruptcy Judge held that the debtors plan treated the Heins' claim properly and that they were governed by the plan. Id. at 1265. The Heins appealed the order of the Bankruptcy Court confirming the debtors' plan. The District Court specifically addressed the issue of whether a failure to vote by an entire class of creditors should be deemed an acceptance. The District Court held "as a matter of law that a non-voting, non-objecting creditor who is a member of a class that casts no votes is deemed to have accepted the plan of reorganization for the purposes of section 1129(a)(8) and 1129(b)." In re Sweetwater, 57 B.R. 748, 750 (D.Utah 1985). The Heins appealed this decision.
Relying heavily on the District Court's analysis, the Tenth Circuit Court of Appeals affirmed the District Court's decision. The Court reasoned that to rule otherwise "would be to endorse the proposition that a creditor may sit idly by, not participate in any manner in the formulation and adoption of a plan in reorganization and thereafter, subsequent to the adoption of the plan, raise a challenge to the plan for the first time." In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266. The Tenth Circuit placed an affirmative obligation on creditors "to take an active role in protecting their claims. Otherwise, Bankruptcy Rule 3017, which provides for fixing a deadline for filing rejections of a plan, and Bankruptcy Rule 3020(b), which provides for fixing a deadline for filing objections to confirmation, would have no substance. Moreover, if non-voting, non-objecting creditors are not deemed to have accepted the plan, the debtor would be in the unique position of anticipating these creditors' objections to the plan and presenting evidence and arguments *856 to refute those hypothetical objections in the confirmation hearing." Id. at 1267.
The Tenth Circuit's ruling in Ruti-Sweetwater is clearly a case of the tail wagging the dog. The plan proposed in Ruti-Sweetwater was complicated and dealt with hundreds of claims and millions of dollars. The Court wanted the confirmation of this complicated chapter 11 plan to stand. This result oriented approach is evident throughout the opinion. Towards the end of the opinion, the Court stressed that the Heins were but one of 83 separate classes of secured creditors and that there were 20 other classes of secured creditors that failed to vote. Stressing the numbers involved implies that the Court was more concerned with confirming this plan than with an accurate reading of the Code.
IN RE TOWNCO REALTY, INC.
The debtor in In re Townco Realty, Inc., 81 B.R. 707 (Bkrtcy.S.D.Fla.1987) was a corporation whose only asset was a shopping center located in Manchester, Georgia, and its only activity the management of that property. There were six creditors, one of which was secured by a mortgage on the property. The debtor owed the mortgagee approximately 2.2 million dollars, which represented 99.9% of its total debt. At the confirmation hearing, the mortgagee orally accepted the debtor's plan. All five of the unsecured creditors failed to vote either for or against the plan. The debtor proposed to have its plan confirmed based upon the assumption that the failure to vote by class 4, the unsecured creditors, constitutes acceptance of the plan.
Chief Judge Britton ruled against the debtor, holding that failure to vote is not acceptance of a plan. Id. at 708. Judge Britton arrived at this conclusion by a careful analysis of the Code and the rules. First, Judge Britton looked to Bankruptcy Rule 3018(c) which provides:
An acceptance or rejection shall be in writing, identify the plan or plans accepted or rejected, be signed by the creditor or equity security holder or an authorized agent, and conform to the appropriate Official Form. (emphasis added).
Judge Britton contrasted the specific procedure for acceptance of a plan with 11 U.S.C. § 1111(a) which provides that claims are "deemed filed" if scheduled by the debtor, noting that there is no provision deeming the failure to vote as an acceptance. Judge Britton then addressed the provisions of 11 U.S.C. § 1126, "Acceptance of plan." Section 1126(c) provides:
A class of claims has accepted a plan if such plan has been accepted by creditors, other than any entity designated under subsection (e) of this section, that hold at least two-thirds in amount and more than one half in number of the allowed claims of such class of creditors, other than any entity designated under subsection (e) of this section, that have accepted the plan. (emphasis added).
This section requires a plan to be actively accepted. If a creditor does not cast a ballot, the amount owed to that creditor, and the creditor as a member of the class, is not included in the computation of whether the class accepted the plan. The Senate Committee comment to this section makes this clear, "[t]he amount and number are computed on the basis of claims actually voted for or against the plan, not as under chapter X [formerly section 501 et seq. of this title] on the basis of the allowed claims in the class." S.Rep. No. 95-989, 95th Cong., 2d Sess. 123 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5909. Relying upon the Code, the Federal Rules of Bankruptcy, and legislative history, Judge Britton determined that if all members of a class fail to vote that class cannot be deemed to have accepted or rejected the plan.
CONCLUSION
This legal analysis found in In re Townco is far more persuasive than that found in Ruti-Sweetwater and its progeny. The Court's analysis in Townco is Code based, while the analysis found in Ruti-Sweetwater is result oriented. Commentators agree; "[a]n unfortunate decision was rendered by the Court of Appeals for the Tenth Circuit which can have the effect, if followed, of setting the law on its ear." 5 COLLIER ON BANKRUPTCY ¶ 1129.02 n. 67 (Lawrence P. King ed., 15th ed. 1994). This commentator *857 responded to the Tenth Circuit's concern about stonewalling a debtor and preventing reorganization by pointing out two simple facts: "1) there is no inherent right to reorganization and the code should not be manipulated to obtain it; and 2) the Code itself provides for the contingency of a rejection by permitting confirmation anyway if the plan is nondiscriminatory and is fair and equitable." Id. This Court agrees with Colliers and the Court in Townco and adopts their analysis of the law.
Section 1129(a) provides the elements a plan proponent is required to establish in order to have a plan confirmed. One element is subsection 8 which requires each impaired class to accept the plan. Section 1126 and Fed.R.Bank.P. 3018 provide the definition and requirements for acceptance of a plan of reorganization. If a plan proponent fails to prove compliance with § 1126 and Fed.R.Bank.P. 3018, he fails to meet the burden of proof required by § 1129(a). Section 1129(b) provides a remedy when all of the elements of § 1129(a) are met except for § 1129(a)(8). Congress established these precise requirements and they cannot be ignored by a court. A court becomes a legislative body and implements policy when it ignores the Code and the implementing rules of procedure.
Accordingly, those impaired classes which failed to vote in the instant case, classes 1,4, and 5 are not deemed to have accepted the plan. Faced with this ruling, the DIP did an about face and presented testimony that classes 1, 4, and 5, were unimpaired. The DIP then considered § 1129(b) as to classes 1, 4, 5, 7, and 8 and presented evidence that the plan does not discriminate unfairly, and is fair and equitable, with respect to claims or interests that are impaired under the plan which have not accepted the plan.
Based on the uncontroverted evidence, which is consistent with the disclosure statement and plan, a separate order will be entered confirming the debtor's Plan of Reorganization in accordance herewith.
NOTES
[1] The ballot summary treated Class 7, representing the allowed unsecured claims of affiliates and equity interests, as having deemed to accept the plan, however, the summary should have listed Class 7 as having deemed not to accept the plan as this class did not retain or receive any property, 11 U.S.C. § 1126(g).
[2] Section 1129(a)(8) provides:
(8) With respect to each class of claims or interests
(A) such class has accepted the plan; or
(B) such class is not impaired under the plan.
[3] The last day for filing an objection to the plan was fixed at May 28, 1984 and the final day to vote either to accept or reject the plan was set at May 30, 1984.
[4] Confirmation hearings on the plan were held June 1, 2, and 5, 1984.
[5] "It appears that thosethere is no challenge to the level [legal] concept that those non-voted creditors will be deemed to have accepted [sic] for the purpose of cram-down provisions. That will be the Court's ruling on all of the claims that you enumerated." In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1264 (10th Cir.1988) (quoting bankruptcy hearing transcript).
[6] The Heins would realize a small portion of their claim each time a timeshare unit was sold; the plan also provided that the Heins would receive the entire amount of their claim with interest within 48 months of confirmation. In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1264 (10th Cir.1988). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917756/ | 178 B.R. 16 (1995)
In re Dolores Jean SUMNER, Debtor.
Bankruptcy No. 94-51846.
United States Bankruptcy Court, M.D. Georgia, Macon Division.
February 16, 1995.
Richard M. Katz, Macon, GA, for debtor.
Emmett L. Goodman, Jr., Macon, GA, for respondent.
Camille Hope, Chapter 13 Trustee, Macon, GA.
MEMORANDUM OPINION
JAMES D. WALKER, Jr., Bankruptcy Judge.
This matter is before the Court on motion by Dolores Jean Sumner ("Debtor") to determine the value of security and the extent of a creditor's allowed secured claim on residential real estate pursuant to 11 U.S.C. § 506. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(K). These findings of fact and conclusions of law are published in compliance with Fed.R.Bankr.P. 7052.
FINDINGS OF FACT
Debtor filed this case under Chapter 13 of the Bankruptcy Code on June 30, 1994. Prior to Debtor's filing, First Macon Bank ("First Macon") obtained a judgment lien against the subject property in the amount of Fifty-nine Thousand Two Hundred Dollars and Three Cents ($59,200.03). The subject property is the Debtor's residence located at 2946 Pender Way, Lizella, Georgia. The property is subject to a senior mortgage encumbrance in the amount of Forty-three *17 Thousand Eight Hundred Dollars ($43,800.00). Debtor has represented to the Court that she intends to retain the property under the terms of her plan.
The Court held a hearing on this matter on December 19, 1994. At the conclusion of the hearing, the Court found the fair market value of Debtor's property to be Ninety-one Thousand Dollars ($91,000.00) without reference to any liens. Debtor requested that the Court reduce First Macon's claim by the amount of the estimated liquidation costs. First Macon contends that such hypothetical costs should not be applied to reduce its claim. The Court took this aspect of the matter under advisement and now renders this final decision as to valuation of First Macon's lien and the allowance of its claim. Since it is determined here that the hypothetical costs are not allowable as a deduction to the above specified fair market value, the Court makes no finding as to the amount of those costs.
CONCLUSIONS OF LAW
Section 506 of the Bankruptcy Code governs valuations of security interests in property in bankruptcy. Section 506(a) provides as follows:
(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
11 U.S.C. § 506(a) (West 1994).
The issue of whether hypothetical costs of liquidation should be deducted when determining the amount of a creditor's claim is the subject of disagreement among the circuits. See In re Jones, 152 B.R. 155 (Bankr. E.D.Mich.1993) and cases cited therein. Upon consideration of the guidance provided by numerous cases which have considered this question, the Court concludes that hypothetical costs of liquidation will not be deducted from this secured creditor's claim.
Both views as to hypothetical liquidation costs have a sound basis in the Bankruptcy Code. Courts deducting hypothetical liquidation costs look to the first sentence of section 506(a) which states that a creditor's claim "is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property. . . ." Since it is the creditor's interest that is being valued, courts deducting hypothetical liquidation costs reason that the creditor's interest consists of what the creditor could realize from a foreclosure and sale of the property. Huntington Nat'l. Bank v. Pees (In re McClurkin), 31 F.3d 401, 403 (6th Cir.1994) (citing In re Overholt, 125 B.R. 202, 214 (S.D.Ohio 1990)); In re Claeys, 81 B.R. 985, 991 (Bankr.D.N.D.1987) ("it is in the first instance the creditor's interest in the collateral that must be valued."). Under this view, it would seem appropriate to deduct hypothetical costs of liquidation when determining the value of a secured creditor's lien on estate property. Under section 506(a) the secured creditor's claim is defined as the value of this lien interest.
Courts which refuse to deduct costs of a hypothetical sale rely upon the second sentence of section 506(a). McClurkin at 403 (citing Brown & Co. Securities Corp. v. Balbus (In re Balbus), 933 F.2d 246 (4th Cir. 1991)); Beacon Hill Apartments, Ltd. v. Columbia Sav. & Loan Assoc. (In re Beacon Hill Apartments, Ltd.), 118 B.R. 148 (N.D.Ga.1990). These courts reason that deducting costs of sale when no sale is contemplated ignores the language of section 506(a) which states "Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property. . . ." Balbus at 251.
In McClurkin, the Sixth Circuit Court of Appeals reviewed valuation of a creditor's security interest and concluded that hypothetical *18 costs of sale should not be deducted in a valuation such as the one under consideration here. That court reviewed relevant Supreme Court precedent, and concluded "the Court has never viewed § 506(a) as limiting an undersecured creditor's interest to something less than the value of the collateral. To the contrary, they show that the Court has consistently viewed the `creditor's interest' as equal to the lesser of the amount of the lien or the value of the collateral." McClurkin at 404. While the court in McClurkin noted that no Supreme Court case law is exactly on point, it concluded that an overall construction of section 506(a) would be appropriate to interpret section 506(a). This Court concurs with the rationale of the McClurkin court.
The McClurkin court observed that the practice of deducting hypothetical costs of sale to determine a secured creditor's unsecured claim after abandonment of property under 11 U.S.C. § 554 is a different matter from the one under consideration here. There the creditor's unsecured claim might have to be established by the valuation process before the liquidation of the property is complete in order to make the pro rata calculations which must precede distribution of the estate's unencumbered assets. The court stated "There is no reason for turning this practice against the creditor, and using it to decrease the amount of the secured claim, where the creditor is prevented from foreclosing on the collateral by debtor's keeping of the property under a proposed reorganization plan." Id. at 405.
In that spirit, this Court concludes that equitable considerations in this case support a refusal to deduct such purely hypothetical costs of liquidation. Bankruptcy is often concerned with balancing the equities between a creditor's right to payment and a debtor's need for relief. When a debtor proposes to retain property under a reorganization plan, a secured creditor looses certain opportunities which may be available under state law such as the right to sell the property for immediate cash or retain the property and enjoy future appreciation. In exchange for these options, the creditor obtains a right to future payments under a plan and retains its lien on the property.
If purely hypothetical costs of liquidation are deducted from the value of a creditor's lien, the balancing of the equities would tilt unfairly towards the debtor. A creditor not only looses the benefit of certain rights under state law, but its secured claim is reduced for the debtor's benefit without any corresponding detriment to the debtor. The debtor is able to retain property enjoying its use and appreciation while paying the secured creditor less than the property's present value. While future events might diminish the value of the creditor's lien, the Court should not deduct such hypothetical costs where the events are not expected to occur if the debtor's plan is executed in accordance with its terms.
In summary, the value of the creditor's lien will not be reduced by the hypothetical costs of liquidation. The order entered in accordance with this opinion will establish the amount of First Macon's secured claim as Forty-seven Thousand Two Hundred Dollars ($47,200.00). This amount is derived by deducting the amount of the first mortgage ($43,800.00) from the fair market value ($91,000.00). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571905/ | 2 So.3d 101 (2008)
William Todd LARIMORE, Petitioner,
v.
STATE of Florida, Respondent.
No. SC06-139.
Supreme Court of Florida.
December 11, 2008.
As Revised on Denial of Rehearing January 29, 2009.
*103 Bill White, Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, FL, for Petitioner.
Bill McCollum, Attorney General, Robert R. Wheeler, Assistant Attorney General, Bureau Chief Criminal Appeals, and Charles Richey McCoy, Senior Assistant Attorney General, Tallahassee, FL, for Respondent.
PARIENTE, J.
This case is before the Court for review of the decision of the First District Court of Appeal in Larimore v. State, 917 So.2d 354 (Fla. 1st DCA 2005). The district court certified that its decision was in direct conflict with the decision of the Second District Court of Appeal in Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
In this case, we interpret the Involuntary Civil Commitment of Sexually Violent Predators Act, sections 394.910-.931, Florida Statutes (2004), commonly known as the "Jimmy Ryce Act" (the Act), and conclude that the Act requires that an individual be in lawful custody when the State takes steps to initiate civil commitment proceedings in order for the circuit court to have jurisdiction to adjudicate the commitment petition. For the reasons expressed below, *104 we quash the district court's decision in Larimore and approve of the Second District's decision in Gordon.
FACTS AND PROCEDURAL HISTORY
This case arises from the First District's decision denying Larimore's petition for writ of prohibition, in which Larimore sought to prevent civil commitment proceedings against him by the State pursuant to the Act. Larimore, 917 So.2d at 355. The facts are summarized in the First District's opinion:
On August 29, 1991, after pleading guilty to lewd and lascivious acts on a child under 16 years of age in two separate cases, Larimore was sentenced pursuant to the guidelines to 15 years in prison in one case followed by five years of probation in the second case. On October 10, 1998, Larimore was released from prison due to the award of gaintime, and began serving probation. On February 29, 2000, Larimore's probation was revoked, and he was sentenced to five years in prison. On August 12, 2002, [the First District] held that Larimore was entitled to credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), for the 15 years served on his prison sentence (which included both actual prison time served and gaintime) which had the effect of erasing his five-year sentence for violating probation. Larimore v. State, 823 So.2d 287 (Fla. 1st DCA 2002). Shortly thereafter, based on the revocation of probation, the Department of Corrections forfeited the gaintime (2,830 days) earned on Larimore's 15-year prison sentence, relying on section 944.28(1), Florida Statutes.
On November 23, 2004, the state filed a petition to have Larimore declared a sexually violent predator and involuntarily committed pursuant to the Jimmy Ryce Act. However, on December 10, 2004, [the First District] held that Larimore was entitled to immediate release from custody because forfeiture of Larimore's gaintime was not authorized pursuant to section 944.28(1) where Larimore's offense occurred before the effective date of the amendment to section 944.28 authorizing the forfeiture of gaintime upon revocation of probation. Larimore v. Fla. Dep't of Corr., 910 So.2d 847 (Fla. 1st DCA 2004), review denied, 905 So.2d 125 (Fla.2005). Larimore then filed a motion to dismiss the state's commitment petition under the Jimmy Ryce Act, arguing that he was not in lawful custody on the effective date of the Act. After the trial court denied the motion to dismiss, this petition for writ of prohibition followed [in the First District].
Larimore, 917 So.2d at 355. The district court correctly concluded that even though Larimore was not in custody when the Jimmy Ryce Act was enacted, his subsequent incarceration in 2000 generally subjected him to application of the Act. Id. at 356-57. However, the district court also concluded that the fact that Larimore was not in lawful custody when the commitment petition was filed in 2004 was not grounds upon which to grant the writ of prohibition. See id. at 356. It is this latter point upon which our decision turns.
Relying on provisions of the Act that provide that compliance with certain requirements and time limitations are not jurisdictional, the district court held that "jurisdiction under the amended Act is not conditioned on a person being `in custody' on the date the petition is filed." Id. at 357. The First District therefore concluded that although Larimore was not in lawful custody when the State filed its petition on November 23, 2004, id. at 356, the trial court nevertheless had jurisdiction to adjudicate *105 the commitment petition. Id. at 358. The First District explained:
While the Act as amended clearly contemplates that a commitment petition should be filed before a person is released from total confinement, there is nothing in the Act that provides that the petition must be filed before the person's release. Rather, the Act clearly states that its time limitations are not jurisdictional and do not prevent the state from proceeding pursuant to the Act even if the person is released from custody.
Id. at 357. The First District also certified conflict on this issue with the Second District's decision in Gordon, in which the Second District concluded that proceedings under the Act could not be initiated against a person who was no longer held in lawful custody by the State. Larimore, 917 So.2d at 357-58.
The court in Gordon had before it a case in which the individual had been released from the custody of the Department of Corrections and was in the civilian population when, two days after his release, the State obtained a warrant for his arrest in order that commitment proceedings could be filed against him. Gordon, 839 So.2d at 717. Only after he was placed back into custody did the multidisciplinary team make its evaluation and recommendation, after which an order of probable cause under the Act was entered. Id. Gordon filed a motion to dismiss alleging that he "was not in custody for purposes of the Act at the time the petition for involuntary commitment was filed." Id. The Second District agreed and held that "for the Act to apply, the person must be in custody or in `total confinement,'" id., which the court interpreted to mean "that the person in question is being held at a secure facility." Id. at 718. The Second District also concluded that the seizure of Gordon in order to commence commitment proceedings was unlawful and could not qualify as custody for purposes of the Act. See id. & n. 4.
The Gordon court reasoned that "the Act contemplates that the circuit court make a determination prior to the expiration of the incarcerative sentence as to whether probable cause exists to hold the person as a sexually violent predator. This is consistent with our legal historical precedents requiring a probable cause determination prior to a person's seizure." Id. at 719. The Gordon court also found that section 394.9135 provides a "safety valve for a situation where `the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate.'" Id. As to the jurisdictional disclaimer provisions, the Gordon court stated: "We do not interpret subsection (4) to mean that the state attorney or the DCF [Department of Children and Family Services] may start proceedings against a person who is not in custody, since, as stated, that person would not be subject to the provisions of the Act." Id. at 720. The Second District concluded that "[t]here is no provision in the Act for commencing proceedings against a person under the Act where he or she is not in custody and is, in fact, living in society." Id. at 719.
The First District in Larimore chose not to follow Gordon because, in its view, Gordon did not follow the plain statutory language of the Act and could not be reconciled with this Court's decision in Tanguay v. State, 880 So.2d 533 (Fla.2004). Larimore, 917 So.2d at 358. We conclude, however, that Tanguay does not control the analysis in this case and, as explained below, that lawful custody is required to initiate Jimmy Ryce proceedings; and further that the provisions of the Act relied on by the First District, which state that certain provisions and time limitations are *106 not jurisdictional, do not constitute a statutory waiver of the lawful custody requirement contained within the overall legislative scheme.
ANALYSIS
Larimore asserts that under the terms of the Act a person must be in lawful custody for the State to initiate commitment proceedings against that individual. Because this issue is a matter of statutory interpretation, our review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006). Because Larimore's claim is predicated solely upon a construction of the provisions of the Act, we must give great deference to the actual language used by the Legislature.
A court's purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction. Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). To discern legislative intent, a court must look first and foremost at the actual language used in the statute. Id. (citing Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000)). Moreover, a "statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts." Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla.2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996)). "The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent." Fla. Dep't of State v. Martin, 916 So.2d 763, 768 (Fla. 2005). Similarly, "[r]elated statutory provisions must be read together to achieve a consistent whole, and ... `[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.'" Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007) (quoting Woodham v. Blue Cross & Blue Shield, Inc., 829 So.2d 891, 898 (Fla. 2002)).
We have long recognized that "[i]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent." Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla.2008) (quoting Fla. State Racing Comm'n v. McLaughlin, 102 So.2d 574, 575-76 (Fla.1958)). Equally important is the "elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage." Gulfstream Park Racing Ass'n v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006) (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla.2003)).
Within the framework of these longstanding principles of statutory construction, we will first examine the provisions of the statutes at issue here to determine if the legislative intent was to require that a person be in lawful custody when steps are taken by the State to commit that person as a sexually violent predator. We will next examine whether any provisions of the Act dispense with the custody requirements of the Act and allow Jimmy Ryce proceedings to be initiated against a person not in lawful custody. We will also explore our prior precedent in the area of the Jimmy Ryce Act to determine if it is dispositive of the issues now before the Court.
*107 The Jimmy Ryce Act
The Florida Legislature first passed the Act in 1998, and it went into effect on January 1, 1999. See ch. 98-64, § 24, at 455, Laws of Fla. As originally enacted, the Act appeared in chapter 916, which pertains to mentally ill defendants in criminal cases. See §§ 916.31-.49, Fla. Stat. (Supp.1998); ch. 98-64, §§ 1-24, at 445-55, Laws of Fla. The Act was later transferred to chapter 394, Florida Statutes, which pertains to civil mental health commitments. See ch. 99-222, §§ 1-29, at 1372-89, Laws of Fla. Although based on a criminal conviction for a sexually violent offense, Jimmy Ryce commitment proceedings have been held to be "civil in nature." See Mitchell v. State, 911 So.2d 1211, 1213 (Fla.2005). Even so, we have repeatedly emphasized the procedural safeguards provided by the Act that ensure an individual's constitutional rights are protected. In holding the Act constitutional in the plurality opinion in Westerheide v. State, 831 So.2d 93 (Fla.2002), we specifically relied on the "range of procedural safeguards to the individuals" provided by the Act:
The parties being subjected to this state action are limited to those who have exhibited "past sexually violent behavior and [have] a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated." Although the individual's liberty interest is at stake, that "interest is not absolute" and the "individual's constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context" provided that "the confinement takes place pursuant to proper procedures and evidentiary standards." Confinement under the Ryce Act is limited to those individuals who are likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment. Further, the act provides a range of procedural safeguards to the individuals, including the assistance of counsel and mental health professionals at commitment proceedings, the right to a jury trial, the right to appeal a sexually violent predator determination, at least a yearly mental health examination to determine whether the person's condition has so changed that it is safe for the person to be discharged, the right to petition for release, and in court hearings for the release of a committed person, the state bears the burden of proving by clear and convincing evidence that the person's mental condition requires continued confinement.
Id. at 104-05 (citations and footnotes omitted) (quoting Kansas v. Hendricks, 521 U.S. 346, 356-57, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).
Although Larimore has not raised a constitutional challenge to the Act, because the Act can impose on an individual a substantial deprivation of libertyone that is of indeterminate durationour construction of the Act must be conducted with due regard to "the basic tenets of fairness and due process." State v. Atkinson, 831 So.2d 172, 174 (Fla.2002). In this light, we first examine the provisions of the Act to determine if the Legislature intended that persons against whom civil commitment proceedings are brought must be in lawful custody when those proceedings are initiated.
Custody Under the Act
As has previously been noted by this Court, as well as by the First District Court of Appeal below, the Legislature appears to have specifically contemplated that an individual would be lawfully in the State's custody when civil commitment proceedings are commenced under the Act. State v. Goode, 830 So.2d 817, 825 (Fla. *108 2002) ("[I]t appears that the Legislature intended that the State would initiate commitment proceedings while the inmate is still incarcerated." (citing § 394.915(1), Fla. Stat. (1999))); Larimore, 917 So.2d at 357 ("[T]he Act as amended clearly contemplates that a commitment petition should be filed before a person is released from total confinement...."). The Act provides that the commitment process is initiated by the "agency with jurisdiction."[1] This is done in one of two wayseither by giving notice to the multidisciplinary team and state attorney under section 394.913(1), Florida Statutes (2004), which begins the detailed process under that section, see §§ 394.913(1)-(4), or by transferring the individual to the custody of the Department of Children and Family Services upon that person's "immediate release from total confinement" under section 394.9135(1), Florida Statutes (2004). This latter procedure is followed to initiate commitment proceedings where it is anticipated that the individual will be immediately released from "total confinement" for any reason. See § 394.9135(1), Fla. Stat. (2004).[2]
Section 394.913(1)(a) indicates that the person is to be in custody when proceedings are commenced because it specifically provides that the notice must be given to the multidisciplinary team and the state attorney at least 545 days prior to the person's anticipated release from total confinement if the person is in custody of the Department of Corrections.[3] Notice must be given at least 180 days prior to release from a residential commitment if the person is in custody of the Department of Juvenile Justice or, where the person has been found not guilty of a sexually violent offense by reason of mental incapacity or insanity, from the custody of the Department of Children and Family Services. See § 394.913(1)(b)-(c), Fla. Stat. (2004).
Specifically, section 394.913(1) provides that the agency with jurisdiction "shall give written notice to the multidisciplinary team, and a copy to the state attorney of the circuit where that person was last convicted *109 of a sexually violent offense." Subsection (1) further provides that if the person was never convicted of a sexually violent offense in Florida, but has been convicted of such an offense in another state or federal court, a copy of the notice shall be given to the state attorney of the circuit where the person was last convicted of any offense in this state. Subsection (1) provides that if the person is being confined in this state pursuant to interstate compact, notice shall also be given to the state attorney "of the circuit where the person plans to reside upon release" or, if no residence in this state is planned, the state attorney "in the circuit where the facility from which the person to be released is located." Id. (emphases added).
Subsection (2) of section 394.913 sets forth the information that the agency with jurisdiction must provide to the multidisciplinary team, including information such as the individual's name, identifying characteristics, criminal history, mental health, mental status, and documentation of institutional adjustment. Subsection (2)(e) states that, "[i]f the person was returned to custody after a period of supervision, documentation of adjustment during supervision and any treatment received" shall be provided to the multidisciplinary team.
Section 394.913(3) provides for establishment of the multidisciplinary team or teams, and states that each team shall include at least two licensed psychiatrists or psychologists. Subsection (3) also provides that the assessment and evaluation shall include a review of the individual's institutional history and treatment record, the person's criminal background, and any other relevant factor. Subsection (3)(e) provides that within 180 days after receiving notice, there shall be a written assessment and recommendation, which shall be provided to the state attorney and to the Department of Children and Family Services. Following the receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney may file a petition in the circuit court alleging that the person is a sexually violent predator. § 394.914, Fla. Stat. (2004). Section 394.915(1) then provides that upon finding probable cause to believe that an individual is a sexually violent predator, "the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person's incarcerative sentence expires." § 394.915(1), Fla. Stat. (2004) (emphasis added).
Similarly, section 394.9135(3), which applies in cases where the individual is in total confinement but subject to immediate release, instructs that upon finding probable cause in a proceeding initiated under that section, "the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla. Stat. (2004) (emphasis added). Section 394.9135 is predicated on the underlying premise that the individual is in custody when initial steps are taken in the commitment process, addressing what must happen when "the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason." § 394.9135(1), Fla. Stat. (2004) (emphasis added). This would occur, for example, where the inmate obtains an order for release from an incarcerative sentence.[4] Additionally, this section would *110 apply where an inmate is about to be immediately released from an incarcerative sentence and the detailed procedures of section 394.913 and section 394.915(1)[5] have not yet been followed to initiate commitment proceedings and retain the person in custody.
Section 394.9135(1) provides that where an individual currently in total confinement is about to be released, "the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility." § 394.9135(1), Fla. Stat. (2004). This provision allows the multidisciplinary team seventy-two hours after this transfer to "assess whether the person meets the definition of a sexually violent predator." § 394.9135(2), Fla. Stat. (2004). If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, the person is immediately released. If the team determines that the person does meet the definition, "the team shall provide the state attorney ... with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next working day thereafter." Id. After that, within forty-eight hours of receipt of the written assessment and recommendation from the team, the state attorney has the option of filing a petition with the circuit court alleging that the person is a sexually violent predator. § 394.9135(3), Fla. Stat. (2004). "If a petition is not filed within 48 hours after receipt of the written assessment and recommendation by the state attorney, the person shall be immediately released." Id. If a petition is timely filed pursuant to this section and the judge determines that there is probable cause, then "the judge shall order the person to be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part." § 394.9135(3), Fla. Stat. (2004). These provisions of the Act all demonstrate legislative intent that the individual be in lawful custody when civil commitment proceedings are initiated.
Therefore, as to the question of custody, we conclude that it is clear from a reading of all of the related provisions that the legislative intent of the Jimmy Ryce Act is that the person is in lawful custody *111 at the time any initial steps are taken in the commitment process under either section 394.913 or 394.9135. There are no provisions in the Act that expressly provide or even imply that the State may initiate a civil commitment proceeding after a person has been released from custody and is living in society. We will next consider whether any sections of the Act constitute a statutory waiver of this custody requirement to allow the state to initiate Jimmy Ryce proceedings against an individual who is not in lawful custody.
Jurisdiction Under the Act
Because the First District based its conclusion that custody is not required under the Act on sections 394.913(4) and 394.9135(4), Florida Statutes (2003), a close examination of the text of those and the other provisions of sections 394.913 and 394.9135 is required to determine the legislative intent and legal effect of subsection (4) of each statute in the context of the entire statute. We must endeavor to ascertain the intent of the entirety of both statutes because all parts of a statute must be read together to discern the intent apparent in the whole. See GTC, Inc. v. Edgar, 967 So.2d 781, 787 (Fla.2007). This is in accord with the requirement that we "give full effect to all statutory provisions and construe related statutory provisions in harmony with one another." Heart of Adoptions, 963 So.2d at 199 (quoting Woodham, 829 So.2d at 898). These principles are especially applicable here where the disclaimer subsections expressly refer to the provisions or time limitations contained in the specific statute of which each subsection is a part.
We will first set forth the actual text of each of the subsections relied upon by the district court because "[w]e endeavor to construe statutes to effectuate the intent of the Legislature." Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006). We have said many times that "legislative intent is the polestar" that guides the Court's inquiry and "is determined primarily from the language of the statute." Maggio v. Fla. Dep't of Labor & Employment Sec., 899 So.2d 1074, 1076-77 (Fla.2005). Accordingly, "we begin with the `actual language used in the statute.'" Continental Cas. Co. v. Ryan Inc. Eastern, 974 So.2d 368, 374 (Fla.2008) (quoting Borden, 921 So.2d at 595).
The text of section 394.913(4), Florida Statutes (2004), provides as follows:
(4) The provisions of this section are not jurisdictional, and failure to comply with them in no way prevents the state attorney from proceeding against a person otherwise subject to the provisions of this part.
Section 394.9135(4), Florida Statutes (2004), also relied on by the First District Court of Appeal, states:
(4) The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not dispositive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.
These provisions remain unchanged in the 2008 statutes.
We first turn to section 394.913(4). The language of the "jurisdictional disclaimer" provision in that section does not make any reference to the inmate being out of custody. The subsection refers only to the fact that the "failure to comply" with the "provisions of this part" will not prevent the state attorney from proceeding against a person otherwise subject to the statute. The provisions of the section to which the subsection refers involve notice to the multidisciplinary team, with a copy to the state *112 attorney, of certain details regarding an individual who has been convicted of a sexually violent offense, including deadlines for the notice, specification of information to be contained in the notice, establishment of the multidisciplinary team, deadlines for its written assessment, and other time frames to be met by the state attorney.
The entire statute is predicated on the inmate being in custody, as is evidenced by its very title, which includes the words "Notice to state attorney and multidisciplinary team of release." This is also an appropriate consideration because the title of an act is properly considered in determining legislative intent. See Horowitz v. Plantation Gen. Hosp. Ltd. P'ship, 959 So.2d 176, 182 (Fla.2007). Based on the text of section 394.913(4) and the provisions contained in the larger part to which it refers, we conclude that the provisions of this section for which compliance is waived by subsection (4) deal only with time frames for notice of the inmate's release, the composition, duties and deadlines for the multidisciplinary team, and other specific matters relating to the assessment of the personnot the fact of the release or status of custody.
We now turn to section 394.9135(4). Even though section 394.9135 is replete with references to the individual being in custody, the First District read the provisions of section 394.9135(4) to dispense with all custody requirements in the section. A close reading of the actual text of subsection (4), however, shows that it refers only to "failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense." § 394.9135(4), Fla. Stat. (2004) (emphasis added). The time limitations in section 394.9135 all pertain to actions that occur after the inmate has come into the custody of the Department of Children and Family Services directly from his or her incarcerative sentence, to be held in a secure facility by that department. The subsection (4) jurisdictional disclaimer, when given a plain reading in the context of the entire statute, can refer only to the two sections that provide time limitationssubsection (2) (seventy-two hours for the multidisciplinary team to make an assessment) and subsection (3) (forty-eight hours for the state attorney to file the petition).[6] The only time limitation in section 394.9135 that would result in release if not met is *113 the requirement that the state attorney file the petition within forty-eight hours pursuant to subsection (3). If the state attorney fails to file the petition within forty-eight hours after receipt of the written assessment, and the individual is released, subsection (4) would allow the state attorney to file a petition after the release. However, this jurisdictional disclaimer does not come into play until after the individual has been kept in secure custody by the Department of Children and Family Services, after a multidisciplinary team has made an assessment, and after the state attorney has failed to comply with a time limitation applicable to the filing of the petition, where that failure has resulted in the offender's release. The Legislative intent of section 394.9135(4) appears to be a "safety valve" solely to prevent persons from bringing challenges to civil commitment proceedings on technical grounds, such as the giving of late notice of the anticipated release that is mandated by section 394.9135(1)(a) or the late filing by the state attorney. The status of an inmate who has been lawfully released and is no longer in custody, where no steps have been taken in the commitment process, is no mere technical requirement that the Legislature has indicated is waived under subsection (4).
Therefore, based on the actual text of the jurisdictional disclaimer, the legislative intent of section 394.9135(4) is that the state attorney retains the right to file a petition even if the person is released as a result of the state attorney's failure to comply with the forty-eight hour time limitation after the multidisciplinary team has acted. This is also supported by the title of the section: "Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release." § 394.9135, Fla. Stat. (2004) (emphases added); see Horowitz, 959 So.2d at 182. Even under the circumstances described in section 394.9135 where the person is released as a result of the state attorney's failure to comply with the time limitations, steps in the commitment proceedings would have already been taken while that person was still in custody, pursuant to sections 394.9135(1) and (2). Thus, the jurisdictional disclaimer contained in section 394.9135(4) should not be extended beyond its actual text to dispense with the custody requirement where no steps in the proceedings have been initiated.
Neither section 394.913(4) nor section 394.9135(4) can be read in isolation. Rather, all parts of each statute should be read together, as we have endeavored to do in this analysis, in order to achieve a consistent whole. GTC, Inc., 967 So.2d at 787. This is in accord with the principle that "[e]very statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (quoting Fleischman v. Dep't of Prof'l Reg., 441 So.2d 1121, 1123 (Fla. 3d DCA 1983)). This requires us, as we have done here, to "look not only to the words themselves but also to `the context in which the language lies.'" Horowitz, 959 So.2d at 182 (quoting Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995)).
To construe sections 394.913(4) and 394.9135(4) to allow proceedings to be initiated after a person has been released from custody and is living in society, where no part of the process, was begun while the person was in lawful custody, would require us to look only at those discrete subsections in isolation; and under the *114 construction placed on the provisions by the First District, would also render without effect the other, detailed requirements of sections 394.913 and 394.9135. This would violate the "basic rule of statutory construction ... that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless." Goode, 830 So.2d at 824. We cannot read a statutory subsection in isolation, "but must read it within the context of the entire section in order to ascertain legislative intent for the provision." Contract-Point Fla. Parks, LLC, 986 So.2d at 1265. We conclude that when each statutory section is read in context, as a whole, to give effect to every clause, it is apparent that the jurisdictional disclaimers contained in the two subsections are not intended to and do not waive or dispense with the underlying requirement, otherwise clearly present in the Act, that the individual against whom commitment proceedings are brought must be in lawful custody when steps are taken to commence those proceedings in order for the circuit court to have jurisdiction.
Tanguay v. State
The First District also relied on the decision of Tanguay v. State, 880 So.2d 533 (Fla.2004), in reaching its decision in this case and the State relies on Tanguay here. Therefore, we must conduct a careful examination of that precedent to determine if it controls our decision in this case. For the reasons explained below, we conclude that Tanguay does not determine the question before the Court.
In Tanguay, the individual was actually in custody, although the custody was found to be unlawful. In holding that the circuit court had jurisdiction to adjudicate the commitment petition under the statute in effect at that time, a plurality of this Court in Tanguay stated that there was no "in custody" requirement in the applicable statute, specifically section 916.35(1), Florida Statutes (Supp.1998). 880 So.2d at 537. That section provided: "If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall direct that the person be taken into custody and held in an appropriate secure facility." § 916.35(1), Fla. Stat. (Supp.1998) (emphasis added). In its holding in Tanguay, the plurality Court specifically pointed out that it was dealing with a version of the Jimmy Ryce Act that existed prior to its amendment in 1999. Tanguay, 880 So.2d at 535. Significantly, the statute in effect in Tanguay spoke in terms of the individual being "taken into custody," a provision that does not appear in the text of the current section 394.915 or 394.9135.
In 1999, the Jimmy Ryce Act was moved to chapter 394 and former section 916.35 was renumbered to section 394.915. See ch. 99-222, § 9, Laws of Fla. Although the title of section 394.915 remained the same, and includes the reference to "respondent taken into custody" as did the title to section 916.35, the text of section 394.915 was amended and no longer refers to the person being "taken into custody." Instead, section 394.915 states:
(1) When the state attorney files a petition seeking to have a person declared a sexually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person's incarcerative sentence expires.
*115 (2) Upon the expiration of the incarcerative sentence and before the release from custody of a person....
§ 394.915, Fla. Stat. (2004) (emphases added). Moreover, former section 916.35 made no reference to the expiration of the person's incarcerative sentence, as does the amended version of the statute.[7]
Section 394.9135 was also added in 1999, providing procedures to be followed where the anticipated release of an inmate from total confinement becomes immediate for any reasonstatutory procedures which were not applicable to the Court's decision in Tanguay. See ch. 99-222, § 7, Laws of Fla. Since the Legislature added a section providing for special procedures where immediate release is anticipated, and amended section 394.915 to state that the person "remain in custody" rather than be "taken into custody," there is no longer any statutory basis on which to hold that there is no "in custody" requirement in the Jimmy Ryce Act. Accordingly, Tanguay does not control our construction of the 2004 statutes or the jurisdictional disclaimers, first, because section 394.9135 now clearly spells out what is to occur when an inmate is to be immediately released and is expressly premised on the inmate being in custody; second, because section 394.915 has been amended to state that the person for whom probable cause has been found will "remain" in custody; and finally, because Tanguay was a plurality opinion and construed a statute that has now been amended to expressly refer to the person being in custody.
Moreover, it is important to remember that nothing in the Jimmy Ryce Act expressly grants a circuit court jurisdiction over a commitment petition filed against a person not in lawful custody when the proceedings were initiated. We have previously interpreted the term "custody" as used in the Jimmy Ryce Act to mean "lawful custody." See Atkinson, 831 So.2d at 174 (holding that the Jimmy Ryce Act is limited to persons who were in lawful custody on its effective date). As we stated in Atkinson in interpreting the "applicability" provision of the Act, "[a] basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences" and "[i]t would be contrary to the basic tenets of fairness and due process to interpret provisions of the Act as requiring only actual custody." Id. Similarly, interpreting the Jimmy Ryce Act as not requiring lawful custody for individuals who had been incarcerated at some point after the effective date of the Act but are not in lawful custody when commitment proceedings are initiated would be contrary not only to the overall intent of the Act but "would be contrary to the basic tenets of fairness and due process." Id. Therefore, we will also consider, as we did in Atkinson, whether our interpretation of the Act is in accord with fairness and due process considerations.
*116 Due Process Considerations
In accordance with our precedent, we must read the provisions of the Act consistent with basic tenets of fairness and due process. See Atkinson, 831 So.2d 172, 174. We conclude that our reading of the Act is consistent with due process considerations. The Florida Legislature modeled the Jimmy Ryce Act after Kansas's similar statutory scheme. Goode, 830 So.2d at 821. In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the United States Supreme Court held that Kansas's Sexually Violent Predator Act "comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking." 521 U.S. at 371, 117 S.Ct. 2072. A plurality of this Court likewise found the Jimmy Ryce Act to be constitutional in Westerheide. 831 So.2d at 112 (plurality opinion); id. at 113 (Quince, J., concurring in result only); id. at 114 (Pariente, J., concurring in part and dissenting in part).
Although we upheld the constitutionality of the Jimmy Ryce Act in Westerheide, we have repeatedly emphasized the importance of procedural safeguards and time constraints within the Act to ensure that an individual's constitutional rights are protected. For example, this Court's plurality opinion in Westerheide noted the "range of procedural safeguards" provided by the Act, including the assistance of counsel and mental health professionals, the right to a jury trial, the right to appeal, at least an annual review of the person's condition, the right to petition for release, and the State's burden of proving by clear and convincing evidence that the person requires commitment. 831 So.2d at 105; see also §§ 394.916(3)-(5), 394.917(1), (3), 394.918, 394.920, Fla. Stat. (2004).
As repeatedly recognized by the United States Supreme Court, "civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). We explained in Goode, "Civil commitment proceedings involve a serious deprivation of liberty and, thus, such proceedings must comply with the due process clauses of the Florida and United States Constitutions." 830 So.2d at 825-26. We noted in Goode that under the statutory scheme, "the State would have multiple opportunities to initiate and pursue these commitments before the respondent's criminal sentence expires" and "when circumstances cause a legitimate delay but the inmate is scheduled to be released, the statute provides that a person can still be detained pending trial." Id. at 826 & n. 8.
In Mitchell v. State, 911 So.2d 1211 (Fla. 2005), we reiterated a concern we expressed in Goode that while "the Legislature intended that `the review process of potential sexual predators would be concluded while the person was still in prison'... `there is evidence that in practice this is not occurring and that often people are being detained for long periods after their scheduled release date without being taken to trial.'" Mitchell, 911 So.2d at 1219 (quoting Goode, 830 So.2d at 825 & n. 7). We further "emphasize[d] that the State should make every effort to initiate the commitment trial `well in advance of the [detainee's] date of release from prison[, so that] the due process concerns of commitment beyond imprisonment would be substantially alleviated." Mitchell, 911 So.2d at 1219 (quoting Goode, 830 So.2d at 826).
Finally, in Kephart v. Hadi, 932 So.2d 1086 (Fla.2006), we examined the Jimmy Ryce Act's "numerous safeguards to ensure *117 that a prisoner's due process rights are protected." Id. at 1092. We explained, "The confinement of an individual past the expiration of his or her incarcerative sentence requires `scrupulous compliance' with the Act's requirements." Id. at 1093.
Because the Jimmy Ryce Act, by its express terms, is founded upon the concept that the individual be in lawful custody when any portion of the commitment proceedings are initiated, and because of the due process considerations set forth above, we conclude that the Act requires that the individual be in lawful custody when commitment proceedings are initiated.[8]
CONCLUSION
Based on the foregoing analysis conducted in accord with our longstanding principles of statutory construction, we hold that an individual must be in lawful custody when the State takes steps to initiate commitment proceedings pursuant to the Jimmy Ryce Act in order for the circuit court to have jurisdiction to adjudicate the commitment petition. When effect is given to all the provisions of sections 394.913 and 394.9135, we conclude that the Legislature clearly intends that the individual be in lawful custody when steps are taken to initiate civil commitment proceedings under the Act. This is buttressed by the fact that the Legislature amended the Act to provide an expedited procedure where an inmate is to be immediately released. That amendment would not have been necessary if the Legislature did not fully intend for the proceedings to be initiated while the inmate was still in custody. We simply cannot construe each jurisdictional disclaimer subsection in isolation but must consider the entirety of not only each section but of the Act itself. After doing so, we find that the jurisdictional disclaimer provisions do not waive or dispense with the custody requirements of the Act.
Accordingly, we quash the decision of the First District in Larimore and approve the decision of the Second District in Gordon. Because Larimore was not in legal custody when initial steps were taken to initiate civil commitment proceedings against him in this case, the State's commitment petition is hereby dismissed with prejudice and Larimore shall be immediately released from any custody or commitment imposed as a result of the Jimmy Ryce Act proceedings that are the subject of this decision.
It is so ordered.
QUINCE, C.J., and ANSTEAD, and LEWIS, JJ., concur.
WELLS, J., dissents with an opinion.
CANADY and POLSTON, JJ., did not participate.
WELLS, J., dissenting.
I would approve the well-reasoned decision of the First District Court of Appeal in this case, which I conclude correctly applied the statute as intended by the Legislature.
NOTES
[1] "Agency with jurisdiction" is defined in section 394.912(1), Florida Statutes (2004), as follows:
[T]he agency that releases, upon lawful order or authority, a person who is serving a sentence in the custody of the Department of Corrections, a person who was adjudicated delinquent and is committed to the custody of the Department of Juvenile Justice, or a person who was involuntarily committed to the custody of the Department of Children and Family Services upon an adjudication of not guilty by reason of insanity.
§ 394.912(1), Fla. Stat. (2004). This definition of "agency with jurisdiction" presupposes that the person is in custody.
[2] "Total confinement" is defined in section 394.912(11), Florida Statutes (2004), as follows:
[T]he person is currently being held in any physically secure facility being operated or contractually operated for the Department of Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services. A person shall also be deemed to be in total confinement for applicability of provisions under this part if the person is serving an incarcerative sentence under the custody of the Department of Corrections or the Department of Juvenile Justice and is being held in any other secure facility for any reason.
§ 394.912(11), Fla. Stat. (2004).
[3] Section 394.913(1) provides in pertinent part:
Except as provided in s. 394.9135, the written notice [to the multidisciplinary team] must be given: (a) At least 545 days prior to the anticipated release from total confinement of a person serving a sentence in the custody of the Department of Corrections, except that in the case of persons who are totally confined for a period of less than 545 days, written notice must be given as soon as practicable.
§ 394.913(1), Fla. Stat. (2004).
[4] This interpretation is confirmed by Senate staff analyses on chapter 99-222, Laws of Florida, which added section 394.9135. The Florida Senate Committee on Children and Families' staff analysis stated that the section addresses situations where, "because of unforeseen circumstances, it is anticipated that a person's release from total confinement will become immediate. This section ... would assist in dealing with cases such as when inmates successfully challenge gain-time and early release statutes and win early judicially mandated release from prison." Fla. S. Comm. on Child. & Fams., CS for SB 2192 (1999) Staff Analysis 25 (Mar. 30, 1999) [hereinafter Child. & Fams. Comm. SB 2192 Analysis]; see also Fla. S. Comm. on Judiciary, CS for SB 2192 (1999) Staff Analysis 12 (Apr. 8, 1999) (stating that section 394.9135 "provide[s] an expedited involuntary civil commitment process for a person whose release becomes imminent due to factors such as successful gain-time challenges and early release statutes") [hereinafter Judiciary Comm. SB 2192 Analysis]. The section is intended to assist the Department of Children and Families and state attorneys with expediting cases in such circumstances. Child. & Fams. Comm. SB 2192 Analysis at 25; Judiciary Comm. SB 2192 Analysis at 12.
[5] Section 394.915(1) provides:
When the state attorney files a petition seeking to have a person declared a sexually violent predator, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order that the person remain in custody and be immediately transferred to an appropriate secure facility if the person's incarcerative sentence expires.
§ 394.915(1), Fla. Stat. (2004) (emphases added).
[6] The Senate staff analyses support this reading of the section. The Florida Senate Committee on Children and Families' staff analysis explains:
If the state attorney does not file a petition within 48 hours after receipt of the written assessment and recommendation from the team, the person must be immediately released from custody. However, simply because a person is released from custody because the petition was not filed within 48 hours does not mean that it would be dispositive of the case. Rather, the state attorney may still file a petition in the case and follow the procedures set out in the act to involuntarily commit a sexually violent predator. It is anticipated that if the person is released because the state attorney did not file a petition within 48 hours, a person could be taken back into custody and be held in an appropriate secure facility until there is a trial verdict if the judge finds probable cause on a late-filed petition.
Child. & Fams. Comm. SB 2192 Analysis at 25 (emphases added). Similarly, the Florida Senate Committee on Judiciary staff analysis explains:
If the state attorney does not file a petition within 48 hours after receipt of the written assessment and recommendation from the team, the person must be immediately released from custody. However, the state attorney retains the discretion to file a petition at any later time against the person subject to the Act.
Judiciary Comm. SB 2192 Analysis at 12 (emphases added).
[7] In discussing the effect of a jurisdictional disclaimer contained in section 916.33, the predecessor statute to section 394.913(4), the Tanguay Court explained the provision in terms relating only to the failure to meet certain specified time deadlines:
The Legislature expressly provided that the requirements of section 916.33 are not jurisdictional and that failure to comply with these requirements would not prevent the State from proceeding under the Act. Id. § 916.33(1). Therefore, if the State fails to strictly adhere to the provisions of this section (i.e., if the State does not provide the multidisciplinary team with notice precisely within 180 or ninety days, or if the multidisciplinary team fails to provide its recommendation within forty-five days), the State may still proceed against the person.
Tanguay, 880 So.2d at 536 (emphasis added).
[8] In this case Larimore's entire resentencing was unlawful. Thus, we do not reach the question of whether section 394.9135, Florida Statutes, would allow the State to take steps to initiate a commitment proceeding against a person who while in lawful custody an order for immediate release for any reason. That issue is not before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571940/ | 722 N.W.2d 379 (2006)
STATE v. ORTIVEROS.
No. 23892.
Supreme Court of South Dakota.
September 5, 2006.
Affirmed (JWA) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571860/ | 2 So.3d 1080 (2009)
Elias CHAPINOFF, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D06-2936.
District Court of Appeal of Florida, Third District.
February 11, 2009.
Anthony F. Sanchez, Coral Gables, for appellant.
Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
SCHWARTZ, Senior Judge.
Notwithstanding that the trial which resulted in the criminal convictions now on appeal may have been free of error, we must discharge the defendant because his *1081 rights against double jeopardy were violated in an earlier proceeding.
The trial below was the third in which the defendant faced the same charges. In each of the first two after the jury had been selected, impaneled and sworn, and jeopardy had therefore attached the trial judge felt it appropriate to grant a mistrial. In each case, this was essentially because of the highly unprofessional, mutually combative conduct[1] of both the prosecutor and the defense attorney. The defendant contends that both mistrials were both (a) unjustified and (b) nonconsensual and therefore invoke the constitutional protection against double jeopardy under the rule stated, for example, in Williams v. Grayson, 90 So.2d 710 (Fla. 1956).[2] The resolution of this appeal, however, requires consideration only of the effect of the second one. We conclude that ruling alone requires the defendant's discharge.[3]
The appellant's brief fairly relates the circumstances of the second incident:
[The] second jury was selected and the panel sworn on August 18, 2005, with opening argument set to begin August 22, 2005. Prior to the jury entering the courtroom on August 22, 2005, preliminary evidentiary matters were argued before the Court as a continuation of a hearing commenced on August 17, 2005. Before any opening statements could be given, the trial judge effectively halted the trial and discharged the jury without the free and voluntary consent of the defendant. The Court sua sponte declared a mistrial, even though there was no error or prejudice that occurred to necessitate a mistrial. The mistrial resulted after another confrontation between the lawyers as follows:
MR. [SYDNEY P.] SMITH (Defense Counsel): Well, even if the crime scene technician comes in and says, yes, I took that picture? I mean I'm going to try and find it your Honor. I'm not trying to wind you up but this is him not bothering to go through his pictures well enough. He had all weekend. He should have done it.
MR. RANCK (Assistant State Attorney): don't start
MR. SMITH: I would ask you not to interrupt please
MR. RANCK: I will ask you one more time
MR. SMITH: I'm not going
MR. RANCK: if you ever interrupt me
MR. SMITH: don't interrupt me again
MR. RANCK: you asshole
*1082 MR. SMITH: I will not tolerate this man
MR. RANCK: I will not tolerate
MR. SMITH: act like a lawyer. Act like a lawyer.
MR. RANCK: you act like a lawyer.
MR. SMITH: I won't take that from you.
MR. RANCK: I won't take it from you.
MR. SMITH: I will not take that from you.
(whereupon the Bailiff entered the room and ended the confrontation while the Judge left the courtroom).
During this exchange the prosecutor had again left his podium, advanced to the defense podium where defense counsel was standing, and placed his nose in contact with trial counsel. He remained in direct face to face contact until ordered to his seat by the bailiff. Defense counsel apparently made no attempt to leave the defense podium. None of the foregoing took place in front of the jury. [e.o.] The jury was not in the courtroom and the judge took a brief recess without comment. Once the trial judge came back on the bench, he informed defense counsel the Court would impose the following choices upon the Defense:
THE COURT: Here's how this is going to play. You've got two options. Option 1, you'll both move for a mistrial and a joint continuance and waive the defendant's jeopardy rights. I'll discharge the jury and re-set it and set it for another date for a back up judge to try this case.
Option 2 is, failing that, we will this week proceed to a direct criminal contempt hearing where you'll both need counsel. You'll then be referred to the Florida Bar with a copy of this tape to send to them. You take five minutes to discuss it and think about it and decide what it is you want to do.
Trial defense counsel immediately moved to withdraw based on a conflict of interest arguing that the trial court had placed counsel in a position where he had to make a decision between his own personal interests to be free from a criminal contempt prosecution, and the interests of his client's in preserving his right to a jury trial with the empanelled jury. Only by agreeing to the mistrial and waiving his client's constitutional rights could defense counsel avoid criminal contempt charges. From the moment the conflict arose until the court permitted him to withdraw, the defendant was represented by counsel with a direct conflict to his interests. Once defense counsel moved to withdraw based on the conflict, the defendant was effectively without an attorney. It was in the intervening period between the time counsel announced his conflict of interest, but before the trial judge permitted him to withdraw, that the Court declared a mistrial.
Upon declaring the second mistrial, Judge Murphy immediately granted defense counsel's motion to withdraw and recused himself from this case, which was ultimately transferred to the Honorable Barbara Areces.
An analysis of these events shows:
(a) It is first apparent that the conduct of the attorneys did not, within the meaning of the doctrine, create a "manifest necessity" for discharging the jury, so as to preclude a double jeopardy violation. See United States v. Perez, 22 U.S. at 579-80; Thomason v. State, 620 So.2d 1234 (Fla.1993); Williams, 90 So.2d at 713-14; Rohr v. State, 916 So.2d 1002 (Fla. 2d DCA 2006); Jackson v. State, 855 So.2d 178 (Fla. 4th DCA 2003); Perkins v. Graziano, 608 So.2d 532 (Fla. 5th DCA 1992); *1083 Parce v. Byrd, 533 So.2d 812 (Fla. 5th DCA 1988); Spaziano v. State, 429 So.2d 1344 (Fla. 2d DCA 1983); see generally Bertolotti v. State, 476 So.2d 130 (Fla.1985) ("It is appropriate that individual professional misconduct not be punished at the citizens' expense, by reversal and mistrial, but at the attorney's expense, by professional sanction.").
It is even more obvious that the trial court fatally failed in its required duty carefully to consider all reasonable alternatives including gaining control of the courtroom to doing so. See Joseph v. State, 988 So.2d 133 (Fla. 1st DCA 2008); Rohr, 916 So.2d at 1003; Torres v. State, 808 So.2d 234 (Fla. 2d DCA 2001); Spaziano, 429 So.2d at 1345-46. Instead, he seems to have considered none.
(b) Nor may the mistrial be constitutionally excused on the basis of the other possible ground for such a holding: a voluntary act of the defendant, typically by himself moving for the mistrial, which evidences an actual or implied voluntary consent. See Dinitz, 424 U.S. at 607-10, 96 S.Ct. 1075; United States v. Goldstein, 479 F.2d 1061 (2d Cir.1973); Williams, 90 So.2d at 713-14; Rohr, 916 So.2d at 1003; Perkins, 608 So.2d at 532-33. Although defense counsel, joined by the State Attorney, indeed moved for a mistrial, he did so only because the trial judge threatened that, if they did not, the lawyers would be cited for contempt, referred to the Florida Bar,[4] or both. Responding to such a Hobson's choice is the absolute antithesis of the voluntary relinquishment of the defendant's right to proceed before his chosen jury which is required to obviate a double jeopardy bar. Dinitz, 424 U.S. at 606-07, 96 S.Ct. 1075; Jorn, 400 U.S. at 479-86, 91 S.Ct. 547; Perez, 22 U.S. at 579-80; Goldstein, 479 F.2d at 1066; United States v. Jamison, 505 F.2d 407, 411-13 (D.C.Cir. 1974).
Because the prosecution below is therefore precluded by the prohibition against being "subject for the same offense to be twice put in jeopardy of life or limb," U.S. Const. amend. V, the convictions under review are reversed with directions to discharge the defendant.
Reversed.
NOTES
[1] In the first trial, this conduct descended into a physical altercation. The circumstances of the second mistrial are set out below.
[2] After both incidents, the defendant filed petitions for prohibition on double jeopardy grounds. Chapinoff v. State, 920 So.2d 7 (Fla. 3d DCA 2006)(table); Chapinoff v. State, 910 So.2d 272 (Fla. 3d DCA 2005)(table). Both were denied without addressing the merits. Thus, neither ruling was res judicata to the present case. See Topps v. State, 865 So.2d 1253 (Fla.2004).
[3] We thus pretermit discussion of the validity of the double jeopardy argument as to the first mistrial, in which the determinative issue is whether the defendant effectively withdrew the motion for mistrial purportedly granted by the trial court. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165 (1824); United States v. Jamison, 505 F.2d 407 (D.C.Cir.1974); State ex rel. Manning v. Himes, 153 Fla. 711, 15 So.2d 613 (1943).
[4] Particularly in view of the ultimate consequences of their unprofessionalism the fact that a convicted defendant must go free it may not be too late to pursue this course. Bertolotti, 476 So.2d at 133-34. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571967/ | 437 F.Supp. 757 (1975)
G. C. S., INC. and I. S. C. Inc., Plaintiffs,
v.
FOSTER WHEELER CORPORATION, Defendant.
FOSTER WHEELER CORPORATION, Plaintiff,
v.
G. C. S., INC. and I. S. C. Inc., Defendants.
Civ. A. Nos. 94-71 Erie, 4-72 Erie.
United States District Court, W. D. Pennsylvania.
May 19, 1975.
Kirkpatrick, Lochart, Johnson & Hutchison, Pittsburg, Pa., for G.C.S., Inc.
Jeffrey A. Peck, A. Dennis Terrell, Newark, N. J., for Foster Wheeler Corp.
MEMORANDUM OPINION
WEBER, Chief Judge.
These are cross-suits between a prime contractor and its sub-contractor over damages for delay in completion. We have a motion for partial Summary Judgment filed by the prime contractor, Foster-Wheeler, on certain of the claims asserted by the sub-contractor, G.C.S. Inc. in its complaint and in its counterclaim to Foster-Wheeler's suit.
We have previously considered a motion for summary judgment by Foster-Wheeler on its "no damages for delay" clause of its contract. We found that issue not appropriate for disposition by summary judgment at that time.
The matter has proceeded through voluminous discovery and pre-trial statements to a point where we can determine the evidentiary basis for the delay damage claims sufficiently to consider them with *758 respect to partial summary judgment to define and narrow the fact issues that can be presented at trial. We have pressed G.C.S. Inc. to supply at the pretrial the evidentiary basis by which its loss and damage can be established by reason of its claims that damages were caused by change orders, extra work and drawing revisions.
The contract between the parties contains the following provisions with respect to change orders, extra work and revisions:[*]
Foster Wheeler Purchase Order.
Terms and Conditions . . ..
"2. CHANGES: Purchaser shall have the right from time to time by written notice, without notice to Seller's sureties, to make changes in or additions to the instructions, drawings, or specifications for the items to be supplied under this Order and Seller agrees to comply with such change notices which shall become a part of the contract. If such changes cause an increase or decrease in the cost of or time required for performance, an equitable adjustment in the price and delivery schedule shall be made."
Through interrogatories, depositions and documentary discovery it has been established that in all cases where GCS performed extra work under contract changes GCS agreed to all changes and was compensated for such extra work in accordance with the provisions of the agreement. Although the above quoted provision of the contract allowed GCS to request additional time to complete its work by reason of any change order the evidence shows that at no time did GCS ask for such additional time. Actually, one item of extra work was performed by GCS prior to the execution of the Purchase Order and prior to the date of commencement of the contract work, this being the excavation and site-preparation work for the north end of the refinery project.
The Purchase Order provided the method for the authorization of changes and extra work and the compensation to be paid therefor:
PURCHASE ORDER.
"Sec. 4 B PART ONE (PHASE "B") BUILDING.
. . . . . .
FOR PART ONE (PHASE "B" ONLY) THE FOLLOWING
SHALL APPLY FOR AUTHORIZED
EXTRA WORK.
a) Materials Cost plus 10%
b) Subcontracts Cost plus 10%
c) Labor (Burdens
included) Cost plus 15% Plus 10%
d) Equipment (Company
Owned) A.E.D. Less 10%
e) Equipment (Rented) Cost plus 10%
* * *
C. PART TWO - "UNDERGROUND PIPING"
. . . . . . . .
d) For authorized extra work not covered by
Units Costs, the following Cost Plus Formula
shall apply:
1. Materials Cost Plus 10%
2. Labor (Burdens
Included) Cost Plus 15% Plus 10%
* * *
Sec. 7. EXTRA WORK AND/OR DELETED WORK
a) No field Extra Work (above original scope)
shall be performed without authorization in
writing by "PURCHASER'S" Representative.
b) Reimbursement For: (See Item 11d)
1. Authorized Field Extra Work. (Item 7a).
2. Extra Work, and/or Credits for Deleted
Work due to revisions to drawings previously
transmitted to "SELLER" shall
be in accordance with quoted Unit Costs.
* * *
Sec. 11. TERMS OF PAYMENT & INSTRUCTIONS
. . .
d) Extra and/or Credits (if any) must first be:
1. Authorized by change to subject order.
2. Properly included on Form 282, (after receipt
of proper change order), before submitted
to "PURCHASER'S" Field Representative."
* * *
That the subcontractor's delay and the consequences thereof were within the contemplation of the parties is also evidenced by the terms of the Purchase Order:
5. GENERAL
(d)
1. Further, installed Unit Costs shall remain
FIRM if "SELLER" is released to commence
work before April 1, 1970 and is
not delayed by "PURCHASER" or Pennzoil
United beyond the date of June 30,
1970 for substantial completion, and July
15, 1970 for final completion and cleanup.
2. In the event that "SELLER" is delayed
beyond the above dates by either
"PURCHASER" or Pennzoil United, the
*759
labor portion of "SELLER'S" costs may be
subject to escalation due to renegotiated
labor contracts. In this event, "SELLER"
will invoice "PURCHASER" his out-of-pocket
labor costs, which shall consist of
actual increase in base pay, plus applicable
insurance and payroll taxes and any additions
to fringe packages. The foregoing
applies to direct labor only.
Material costs shall be firm and not subject
to escalation.
The above extracts from the Purchase Order are recited to make clear that all items of extra work were contemplated by the parties and were the subject of negotiations between the parties and prior to the performance of any extra work or changes or revisions.
In addition to the contract provisions governing the extra work, the testimony of Mr. Christensen and Mr. Grey on deposition clearly establishes that GCS expected to be requested to perform extra work on the job and that the contract made provision for such extra work and the method of payment for such work.
There is no claim here that GCS was not paid for any extra work called for by contract changes or drawing revisions.
While GCS does not dispute this fact it contends that not all of the extra work was contemplated by the parties at the time the contract was entered into, and that certain of the items were of such magnitude and occurred sufficiently late on the job as not to be within the contemplation of the parties. Further, GCS contends that the change orders, extra work and drawing revisions were of such a scope as to amount to active interference by Foster-Wheeler on the job which therefore entitled GCS to damages for delay despite the inclusion of a clause in the contract barring any claim for damages for delay.
In our review the most compelling evidence against GCS's claim is the Purchase Order provision recited above page 2:
"2. CHANGES:
"If such changes cause an increase or decrease in the cost of or time required for performance, an equitable adjustment in the price and delivery schedule shall be made." (emphasis supplied)
GCS secured its adjustments for costs, but it is not shown that it ever requested time extension. It becomes apparent that the parties contemplated that changes and revisions could prolong the time required for performance and the parties provided for that in the contract.
That GCS voluntarily assumed extra work not as a result of a change order, but by way of a separate contract in which all of the terms and conditions were negotiated is illustrated by the exchange of telegram of March 23, 1970 (Motion Ex. G) and letter of April 2, 1970 (Motion Ex. H) in which the entire terms of the performance and the compensation for the excavation of the hydrotreating area are set forth. This was work which requested by GCS and was assigned to them so that they could take advantage of their presence on the job site (see Gray deposition, Motion Ex. J., p. 59) and the agreement was concluded before the principal contract was signed. Work began on this extra project before the commencement date of work on the principal contract.
Other such extra work was work done outside the limits of the work described in the area covered by the Purchase Order and could not have interfered with the progress of the Purchase Order Contract Work.
That GCS was willing to accept extra work at all times during its presence on the job site is proven by the testimony of Mr. Christensen (Motion Ex. E, p. 115) that GCS was at the job site, they were in the construction business, they were looking for work and took what was offered, even on short notice. (See also Gray deposition, pp. 88-89).
That GCS could and did refuse extra work not within the scope of the purchase order is established by the testimony of Mr. Gray. (Gray deposition, p. 92 and p. 353).
We, therefore, find that all of the extra work outside the scope of the original contract was separately negotiated and agreed to by GCS and was compensated in accordance with the agreements made, and in none of these agreements did GCS secure an enlargement of time for the performance of its principal contract.
*760 GCS argues that although it voluntarily undertook the extra work of site preparation and was compensated on a unit price basis for such work, it has never been compensated for the effect which the site preparation work had on GCS's ninety day schedule for completion of its contract work. A similar argument is posed with respect to other work, either "extra" work outside the scope of the original Purchase Order, or change orders covering Purchase Order Work. GCS bases its claim for damages on the assertion:
"The additional work represented by the foregoing change orders had the effect of delaying GCS's work under its purchase order because the work required GCS to divert manpower from its purchase order work, as well as the attention of its field supervisors and home office personnel." (GCS's Answer to Foster-Wheeler's Third Set of Interrogatories No. 3(d)).
There were fifteen (15) change orders, covering all extra work, whether within the scope of the purchase order, or work not contemplated by the purchase order. GCS lists twelve (12) of them as contributing to its claim of delay damage. (GCS's Answer to Foster-Wheeler's Third Set of Interrogatories, list attached to Answers 3(a)(b) and (c)).
CONSTRUCTION DRAWINGS
A third element of delay damages claimed by GCS is that caused by revised contract drawings and delay in receipt of these.
As a result of a motion of Foster-Wheeler to compel more responsive answers to certain interrogatories and our order of September 20, 1974, GCS gave further information with respect to the change orders and the revised construction drawings. With respect to the construction drawings GCS submitted a three page list specifying twenty-eight (28) revisions, setting forth the date scheduled for delivery, the date of receipt of a useable drawing, the number of days late, and the nature and effect of delay to progress. This list narrows down the original list of approximately 180 drawing revisions claimed to be late in GCS's original answers to Foster-Wheeler's Third Set of Interrogatories, Nos. 1 and 2.
The effect of these drawings as alleged by GCS was to cause a delay in the commencement of a particular item of work. This list does not include all drawing revisions on this job, or all that were received later than scheduled. GCS asserts that the other drawing revisions not listed in the supplemental answers had no direct or immediate effect on GCS's job.
While the nature and effect of the delay are set forth, the causal relation between any single item and any particular damages suffered is not set forth. As was argued at length in the motion for more responsive answers, GCS can submit no specific instance where it was caused to lose money by delay in receipt of drawings by reason of enforced idleness of men and equipment who could not proceed with other work on the project while awaiting the revised drawings.
While Foster-Wheeler has alleged that the drawing changes only involved 2.3% of the work, this is not established as an undisputed fact. We do not know if the percentage quoted applies to the whole contract, or only to the drawing which required changes as compared to those requiring no change.
GCS admits that it cannot support its claim for damages for delay on any particular item, or on any total of particular items, but rather relies upon the cumulative effect of the various late drawings which "caused a loss of momentum and interference with its work plan or sequence which substantially expanded the time within which GCS could reasonably expect to complete its work."
Nowhere in the supplemental answers to the interrogatories does GCS set forth the causal relation between the delayed receipt of drawings and the fact of damages; it is not shown in any specific instance that men, machinery or equipment were made idle, at GCS's cost, pending the receipt of any delayed drawings.
*761 While Foster-Wheeler argues that many of the drawings claimed to be late were actually delivered on time, and that some were duplicates of drawings delivered earlier or detail enlargements of earlier drawings, we have no evidence before us on these facts, and if they are material, we cannot dispose of the matter by summary judgment.
GCS admits that it cannot offer evidence of the precise number of days delay or dollars of harm caused by each particular late drawing, change order or hold order. At no time was all work of GCS suspended because of these. It is the argument of GCS that the cumulative effect of these caused a loss of motion and interference with its work plan or sequence which substantially extended the time within which it could reasonably be expected to complete its work. A part of this delay was caused by its voluntary acceptance of extra work. Another part was due to change orders and revised drawings, which it was contractually bound to accept, with provision for additional pay for extra work, which it received, and provisions for allowance of extra time, which was never invoked.
In addition to the provisions of Par. 2 of the Terms and Conditions recited above giving Purchaser (Foster Wheeler) the right "to make changes in or additions to the instructions, drawings . . . etc.", Sec. 2(d) of the Purchase Order, "Documents" recites
(d) "All construction drawings, and or revisions to same or added drawings, etc. will be handed to you at the job site by the PURCHASER'S Project Superintendent. These will then be incorporated in subject order by a formal change order."
Sec. 4 of the Purchase Order "Applicable Contract Unit Costs" ends with notice
"IMPORTANT
Where construction drawings introduce new items, `SELLER' shall supply `PURCHASER' immediately with appropriate installed Unit Cost/Item."
"PURCHASER will then issue a change to subject purchase order to incorporate said item."
and in Sec. 7, EXTRA WORK AND DELETED WORK the Purchase Order again recites:
"2. Extra Work and/or Credits for Deleted Work due to revisions to drawings previously transmitted to `SELLER' shall be in accord with quoted unit costs."
We conclude, therefore that the changes and revisions in drawings at issue here were within the contemplation of the parties at the time they entered into the contract; they were provided for by the contract; and they were related to the provisions for change orders and extra work under which the sub-contractor was paid for the additional labor and materials required in accordance with the unit prices agreed to in the base contract, which also provided for required extensions of time.
An example of the handling of extra work is shown by Motion Ex. K., a letter dated March 5, 1970 by the Vice-President of GCS, Robert A. Gray confirming the price terms of the contract, the dates of commencement and completion, and acknowledge receipt of drawings requiring additional work, and quoting the price for such additional work.
In McDaniel v. Ashton-Mardian Co., 357 F.2d 511 [9th Cir. 1966], a Miller Act case, a subcontractor brought an action for damages against the prime contractor for delays caused by the voluntary assumption of extra work by the prime contractor. The contract between the government and the prime contractor, which also became part of the contract between the prime contractor and subcontractor, allowed for changes in the specifications within the general scope of the contract. The subcontract recognized within its own provisions that changes and additions might delay the work. A delay did occur, due partly to changes made by the government and partly to other factors. The court found that summary judgment in favor of the prime contractor was appropriate. In its tort claim, the subcontractor maintained that the prime contractor committed a wrongful act in accepting the change orders, which caused the delay. However, the court pointed out that the *762 prime contractor was contractually bound to accept these changes. With regard to the contract claim, the court found that the parties did not intend their subcontract to mean that the subcontractor could recover damages from the prime contractor for delays occasioned by proper change orders of the government.
While the Court in Mardian noted the exception created by United States v. Rice, 317 U.S. 61, 63 S.Ct. 120, 87 L.Ed. 53 [1942] that while the owner's right under the contract to change specifications gave rise to no cause of action, a "cardinal change" outside the scope might do so except for the fact that in accepting a change order, which he is not obliged to accept, a contractor is estopped from claiming that it was beyond the scope.
GCS has alleged that despite the provisions for revisions and change orders in the contract and despite the fact that such change orders were accepted and performed by it, they are still entitled to damages because the number, variety, and effect of all of the change orders in this case constitute active or deliberate interference with their performance of the contract. In response to Foster Wheeler's Supplemental Interrogatories and in response to the motion of Foster Wheeler for summary judgment, GCS has come forward with no showing that there is any evidence to create a genuine issue of material fact as to active or deliberate interference on the part of Foster Wheeler. It appears that this situation is very similar to that which prevailed in Lichter v. Mellon-Stuart Company, 196 F.Supp. 149 [W.D.Pa.1961]; aff'd, 305 F.2d 216 [3rd Cir. 1962] where the trial judge found:
"With various contingencies plaguing the construction project, and which continued to plague it, it seems to me that the contractor defendant (Mellon), in ordering plaintiffs (Southern) to proceed, was not being fraudulent, capricious, arbitrary, or acting in bad faith, but was merely exercising its judgment in directing and coordinating the work as required by its progress, which is a right and duty given to it by the express terms of the contract." (196 F.Supp. at 151).
While GCS argues that Lichter v. Mellon-Stuart Company, was decided after a plenary trial when the judge had so determined, and not by summary judgment as is sought here, nevertheless it is incumbent upon the respondent in a motion for summary judgment to come forward with some admissible evidence to show that there is a genuine issue of material fact. If he does not do so it is appropriate under Fed.R. Civ.P. 56 that judgment be rendered against him. In a case from the state courts of New Jersey cited by both parties in their briefs presenting a very similar factual situation the court noted:
"Bare conclusions in pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." A. Kaplen & Son, Ltd. v. Housing Authority, 42 N.J. Super. 230, 126 A.2d 13, 16 [1956].
In all of the extensive materials produced by discovery and in answer to the motion for summary judgment there is no evidentiary material showing whether the change orders, the extra work or drawing revisions supplied by Foster Wheeler were fraudulent, capricious, arbitrary, or done in bad faith, the requirements for proof of active interference with the performance of the contract established in Lichter v. Mellon-Stuart Company, supra.
We recognize that the court in Lichter v. Mellon-Stuart did find liability against the contractor for one element of delay damages. It was found that the contractor had not made the shelf-angles level for installation of stone by the sub-contractor, and, after timely warning failed to set and adjust them. The court found that these negligent omissions substantially interfered with and hindered plaintiff's normal performance schedule for which he was entitled to damages if a reasonable basis for their calculation could be found. The court did find a reasonable basis for apportioning the damages due to this allowable item of recovery from the rest of the claimed damages which were denied.
*763 We recognize that inability to establish the precise damages should not bar recovery if plaintiff can establish a reasonable basis for allocating them. Peter Kiewit Sons' Co. v. United States, 151 F.Supp. 726, 138 Ct.Cl. 668 [1957]; Chalender v. United States, 119 F.Supp. 186, 127 Ct.Cl. 557 [1954]. But before this is allowed, the claimant must first establish that the defendant was legally liable for such damages. In Chalender, supra, the court found the government at fault for part of the delays because of its failure to deliver materials on time. The government both failed to deliver the required materials on time, but failed to place purchase orders with suppliers so as to permit timely deliveries. These failures resulted in actual work stoppage by the plaintiff. In such case the court found a reasonable basis to apportion damages between those where the government was at fault and where it was not.
Similarly, in Peter Kiewit Sons' Co., supra, the court was able to apportion damages and award damages against the government for that part of the delay caused by its own negligence and wilful misconduct.
But where there is no evidence that Foster-Wheeler was guilty of breach of good faith or active interference with the performance of GCS, the contract terms prevail, the purchase order clause of APPENDIX B. 5 comes into play:
"5. Delays. Neither Purchaser nor its customer shall be liable to Seller for additional expense or damages, direct, indirect, consequential or otherwise caused by or arising out of delays or Seller's inability to proceed with the work, however caused."
While we initially denied summary judgment on the "no damages delay" clause because of the allegation by GCS of active interference it now appears that after full development of the evidence in response to Foster-Wheeler's pending motion, no evidence has been produced of affirmative or positive interference that would survive the "no damages for delay clause". GCS has the burden on summary judgment of showing the existence of such evidence and none has been produced.
I conclude:
1) That GCS voluntarily accepted extra work that is the basis of a claim for delay damages.
2) That GCS was contractually obligated to accept and perform change orders which would result from revised drawings.
3) That all change orders provided for compensation for additional costs incurred according to the contract schedule.
4) That GCS was paid for all extra work and change orders according to the agreement of the parties.
5) That all revised drawings and resultant change orders provided for extensions of time if needed.
6) No extensions of time were ever requested.
7) There has been no showing that the delay in completion of the entire job was due to any item of extra work, revised drawing, late drawing or change order.
8) There is no showing of evidence of active interference, arbitrary, capricious or bad faith action on the part of Foster-Wheeler to interfere with GCS's performance.
The trial of the remaining questions at issue in this action shall be governed by the above findings, and no evidence on the above matters will be admitted in support of GCS's claim for delay damages.
NOTES
[*] Whether New Jersey law applies, as provided in the contract, or Pennsylvania law, the place of performance, is immaterial because we have found no substantial difference between them, and we have considered the cases from both jurisdictions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571874/ | 2 So.3d 280 (2007)
SCHOOL BOARD OF VOLUSIA COUNTY, Appellant,
v.
ACADEMIES OF EXCELLENCE, INC., etc., et al., Appellee.
No. 5D06-1054.
District Court of Appeal of Florida, Fifth District.
November 30, 2007.
*281 Theodore R. Doran, Audrie M. Harris and Michael Ciocchetti of Doran, Wolfe, Ansay & Kundid, Daytona Beach, for Appellant.
Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee.
PALMER, C.J.
The School Board of Volusia County (School Board) appeals the final order entered by the State of Florida, Department of Education (State Board), reversing the School Board's denial of the charter school application filed by Academies of Excellence, Inc. (Academies). Determining that the record contains competent, substantial evidence to support the State Board's decision, we affirm.
Academies applied to the School Board for permission to open a charter elementary school in Volusia County, Florida. Pertinent to this appeal, in the application the following information was set forth:
L. Student Performance Standards
* * *
4. To be considered as meeting student performance standards, students must perform at Level 3 and above on the mathematics and reading sections of the Florida Comprehensive Assessment Test.
5. Students who score at or above the 25th percentile on norm-referenced tests are considered to have demonstrated acceptable student performance standards.
Additionally, as part of the finance portion of the application, Academies indicated that it expected to initially enroll 450 students.
The School Board held a hearing to consider Academies' application. During the hearing, Dr. Chris Colwell, Deputy Superintendent for Instruction Services, testified that Academies' application failed to set a goal for itself of attaining an A, B, C, or D grade in terms of success of the school. He stated that a specific stated goal was required and appropriate. Next, Colwell took issue with Academies' standard that "students who score at or above the 25th percentile on norm reference tests are considered to have demonstrated acceptable student performance standards." He testified that the standard was lower than the standards held by public schools in Volusia County and lower than the standards that would be expected by the State of Florida.
Bill Kelly, Jr., Deputy Superintendent of Finance, opined that Academies' application lacked evidence of sound financial planning. Specifically, Kelly found Academies' enrollment projection of 450 students in the first year of operation to be unreasonable. Based on the unreasonable enrollment figure, Kelly stated that Academies' budget revenues were overstated. *282 Kelly also stated that Academies was understating its capital budget by one million dollars for facilities and land costs.
At the conclusion of the hearing, the School Board denied Academies' application. Specifically, the School Board concluded that Academies' application failed to meet the standards for minimal acceptance in the areas of student assessment/accountability and finance/class size requirements.
Academies appealed the School Board's ruling to the Charter School Appeals Commission. The Commission conducted a hearing on the matter. During that hearing, Kathleen Schoenberg, attorney for Academies, argued that Academies' application properly addressed the statutory requirement regarding student assessment and that the argument over finances was just a difference of opinion between the School Board and Academies.
Ted Doran, attorney for the School Board, argued that Academies had failed for the fourth time to produce an application sufficient statutorily to proceed to the next level. Dr. Colwell testified that Academies' failure to include a school goal in its application made Academies unaccountable for its performance under the Governor's A-Plus Plan. Further, Colwell stated that it was unacceptable that Academies considered the 25th percentile to be an acceptable level of student performance. However, he did indicate that Academies had admitted that this figure on their application was a typographical error and that the figure should have been 51st percentile instead of 25th percentile.
In response, Schoenberg stated that Academies mistakenly omitted a sentence stating that the school's goal was to be an "A" school. However, she argued that omission of that one sentence was not enough to make the entire application deficient.
The Commission asked the parties whether there was a specific requirement that a school grade be part of the application. Colwell admitted that the application template did not include such a requirement and Schoenberg stated that the statute does not require the school to include a school grade as one of its goals.
At the conclusion of the comments on student assessment/accountability, the Commission voted that the School Board had competent, substantial evidence to support its finding that the application was statutorily deficient in the area of student assessment/accountability. However, immediately thereafter, the Commission voted that the School Board's finding that the application was statutorily deficient in the area of student assessment/accountability was not good cause for denial.[1] After *283 more discussion, the Commission voted that the School Board did not have competent substantial evidence to support its finding that the application was statutorily deficient in the areas of finance/class size requirements. Subsequently, the Commission voted to grant Academies' appeal, thereby overturning the School Board's denial of Academies' application.
The School Board appealed that decision to the State Board. The State Board conducted a hearing during which it considered whether to accept the Commission's recommendation to overturn the decision of the School Board and to grant Academies' application. During the hearing, a member of the State Board requested clarification regarding the 25th percentile versus the 51st percentile. The head of the appeals commission responded:
I absolutely admonished the applicant that that's not acceptable. They had noted it. They admitted it. They said it was a typo. They absolutely agree on the record and in writing, it should be 51 percent which is the norm for the FCAT.
Subsequently, the State Board issued a written order upholding the findings and recommendations of the Commission. This appeal timely followed.
The School Board challenges the State Board's final order, claiming first that the Board deviated from the record below and improperly created its own record during the appeal process. Specifically, the School Board argues that the School Board and Academies were bound by the record developed before the School Board and thus it was error for the parties to add new evidence during the appeal process. We reject this argument because both the School Board and Academies presented, without any objection, testimony before the Commission regarding the issues of student assessment/accountability and finance/class size requirements. Additionally, the School Board did not raise any objections to the comments made during the State Board meeting regarding the 25th percentile promotion rate, nor did the School Board raise the argument before the State Board that it now raises on appeal. Accordingly, the School Board failed to preserve this issue for our review.
In a related argument, the School Board claims that the State Board improperly conducted a de novo review of the evidence by accepting testimony at the State Board hearing. Again, this argument was not properly preserved for our review.
The School Board further argues that the State Board's order must be reversed because it fails to include a fact-based justification for the Board's decision. We disagree.
Section 1002.33(6)(e) 1. & 5. of the Florida Statutes (2005) provides:
*284 1002.33. Charter schools
* * *
(6) Application process and review.
Beginning September 1, 2003, applications are subject to the following requirements:
* * *
(e) 1. A Charter School Appeal Commission is established to assist the commissioner and the State Board of Education with a fair and impartial review of appeals by applicants whose charter applications have been denied, whose charter contracts have not been renewed, or. . .
* * *
5. Commission members shall thoroughly review the materials presented to them from the appellant and the sponsor. The commission may request information to clarify the documentation presented to it. In the course of its review, the commission may facilitate the postponement of an appeal in those cases where additional time and communication may negate the need for a formal appeal and both parties agree, in writing, to postpone the appeal to the State Board of Education. A new date certain for the appeal shall then be set based upon the rules and procedures of the State Board of Education. Commission members shall provide a written recommendation to the state board as to whether the appeal should be upheld or denied. A fact-based justification for the recommendation must be included. The chair must ensure that the written recommendation is submitted to the State Board of Education members no later than 7 calendar days prior to the date on which the appeal is to be heard. Both parties in the case shall also be provided a copy of the recommendation.
§ 1002.33(6)(e)1. & 5., Fla. Stat. (2005)(emphasis added). The statute clearly states that the Commission, not the State Board, must include a fact-based justification for its recommendation. Therefore, the failure of the State Board to include a fact-based justification for its decision does not constitute reversible error.[2]
The School Board next challenges the State Board's final order, claiming that the School Board's basis for denying Academies' charter school application constituted good cause because Academies' application was unsound in student assessment/accountability and finance/class size requirements. The School Board claims that, because the Commission found that Academies' application was statutorily deficient in the area of student assessment/accountability, the Commission erred in concluding that this deficiency was not good cause for denial of Academies' application. We disagree.
While Academies admitted at the hearing before the Commission that it had mistakenly omitted a sentence from its application that should have said the school's goal was to be an "A" school, a representative from the School Board also admitted that the application template did not include a requirement that one of the goals include a school grade. Section 1002.33(6)(a) of the Florida Statutes also contains no such requirement, and the *285 Florida charter schools standard application includes no such requirement. Therefore, competent substantial evidence supports the Commission's conclusion that the School Board did not have good cause to deny Academies' application on that basis.
Next, the School Board argues that the Commission erred in concluding that the School Board did not have good cause to deny Academies' application based on statutory deficiencies in Academies' basis for promotion of students. Specifically, the School Board argues that Academies' could not promote students based on reaching the 25th percentile. This issue was extensively discussed at the meeting before the Commission. Academies indicated that it was willing to correct this language. Academies' willingness to rectify the situation appeared to be the reason that the Commission concluded that this error on Academies' application was not good cause to deny the application. Based on the testimony and argument presented at the hearing, the Commission had sufficient evidence before it to properly conclude that, although Academies' application was statutorily deficient, such a deficiency was not good cause for denial of the application when Academies recognized the problem and was willing to correct it.
The School Board also argues that the Commission erred in concluding that the School Board did not have competent substantial evidence to support its finding that Academies' application was statutorily deficient in the area of finance/class size requirement. We again disagree. The record demonstrates that Academies rebutted the reasons the School Board gave for denying its application, and the evidence demonstrated that many of the School Board's reasons for denial were based on opinion. Also, a School Board representative admitted that Academies' budget was correct if it could achieve its estimated enrollment number.
Finally, the School Board challenges the State Board's final order, claiming that the order which was entered pursuant to section 1002.33 of the Florida Statutes conflicts with, and thereby violates, the School Board's constitutional authority under Article IX, section 4(b), of the Florida Constitution, to operate, control and supervise public schools, and its authority under Article IX, section 1(a), of the Florida Constitution, to make adequate provision for a uniform and high quality system of free public schools. Specifically, the School Board argues that, because the act of operating and controlling all free public schools in Volusia County is conferred exclusively on the School Board, section 1002.33(6)(c) is unconstitutional because it permits the State Board to open a charter school.
Section 1002.33(6)(c) of the Florida Statutes provides:
1002.33 Charter Schools
* * *
(6) Application process and review.-Beginning September 1, 2003, applications are subject to the following requirements:
* * *
(c) An applicant may appeal any denial of that applicant's application or failure to act on an application to the State Board of Education no later than 30 calendar days after receipt of the district school board's decision or failure to act and shall notify the district school board of its appeal. Any response of the district school board shall be submitted to the State Board of Education within 30 calendar days after notification of the appeal. Upon receipt of notification from the State Board of Education that a charter school applicant is filing *286 an appeal, the Commissioner of Education shall convene a meeting of the Charter School Appeal Commission to study and make recommendations to the State Board of Education regarding its pending decision about the appeal. The commission shall forward its recommendation to the state board no later than 7 calendar days prior to the date on which the appeal is to be heard. The State Board of Education shall by majority vote accept or reject the decision of the district school board no later than 90 calendar days after an appeal is filed in accordance with State Board of Education rule. The Charter School Appeal Commission may reject an appeal submission for failure to comply with procedural rules governing the appeals process. The rejection shall describe the submission errors. The appellant may have up to 15 calendar days from notice of rejection to resubmit an appeal that meets requirements of State Board of Education rule. An application for appeal submitted subsequent to such rejection shall be considered timely if the original appeal was filed within 30 calendar days after receipt of notice of the specific reasons for the district school board's denial of the charter application. The State Board of Education shall remand the application to the district school board with its written decision that the district school board approve or deny the application. The district school board shall implement the decision of the State Board of Education. The decision of the State Board of Education is not subject to the provisions of the Administrative Procedure Act, chapter 120.
§ 1002.33(6)(c), Fla. Stat. (2005).
Article IX, Section 1(a) of the Florida Constitution provides:
§ 1. Public education
(a) The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people require. . . .
Article IX, section 4(b) of the Florida Constitution provides:
§ 4. School districts; school boards
* * *
(b) The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein. Two or more school districts may operate and finance joint educational programs.
Article IX, section 2 of the Florida Constitution provides:
§ 2. State board of education
The state board of education shall be a body corporate and have such supervision of the system of free public education as is provided by law. The state board of education shall consist of seven members appointed by the governor to staggered 4-year terms, subject to confirmation by the senate. The state board of education shall appoint the commissioner of education.
Section 1002.33(6)(c) does not permit the State Board to open a charter school. Rather, the statute permits the State Board to approve or deny a charter application after it completes an extensive review process. Granting a charter application *287 is not equivalent to opening a public school. The approval of an application is just the beginning of the process to open a charter school. Once the charter application has been granted, the school board still has control over the process because the applicant and the school board must agree on the provisions of the charter. See § 1002.33(6)(h), Fla. Stat. (2005). A school board can also cause a charter to be revoked or not renewed. See § 1002.33(8), Fla. Stat. (2005). Furthermore, under the Constitution of Florida, while the school board shall operate, control and supervise all free public schools within their district the State Board of Education has supervision over the system of free public education as provided by law.
AFFIRMED.
SAWAYA, J., concurs.
GRIFFIN, J., concurs specially, with opinion.
GRIFFIN, J., concurring specially.
For what it is worth, in my view, the School Board acted appropriately in denying the application. This was the fourth time that Academies had submitted its application for this charter school. In the previous application, the minimum standard Academies identified for assessment of the school itself was not to receive an "F" from the State's grading system for two consecutive years. The County found such a standard unacceptable so, in this fourth application, Academies simply eliminated any measure for the school. As for the 25th percentile threshold for individual student evaluation, the application says that it would be acceptable if students scored at or above the 25th percentile on norm reference tests. This is clearly not an acceptable standard for several reasons that were discussed in the hearing. Academies' response was that their standard appeared to be unacceptable due to an inadvertently omitted sentence and poor wording, but in fact, they intended to have a standard that would not be unacceptable. The Board concluded that it could only act on the application that had been submitted, not the application that might be submitted if errors were corrected, and accordingly denied the application. Surely, they could not have approved the application in its current form.
Few things in the administrative process are more destructive than the belief on the part of the applicant and the decision-maker that the "review" of administrative action is really nothing more than a "do-over" with more receptive listeners. A fact-finder and decision-maker who knows its decisions will not be accorded respect is less inclined to worry over their accuracy. Nevertheless, for reasons best known to others, this is apparently the way this process has been designed to operate. Therefore, I concur in the result.
NOTES
[1] Section 1002.33(6)(b)3 of the Florida Statutes provides:
1002.33 Charter Schools
* * *
(6) Application process and review.Beginning September 1, 2003, applications are subject to the following requirements:
* * *
[b] 3. A district school board shall by a majority vote approve or deny an application no later than 60 calendar days after the application is received, unless the district school board and the applicant mutually agree to temporarily postpone the vote to a specific date, at which time the district school board shall by a majority vote approve or deny the application. If the district school board fails to act on the application, an applicant may appeal to the State Board of Education as provided in paragraph (c). If an application is denied, the district school board shall, within 10 calendar days, articulate in writing the specific reasons based upon good cause supporting its denial of the charter application.
§ 1002.33(6)(b)3, Fla. Stat. (2005)(emphasis added). Interestingly, the requirement for "good cause" has been dropped from the most recent version of the statute which provides:
1002.33 Charter Schools
* * *
[6][b]3. A district school board shall by a majority vote approve or deny an application no later than 60 calendar days after the application is received, unless the district school board and the applicant mutually agree in writing to temporarily postpone the vote to a specific date, at which time the district school board shall by a majority vote approve or deny the application. If the district school board fails to act on the application, an applicant may appeal to the State Board of Education as provided in paragraph (c). If an application is denied, the district school board shall, within 10 calendar days, articulate in writing the specific reasons for its denial of the charter application and shall provide the letter of denial and supporting documentation to the applicant and to the Department of Education supporting those reasons.
§ 1002.33(6)(b)3, Fla. Stat. (2006).
[2] To the extent the School Board argues that the Commission's order is insufficient for failure to include detailed factual findings, the School Board failed to preserve this argument because it failed to raise the insufficiency of the Commission's recommendations before the State Board. See Imhotep-Nguzo Saba Charter School v. Department of Educ., 947 So.2d 1279 (Fla. 4th DCA 2007)(holding appellate court would not consider issue raised by charter schools for first time on appeal). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572176/ | 2 So.3d 276 (2009)
HOLLY
v.
STATE.
No. 5D08-4129.
District Court of Appeal of Florida, Fifth District.
January 28, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3038043/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOREEN HULTEEN; ELEANORA
COLLET, ARMA HORTON; ELIZABETH
SNYDER; COMMUNICATIONS No. 04-16087
WORKERS OF AMERICA,
Plaintiffs-Appellees, D.C. No.
CV-01-01122-MJJ
v. ORDER
AT&T CORPORATION,
Defendant-Appellant.
Filed July 19, 2006
Before: Mary M. Schroeder, Chief Judge.
ORDER
Upon the vote of a majority of nonrecused regular active
judges of this court,1 it is ordered that this case be reheard by
the en banc court pursuant to Circuit Rule 35-3. The three-
judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to
the extent adopted by the en banc court.
1
Judges Kleinfeld and Rawlinson are recused.
8289
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1572037/ | 546 S.W.2d 759 (1977)
STATE of Missouri, Respondent,
v.
Thomas Edward NUNES, Appellant.
No. KCD 28340.
Missouri Court of Appeals, Kansas City District.
January 31, 1977.
*760 William G. Mays, II, Public Defender, Columbia, for appellant.
John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
Before Shangler, P. J., and SWOFFORD and SOMERVILLE, JJ.
SHANGLER, Presiding Judge.
The defendant Nunes was found guilty of three counts of striking a police officer engaged in the performance of his duties and was sentenced to serve concurrent sentences of three years on each count. On this appeal he contends the trial court erred in the refusal of his proffered instructions on (1) self-defense and (2) resisting arrest as a lesser included offense.
The evidence favorable to the conviction shows: The offenses for which Nunes was convicted resulted when three members of the Columbia Police DepartmentOfficers Lake, Purdy and Taylorintervened to quell a brawl between Nunes and Dority, night manager of the IGA store. The incident began on the parking lot of the store where Dority was helping a customer unload groceries into her car when, according to Dority, Nunes approached him with loud obscenities, then shoved him and hit him as Dority fell. [Nunes had been excluded from the IGA store by Dority some months earlier after his female companion had been caught shoplifting.] Dority retaliated by fisticuffs upon Nunes and the fray continued until the police arrived five minutes later. Officer Purdy was the first to come on the scene, then Lake and then Taylor. By the time the police arrived, Dority had gained the advantage over Nunes and had him pinned to the ground. The testimony conflicts as to what happened next, but it is clear that a struggle ensued between Nunes and the police as they tried to reduce him with handcuffs, and subdued him only after Officer Taylor struck Nunes once on the head with his nightstick. When the police arrived, Dority promptly responded to their commands to stop the fight, but Nunes *761 continued to flail wildly, first at Dority and then at the police. The defendant continued his resistance even after he was handcuffed and placed in the police car, and was finally sprayed with mace to make him calm.
The defendant admits that Dority hit him only after he had first struck Dority. He does dispute the evidence of the prosecution as to what happened after the police arrived. The version given by Doritycorroborated by the testimony of Officers Purdy and Lake as well as witnesses Johnson and Heuerwas that he stopped fighting in response to the police direction and as he disengaged, Nunes struck out at one officer, then fought and kicked both Purdy and Lake as they tried to handcuff him. Betty Heuer, the customer Dority attended at the time of the incident, testified that when the police arrived, Dority relented his hold on Nunes, but the defendant was in a frenzy, cursing, hitting and fighting them all. The officers testified that Dority responded to their intervention, but Nunes pulled them to the ground, fought and kicked them, all without physical retaliation from them except to try to pin his arms to handcuff him. In the course of this attempt, Nunes fell against a car antenna, snapped it off, and began to swing it at them.
The defendant disagrees with this account of the incident. His testimony was that immediately upon their arrival the police grabbed him although Dority was still striking him as he got up. He could not see well and did not realize until later that the men were police officers, nor that they were trying to arrest him. [All three officers were uniformed and arrived in marked police cars. Officer Lake had no chance to tell Nunes he was under arrest and Officer Purdy did not intend to arrest at first.] Nunes did not remember striking at the officers with the car antenna nor whether his hands came into contact with the officers, but did admit that his feet came in touch with a police officer. It was his contention that he did not intentionally strike or swing at any police officer, and that his purpose in grappling with them was to protect himself from harm from them. He said that the first police officer at the scene grabbed him and continued to beat him even after one handcuff had been placed on him. He concluded that testimony with the statement that he thought the police might inflict serious harm on him. That concern arose from previous encounters with the police, including one incident where an Officer Cunningham had caught his hand in a rat trap which Nunes had placed under the front seat of his car, as a result of which he was threatened by Cunningham. Officers Purdy and Lake both testified that they were aware of that incident and had stopped Nunes previously for traffic violations. The testimony of the defendant himself disclosed a series of convictions for traffic charges and other more serious offenses over the past twenty years. Less than a year before, he was convicted for the assault on a police officer.
To revert to the actual fighta third city officer, Taylor, saw Purdy and Lake struggling with defendant, and went to their assistance. When he tried to secure defendant around the neck, Nunes bit his hand and drew blood. Taylor struck Nunes once on the head with his nightstick and the other officers were then finally able to handcuff the defendant. Even then, Nunes kicked Lake in the leg, and the defendant continued to kick, struggle and curse as the officers attempted to place him in the patrol car. When in the car he continued to resist and tried to open the door. It was at that time that Officer Purdy sprayed mace on him and he was made calm. Nunes shouted profanities all the way to the station and after he was placed in a cell he spit upon Purdy. Nunes admitted to that.
At the close of the evidence the court refused the instruction proffered by defendant in the modified form of MAI-Cr 2.40 which directs an acquittal on the theory of lawful self-defense. The trial judge refused the submission on the authority of State v. Briggs, 435 S.W.2d 361 (Mo.1968) which denied the right to resist an arrest even under a law which is later found unconstitutional. The defendant argues here that *762 Briggs does not concern the issue of self-defense but resistance to arrest, and contends that under the evidence his tendered instruction was properly submissible.
It is evident that the trial court confounded two disparate issuesself-defense and resistance to arrest. Briggs merely departs from the common law rule which allows resistance to an unlawful arrest by the use of reasonable force and overcomes the impact of such cases as Kansas City v. Mathis, 409 S.W.2d 280 (Mo.App. 1960) and State v. Messley, 366 S.W.2d 390 (Mo.1963) which followed the previous authority. Briggs means [l.c. 365] that a citizen may not use force to resist any arrest, lawful or unlawful, for such self-help tends to intolerable disorder. The right of self-defense expresses a different principle and permits reasonable resistance to excessive force of the officer to protect the bodily integrity of the citizen. In such case, however, [Restatement of Torts, Second, § 65, comment f]:
. . . . the [citizen] may defend himself by the use of such force, not because its use is necessary to protect him from the unlawful arrest, but because it is the only way in which he can protect himself from death or serious bodily harm.
Therefore, the rationale which denies resistance to unlawful arrest does not determine the right to resist excessive force.[1]
The jurisdictions which have abrogated the common law right to resist an unlawful arrest recognize that the right of self-defense against excessive force in the arrest remains unimpaired. State v. Ramsdell, 109 R.I. 320, 285 A.2d 399 (1971); People v. Curtis, 70 Cal. 2d 347, 74 Cal. Rptr. 713, 450 P.2d 33 (1969); State v. Mulvihill, 57 N.J. 151, 270 A.2d 277 (1970); Gray v. State, 463 P.2d 897 (Alaska 1970), and generally, 44 A.L.R. 3d 1079, 1087, Annotation: Illegal ArrestRight to Resist. These authorities each hold that although a citizen has no right to resist an arrest, the privilege of self-defense against excessive force in the arrest remains. The pragmatic rationale of this privilege recognizes that although liberty can be restored through legal process, life and limb cannot be repaired in a courtroom. People v. Curtis, supra, 74 Cal.Rptr. l.c. 719, 450 P.2d l.c. 39. The historical rationale for the abrogation of the common law right to resist unlawful arrest is given in City of Columbus v. Fraley, 41 Ohio St. 2d 173, 324 N.E.2d 735 l.c. 739 (1975):
Since 1709, when the doctrine was pronounced in The Queen v. Tooley (1709), 2 Ld.Raym. 1296, 92 Eng.Rep. 349, society has changed drastically. Nations once rural and agrarian have become urban and industrialized. Policemen who once employed staves and swords to effect arrests now use guns and sophisticated weapons. The era "when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery," is past.. . . Modern-day defendants reap the benefits of "liberal bonding policies, appointed counsel in the case of indigency, and the opportunity to be taken before a magistrate for immediate arraignment and preliminary hearing."
Considerations of this type have prompted both courts and legislatures to look anew at, and often abandon, the common law rule. . . .
Thus, the contemporary authoritieswhich Briggs now joinshold that while a person may not use force to resist an arrest, he may use reasonable force to defend life and limb against excessive force. The reasonableness of the force used and the right of self-defense are in each case for the trier of fact to decide. State v. Ramsdell (R.I.), supra, and People v. Curtis (Cal.) *763 supra. The right of an arrestee to self-defense does not arise when the arrestee creates a situation so "fraught with peril" as to invite the use of force to subdue it. Gray v. State, supra, l.c. 910 (Alaska). Also, the arrestee forfeits the right to self-defense if he knows that if he desists from physical resistance and submits to arrest, the excessive force of the officer will ceasebut does not conform his conduct to that knowledge. State v. Mulvihill, supra, l.c. 280[5, 6] (N.J.). This qualification is expressed in the comments to § 3.04 of Model Penal Code, which denies self-defensive force to an arrestee who "knows that he is in no peril greater than arrest if he submits to the assertion of authority".
These principles are compatible with the developed law of this state. A police officer is authorized to use all necessary force to effect the arrest if the arrestee flees or forcibly resists after notification that the officer intends to arrest. § 544.190, RSMo 1969.[2] He may use only the force he reasonably believes necessary [State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016, 1020[7-9] (1946)] and while the use of unreasonable force may not void the arrest, it may subject the officer to civil or criminal liability. City of Gallatin ex rel. Dixon v. Murphy, 217 S.W.2d 400, 403[1-4] (Mo. App.1949); Scurlock, Basic Principles of the Administration of Criminal Justice, 41 UMKC L.Rev. 167, 189 (1972).
The law expects an officer in making an arrest to be the aggressor and imposes the duty to press forward to overcome all resistance to bring the arrestee under physical restraint. State v. Ford, 344 Mo. 1219, 130 S.W.2d 635, 638 (1939). An officer need not engage felons on equal terms or put off the arrest until a more favorable time, but is expected to accomplish the arrest by the use of force co-extensive with his duty. State v. Dierberger, 96 Mo. 666, 10 S.W. 168, 170 (1888); Scurlock, Arrest in Missouri, 29 U.K.C. Law Rev. 117, 217 (1961). The requirement of § 544.190 that the force used to accomplish the arrest or prevent escape must be reasonably necessary for the purpose becomes a determination of objective fact under the circumstances. State ex rel. and to Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132, 135[2, 3] (1939); City of Gallatin v. Murphy, supra, l.c. 403[1-4].
There are statements in the Missouri law which recognized the right of an arrestee to resist the use of excessive force by an officer to accomplish arrest, but only to the extent of the excess. State v. Banks, 258 Mo. 479, 167 S.W. 505 (1914) considered the contention that it was error to refuse the self-defense instruction that if defendant knew the deceased was a police officer, yet he had the right to shoot him, if the officer used unnecessary force to arrest and gave the defendant good reason to believe he was about to be killed or suffer great bodily harm. The court acknowledged the instruction was a correct statement of the law and cited the general rule from Wharton on Homicide (3rd Ed.) § 401, p. 621:
An officer seeking to make an arrest may only use such force as is reasonably necessary to subject the person sought to be arrested to his authority; and, where he goes further, and uses unnecessary force, the rule applicable to a private individual *764 attacked by another, that, if a person believes, or has reason to believe, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent, applies. . . . A person sought to be arrested may oppose a felonious aggression in the execution of the arrest, even to slaying the officer when necessary to save his own life, or to save himself from serious bodily harm.
However, because the defendant had based his defense on testimony that he did not know the deceased was a police officer, the instruction was not warranted; but [l.c. 508]:
[i]n a proper case, where the evidence showed that the defendant knew the aggressor was an officer attempting to arrest him, and that the officer used unnecessary force in so doing, and that defendant believed, and had good reason to believe, that he was about to be killed, or about to receive great bodily injury by reason of such unnecessary force, and shot to defend himself against such unnecessary force, such an instruction would be proper, but where, as here, there is no such evidence, but, on the other hand, the entire defense is based upon the theory that defendant did not know the aggressor was an officer attempting to arrest him, the evidence does not justify the giving of such an instruction.
See also, State v. Ross, 492 S.W.2d 792, 794[1] (Mo.1973); City of St. Louis v. Treece, 502 S.W.2d 432, 435 (Mo.App.1974); State v. Milentz, 521 S.W.2d 1, 3 (Mo.App. 1975).
This right of self-defense, it must be understood, does not resist the arrest but the excessive force. Therefore, self-defense is not available to the arrestee who uses more force for self-protection than reasonably appears to be necessary. As corollary, an arrestee who provokes the use of force against him may not excuse his resistance by self-defense. Wharton's Criminal Law (Anderson) (1957) states [§ 216, p. 475]:
When a man puts himself in a state of resistance and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the excuse of self-defense.
The Model Penal Code, § 3.04(2)(b)(ii) does not justify the use of deadly force "if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter". This qualification is compatible with Missouri authorities in assault cases which hold that an aggressor may not invoke self-defense to justify the injury to the other. State v. Spencer, 307 S.W.2d 440, 443[2, 3] (Mo.1957); Lehman v. Lambert, 329 Mo. 1147, 49 S.W.2d 65, 68[6] (1932).
Any substantial evidence of self-defenseeven from the defendant alonerequires instruction on the issue to the jury as part of the law of the case. State v. Spencer, supra, l.c. 443; State v. Robinson, 182 S.W. 113[1-2] (Mo.App.1916).
These authorities yield the rule that arrestee becomes entitled to an instruction on self-defense where there is substantial evidence of excessive force by the police officer in circumstances where the use of such force was not provoked by the arrestee. Accordingly, as a matter of law, the refusal by the trial court to instruct on self-defense was proper.
It comes from the defendant himself that he started the imbroglio and never relented. He hurled the first epithet, he struck the first blow, and after Dority retaliated and the police intervened, he continued his assault wildly against all of them. The defendant asserts that he did not provoke the use of force by the police, but that they simply began to beat him and that he retaliated for fear that they would cause him unnecessary bodily harm. These contentions contradict the evidence by the State that Nunes never abated his assault, first against Dority and then against the officers; but what remains conceded even by the defendant is that he was the aggressor and that in the course of this aggression struck at least one of the officers with his leg. The defendant explains his resistance *765 by his fear that the officers harbored a grudge against him from prior encounters, yet contends at the same time he was not at first aware Purdy and Lake were officers. That does not explain, however, why Nunes continued to resist when he finally discovered their identities. It is not disputed that each of the three officersPurdy, Lake and Taylorwere in proper uniform and arrived in marked cars. Nor does Nunes contend the officers were not in performance of their duties under § 557.215. [In fact, when the police arrived Nunes was engaged in activities which amounted to, among other things, a breach of the peace [§ 562.240] and a common assault [§ 559.220]. The officers were required by law [§ 85.620] to conserve good order and quell the fight. See e.g. State v. Jacks, 462 S.W.2d 744, 747[4] (Mo.1970).] Therefore, even though the officers when they came upon the scene did not intend at first to arrest anyone, they were engaged in the performance of official duties at the time of the assault. State v. Brothers, 445 S.W.2d 308, 310[1, 2] (Mo.1969).
If, as Nunes contends, he was not aware of their identity as officers when first Purdy and then the others intervened, then his resistance was not against the unnecessary force of a police officer and no submission for self-defense is proved. State v. Banks, supra, l.c. 508. If, as he also contends, he learned their official identity during the fracas, it was his duty to submit to their reasonable methods of arrest. It is evident in any event with any effort Nunes could easily have learned that the men who intervened were police officers, and he is held to that knowledge and the consequent duty to submit. Williams v. State, 311 N.E.2d 619, 621[4] (Ind.App.1974). The defendant was the aggressor throughout the entire encounter; even after he was subdued and placed in the police car, he fought to escape the arrest, and then in jail he spat upon the police. Beyond that, there was no evidenceeven to the blow on the head by Taylor with the truncheonthat any of the force used by the police was other than reasonable and consistent with their duty to maintain the peace and overcome resistance to arrest. The self-defense submission was properly refused.
The other point on appeal contends error for failure to submit instructions patterned on § 557.210 which would have allowed the jury to find Nunes guilty of the misdemeanor of resisting process, other than for felonies, if the jury find:
First, that Nunes knowingly and wilfully did obstruct, resist or oppose the officer, and
Second, that the officer was engaged in the discharge of an official duty, and
Third, that the arrest was for an offense other than a felony.
The defendant cites the general test from State v. Amsden, 299 S.W.2d 498, 504 (Mo. 1957) that if the greater of the two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser for his argument that the misdemeanor, resisting process other than for felonies, is necessarily included within the felony of striking a police officer in the performance of his duties. Accordingly, the argument continues, the court was required to submit the instruction offered by defendant.
This argument fails because there was no evidence to justify submission of the misdemeanor, resisting process other than for felonies. In State v. Taylor, 498 S.W.2d 614 (Mo.App.1973) and State v. Ross, 492 S.W.2d 792 (Mo.1973) the court construed § 557.215 [under which Nunes was charged and convicted] to be directed at all willful assaults on police officers, and ruled that there was no lesser included offense where a striking is shown and no controversy appears over whether the victim was a police officer or engaged in the performance of his duties. That was the state of facts before the trial court and hence an instruction on a misdemeanor [in that case, common assault] was not appropriate. (498 S.W.2d at 617). In State v. Ross, supra, [l. c. 794] the court found the evidence did not warrant a common assault instruction [even if otherwise valid] where it was clear the officer was struck while engaged in the performance of his duties and used no excessive *766 force. See also, State v. Jacks, supra [l.c. 747].
In the present case, the uncontroverted evidence showed at least that Nunes kicked the officers. The witnesses, other than the defendant himself, all described a continuous episode of assaults on the officers by flailing, spitting, biting and wrestling. Nor is there genuine doubt Nunes was aware that his victims were officers engaged in the performance of their duties.
It may be arguable that § 557.210 applies to misdemeanor arrests without warrants [Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975) but the fact remains that the Legislature, by enactment of § 557.215 intends to treat the striking of an officer as a distinct and far more serious offense than the mere obstruction of an officer in the discharge of duty in any case other than a felony. Since the evidence is undisputed that Nunes struck an officer in the performance of an official duty, the trial court properly refused to submit the misdemeanor of resisting process, other than for a felony, as requested by defendant.
The judgment is affirmed.
All concur.
NOTES
[1] The Model Penal Code, § 3.04, provides: "(2)(a) The use of force is not justifiable . . . (i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful . . . . . (ii) except that this limitation shall not apply if: . . . (3) the actor believes that such force is necessary to protect himself against death or serious bodily harm." See, also, Fisher, Laws of Arrest, § 138; 5 Am.Jur.2d, Arrest, § 94, p. 779; Uniform Arrest Act, § 5.
[2] §§ 544.190 and 559.040 [which justifies a homicide committed in the apprehension of any person for any felony committed] were held unconstitutional by a 4 to 3 decision of the United States Court of Appeals, 8th Circuit, in Mattis v. Schnarr, 547 F.2d 1007, p. 1020, adopted December 1, 1976, to the extent those sections "permit police officers to use deadly force to apprehend a fleeing felon who has used no violence in the commission of the felony and who does not threaten the lives of either the arresting officers or others". That holding does not bind us here for state courts are controlled by the supreme law of the land as declared by the United States Supreme Court, and not by the general announcements of law made by lower federal courts. Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783, 784[2] (Mo.1973). In the absence of decision of the United States Supreme Court, we are bound to follow the controlling decisions of the Missouri Supreme Court. Valentine v. State, 541 S.W.2d 558 [Mo. banc adopted October 12, 1976]. Furthermore, the present case does not involve the use of deadly force against a fleeing felon, the conduct condemned in the circumstances of Mattis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576929/ | 118 Mich. App. 547 (1982)
325 N.W.2d 489
FUCHS
v.
GENERAL MOTORS CORPORATION
Docket No. 52114.
Michigan Court of Appeals.
Decided August 23, 1982.
Leitson, Dean, Dean, Segar & Hart, P.C., for plaintiff.
Munroe & Nobach, P.C. (by George H. Wyatt, III), for defendant.
Before: T.M. BURNS, P.J., and D.E. HOLBROOK, JR., and K.B. GLASER,[*] JJ.
D.E. HOLBROOK, JR., J.
Plaintiff appeals by leave granted from a Workers' Compensation Appeal Board (WCAB) decision modifying a retroactive award of differential benefits to a period which antedates the filing of his application by two years under the two-year-back rule in MCL 418.381(2); MSA 17.237(381)(2).
On November 5, 1968, plaintiff, a skilled tradesman, suffered a crushing injury to his right leg arising out of his employment as a diemaker. After his injury, he was able to work as a diemaker but he was unable to work the extensive overtime he had previously worked. His employer, defendant General Motors Corporation (GMC), voluntarily paid Fuchs compensation equal to two-thirds of the difference between his average weekly wages before the injury and his average weekly wages after the injury in accordance with MCL 418.361; MSA 17.237(361).
On November 11, 1974, plaintiff was given the job classification of inspector: tool, die, and fixture, which is compensated at the same hourly pay scale as a diemaker and is also a skilled trade. This change in classification was not related to any physical disability. Claiming Fuchs was no longer *551 disabled, defendant stopped paying compensation on November 23, 1975.
On May 14, 1976, Fuchs filed his petition for a hearing before the Bureau of Workers' Compensation. Following hearings, the hearing referee found that the claimant had a continuing partial disability. In addition, he found that GMC deliberately miscalculated plaintiff's pre-injury average weekly wage as $347.13. Therefore, the hearing referee ordered:
"* * * the defendant shall compute and pay to the plaintiff with interest of five percent per year differential benefits up to the full weekly rate of compensation of each year since the date of injury based upon a wage of 361.11. The defendant should not be allowed to hide behind the one-year-back rule because of its intentional misrepresentation of the weekly wage. After careful consideration this appears to be within the intent of this social legislation even though not precisely spelled out as such in the act."
The hearing referee also denied GMC's claim that it should not pay more than two-thirds of the difference between Fuchs' average weekly wage before the injury and his post-injury average weekly wage.
Defendant appealed to the WCAB, which modified the order of the hearing referee. While the WCAB agreed that defendant had intentionally miscalculated claimant's average weekly wage, it found that the two-year-back rule applied and barred recovery of any underpayments which antedated the filing of Fuchs' claim by two years. Further, pursuant to MCL 418.361; MSA 17.237(361), the WCAB found that plaintiff was not entitled to the full weekly differential, but only two-thirds of the difference between his average weekly wage prior to the injury and that which he *552 has been able to earn subsequently. Plaintiff appeals both of these findings.
We first note that our review of the WCAB decision is very limited. We are charged with the responsibilities of reviewing questions of law, determining whether there is any fraud, and deciding whether there is any competent evidence in the record to support the findings of fact made by the appeal board. MCL 418.861; MSA 17.237(861), Aquilina v General Motors Corp, 403 Mich. 206; 267 NW2d 923 (1978).
Plaintiff first argues that the two-year-back rule does not preclude the retroactive award of differential benefits when the employer intentionally miscalculates the employee's average weekly wage. The two-year-back rule provided:
"Whenever weekly payments are due an injured employee under this act, such payments shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed application for hearing with the bureau." MCL 418.381(2); MSA 17.237(381)(2).
Although the WCAB has long held that rate corrections are not subject to the one-year-back rule in MCL 418.833(1); MSA 17.237(833)(1), the board has found that it is without authority to order any benefits for periods more than two years prior to the filing of a petition. The WCAB reasons that the two-year-back rule must be read in conjunction with MCL 418.831; MSA 17.237(831), so it is barred from considering the period of time prior to two years preceding the filing of a petition, whether benefits were paid at an improper rate, or even if they were paid at all. Tobias v John F Ivory, Sr, 1975 WCABO 2604.
We are satisfied that the WCAB has adopted a *553 reasonable construction of the statute, however, the two-year-back rule is not insulated from the overriding legal principles of waiver and estoppel, which are applied to a whole body of statutory law. Although the equitable principle of estoppel has not been applied to the two-year-back rule, estoppel has been used in related workers' compensation cases. See Miller v Dunn Paper Co, 47 Mich. App. 471; 209 NW2d 519 (1973), Chisholm v Chisholm Construction Co, 298 Mich. 25; 298 N.W. 390 (1941).
In this case, the WCAB found, supported by defendant's own admissions, that GMC intentionally miscalculated Fuchs' average weekly wage, which resulted in periodic reductions of his differential benefits. The record discloses that at the time of plaintiff's injury, defendant's procedure for computing the average weekly wage was to omit those weeks in which the hours worked were in excess of 70. This is contrary to the unambiguous language of MCL 418.371(2); MSA 17.237(371)(2), which stated in part:
"Average weekly wage means the weekly wage earned by the employee at the time of his injury, inclusive of overtime, premium pay, and cost of living adjustment * * *."
We find that all of the elements necessary for estoppel are present in this case. The representation was of a fact within the defendant's knowledge, and it can hardly be supposed that GMC did not intend that it should be relied upon. The misrepresentation relied upon by Fuchs was made with the purpose of inducing the claimant to follow a certain course of conduct, namely, to accept the amount offered without the approbation of the Bureau of Workers' Compensation. We conclude, *554 therefore, that the finding of the WCAB, implicit in its order, that the defendant was not estopped by its conduct to assert the defense of the two-year-back rule was error as a matter of law.
In addition to equitable principles, this result is sound from a policy standpoint as well. First, it has long been held that the Worker's Disability Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. Bower v Whitehall Leather Co, 412 Mich. 172, 191; 312 NW2d 640 (1981). Second, if the legislative purpose for the two-year-back rule is to provide notice to the employer and to prevent stale claims, see White v Michigan Consoldidated Gas Co, 352 Mich. 201, 212; 89 NW2d 439 (1958) (one-year-back rule), this policy is not served by limiting the recovery of a claimant who relies on a defendant's misrepresentation involving the injury.
Although not binding authority, we find support in the cases found at 3 Larson, Workmen's Compensation Law, § 78.45, p 15-149. The general annotation provides, in part:
"A familiar defense to assertion of the bar of late claim is the plea that the lateness was the result of the employer's assurances, misrepresentations or even deliberate deceptions. In the states having statutes permitting the excusing of late claims for good cause or mistake, the issue is simply whether the facts satisfy the statute; in other states the issue usually takes the form of the question whether the employer should be held estopped to invoke the bar."
The Michigan Worker's Disability Compensation Act does not contain a good cause provision. However, *555 limited to the facts in this case, we find that GMC is estopped from invoking the two-year-back rule.
Plaintiff next contends that the WCAB erred in finding that he was entitled to only two-thirds of the difference between the average weekly wage before the injury and the average weekly wage earned after the injury. He points out that it is the practice of the WCAB to order payment of the full differential between a skilled worker's pre-injury and post-injury weekly wage when the employee is able to perform common labor but is unable to perform his skill.
Plaintiff's argument ignores the plain reading of MCL 418.361(1); MSA 17.237(361)(1), which read in part:
"While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid to the injured employee a weekly compensation equal to 2/3 of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter * * *."
In this case, the WCAB found that Fuchs has a continuing partial disability. This result is supported by evidence in the record and must be affirmed by this Court. After making this finding, the WCAB correctly applied MCL 418.361(1); MSA 17.237(361)(1). The board's decision in relation to this issue is affirmed.
We reverse in part and affirm in part. The case is remanded to the appeal board with instructions to enter an order which will conform with our opinion.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571861/ | 546 S.W.2d 188 (1977)
STATE ex rel. EMCASCO INSURANCE COMPANY, a corporation, Relator,
v.
The Honorable Fred RUSH, Judge of the Circuit Court, County of St. Charles, State of Missouri, Respondent.
No. 38149.
Missouri Court of Appeals, St. Louis District, Division Three.
January 4, 1977.
*189 Evans & Dixon, Sam P. Rynearson, St. Louis, for relator.
Bruntrager & Bruntrager, P. C., St. Louis, for respondent.
*190 SIMEONE, Judge.
I
This is an original proceeding in mandamus brought by relator, Emcasco Insurance Company (Emcasco), to compel the respondent judge to vacate his order of April 9, 1976, by which he sustained a motion to add parties to a declaratory judgment action previously filed by relator. We have jurisdiction. Article V, sec. 4, Mo.Const. We issued our alternative writ on June 18, 1976. We now make our alternative writ heretofore issued absolute.
II
The facts are complex and the legal issues raised are difficult to resolve.
On January 30, 1975, Emcasco issued its Family Automobile Policy of Insurance to Mr. Donald C. Carter and his wife, Shirley. The policy insured a 1970 Dodge automobile owned by the Carters and provided for liability insurance and medical payments coverage.[1] The policy was in full force and effect on March 23, 1975. On that date the Dodge was being driven by Charles Stephen Davis and was involved in a one-car accident. There was some indication that at the time of the accident Davis was in the employ of Henry Steve Kirchner d/b/a Levi Standard Service Station. Several persons were passengers in the automobile at the time of the accident. They were (1) Glennon C. Halter, husband of Debra Kay Halter and the son of Charles and Mildred Halter, (2) Raymond James Miller, and (3) Larry Michael Donnelly. The driver, Charles Stephen Davis, died on March 24, 1975, as a result of injuries sustained in the accident. Glennon C. Halter also died as a result of injuries received in the accident on March 23, 1975. Donnelly and Miller were injured.
Apparently prior to the filing of any formal litigation, the relator-Emcasco, in December, 1975, filed a declaratory judgment action in St. Charles County seeking a declaration concerning its rights and liabilities. The declaratory judgment action named as defendants (1) Larry Michael Donnelly, (2) Raymond James Miller, (3) the parents of Glennon C. Halter, Charles and Mildred Halter, (4) Debra Kay Halter, and (5) Andrew McColloch, administrator of the estate of Charles Stephen Davis. The petition alleged the issuance of the policy, the accident, and named the passengersDonnelly, Miller and Halterwho received injuries or died. It alleged that Debra Halter had asserted a claim for her husband's death and alleged that as a result of the accident Emcasco ". . . is or may be exposed to claims for bodily injury and for medical expense . . ." to Miller, Donnelly and McColloch. The petition further alleged that, although the policy included a clause extending coverage to a person using the vehicle with the permission of the insured provided the operation is within the scope of the permission,[2] Davis was not using the vehicle with the permission of the Carters and was not using the vehicle within the scope of permission extended by the Carters. As a result, Emcasco contended that the policy of insurance did not insure the ". . . liability of Charles Stephen Davis, if any . . . and [did] not obligate plaintiff for medical payments." In effect, Emcasco contended in its declaratory action that it was under no obligation to defend the estate of Davis and that the defendants be barred from asserting any claims against it on account of injuries or medical payments arising out of the accident. It therefore *191 sought a judicial declaration that (1) the policy of insurance issued to the Carters ". . . [did] not apply to the accident. . . insofar as the liability and medical payments coverages are concerned;" (2) it was ". . . under no obligation to defend the estate of Charles Stephen Davis. . ." from any claims or suits arising out of the accident; and (3) the defendants be barred and enjoined from asserting any claims against it on account of "bodily injuries or medical payments" sustained at the time of the accident. The Carters were not named as defendants in this declaratory judgment action.
Sometime after the declaratory judgment action, (1) Debra Kay Halter brought suit in February, 1976, for the wrongful death of her husband against the administrator of Davis' estate, Donald C. and Shirley Carter[3] and Kirchner (Levi Service); (2) Raymond James Miller, through his next friend, brought action probably in February, 1976, for personal injuries against the administrator of Davis' estate (McColloch), Henry Steve Kirchner (Levi Service)[4] and the Carters; and (3) Lawrence Michael Donnelly commenced an action sometime prior to March 23, 1976, for personal injuries.
On February 20, 1976, Raymond James Miller filed in the Emcasco declaratory action two motions "For Joinder Of Persons Needed For Adjudication." One motion sought to add State Farm Mutual Insurance Company which is not involved in this proceeding. The other motion, which causes the controversy in this proceeding, sought to add in the declaratory judgment action Donald C. and Shirley Carter as parties defendant because ". . . they ought to be party defendants if there is to be a full and complete determination of the controversy. . . ." An affidavit in support of this motion stated that at the time of the accident Emcasco had in effect a contract insuring the Carters and that the plaintiff (Emcasco) is seeking to avoid defending the Carters and seeking to avoid responding in damages which might be rendered against them; hence, the affidavit stated that the Carters have an interest in the outcome of the declaratory judgment action, and, if a disposition of the action would be made in their absence, such disposition ". . . might impair and impede their ability to protect their interest."[5]
In March, 1976, Emcasco, because of suits filed by Miller and Donnelly alleging injuries as a result of the accident and which joined Henry Steve Kirchner (Levi Service) as a defendant, moved to add Kirchner as a party defendant in the declaratory judgment action and sought leave to file an amended petition of declaratory judgment to include Kirchner d/b/a Levi Service.[6]
*192 On April 9, 1976, the three separate motions (two by Miller and one by Emcasco) were heard by respondent. Miller's motion to add State Farm was sustained, Emcasco's motion to add Kirchner (Levi Service) was sustained, and, over objection, Miller's motion to add the Carters was also sustained. Since Kirchner was added as a party, Emcasco filed a First Amended Petition for a declaratory judgment adding Kirchner as a party, and later filed its Second Amended Petition adding State Farm Mutual Insurance Company, the insurer of Kirchner (Levi Service).
At the time therefore of filing its petition for a writ of mandamus in this court on May 19, 1976, Emcasco sought its declaration of rights against (1) Larry Michael Donnelly, (2) Raymond James Miller, (3) Charles and Mildred Halter, (4) Debra Kay Halter, (5) Andrew McColloch (Davis' administrator), (6) Henry Steve Kirchner (Levi Service), and (7) Kirchner's insurer, State Farm. The Carters were not made parties defendant in the original declaratory judgment action by Emcasco but were added upon the motion of Raymond James Miller.
III
Emcasco filed its petition seeking mandamus in this court to order the respondent to vacate its April 9th order adding the Carters as necessary parties to the declaratory judgment action. In its petition for mandamus it alleged the above facts and contended that Miller's motion to add the Carters and the affidavit in support thereof ". . . failed to state any grounds . . . to show any justiciable controversy between . . ." it and the Carters. It contended that the only question as to declaratory relief was ". . . whether permission was granted for the use of the automobile . . ." to Davis when it was involved in the accident and that no declaratory relief was sought by Emcasco against the Carters. The petition alleged that the declaratory action stated no claim against the Carters, and that the Carters have no interest in the outcome of the declaratory judgment action since no relief is sought as to them and no declaration is sought denying them coverage under their policy. Emcasco contended further that it believed that the defendants (or at least some of them) in the declaratory judgment suit intended to "raise the point" that the Carters, if they are joined in accordance with the respondent's April 9th order, would not be competent to testify as to whether or not permission was granted by them to Davis under the provisions of the so-called Dead Man's Statute, § 491.010, RSMo.[7] Emcasco contended that the Carters would not be precluded from testifying but, by adding the Carters as parties, a "false issue" would be raised which would impede the determination of the declaratory judgment action and result in further extended litigation. For all these reasons, Emcasco alleged that the Carters "have no interest in the outcome of the declaratory judgment" action and since they are not "necessary" parties there has been a "misjoinder." The trial court therefore exceeded its jurisdiction in sustaining Miller's motion to add the Carters.
*193 After suggestions in support of and in opposition[8] to the petition for mandamus and after relator's reply,[9] we issued our alternative writ on June 18, 1976.
IV
In its brief relator makes the following points: (1) mandamus is a proper remedy to compel the respondent to vacate the order sustaining the motion to add the Carters to the declaratory judgment action because (a) they have no interest in the outcome of the litigation, (b) they are not "necessary" parties, and (c) the respondent exceeded his lawful jurisdiction and abused his discretion in adding the Carters; (2) the respondent abused and exceeded his jurisdiction by sustaining the motion of Miller to add the Carters as parties to the declaratory action because as a matter of law they are not "necessary" parties since they will not be affected either by (a) the outcome of the issue as to whether permission was granted to Davis or (b) the outcome of the issue as to whether coverage is excluded under the "automobile business" exclusion; and (3) the ruling of the respondent was erroneous because no justiciable controversy exists between Emcasco and the Carters since the declaratory judgment action is one to determine only whether Davis had permission of the Carters to operate the automobile and to determine whether Davis was using the automobile in an "automobile business" under the exclusion clause. A judgment in the declaratory action on either of these issues therefore would have "no bearing on coverage owed to" the Carters.
Relator argues that under Rule 52.04 full and complete relief can be accorded between Emcasco and those parties already the defendants in the declaratory judgment suit without the Carters, and the resolution of the issue of permission does not require the presence of the Carters. They argue that Rule 52.04 requires joinder of an additional party only if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may impair or impede his ability to protect that interest. Since Emcasco has not denied coverage to the Carters or refused to defend them in any suit filed against them and admitted that the policy was in effect, Emcasco argues that the Carters have no interest to protect and have no interest in the outcome of the litigation, hence, their interest cannot be impaired or impeded. Relator relies on State v. Vardeman, 409 S.W.2d 672 (Mo. banc 1966), and other decisions,[10] and argues *194 that where the declaratory judgment is filed merely to determine the issue of permission, ". . . then the named insured is not a necessary party . . .." Emcasco concludes:
"Thus, it is clear from an analysis of the Civil Rules and cases that the insured under a policy of insurance is a proper and necessary party only in a situation where the insurance company is attempting to deny coverage to the named insured under the policy, and is not a proper and necessary party in the situation involving a question of permission granted under the omnibus clause where the only contention is whether a third party has permission to operate the automobile and coverage was thus extended to the third party. In such a situation the insured has no interest in the outcome of the controversy, there is no controversy existing between the named insured and the insurance company subject to declaratory relief, and the named insured is thus not a proper party and should not be joined in the action."
As to the issue concerning the use of the vehicle in the automobile (service station?) business, relator argues that the exclusion would not apply to the Carters because this exclusion ". . . does not apply to the named insureds . . .," therefore any declaration as to this issue could have no effect on the rights of the Carters. Such exclusion is not applicable to them and therefore they have no interest in the outcome of that issue, hence, are not "necessary" for a determination of the declaratory action.
Lastly, relator argues that, while Rule 87.04 requires that all persons who have or claim any interest which would be affected by the declaration shall be made parties, the Carters have no interest in the outcome of the declaratory judgment since Emcasco admits coverage for the Carters, admits it must defend them in any action against them, and admits it must afford coverage for them should they be subject to liability. Hence, there is no controversy between relator and the Carters.
The respondent, on the other hand, contends in its brief that (1) mandamus is not a proper remedy, (2) the respondent acted within the proper limits of his judicial discretion in sustaining the motion to add the Carters ". . . for the reason that if not `necessary parties' under Supreme Court Rule 52.04 they are at least `permissive parties' under Supreme Court Rule 52.05" and (3) the issue of permission necessarily involves an "adverse interest" of the Carters creating a justiciable controversy between Emcasco and the Carters which is ripe for adjudication.
V
The precise issue thus presented by this proceeding, as we perceive it, is whether the trial court exceeded its discretion in adding the Carters as "necessary" parties to the declaratory judgment action when Emcasco (1) admits coverage under the policy to the Carters, (2) admits that it must defend the Carters even as to false or fraudulent claims, (3) had undertaken a defense of the Carters in the suits filed by the injured or dead passengers, (4) has not joined the Carters in the declaratory judgment suit, and (5) has not sought a declaration or relief against them. The only issue in the declaratory judgment action is whether the Carters extended permission to Davis to operate the vehicle. The issue is not whether the Carters are "proper," "necessary" or "indispensable" parties in a situation where it is alleged that the policy is void, or that a provision has been breached, or where the insurer contends that the insureds are not entitled to coverage.
Or, to state the issue somewhat differently, where (1) the insurer does not deny coverage to the insured, (2) the insurer affords a defense to the insured on suits filed against the insured, and (3) the only issue is whether the insured gave permission to an operator of the vehicle so that coverage may be afforded the permittee, are the insureds [the Carters] "necessary" parties *195 to a declaratory judgment action filed by the insurer to determine its rights and liabilities under an insurance liability policy?
VI
Fed.Rules Civ.Proc. 19 and its Missouri counterpart, Rule 52.04, are the modern procedural devices to solve the age-old complex issue of when parties should or must be joined or added to pending litigation in order to have a complete determination of the controversy. Rule 19 and Rule 52.04 present a new approach to this age-old question.[11] Rule 52.04 deals with "necessary" and "indispensable" parties only. It does not deal with "proper" parties under the permissive joinder rule, 52.05. The question of adding or joining parties is a different one from permissive joinder or such modern procedural devices as third party practice. At one time, the general principle dealing with adding parties was as stated in Shields v. Barrow, 17 How. 130, 15 L.Ed. 158 (1855). There, in a rescission case, the Supreme Court of the United States attempted to categorize persons who should or must be added to the litigation:
". . . Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. . . ." 15 L.Ed. at 160.
"Indispensable" parties were denominated as:
". . . Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience." Ibid.
Prior to the modern approach, the older rules (both equity and prior Rule 19, F.R. C.P.[12] and Rule 52.04 V.A.M.R.) tended to emphasize the classification of parties as "necessary" or "indispensable."
The new rule requires various steps in the process to determine whether a person or persons should or must be added to pending litigation. Under the modern Rule 52.04, subdivision (a) deals with persons who should be joined if feasible, and subdivision (b) then deals with the determination which is to be made if joinder is not feasible under subsection (a). The emphasis under the new rule is no longer on whether a party is to be categorized as "necessary" or "indispensable" but the emphasis is placed on pragmatic considerations in each individual case. The first step in the escalation process is the determination of whether the absent party or parties should be joined if feasible under the criteria of Rule 52.04(a).[13]
If such a party meets the criteria of Rule 52.04(a) and is subject to the jurisdiction of the court, he should be made a party. If he cannot be made a party, then the court must determine whether to proceed in his absence or whether the action is to be dismissed. *196 The new emphasis[14] under the modern rule requires that the decision be made upon "pragmatic considerations" to determine whether the specific case may proceed in the absence of a party or whether the action is to be dismissed. In making such a determination, various factors are to be considered as outlined in subdivision (b), Rule 52.04. The new rule
". . . commands the courts to examine each controversy to make certain that the interests really exist. To say that a court `must' dismiss in the absence of an indispensable party and that it `cannot proceed' without him puts the matter the wrong way around: a court does not know whether a particular person is `indispensable' until it has examined the situation to determine whether it can proceed without him." Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 743, 19 L.Ed.2d 936 (1968).
Our Supreme Court recently has had the opportunity and occasion to discuss the new approach relative to nonjoinder and dismissal. In Kingsley v. Burack, 536 S.W.2d 7 (Mo. banc 1976), the court stated that
"[t]he rule proceeds on the basis that a person may be conceptually necessary but nevertheless allows the suit to proceed unless the absent party is pragmatically indispensable in the particular case. Whether or not a person is an indispensable party must be determined by applying the criteria of the rule, and the finding of indispensability is the end result not the starting point." Kingsley v. Burack, supra, 536 S.W.2d at 11.[15]
Under the modern approach, therefore, it must first be determined under Rule 52.04(a) whether the absent person is to be joined and, after it is determined that he should be so joined, then the particular case must be examined in the light of the factors in subdivision (b) to determine whether the action may proceed in the absence of the nonjoined party or is to be dismissed. Tested by these modern principles, we hold that the Carters are neither "necessary" nor "indispensable" parties and should not be added to the declaratory judgment action.
In this proceeding, the Carters are surely not "indispensable" parties. Their rights are not so entangled with others so that the Court cannot grant relief in the declaratory judgment action. Rather we deal here, unlike Kingsley v. Burack, supra, with the first step in the processwhether, under subdivision (a) of Rule 52.04, the Carters, the absent persons, are to be joined if feasible and are therefore "necessary."
Rule 52.04(a) is applicable when nonjoinder would have either of the following effects: (1) it would prevent complete relief from being accorded among those who are parties to the action, or (2) the absentee "`claims an interest relating to the subject matter of the action and is so situated'" that his absence from the action will have a prejudicial effect on his ability to protect his own interests or will "`leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.'" 7 Wright & Miller, Federal Practice and Procedure, § 1604, p. 33 (1972).
The Carters need not be joined under 52.04(a)(1) since complete declaratory relief can be accorded among those already parties to the action if the Carters are not joined. The only issue to be decided in the declaratory judgment action is whether or not the insurance policy covered Davis at the time he was involved in the accident. There is no question that the Carters were covered by the policy, and they need not be joined as parties defendant in order to resolve the issue of whether Davis was also covered by that policy.
The Carters also need not be joined under 52.04(a)(2) since they have no *197 sufficient "interest relating to the subject of the action." As we read Rule 52.04(a)(2) it requires that a person shall be joined if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may have the effects set forth in 52.04(a)(2)(i) and (ii). The language is in the conjunctive. An "interest" which compels joinder does not include a mere consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the joined party will either gain or lose by direct operation of the judgment to be rendered. Bunting v. McDonnell Aircraft Corporation, 522 S.W.2d 161, 169[12-14] (Mo. banc 1975) (quoting from State v. Vardeman, supra, 409 S.W.2d at 677).
Under the principles above, the Carters are not "necessary" parties. Under Rule 52.04(a), complete relief can be accorded among those who are already parties to the proceeding. The Carters are not so situated that the disposition of the declaratory judgment action will, as a practical matter, impair or impede their ability to protect their interest in the policy or leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of any claimed interest of the Carters.
The declaratory judgment action has only one goalto determine whether or not Davis had permission to use the vehicle by the Carters and was thus afforded coverage under the omnibus clause. If that issue is determined in favor of the insurer, that ends the issue, but if it is found that Davis did have permission, that does not end the matter as to the insuredsthe Cartersbut that issue can still be litigated in the subsequent or pending suits against them; hence, any fixed limitations in the policy by application of the proceeds to Davis would not prejudice the Carters in subsequent litigation.
Our conclusion that the Carters are not "necessary" parties to the declaratory judgment action is consistent with authorities in other jurisdictions. Authorities have held that a named insured is neither a "necessary" nor "indispensable" party to a declaratory judgment proceeding where the insurer does not deny coverage to its insured and affords, under its policy, a defense to the insured against claims by third parties.
In Northwest Cas. Co. v. Kirkman, 119 F.Supp. 828 (M.D.N.C.1954), the insurer brought a declaratory judgment action against the driver of the insured vehicle and a pedestrian who was injured. The insured was not made a party to the action. The sole purpose of the suit was to determine whether the insurer was obligated to defend the driver. The federal court would have jurisdiction unless the insured was determined to be an indispensable party. The court observed that the suit did not seek an adjudication on the question of the insured's liability to the injured party but sought only a determination of whether the insurer was required to defend the driver. The insurer conceded its obligation to defend the insured. The court held that the action sought only a determination of whether the insurer was required to defend the driver against claims. ". . . The determination of this question presents a justiciable controversy between the insurance company and the alleged additional insured and the injured claimants. The named insured is not a necessary or indispensable party." 119 F.Supp. at 830.
In Glens Falls Indemnity Co. v. Fredericksen, 8 F.R.D. 55 (D.Neb.1947), the insurer brought a declaratory judgment action against the estate of a deceased and others for a declaration absolving the insurer of its obligation to defend suits. The insurer issued its policy to a bank. The policy contained an omnibus clause. An employee of the bank drove the vehicle and was involved in a collision. There were two passengers in the vehicle. Suits were instituted against the bank and the driver. The insurer brought a declaratory judgment action to determine the issue of permission of the driver. The defendants filed a motion to dismiss on the ground that the bank (the *198 insured) was not a party to the proceeding and that the bank was an indispensable party to the action. The court was of the opinion that the bank was not an indispensable or necessary party to the action. No controversy existed respecting coverage of the bank; the only controversy was between the insurer and the driver.
". . . The bank, itself protected under the policy in any event, is not involved in or concerned about any dispute between the plaintiff [insurer] and [the driver's] personal representative touching [the driver's] coverage. The parties really interested and participating in the controversy are before the court." Glens Falls Indemnity Co. v. Fredericksen, supra, 8 F.R.D. at 59.
It was the court's conclusion that the bank was not a necessary party defendant in the action because
". . . in this case, the court, without the presence before it of the bank, will be able completely and finally to adjudicate and determine the only controversy inspiring the proceeding, as to all parties having even the slightest real interest in that controversy. Those persons are already here." 8 F.R.D. at 60.
In Ohio Casualty Ins. Co. v. Maloney, supra, the insurer sought a declaratory judgment and the only question was whether the insured's employee, as operator of a vehicle, was covered under the omnibus clause. The employee was employed by a dairy company. He was hired to deliver milk, but one day after completing his duties, without the knowledge of the dairy, took one of his employer's trucks and transported a quantity of beer to a picnic. While returning he was involved in a collision which resulted in injuries to certain defendants in the declaratory judgment action. It was argued that the cause should be dismissed because the employer was not made a party. The court thought
". . . it is sufficient if those persons be joined as parties defendant with whom the plaintiff has an actual controversy.. . . In the instant case, there is no controversy between the plaintiff and the [dairy]; neither is the proceeding aimed at adjudication of any rights as between any of the defendants and the [dairy]. Such rights, if any, will be unaffected by the judgment rendered in this case. The controversy being, as alleged in the complaint, only as to whether or not [the driver] as operator of one of the trucks of the [dairy], which was insured by the plaintiff, is covered and protected by the terms of the insurance policy, the judgment rendered in this case will settle that question and no other." Ohio Casualty Ins. Co. v. Maloney, supra, 44 F.Supp. at 314.[16]
Respondent relies on several authorities [17] which, he contends, support his argument that the insuredsthe Cartersare "necessary" parties to this proceeding. These authorities are not dispositive of this proceeding. Several of these decisions dealt with the question whether the federal courts have jurisdiction of the subject matter based on diversity of citizenship. They each dealt with the proper alignment of parties to determine jurisdiction of the court based on diversity. In Boyle, for example, the insurer sought a declaratory judgment under a policy of insurance and to enjoin the prosecution of actions commenced in a state court against the insured. The action was brought against the claimants *199 and the insured as defendants. There was no bona fide controversy between the insurer and the insured as to the meaning or coverage of the policy; the coverage was not in dispute and the insurer admitted its obligation to defend the insured. The precise issue was whether the insured was to be aligned with the claimants so that jurisdiction existed in the federal system, or whether the insured was to be aligned with the insurer which would defeat jurisdiction of the subject matter. These decisions held that, where the insurer and the insured have the same interests, the fact that the insurer attempts to join the insured on the same side of the controversy as the claimants so as to have complete diversity does not give the federal courts jurisdiction of the subject matter. If there exists a bona fide controversy over the meaning or coverage of the policy, then the insured is an indispensable party to any suit to settle that controversy.[18]
Home Fire & Marine Ins. Co. v. Schultz, supra, also relied upon by respondent, is not dispositive of the issue here. There the insurer sought declaratory judgment against its insured and the party injured to establish that the insured had breached the cooperation clause of the policy. In that instance the insured was not only a necessary party but also an indispensable party.
Neither is Auto Mut. Indemnity Co. v. DuPont, supra, controlling in this proceeding. In DuPont it was held that the insured was an indispensable party to a proceeding brought by the insurer where the insurer sought to have the policy declared void for breach of a condition and to declare that the policy was not in force at the time of the accident. Obviously, in such a situation, the insured is a necessary party for his rights would be affected.
Certain language in Provident Tradesmens Bank & Trust Co. v. Patterson, supra, may give credence to the respondent's position that the Carters are "necessary" parties for a complete determination of Emcasco's declaratory judgment controversy. In that decision, after certain tort actions had been brought against the estate of a driver, and after one of the actions was settled for a specified sum, the estate of one of the passengers who was killed (Lynch) brought a diversity action for a declaration that the driver's use of the car had been with the permission of the insured (Dutcher). The named defendants were the administrator (Patterson) of the estate of the driver (Cionci) and the insurance company (Lumbermens) which insured the owner of the vehicle (Dutcher). Dutcher was a resident of Pennsylvania as were all the plaintiffs. The specific question was whether under Rule 19, Dutcher, the insured, was an indispensable party to the declaratory judgment action to determine whether the automobile was being driven by Cionci within the scope of the permission of the insured (Dutcher). In the course of the opinion, holding that the insured was not an "indispensable" party to the proceeding under the factors outlined in subdivision (b) of Rule 19, the Supreme Court stated:
"We may assume at the outset, that Dutcher falls within the category or persons who, under § (a), should be `joined if feasible.' The action was for an adjudication of the validity of certain claims against a fund. Dutcher, faced with the possibility of judgments against him, had an interest in having the fund preserved to cover that potential liability. Hence there existed, when this case went to trial, at least the possibility that a judgment might impede Dutcher's ability to *200 protect his interest, or lead to later relitigation by him." 88 S.Ct. at 737.
This language in Provident is not controlling. There are significant differences between Provident, supra, and this proceeding. In Provident, the estate of one of the passengers was the declaratory judgment plaintiff; there was a fund involved; there were adverse interests between the declaratory plaintiff and Dutcher, the insured. These factors are absent in the proceeding before us. There is no real controversy or adverse interests between the insureds, the Carters, and the relator here, and there is no fund before the court. The insurer, Emcasco, is the declaratory plaintiff seeking a declaration against the claimants and the driver of the Carter vehicle (Davis). The precise issue before the Supreme Court in Provident was not whether Dutcher was a necessary party (the first step in the process under Rule 19) but whether the court could proceed in view of the factors outlined in subdivision (b) without his presence. Hence, we believe that the language in Provident, supra, is not conclusive of the issue in this proceeding.
VII
We have thoroughly reviewed and analyzed the various authorities and conclude that under the facts of this case, the insureds, the Carters, are neither necessary nor indispensable parties for a complete determination of the declaratory judgment proceeding pending in the trial court. Their addition is not required under Rule 52.04(a), nor is their addition required or necessary under the judicial decisions analyzed above. We hold therefore that, where a declaratory judgment action is instituted by an insurer against certain claimants and the driver of a vehicle to determine the sole issue of whether the driver had permission of the insured, and the insurer does not deny coverage to the insured but affords the insured a defense under the terms of the policy, the insured is neither a necessary nor indispensable party pursuant to Rule 52.04. Our result in no way affects the question of coverage as between Emcasco and the Carters.
VIII
The issue remains whether mandamus is the proper remedy. We hold that it is. While the trial court has discretion in the first instance to determine whether a party sought to be joined is a "necessary" party, when the question is one of law, mandamus may properly be issued when the court has exceeded its lawful jurisdiction in ruling on a matter of joinder, and mandamus may properly be issued when the writ is used to prevent the joining of a party as well as to require the court to join a party. State v. Vardeman, supra, 409 S.W.2d at 675 [construing Rule 52.04 before its amendment in 1972].
IX
We have read the entire record, we have thoroughly reviewed the authorities relied upon by the parties and are convinced that our alternative writ heretofore issued must be made absolute.
Writ absolute.
KELLY, P. J., and GUNN, J., concur.
NOTES
[1] The policy provided that ". . . the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit it deems expedient."
[2] The policy provided that the following are "insureds":
". . .
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or . . . his other actual use thereof is within the scope of such permission, . . ."
[3] Bobby Joe Carter was also made a defendant in the action. But there is no indication who Bobby Joe is other than it is alleged that he is an owner together with Donald and Shirley.
[4] The petition alleged that Davis was an agent of Levi Standard Service and that he was driving with the permission of the Carters. State Farm Mutual Insurance Company insured Kirchner and his business. The record does not indicate the exact date of the filing of the petition.
[5] Relator filed suggestions in opposition to the motion. It contended that the Carters had insurance, that they were not parties and the only issue was whether they gave permission to drive to Davis. They argued that the Carters were not necessary parties because ". . . there is no issue involving them and no question of their liability in the accident or coverage under the policy. No declaratory relief is prayed for as to these parties [The Carters], nor is there any declaratory relief to be granted as to these parties. There is no justiciable controversy as to these parties."
[6] The second amended petition alleged that, if Davis was operating the automobile while employed by Kirchner, Kirchner was engaged in an automobile business and under the terms of the policy there would be no coverage under exclusion (g) as Davis would have been operating or using the automobile while "employed or otherwise engaged in the automobile business." Exclusion (g) provides that this policy does not apply "to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which the named insured or such resident is a partner, or any partner, agent or employee of the named insured, such resident or partnership."
[7] While it is not necessary for our decision, we believe that the Dead Man's Statute, § 491.010, is not applicable to this declaratory judgment action filed by Emcasco. Davis is not an original party to the contract or cause of action in issue and on trial. The cause of action in issue and on trial in this proceeding is the question of permission by the Carters and the extent of coverage to Davis. Even if the Carters were joined in this declaratory judgment action, we believe the Dead Man's Statute would not be applicable because the original parties to the contract or cause of action in issue and on trial (the insurance company and the Carters) are not dead. The fact that Davis and Halter are dead does not bring this declaratory judgment action within the operation of the Dead Man's Statute. This action is a different one from the actions brought by the widow of Halter and the actions by Donnelly and Miller against the administrator of Davis' estate. We do not, of course, rule on that issue. Cf. State v. Daues, 314 Mo. 13, 283 S.W. 51, 45 A.L.R. 1466 (Banc 1926) and Grimm v. Gargis, 303 S.W.2d 43, 74 A.L.R.2d 599 (Mo.1957).
[8] The suggestions in opposition contended that the Carters were necessary for a complete adjudication of the declaratory judgment because Emcasco had a contract of insurance insuring the Carters against liability and because there are issues of fact and law common to both Emcasco and the Carters.
[9] Relator in its reply argues that respondent "misconstrues the situation." Emcasco has not denied coverage to the Carters; it intends to and is defending the Carters in these litigations, and by stipulation has stated that it has forwarded to its defense counsel the suits of Miller and Halter "for the purpose of defending" the Carters in "those actions which arise out of the occurrence and collision mentioned in the Petition for Declaratory Judgment when the Carters are served . . . ." They point out that where the action for declaratory judgment alleges that the policy is void, or that a provision of the policy has been breached, or where the insurer contends that the insured is not entitled to coverage, then the insured is a "necessary" or "proper" party to the declaratory judgment action. But, where the action is filed to determine only whether a third person had permission and no coverage is being denied and no relief sought against the insured, the insured should not be joined. ". . . [T]he insured . . . is a proper and necessary party only in a situation where the insurance company is attempting to deny coverage to the named insured under the policy, and is not a proper and [sic] necessary party in the situation involving a question of permission granted under the omnibus clause where the only contention is whether a third party had permission to operate the automobile and coverage was thus extended to that third party. In such a situation the insured has no interest in the outcome of the controversy, there is no controversy existing between the named insured and the insurance company subject to declaratory relief, and the named insured is thus not a proper party and should not be joined in the action."
[10] 20 Appleman, Insurance Law and Practice, Ch. 378, § 11371, p. 170 (1963); St. Paul Fire & Marine Ins. Co. v. Aetna Cas. & Sur. Co., 357 F.2d 315 (10th Cir. 1966); Ohio Casualty Ins. Co. v. Maloney, 44 F.Supp. 312 (E.D.Pa.1942).
[11] See Comments, The Mechanics of New Rule 19 and the Challenge to Its Validity, 12 St. Louis U.L.J. 119 (1967).
[12] For a history and explanation of Rule 19, see Wright, Federal Courts, § 70, pp. 335-339 (3d ed. 1976) and 3A Moore's Federal Practice, ¶ 19.07, pp. 2219-2263 (2d ed. 1974).
[13] "A person shall be joined in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. . . ." Rule 52.04(a).
[14] One of the catalysts for the modern approach was the excellent analysis and proposals of Professor ReedReed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 483 (1957).
[15] See also Wright v. First National Bank of Altus, Oklahoma, 483 F.2d 73 (10th Cir. 1973) discussed in Kingsley v. Burack, supra, 536 S.W.2d at 11.
[16] See also, St. Paul Fire & Marine Ins. Co. v. Aetna Cas. & Sur. Co., supra, 357 F.2d at 316; Annot., 8 A.L.R. Fed. 738, 744-747 (1971); Annot., 22 A.L.R. Fed. 765, 807-809 (1975); 20 Appleman, Insurance Law and Practice, § 11371, p. 170 (1963); Annot., 71 A.L.R.2d 723, 747-752 (1960).
[17] Maryland Casualty Co. v. Boyle Const. Co., 123 F.2d 558 (4th Cir. 1941); State Farm Mut. Automobile Ins. Co. v. Hugee, 115 F.2d 298, 132 A.L.R. 188 (4th Cir. 1940); Auto Mut. Indemnity Co. v. DuPont, 21 F.Supp. 606 (D.Del. 1937); and Home Fire & Marine Insurance Co. v. Schultz, 80 N.M. 517, 458 P.2d 592 (1969); 18 Couch on Insurance, § 74:611, p. 557 (2d Ed.1968) citing in addition to the above, C. E. Carnes & Co. v. Employers' Liability Assur. Corp., 101 F.2d 739 (5th Cir. 1939); 6A Moore's Federal Practice, ¶ 57.25 (2d Ed. 1976).
[18] Boyle and Hugee, supra, were distinguished in Northwest Cas. Co. v. Kirkman, supra, on the ground that in each of these cases the insured was joined as a party defendant; there was no controversy between the carrier and the permittee with respect to coverage or noncoverage of the additional insured on the grounds of lack of permission, and it was conceded that the policy covered the driver of the insured vehicle. In Kirkman, a real controversy existed whether the driver was using the automobile with permission, and in such instance the determination of ". . . this question is of no vital concern to [the insured], nor is its determination conclusive as between the defendants and [the insured]." Northwest Cas. Co. v. Kirkman, 119 F.Supp. at 830. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571872/ | 437 F.Supp. 973 (1977)
Donald L. BACHMAN et al., Plaintiffs,
v.
Michael PERTSCHUK, Defendant.
Civ. A. No. 76-0079.
United States District Court, District of Columbia.
September 26, 1977.
*974 Allee A. Ramadhan, Arthur P. Wheatley, Patricia J. Barry, Washington, D. C., for plaintiffs.
Earl J. Silbert, U. S. Atty., Robert N. Ford, Robert M. Werdig, Jr., Asst. U. S. Attys., Washington, D. C., for defendant.
MEMORANDUM OPINION
CHARLES R. RICHEY, District Judge.
The issue in this case is whether an attorney for a plaintiff class, who is employed by the defendant federal agency and who is himself a member of the class, has a sufficient conflict of interest such that he should be disqualified from representing the class. This Court finds that these conflicts of interest in this particular case may jeopardize the interests of the class. Therefore, the class action certification will be altered, pursuant to Fed.R.Civ.P. 23(c)(1), to permit this litigation to proceed as a class action only upon removal of this attorney as an attorney for the class.
Plaintiff brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Equal Employment Opportunity Act of *975 1972, alleging that the Federal Trade Commission (FTC) discriminated against him on account of race in failing to promote him. This Court conditionally certified the case as a class action.[1] The class consists of all blacks presently employed by, denied employment by, or discharged from the FTC. Mr. Bachman is the only named plaintiff representing the class. Mr. Ramadhan, Ms. Barry, and Mr. Wheatley are the attorneys for the class. Mr. Ramadhan is presently employed by the FTC and is a member of the class.[2]
It is well established that, before a class action is certified, the Court must determine that the "representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). One essential concomitant of adequate representation is that the parties' attorney be qualified, experienced, and generally able to conduct the proposed litigation. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). This Court is firmly committed to the proposition that an attorney with a conflict of interest prevents the adequate representation of the class. See Turoff v. May Co., 531 F.2d 1357 (6th Cir. 1976); Graybeal v. American Savings & Loan Association, 59 F.R.D. 7 (D.D.C.1973).
Mr. Ramadhan, in this Court's opinion, should not be allowed to conduct this litigation because of two conflicts of interest. In addition to being the plaintiff's attorney, he is also an employee of the defendant and a member of the plaintiff class.
Whenever a person represents another against his present employer, the possibility exists that he may violate the duty of loyalty that he owes to each. For example, he might use information he obtained as an employee for the benefit of his client, thereby violating the duty of confidence that he owes to his employer.[3]
In this case, it is uncertain whether any such information has in fact been used by Mr. Ramadhan. However, it is significant to note that the FTC has accused plaintiff's counsel of violating Commission Rule 5.15[4] in papers filed before this Court. It claims that counsel attached to certain exhibits a memorandum
. . . not provided to plaintiff in the course of discovery. Since two of plaintiff's counsel [Mr. Ramadhan and another attorney who has since withdrawn from the case] are employed by the Commission, it appears they have taken it upon themselves to make public Commission records.
Opposition of Defendant to Plaintiff's Motion to Strike Objections and Compel Production of Documents and Answers to Interrogatories (Third Set) at 4 (July 20, 1977). In addition, the FTC has alleged other instances in which it claims plaintiff's counsel have used knowledge in this litigation which was obtained through employment with the FTC.
Again, unless plaintiff's counsel has taken unfair advantage of their positions as Commission attorneys to surreptitiously gain access to defendant's communications, it is unclear where they would obtain such information.
*976 Id. at 5 n. 8. This Court does not intend to pass upon the validity of these accusations; the fact that such accusations were made is enough to suggest that a conflict of interest exists and that it may interfere with the adequacy of Mr. Ramadhan's representation of the class.
The strong public policy against this conflict of interest is evidenced by 18 U.S.C. § 205, which forbids a federal employee from representing anyone before an agency or court. The section, however, also contains the following exclusion:
Nothing herein prevents an officer or employee, if not inconsistent with the faithful performance of his duties, from acting without compensation as agent or attorney for any person who is the subject of disciplinary, loyalty or other personnel administration proceedings in connection with those proceedings.
(emphasis added). Mr. Ramadhan, relying upon a Memorandum of the Attorney General,[5] contends that this clause permits federal employees to represent other federal employees or applicants in Equal Employment Opportunity complaints, whether before an administrative agency or a court. With all due respect to the previous Attorney General, the Court does not agree.
The language of the exclusion is clear on its face. It only excludes representation before "administration proceedings" not courts. This Circuit subscribes to the view that the clear wording of 18 U.S.C. § 205 must be followed. United States v. Bailey, 162 U.S.App.D.C. 135, 138, 498 F.2d 677, 680 (1974). Accordingly, the exclusion is only applicable in "administration proceedings" and cannot protect Mr. Ramadhan before this Court.[6]
In this Court's opinion, the reason Congress limited this exclusion to administrative proceedings is that the exclusion only applies to proceedings in which the person represented is the "subject" of the proceedingwhether it be for disciplinary, loyalty or other personnel reasons. In other words, this exclusion was designed to allow government employees to represent others in defense of actions brought by the agency for disciplinary, loyalty, or other personnel reasons. Consequently, the exclusion need only apply to administrative proceedings where these types of matters are generally handled.
Based on this Court's reading of section 205, Mr. Ramadhan can no longer continue to represent the class as an attorney and be employed by the defendant. Whether he has in fact violated the section is not at issue. An attorney with a conflict of interest gives the "appearance of professional impropriety" and that attorney cannot be permitted to continue to serve as attorney for the class. See Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 90, 50 L.Ed.2d 94 (1976).
One of Mr. Ramadhan's arguments for the nonapplicability of section 205 is that, as a member of the class, he has a right to appear pro se and prosecute his claim. The fact that other federal employees' claims are intertwined, he argues, should not be fatal to his right to appear as counsel for the entire class. The Court finds this approach unpersuasive. A pro se plaintiff with a conflict of interest can impair only his own rights, while in a class action, the rights of absent class members are then placed in jeopardy. In fact, Mr. Ramadhan's argument raises further problems.
Disciplinary Rule 5-103 of the Code of Professional Responsibility of the American Bar Association states that "a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of *977 litigation he is conducting for a client" except in certain situations not here applicable. The basic rationale behind this rule is that the integrity of the judicial process and the attorney's duties to the court should not be interfered with by an overzealous advocate with a personal interest in the outcome of the litigation. Under this rationale, a member of the class, desirous of personal gain, should not also act as attorney for that class.
Disciplinary Rule 5-101(B) provides, in part, that
[a] lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness . . .
See Kramer v. Scientific Control Corp., supra at 1090 n. 9; Clark v. Cameron-Brown Co., 72 F.R.D. 48, 56 (M.D.N.C.1976). As a member of the class with information relevant to this lawsuit, Mr. Ramadhan may be needed to testify. It might well be a violation of ethics for him to do so; not doing so may hinder the class's efforts to protect its interest. Accordingly, it would be inappropriate to allow Mr. Ramadhan to continue as attorney for the class.
Another possible problem when an attorney for a class is also a member of the class derives from the basic notion of a class action: The attorney must view the interests of the named plaintiff in the context of the interests of the entire class. This is difficult when there are varying interests of the class, but it is especially difficult when one's own interest is involved. In Martin v. Middendorf, 420 F.Supp. 779 (D.D.C.1976), this Court found that a pro se plaintiff could not act as attorney and representative of a class of all past, present, and future black engineers, applicants for engineering positions, and other professionals. Although the primary reason for this Court's decision was that the plaintiff was a layman and therefore could not adequately represent the interests of the class, another reason was offered:
It is one thing to ask an attorney to view his named plaintiff's interests in the context of the interests of the members of the class, who are also his clients; it is a far different and more difficult task for a plaintiff to so view his own interests when the interests of the members of a class are involved.
420 F.Supp. at 781 n. 1.
Martin is different from the case at bar in that Mr. Ramadhan is not the named plaintiff. However, the rationale is still applicable. Mr. Ramadhan is a present employee seeking relief as a member of a class consisting of persons who are presently employed, were denied employment, or were discharged. Whenever an attorney's personal interest as a class member is limited to the interest of those persons presently employed, the possibility exists that he may favor a settlement which gives preference to the interests of such persons over those denied employment by or discharged from the FTC. Furthermore, he may devote a disproportionate amount of time preparing for trial on the issues relevant to the subgroup to which he belongs. Thus, the varying interests of the class represented coupled with the difficulty of viewing one's own limited interest in the context of the interests of the entire class require that Mr. Ramadhan be disqualified as attorney for the class because he may not adequately be able to "protect the interests of the [entire] class." Fed.R.Civ.P. 23(a)(4).
Again, the Court wishes to emphasize that it is unimportant whether these conflicts actually will induce any abuses of the class action device and injure the interests of the class members. In Kramer v. Scientific Control Corp., supra, the Court disqualified an attorney as a plaintiff even though he had disclaimed attorney's fees (which was the conflict of interest in the case). The Court relied upon Canon 9 of the Code of Professional Responsibility which declares:
A lawyer should avoid even the appearance of professional impropriety.
See Flamm v. Eberstadt, 72 F.R.D. 187, 190 (N.D. Ill. 1976) (". . . it is the spectre of conflict of interest which moves the *978 court to deny class certification here and not the actuality of such a conflict . ."). In the case at bar, Mr. Ramadhan's conflict of interest gives rise to an "appearance of professional impropriety" and, therefore, he must be disqualified from continuing as attorney for the class.
This Court holds that an attorney for a plaintiff class, who is employed by the defendant federal agency and who is himself a member of the class, has a conflict of interest such that his continued representation of the class as its attorney will not adequately protect the interests of absent class members. Accordingly, the Court will modify the class certification to allow this litigation to proceed as a class action without the assistance of Mr. Ramadhan as attorney for the class. The Court will also require that, because of the severity of his conflicts of interest, Mr. Ramadhan cannot act as a "behind the scenes" attorney. See Shields v. First National Bank of Arizona, 56 F.R.D. 442, 444 n. 1 (D.Ariz.1972).
An Order in accordance with the foregoing will be issued of even date herewith.
NOTES
[1] In certifying this class action, this Court noted:
The Court re-emphasizes the conditional nature of this certification and notes that the class will be subject to re-definition, re-formulation, or even dissolution if discovery or other subsequent developments so warrant.
Bachman v. Collier, 73 F.R.D. 300, 306 (D.D.C. 1976).
[2] Because Mr. Ramadhan is still an employee of the FTC, he cannot accept any compensation for his legal services in this case. 18 U.S.C. § 205.
[3] Other possible problems may include receiving a promise of promotion for providing an inadequate representation, not vigorously pursuing a defendant because he is a friend, pursuing the innocent to protect a guilty friend, etc.
[4] Misuse of information. For the purpose of furthering a private interest, an employee shall not, except as provided in section 5.12 (c) [a section relating to teaching, lecturing and writing], directly or indirectly use, or allow the use of, official information obtained through or in connection with his Government employment which has not been made available to the general public.
16 C.F.R. § 5.15 (1977)
[5] Representation by Federal Employees of EEO Complaints, from Attorney General Edward H. Levi, Nov. 20, 1975.
[6] The issue of the applicability of the exclusion to a court has arisen in only one prior reported case, Anderson v. Health, Education and Welfare, 262 F.Supp. 46 (D.Md.1967). However, the court there chose not to resolve the issue because the government did not object. This Court will not place its imprimatur upon an unacceptable practice by approving a class certification which involves such conduct whether or not the government objects. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571884/ | 546 S.W.2d 40 (1977)
Ralph L. VOEGTLIN, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 37894.
Missouri Court of Appeals, St. Louis District, Division One.
January 4, 1977.
Robert C. Babione, Public Defender, James M. Smith, Asst. Public Defender, St. Louis, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
DOWD, Judge.
Appellant, Ralph L. Voegtlin, appeals the denial of his Rule 27.26 motion without an evidentiary hearing. Voegtlin, who was found guilty by a jury of Burglary Second *41 Degree and sentenced to ten years imprisonment, alleges the trial court erred in denying him an evidentiary hearing because perjured testimony was used at his trial to prove a material element of the crime.
Voegtlin alleges that the policeman who testified against him committed perjury because he testified at the preliminary hearing that the burglar entered through the basement window, but at trial testified that the burglar entered through the side window. While the transcript of the trial is not part of the record before us, the judge at the post-conviction hearing states in his memorandum opinion that the policeman testified at trial that both windows were broken and investigation showed that entry was through the side window.
In order to show perjury entitling him to post-conviction relief, the appellant must prove that the witness' trial testimony was false and that the prosecution used the testimony knowing it to be false and that the conviction was obtained because of the perjured testimony. Williams v. State, 536 S.W.2d 190, 193[7] (Mo.App.1976); Duncan v. State, 520 S.W.2d 123, 124[1] (Mo.App. 1975). Mere inconsistency of variance in the testimony does not constitute perjury; and in the absence of showing perjury, the trial court has no obligation in post conviction proceedings to order an evidentiary hearing to review evidence given at trial. V.A.M.R. 27.26; Cloud v. State, 535 S.W.2d 577, 578[3] (Mo.App.1976); Tyler v. State, 501 S.W.2d 189, 190-191[2, 4] (Mo.App. 1973).
An evidentiary hearing on a 27.26 motion will be had only if the movant pleads facts, not conclusions, which if true would entitle him to relief. Movant must also show that such factual allegations are not refuted by the record before the court. Smith v. State, 513 S.W.2d 407, 411[1] (Mo. banc 1974). Appellant's motion fails to offer any factual basis to support a finding of perjury.
The appellant alleged that the police officer changed his testimony. He failed to offer any factual allegation that the testimony at trial was false or that the prosecution knew it to be false. The fact that testimony at trial varied from testimony at the preliminary hearing is not proof that the testimony at trial was false. In fact, the lower court's review of the testimony at trial supports the veracity of that testimony.
The judgment denying the 27.26 motion is affirmed.
WEIER, P. J., and CLEMENS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1542897/ | 67 B.R. 808 (1986)
In re Robert J. TRIGWELL, Debtor.
Bankruptcy No. SAX 86-04669 JR.
United States Bankruptcy Court, C.D. California.
December 4, 1986.
Bruce R. Fink, Tustin, Cal., for debtor.
Brian N. Winn, Anaheim, Cal., for the creditor.
MEMORANDUM OPINION
JOHN E. RYAN, Bankruptcy Judge.
Debtor Robert J. Trigwell filed his Chapter 13 petition on August 21, 1986. At the confirmation hearing on October 6, 1986, Merit Home Loan Service Company ("Merit"), secured creditor, objected to confirmation on the following grounds: (1) the plan failed to provide interest on pre-petition arrearages pursuant to 11 U.S.C. § 1325(a)(5)(B)(ii); (2) the plan was filed in bad faith because debtor had not paid a single pre-petition payment to Merit; (3) the debtor filed a Notice of Pendency of Action ("Notice") on the property with the county recorder's office.
Dealing first with the Notice objection, the filing of the Notice on the property is not an appropriate basis for denying confirmation. It is not inconsistent with any provision of the Bankruptcy Code or other applicable law. In addition, the filing does not conflict with any of the requirements for confirmation as set forth in 11 U.S.C. § 1325.
As for the "bad faith" objection, failure to pay the pre-petition debt of a creditor does not preclude a debtor from seeking the protection of Chapter 13 and obtaining a "fresh start" through the confirmation process. No further comment is needed on this point.
This brings me to the first objection and Merit's demand that the debtor pay interest on pre-petition arrearages in accordance with the requirement of 11 U.S.C. § 1325(a)(5)(B)(ii). Merit's objection is well founded. Interest should be paid on the arrearage. Furthermore, I hold that the applicable interest rate should be the rate of interest which Merit charges on comparable home loans.
DISCUSSION
Debtor opposes Merit's position and seeks to have its plan confirmed without having to pay interest on the arrearage. However, debtor has not filed any papers to support his position. In addition, debtor *809 did not state at the hearing his basis for nonpayment of interest on the arrearage.
Applicable provisions of the Bankruptcy Code are sections 506(b), 1322(b)(2) and (5), and 1325(a)(5)(B)(ii). In analyzing the interplay of these provisions, different courts have reached different results. See In re Christian, 35 B.R. 229 (Bankr.N.D.Ga. 1983) (no interest on defaults cured through the plan unless the contract provides for interest on defaulted payments). Contra, In re McCall, 57 B.R. 642 (Bankr. E.D.Pa.1986) (interest payable on arrearage).
Section 506(b) provides:
To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees costs, or charges provided for under the agreement under which such claim arose.
In the instant case, Merit is a fully secured creditor (the debtor's schedules list the house at a value of $110,000 and the aggregate liens on the property at $78,313). The amount of the arrearage on the Merit loan is $6,238 as of the filing date.
The effect of section 506(b) is to fix the amount of the arrearage as an allowed secured claim. Since the agreement between the debtor and Merit does not provide for interest on the arrearage, there is no contractual basis for allowing interest on the arrearage. See In re Carr, 32 B.R. 343 (Bankr.N.D.Ga.1983) (absent provision in contract, no interest on arrearage); accord, In re Terry, 780 F.2d 894 (11th Cir. 1986). Accordingly, this court does not grant interest on the arrearage based on section 506(b).
However, a creditor has additional rights with respect to an arrearage pursuant to the confirmation provision of Chapter 13. Section 1325(a)(5)(B)(ii) imposes a present value standard for the payment of an allowed secured claim under the plan. This section provides in pertinent part:
Confirmation of plan.
(a) [T]he court shall confirm a plan if . . .
(5) with respect to each allowed secured claim provided for by the plan . . .
(B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and
(ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim;
The debtor's plan provides for Merit to retain the lien on the debtor's residence. Also, the arrearage is an allowed secured claim of Merit. Under section 1325(a)(5)(B)(ii), the plan must provide Merit with the present value of the amount of the arrearage in order for the plan to be confirmed. See In re Colegrove, 771 F.2d 119 (6th Cir.1985); In re Taddeo, 685 F.2d 24 (2d Cir.1982); In re Gincastro, 48 B.R. 662 (Bankr.D.R.I.1985).
I assume that if debtor had briefed the issue, he would ask this court to follow those cases which interpret sections 1322(b)(2) and (5) as preventing the application of section 1325(a)(5)(B)(ii). See In re Terry, supra at 897; In re Christian, supra at 232. In these cases, the courts have held that section 1325(a)(5)(B)(ii) does not apply because an award of interest on the arrearage would constitute a modification of the contract in contradiction to section 1322(b)(2). Sections 1322(b)(2) and (5) provide in pertinent part:
(b) Subject to subsections (a) and (c) of this section, the plan may . . .
(2) modify the rights of holder of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, . . . ;
(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment *810 is due after the date on which the final payment under the plan is due;
In determining the meaning and application of and interrelationships between these provisions of the Bankruptcy Code, the plain meaning of the language must control unless there is convincing evidence to the contrary that Congress intended something different by the words it used. See Watt v. Alaska, 451 U.S. 259, 266, 101 S. Ct. 1673, 1678, 68 L. Ed. 2d 80 (1981). A review of the legislative history governing these provisions does not indicate to me that Congress intended something different than the plain meaning of the language used in these provisions. Section 1322(b)(2) clearly states that the rights of a creditor holding a security interest in real property that is the debtor's principal residence cannot be modified. Obviously, this is a provision designed by Congress to protect a creditor with this type of secured claim from having its rights under the contract changed by the debtor in bankruptcy. However, subsection (5) creates a specific and narrow exception to this general rule. It allows the debtor to cure a default within a reasonable period of time through a series of payments provided the last payment on the secured obligation occurs after the term of the plan.
The debtor's plan cures the arrearage over a 24 month period. This is permitted under section 1322(b)(5). Is section 1325(a)(5)(B) inconsistent with sections 1322(b)(2) and (5)? I do not think so. Common sense dictates that they are not inconsistent. Section 1325(a)(5)(B)(ii) merely provides that if the debtor cures under section 1322(b)(5) and provides for deferred payments in his plan, he should give the secured creditor what he deserves, the full present value of its allowed secured claim. It does not make sense that Congress intended the exception to 1322(b)(2) (which benefits the home mortgage lender) to be used to single out and discriminate against the home mortgage lender as the only class of secured lender unable to receive interest on arrearages arising under a secured debt. See In re Nesmith, 57 B.R. 348, 349 (Bankr.E.D.Pa.1986).
Section 1325(a)(5)(B)(ii) codifies the principle that future payment has less value than immediate payment. To equalize the values, interest is paid. Therefore the debtor must pay Merit interest so that Merit will receive the full value of the arrearage in accordance with section 1325(a)(5)(B)(ii). This is the price the debtor pays to defer payment.
Having decided that interest on the arrearage is mandated by section 1325(a)(5)(B)(ii), I must now decide what interest rate should apply. Different courts have applied different interest rates in this situation. See In re Gincastro, supra at 665 (rate at which creditor earns interest); In re Thorne, 34 B.R. 428, 431 (Bankr.E.D.Tenn.1983) (contract rate). The Sixth Circuit Court of Appeals in In re Colegrove, supra, applied the prevailing market rate of interest on similar types of secured loans at the time of allowance of the creditor's claim and the confirmation of the plan in bankruptcy with a maximum limitation of the underlying contract rate of interest. I believe a contract rate of interest is irrelevant. I agree with the Judge Celebrezze's dissent in the case to the extent he finds the contract rate of interest to be irrelevant. Id. at 124. The creditor should be compensated for not having the full amount of the arrearage available to reinvest. This has nothing to do with the contract rate of interest. If Merit had the funds, it would likely reinvest them in similar types of secured loans at the current market rate. I, therefore, hold that the applicable interest rate should be the rate Merit charges on similar home loans at the time the plan is confirmed.
Therefore, I uphold the objection of Merit to the confirmation of the plan and give the debtor thirty days from the date of this Memorandum to file an amended plan in compliance with this Memorandum. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1542899/ | 67 B.R. 866 (1986)
In re Robert B. ELLIOTT d/b/a Milky Way Music, Debtor.
Bankruptcy No. 8300375.
United States Bankruptcy Court, D. Rhode Island.
December 9, 1986.
Thomas H. Quinn, Jr., Providence, R.I., Trustee.
Michael P. Iannotti, Asst. U.S. Atty., Providence, R.I., for I.R.S.
ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge.
Heard on September 11, 1986 on the trustee's objection to that portion of the Internal Revenue Service's (IRS) claim filed as a secured claim. The trustee objected to the claim as secured, and when no response to the objection was filed an order entered on May 30, 1986, disallowing the claim as secured, and allowing it as a general unsecured claim. The IRS moved for reconsideration, and by our order dated July 16, 1986, the May 30 order was vacated and the matter reinstated and scheduled for hearing.
Briefly, the facts and travel are as follows: The debtor filed his petition on May 19, 1983, and the IRS filed an amended proof of claim on June 13, 1984, in the amount of $14,596.85 for taxes due as of the date of the petition. The IRS claim is divided into three parts, a secured claim of $7,481.87, an unsecured priority tax claim under 11 U.S.C. § 507(a)(7) totaling $5,293.18, and a general unsecured claim of $1,821.80. The IRS bases its secured status upon a notice of tax lien on personal property of the debtor, filed pursuant to 26 U.S.C. § 6323 with the recorder of deeds in the town of North Kingstown, Rhode Island on November 3, 1982.
The trustee objects to the secured portion of the claim on the ground that the notice of tax lien was improperly filed, i.e. *867 that the IRS can achieve secured status in personal property only by filing its notice with the Secretary of State. Both parties agree that IRS can become a secured creditor as to personal property, by filing in the proper office within the state as provided for in 26 U.S.C. § 6323(f)(1)(A)(ii) which states:
§ 6323. Validity and priority against certain persons
(f) Place for filing notice; form.
(1) Place for filing. The notice referred to in subsection (a) shall be filed
(A) Under State laws.
. . . .
(ii) Personal property. In the case of personal property, whether tangible or intangible, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated. . . .
The parties disagree on what is the "one office within the State" designated by state law as the place to file the notice of tax lien. IRS argues that Rhode Island has designated the office of the recorder of deeds, or the city or town clerk as the "one office" where such notice of tax liens in favor of the United States must be filed. It points to R.I.GEN.LAWS § 34-34-1 (1984) which provides:
34-34-1. Duty of city or town to receive and file liens. It shall be the duty of the recorder of deeds or the city or town clerk, having custody of the land records, in the several cities and towns in this state, to receive, file and index any and all notices of liens in favor of the United States for taxes due the United States, or any copies thereof, duly certified by the director of internal revenue in whose district the state is situated, or by any other officer having legal custody of the records of such notices of liens, with like effect as by existing law he is required to receive and record liens, deeds and conveyances.
This issue appears to be one of first impression in this district, and neither party has cited applicable case law from any other jurisdiction. Instead, each relies on a linquistic analysis of the statutes in question, and the interplay between them, to support their respective positions. The IRS starts from the position that 26 U.S.C. § 6323(f)(1)(A)(ii) provides for the filing of federal tax lien notices "in one office within the State" which state law designates as the proper place to file such notices.[1] IRS then argues that § 34-34-1, assigns the recorder of deeds "the duty . . . to receive, file and index any and all notices of liens in favor of the United States for taxes due," as the "one office" in which the IRS must file tax lien notices. Since § 34-34-1 does not distinguish between notice of tax liens on real and personal property, the reference to "any and all notices of liens in favor of the United States" allows the IRS to achieve secured status in personal property, as well as in realty, by filing in the "one office" of the recorder of deeds. Moreover IRS distinguishes Uniform Commercial Code (UCC) type filings in the office of the Secretary of State from liens for taxes due pursuant to the Internal Revenue Code, since UCC filings are consensual, commercial transactions, which differ significantly from non-consensual tax liens. Therefore, according to the IRS, by filing its notice of tax lien with the recorder of deeds in North Kingstown, it became a secured creditor as to the personal property of the debtor.[2]
On the other hand, while agreeing that § 34-34-1 designates the recorder of deeds as the proper office in which to file a notice of tax lien on realty pursuant to 26 U.S.C. § 6323(f)(1)(A)(i), the trustee argues that IRS must file its lien notice in the office of the Secretary of State to achieve secured *868 status in personalty. The trustee commences his argument at the same starting point as the IRS, 26 U.S.C. § 6323(f)(1)(A)(ii) and R.I.GEN.LAWS § 34-34-1, but thereafter proceeds along a different tack to the conclusion that in this case the notice of tax lien was improperly filed. He argues that the phrase in § 34-34-1 "any and all liens," is modified by the last clause of the section, "with like effect as by existing law [the recorder of deeds] is required to record liens, deeds and other conveyances." The reading of the phrase "by existing law" is critical to the trustee's position. He maintains that this phrase refers to R.I.GEN.LAWS § 6A-9-302 (1985) and requires the IRS to file its notice of tax lien on personal property as would any other person with the right to file a lien "by existing law" embodied in § 6A-9-302. By filing with the recorder of deeds, such a hypothetical person would encumber only realty, not personal property, and the IRS, like the trustee's hypothetical person, is required "by existing law" to file in the Secretary of State's office in order to perfect a security interest in the debtor's personal property.
We disagree with the trustee's analysis of § 34-34-1 in three respects. First, the trustee's reading and interpretation of the phrase "by existing law" is misplaced. We feel that the phrase in question in § 34-34-1 refers to those ministerial duties imposed on the recorder of deeds regarding documents that he (she) is required to receive and record, rather than to the entire body of commercial law governing the creation and perfection of security interests under Article 9 of the UCC. Moreover, even an Article 9 security interest covering personal property can be an instrument eligible for recording with the recorder of deeds. R.I.GEN.LAWS § 34-13-1(6) (1984).[3] When the instrument to be recorded complies with the applicable statutes, the recorder of deeds must accept and record it. See Bionomic Church of Rhode Island v. Gerardi, ___ R.I. ___, 414 A.2d 474 (1980). The non-discretionary, recordatory functions of the recorder of deeds are the ones imposed "by existing law," to which § 34-34-1 refers.
The trustee's argument presents a second problem. Assuming, arguendo only, that a tax lien is the same as an Article 9 security interest, and that both could be filed in the office of the Secretary of State, then both could also be filed with the recorder of deeds, pursuant to § 34-13-1(6). This reading would leave us with two offices designated or authorized by state law as the place for filing notice of tax liens on personal property. This would clearly conflict with 26 U.S.C. § 6323(f)(1)(A)(ii) which requires that notice be filed in "one office within the State" as designated by state law. (Emphasis supplied.) Adoption of the trustee's reading of the statute would create an irreconcilable conflict between state and federal law by designating two offices for filing, and we should not read this or any statute[4] to create a conflict, where a reasonable alternative interpretation will avoid the conflict.
The third problem with the trustee's analysis results from his attempt to equate the IRS with the hypothetical person who could file a financing statement in the Secretary of State's office pursuant to § 6A-9-302 to perfect a security interest in personal property. To accept that argument *869 requires one to regard an IRS tax lien the same as a UCC security interest. In our view, the two are totally different and not susceptible to being treated similarly for many purposes, including filing requirements. To create a security interest under the UCC, R.I.GEN.LAWS § 6A-9-203(1) (1985) requires that there be agreement between the parties, that value be given by the secured party, and that the debtor have rights in the collateral. The filing of a financing statement in the Secretary of State's office is required to perfect a security interest pursuant to R.I.GEN.LAWS § 6A-9-302. A UCC financing statement must meet the formal requisites specified in R.I.GEN.LAWS § 6A-9-402 (1985) which include being signed by the debtor. To infer and thereafter conclude that the IRS needs the active cooperation of the debtor to properly perfect its lien on personal property for taxes, is a step we are unwilling to take.
The trustee's position also runs afoul of 26 U.S.C. § 6321, which provides that in order to create a valid tax lien, it is only required that the person liable for the tax neglects or refuses to pay, after IRS has made demand for payment. The lien is then perfected unilaterally, when the IRS files its notice of lien under 26 U.S.C. § 6323(f)(1)(A)(ii). The statutory UCC requirements for the creation and perfection of security interests governing consensual, commercial transactions are completely at odds with the framework for tax liens provided within the Internal Revenue Code, and we see no impediment to Congress doing things this way.
Accordingly, we conclude that R.I. GEN.LAWS § 34-34-1 designates the office of the recorder of deeds as the one office within the state of Rhode Island where the Internal Revenue Service is required to file "notice of liens in favor of the United States for taxes due." Rhode Island could designate the office of the Secretary of State as the "one office within the State" where the Internal Revenue Service must file a notice of tax lien in personal property, but any such designation must come from the legislature, rather than from our effort to fit a Federal tax lien within the filing requirements of the Rhode Island UCC. The trustee's objection is overruled, and the Internal Revenue Service is determined to have a properly perfected lien for taxes due, in the amount of $7,481.87.
Enter Judgment accordingly.
NOTES
[1] If state law does not designate the office in which to file notice of tax lien, the notice is filed with the clerk of the District Court for the judicial district. See 26 U.S.C. § 6323(f)(1)(B).
[2] The debtor owns no realty in North Kingstown. The situs of the debtor's personal property is deemed to be at the residence of the debtor. See 26 U.S.C. § 6323(f)(2)(B).
[3] 34-13-1. Instruments eligible for recording. Any of the following instruments shall be recorded or filed by the town clerk or recorder of deeds, in the manner prescribed by law, on request of any person and on payment of the lawful fees therefor; that is to say,
. . . .
(6) All instruments evidencing or relating to a security interest in personal property or fixtures that may be filed pursuant to chapter 9 of title 6A.
[4] Statutes should be construed so as to avoid conflict. See Morton v. Mancari, 417 U.S. 535, 551, 94 S. Ct. 2474, 2483, 41 L. Ed. 2d 290 (1974); Araya v. McLelland, 525 F.2d 1194 (5th Cir. 1976) (construing federal statutes). "[C]onflict between federal and State legislation are not to be presumed, and both bodies of legislation should be construed, if possible, so as to avoid conflicts between them." Potlatch Forests, Inc. v. Hays, 318 F. Supp. 1368 (E.D.Ark.1970), aff'd, 465 F.2d 1081 (8th Cir.1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572004/ | 2 So.3d 272 (2009)
HART
v.
STATE.
No. 4D08-182.
District Court of Appeal of Florida, Fourth District.
January 28, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571943/ | 2 So.3d 946 (2006)
EX PARTE BOBBY LEE GLASS.
No. CR-06-0368.
Court of Criminal Appeals of Alabama.
December 8, 2006.
Decision of the Alabama Court of Criminal Appeal without opinion. Mand. pet. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571959/ | 722 N.W.2d 460 (2006)
STATE of Minnesota, Respondent,
v.
Clay Carl CLARK, Appellant.
No. A04-1101.
Supreme Court of Minnesota.
October 12, 2006.
*461 John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
Heard, considered, and decided by the court en banc.
*462 OPINION
PAGE, Justice.
Following a jury trial in Hennepin County District Court, appellant Clay Carl Clark was convicted of being a prohibited person in possession of a firearm, fleeing a police officer in a motor vehicle, and theft of a motor vehicle. On appeal to the court of appeals, Clark argued that the trial court erred in denying his requests for substitute counsel, for advisory counsel after he elected to represent himself, and to relinquish self-representation. The court of appeals affirmed. State v. Clark, 698 N.W.2d 173 (Minn.App.2005). Concluding that any error in the trial court's failure to exercise its discretion under our rules of criminal procedure for designation of advisory counsel does not warrant a new trial, we affirm.
Shortly after 1:00 a.m. on November 22, 2003, Minneapolis Police Officer Michael Geere was seated in his parked squad car on 21st Avenue North, facing east, when he saw Clark driving westbound in a red 1993 Ford Tempo. Earlier that evening, a woman had reported that her 1993 red Ford Tempo had been stolen by a man wearing a black leather, waist-length jacket. Officer Geere looked at the license plate of the red Tempo and realized the car was the one that had been reported stolen. As Clark "slowly rolled past" Geere's squad car, he and the officer made eye contact. The officer turned his squad car around and followed Clark, who turned north on Lyndale. The officer notified dispatch and continued to follow Clark. When Clark began to accelerate, the officer activated his squad car's lights and siren. Clark continued on at speeds up to 40 mph.
Officer Geere pursued Clark for several blocks and through an alley, all the while reporting his location over the radio so other officers would know where he was going. Clark eventually took a corner too fast, lost control, and crashed into a boulevard tree. Clark got out of the Tempo and fell down in front of Officer Geere's car. As Officer Geere got out of his car, Clark got up and started to run, but a 12-foot-high retaining wall blocked him from going west. As Officer Geere chased Clark up a residential driveway and through the backyard to a chain-link fence, he saw Clark reaching into his jacket and assumed Clark was either going for a gun or trying to dump drugs.
Officer Geere tackled Clark, and the two rolled over the fence. The officer instructed Clark to put his hands behind his back, but Clark would not comply. After a brief struggle, during which Clark's jacket came off, Officer Richard Hand arrived and helped take Clark into custody. Officer Geere picked up Clark's black waist-length jacket and recovered a loaded 9 millimeter semiautomatic handgun from the inside pocket. As part of routine police practice, Officer Geere removed the magazine and the round that was in the chamber.
Clark was charged with being a prohibited person in possession of a firearm in violation of Minn.Stat. § 624.713, subd. 1(b) (2004); fleeing a police officer in a motor vehicle in violation of Minn.Stat. § 609.487, subd. 3 (2004); receiving stolen property in violation of Minn.Stat. § 609.53, subd. 1 (2004); and theft of a motor vehicle in violation of Minn.Stat. § 609.52, subd. 2(17) (2004). At Clark's first appearance on November 26, 2003, upon finding eligibility, the trial court appointed a public defender to represent Clark. At an omnibus hearing on December 15, 2003, Clark pleaded not guilty and demanded a speedy trial. Clark also indicated to the court that he intended to hire private counsel. On January 5, 2004, Clark appeared with his public defender *463 and informed the court that he was unable to retain private counsel.
On February 17, 2004, Clark appeared for trial with his public defender. Following a Rasmussen hearing, jury selection commenced. On February 18, Clark informed the trial court that he wanted another attorney because his assigned public defender was "not representing [his] interests in this case." The request was denied. Later that day, after completion of jury selection, Clark informed the court that he wanted to represent himself. The court explained to Clark that, in the court's experience, it was not a good idea for a defendant to represent himself, that he would not be granted a continuance, that if granted the right to represent himself he would not be permitted to change his mind later, that he would be held to the same standards as an attorney, and that he would not have the assistance of standby counsel. Following a formal and comprehensive waiver-of-counsel inquiry, the court granted Clark's request to proceed pro se and discharged his public defender.
Trial proceeded with the testimony of the car owner, who said that at around 7:00 p.m. on November 21, 2003, she was dropping her child off at her day-care provider's home when she noticed Clark sitting at a nearby bus stop. As she opened the day-care provider's screen door, she saw Clark get up and walk to the middle of the street as if looking for a bus and, as she closed the screen door after handing her child to the day-care provider, she heard the door to her car slam and saw Clark drive off in it.
Officer Geere testified regarding the circumstances surrounding his pursuit and arrest of Clark six hours later. During Officer Geere's cross-examination, after encountering some frustration with attempts to impeach the officer's testimony with prior statements, Clark sought to relinquish self-representation. In seeking to relinquish self-representation, Clark asserted that in choosing to represent himself he thought that he would have his discharged attorney to help him during trial. He also stated that he thought it was his "constitutional right to, you know, have an attorney present." The court then reminded Clark that he had been told before he relinquished his appointed counsel that he would not have the assistance of standby counsel. In the end, standby counsel was not appointed, and Clark's request to rescind self-representation was denied. After watching the means by which the state rehabilitated the witness with prior statements on redirect, Clark used the same means for his impeachment on re-cross. Officer Hand testified as to his role in the pursuit and arrest. At the end of the state's case-in-chief, by pretrial agreement, the court read the parties' stipulation that Clark was legally prohibited from possessing a handgun so as to prevent unduly prejudicial information from getting to the jury.
Clark testified on his own behalf and admitted the offense of fleeing a police officer in a motor vehicle. He explained that he fled because he had drug paraphernalia in his possession at the time. He said that when the officer turned on the squad car's lights, he "panicked" and ran into a tree; and when "[he] got out, * * * and [the officer] almost ran [ ] over [him]. [He] got up and just ran, you know. Wasn't no excuse for that." But he denied stealing the red 1993 Ford Tempo, denied having knowledge that it was stolen, and denied possession of the handgun.
The jury found Clark guilty as charged. Judgment of conviction was entered on the *464 firearm, fleeing, and theft offenses.[1] Clark was sentenced to an executed aggregate concurrent term of 60 months in prison. The court of appeals affirmed, and we granted further review. Clark claims reversible error in the denial of substitute counsel, advisory counsel, and relinquishment of self-representation.
I.
We first address Clark's substitute counsel claim. The decision to grant or deny a request for substitute counsel lies within the trial court's discretion. State v. Worthy, 583 N.W.2d 270, 278 (Minn.1998). In Worthy, we held that a defendant's constitutional right to counsel "includes a fair opportunity to secure an attorney of choice, but an indigent defendant does not have the unbridled right to be represented by the attorney of his choice." Id. We further held that "[a] court will grant an indigent's request for different counsel `only if exceptional circumstances exist and the demand is timely and reasonably made.'" Id. (quoting State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977)).
During jury selection on the second day of what was anticipated to be a two- or three-day trial, Clark sought substitute counsel, explaining:
I got evidence that can help prove my innocence, and everytime I tell [the public defender] something about it, you know, she tell[s] me that, you know, it's not admissible or that's not happening, and I've been here four months, she has never came to see me or gave me any paperwork telling me that you know, this what this statement is. Then she told me that it's like an open[-]and[-]shut case, that I need to plead to 60 months or, you know, I can't defend this, you know, so I don't you know, everytime we you know, she talked to me, we sitting in court, you know, I haven't had a chance to talk to her about no witnesses, nothing. I speak you know, something to prove my innocence and I feel like she just don't have the same interests, you know.
In denying Clark's request, the trial court noted that Clark had requested a speedy trial and that the case had already been continued to give him an opportunity to retain private counsel. The court told Clark, "we moved [another] case to accommodate" his speedy-trial demand "and there is a strong reluctance to continue matters" after the trial begins. The court informed Clark, "[u]nder the [local public defender's internal] rules, you would not be re-assigned a different lawyer from the Public Defender's office."
Clark contends that he raised substantial complaints about the effectiveness of the representation provided by appointed counsel, amounting to "exceptional circumstances" such that the trial court should have conducted a more "searching inquiry" before ruling on the request. That may be so, particularly when a defendant voices serious allegations of inadequate representation before trial has commenced.[2] But here it is evident from the record that the trial court was satisfied that appointed counsel had conducted a proper investigation, was thoroughly prepared for trial, and had, in fact, maintained contact with Clark. The record reflects that before *465 trial, counsel for both sides engaged in discussions with the court on a number of procedural and substantive matters. Appointed counsel challenged the legality of the stop and search incident to Clark's arrest at the Rasmussen hearing. Counsel also obtained rulings favorable to Clark, including the exclusion of an attempted-murder conviction that had been offered for impeachment use. During what the record reflects to have been a thorough waiver-of-counsel inquiry, the trial court ascertained that Clark's counsel had gone over evidence with Clark. The court also told Clark that his counsel was skilled, experienced, and prepared for trial.
Moreover, Clark's request for substitute counsel, like the request made in Worthy, was untimely. In Worthy, the defendants fired their public defenders on the first morning of trial, telling the trial court that they "felt they were not being properly represented." Worthy, 583 N.W.2d at 279. Their specific complaint was that "[their] attorneys told them that they did not have a strong case." Id. at 274. The defendants asked the court to grant them a continuance so that they could obtain substitute counsel. Id. The court denied the defendants' request, stating the case was set for trial and would start that morning. Id. The court further explained to the defendants that if they rejected their public defenders' representation they could proceed pro se with the public defenders as advisory counsel. Id. On appeal to our court, the defendants argued, among other issues, that the trial court erred by refusing to grant their request for substitute counsel. Id. at 278. We rejected that claim, holding that the defendants' request for substitute counsel, which was made on the morning of trial and after the jury selection had begun, was not timely. Id. at 274, 279.
The facts here are strikingly similar to those in Worthy. As in Worthy, Clark claims that his public defender was not representing his interests. Also, as in Worthy, the request for substitute counsel was made after jury selection had begun. Further, as the trial court noted, Clark had requested a speedy trial and his case had been moved to accommodate that request. On these facts, we hold that the denial of Clark's request for substitute counsel was not an abuse of discretion.
II.
We next consider Clark's argument that the denial of his request for advisory counsel was reversible error because (1) the Minnesota Constitution guarantees advisory counsel and (2) the court failed to exercise its discretion to appoint advisory counsel pursuant to Rule 5.02, subdivision 2, of the Minnesota Rules of Criminal Procedure, which provides that a trial court "may appoint `advisory counsel' to assist the accused who voluntarily and intelligently waives the right to counsel."
We first address Clark's claim that he is entitled to advisory counsel under the Minnesota Constitution. According to Clark, although the Sixth Amendment of the United States Constitution, which states that a defendant has the right to "have the assistance of counsel for his defense" (emphasis added), does not require the appointment of advisory counsel for a pro se defendant, the Minnesota Constitution guarantees the appointment of advisory counsel for a pro se defendant. We review issues of constitutional interpretation de novo. State v. Brooks, 604 N.W.2d 345, 348 (Minn.2000). Minnesota Constitution, Article 1, Section 6, provides, in pertinent part:
In all criminal prosecutions * * * [t]he accused shall enjoy the right to be informed of the nature and cause of the *466 accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.
(Emphasis added.)
We have stated that "[i]t is our responsibility as Minnesota's highest court to independently safeguard for the people of Minnesota the protections embodied in our constitution." State v. Askerooth, 681 N.W.2d 353, 362 (Minn.2004). However, "in independently safeguarding these protections `we will [not] cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution.'" Id. (quoting State v. Fuller, 374 N.W.2d 722, 726-27 (Minn.1985)). This court will not lightly reject a Supreme Court interpretation of identical or substantially similar language. State v. Harris, 590 N.W.2d 90, 97-98 (Minn.1999). Here, the language of the Minnesota Constitution is substantially similar to that of the United States Constitution, and we see no reason to construe the Minnesota Constitution more broadly than the United States Constitution. We therefore decline to read the Minnesota Constitution as guaranteeing advisory counsel for pro se defendants.
We now turn to Clark's claim of reversible error in the denial of advisory counsel pursuant to Minn. R.Crim. P. 5.02, subd. 2. According to Clark, the trial court, mistakenly believing that it lacked authority to appoint advisory counsel, denied his request for advisory counsel without exercising any discretion and, he asserts, committed reversible error in the failure to exercise this discretion. The state argues that no error occurred because Minn.Stat. § 611.17, subd. 1(b)(4) (2004), which states that "[t]he court must not appoint the district public defender as advisory counsel," precluded the appointment of advisory counsel in this case.
As a preliminary matter, we note that, to the extent that Minn.Stat. § 611.17, subd. 1(b)(4), purports to limit judicial discretion to appoint advisory counsel, it is in conflict with Minn. R.Crim. P. 5.02, subd. 2. In State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994), we stated:
Determination of procedural matters is a judicial function. The legislature, for its part, determines matters of substantive law and has carefully protected that prerogative by providing that the Rules of Criminal Procedure "shall not abridge, enlarge, or modify the substantive rights of any person." As a matter of substantive law, the legislature has "[t]he power to define the conduct which constitutes a criminal offense and to fix the punishment for such conduct * * *." Both branches agree that "[i]n matters of procedure rather than substance, the Rules of Criminal Procedure take precedence over statutes to the extent that there is any inconsistency."
* * * *
* * * This court has distinguished substantive and procedural law as follows:
[B]y substantive rights the legislature was referring to statutes which declare what acts are crimes and prescribe punishment for their violation, rather than statutes which regulate the steps by which the guilt or innocence of one who is accused of a criminal statute is determined.
(Citations omitted.) Clearly, the appointment of counsel under Minn. R.Crim. P. 5.02, subd. 2, is a procedural matter for judicial determination. Accordingly, to the extent that Minn.Stat. § 611.17, subd. 1(b)(4), conflicts with Rule 5.02, the rule takes precedence.
*467 The next question is whether the failure to exercise discretion regarding the appointment of advisory counsel for Clark was reversible error. In reliance on People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994, 1001 (1985), Clark argues that the trial court's failure to consider appointing advisory counsel warrants per se reversal. In Bigelow, the California Supreme Court held that, similar to the denial of the right to appointed counsel and to self-representation, a trial court's failure to exercise discretion with respect to the appointment of advisory counsel, when "a refusal to so appoint would be an abuse of discretion," also warrants "the same rule of per se reversal." Id.
Bigelow is distinguishable. The court in Bigelow specifically stated that "we have no doubt that the trial court, had it realized that it could appoint advisory counsel, would have exercised its discretion to do so" and "[h]ad the [trial] court refused, we would find that action an abuse of discretion." Id. That is not the case here. We cannot say with any certainty that, had the trial court exercised its discretion, it would have appointed advisory counsel for Clark. Nor can we say on this record that, had the trial court exercised its discretion and declined to appoint advisory counsel, the trial court would have abused its discretion. Further, Bigelow was a capital case, and as the California Supreme Court recognized, "[s]uch cases raise complex additional legal and factual issues beyond those raised in an ordinary felony trial," id., 209 Cal.Rptr. 328, 691 P.2d at 1000, and that it was "unquestionably true" that the defendant, who only had a ninth grade education, "was not competent to defend a capital case." Id., 209 Cal.Rptr. 328, 691 P.2d at 1001. This non-capital case does not present any such complex legal and factual issues.
Relying on our decisions in State v. Costello, 646 N.W.2d 204 (Minn.2002), and State v. Logan, 535 N.W.2d 320 (Minn. 1995), Clark asserts that "the rationale of Bigelow applies equally to non-capital cases." Costello and Logan, however, are also clearly distinguishable. Those cases presented issues at the core of a defendant's right to a fair trial. In Costello, we held that a trial court's error in allowing jurors to question witnesses was not subject to harmless error analysis. 646 N.W.2d at 215. We explained that, "because juror questions may imperceptibly affect the production of evidence, the presentation of the state's case, and the jury's deliberations, it is impossible for an appellate court to infer from a record that the verdict rendered is `surely unattributable' to the error." Id. In Logan, we reversed the defendant's conviction and remanded for a new trial after we concluded that actual prejudice did result from the seating of a juror who during voir dire had expressed a bias in favor of the police. 535 N.W.2d at 324. We further concluded that the error in allowing the biased juror to sit "undermine[s] the basic `structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review.'" Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). Unlike the errors in Costello and Logan, the trial court's failure to exercise discretion here did not affect the structural integrity of the tribunal. Clark did not have a constitutional right to advisory counsel and, as noted, we cannot say that had the trial court exercised its discretion and declined to appoint advisory counsel it would have been an abuse of discretion. Minnesota Rule of Criminal Procedure 5.02, subd. 2, simply provides that the trial court "may," at its direction, appoint advisory counsel.
*468 Having concluded that any error in failing to exercise discretion regarding the appointment of standby counsel is not subject to per se reversal, we now turn to whether the trial court's failure to exercise discretion in this case warrants a new trial. The role of advisory counsel is "fundamentally different from the role of counsel generally." State v. Richards, 552 N.W.2d 197, 207 (Minn.1996). "Standby counsel are present `to steer a defendant through the basic procedures of the trial' and `to relieve the judge of the need to explain and enforce basic rules of [the] courtroom.'" Id. at 206 (quoting McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). But the standard by which standby counsel's representation is to be measured "remains an open question." Id. at 207.
Clark claims prejudice in the denial of advisory counsel because there were "numerous instances where he could have benefited from counsel's presence." Specifically, Clark contends that advisory counsel could have assisted him in "subpoenaing his defense witnesses," in "advising him on how to properly impeach the state's witnesses with their prior inconsistent statements," in "helping him obtain an admissible weather report," in "consulting with him about the pros and cons of testifying on his own behalf," and in "helping him to fashion a response to the jury questions." Based on our review of the record, we conclude that Clark has not made a showing that lack of advisory counsel resulted in prejudice to him.
The only issues in serious dispute were whether Clark possessed the firearm admitted into evidence and whether he either stole the 1993 Ford Tempo or had knowledge that it had been stolen. Clark identified two women whose names had been supplied to him by a jail inmate who said the women were at a bar two blocks away from where Clark was arrested and "saw it." Clark suggested that the witnesses would testify that Officer Geere's squad car struck him. But Clark's own testimony belies this claim and, in any event, the proffered testimony would have had no bearing on the issues in dispute. Neither would a weather report have been germane to these issues.[3] As for impeachment of the state's witnesses with prior inconsistent statements, with some help from the prosecutor and the trial court, Clark accomplished this. As for advice in deciding whether or not to testify, the record fairly well establishes that Clark firmly believed his testimony was essential. With respect to the jury's questions during deliberations, the record reflects that the court's answers were proper.
The primary justifications for advisory counsel are: ensuring the fairness of the criminal justice process, promoting judicial efficiency, and preserving the appearance of judicial impartiality. Minn. R.Crim. P. 5.02, subd. 2, cmt.; Marie Higgins Williams, The Pro Se Defendant, Standby Counsel, and the Judge: A Proposal for Better-Defined Roles, 71 U. *469 Colo. L.Rev. 789, 804-06 (2000). We have long encouraged use of advisory counsel. See State v. Jones, 266 N.W.2d 706, 711 n. 1 (Minn.1978). But a defendant is entitled to a fair trial, not an error-free trial. State v. Zenanko, 552 N.W.2d 541, 543 (Minn.1996). An accused "`is entitled to a fair trial, and it is the duty of the court, and of prosecuting counsel as well, to see that he gets one.'" State v. Litzau, 650 N.W.2d 177, 185 n. 6 (Minn.2002) (quoting State v. Haney, 222 Minn. 124, 125, 23 N.W.2d 369, 370 (1946)). Here, the record reflects that the court and prosecuting attorney treated Clark with complete respect, provided him with assistance, and fulfilled their duty to see that he had a fair trial. The denial of advisory counsel was not reversible error.
III.
Finally, we consider Clark's argument that the trial court erred when it denied his request to relinquish self-representation. We have stated that, once a defendant waives his right to counsel, the defendant does not have an absolute right to relinquish the right of self-representation. Richards, 552 N.W.2d at 206. Rather, a defendant will only be permitted to relinquish self-representation if the request is timely, reasonable, and reflects extraordinary circumstances. Id. The decision to grant a defendant's request to relinquish self-representation is within the trial court's discretion and, in exercising its discretion, a trial court balances the request "against the progress of the trial to date, the readiness of standby counsel to proceed, and the possible disruption of the proceedings." Id. at 206-07. Here, the request was made on the third day of a three-day trial. As the trial court correctly noted, jeopardy had attached, the state was nearing the conclusion of its case-in-chief, and reappointment of counsel would have necessitated a continuance. Under these circumstances, the denial of the request to relinquish self-representation was not an abuse of discretion.
Affirmed.
MEYER, Justice (concurring).
I write separately because I do not agree with the majority that Clark did not raise substantial complaints about the effectiveness of the representation provided by appointed counsel. I agree with the dissent of Justice Hanson that "Clark's claims that counsel had not visited him in jail, had not discussed the case with him, would not seek out suggested witnesses, and would not have the gun checked for fingerprints, raised serious questions that required inquiry." These claims amounted to "exceptional circumstances" such that the trial court should have conducted a more "searching inquiry" before ruling on the request. The court apparently did not make that inquiry because it was under the mistaken belief that the rules precluded appointment of a different public defender. I believe that the lack of inquiry precludes a finding that Clark's waiver of his Sixth Amendment right to counsel was voluntarily made.
Nevertheless, because I conclude that Clark's request for substitute counsel was untimely under the Worthy decision, the denial of his request was not an abuse of discretion. State v. Worthy, 583 N.W.2d 270, 278-79 (Minn.1998).
ANDERSON, PAUL H., Justice (dissenting).
I respectfully dissent. I do so because I disagree with the majority's conclusion that the district court did not commit reversible error when it failed to exercise its discretion regarding the appointment of advisory counsel. Minnesota Rule of Criminal Procedure 5.02, subd. 2, states *470 that the "court may appoint `advisory counsel' to assist the accused who voluntarily and intelligently waives the right to counsel." Here, the district court mistakenly believed it could not appoint advisory counsel, and therefore appellant, Clay Carl Clark, did not have the benefit of the court properly exercising its discretion.
While I agree with the majority's holding that there is no constitutional right to advisory counsel, the importance of such counsel should not be discounted. The majority fashions a very narrow role for advisory counsel, citing State v. Richards for the proposition that advisory counsel's responsibilities are "`to steer a defendant through the basic procedures of trial' and `to relieve the judge of the need to explain and enforce basic rules of [the] courtroom.'" 552 N.W.2d 197, 206 (Minn.1996) (quoting McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). But the context in which the issue of advisory counsel's role arose in Richards was much different than in Clark's case. In Richards, the pro se defendant had the benefit of advisory counsel, and the issue was whether the defendant could step aside to have his advisory counsel proceed in his place. Id. at 205. In such circumstances, we were construing the already-appointed advisory counsel's role narrowly in order to emphasize that advisory counsel "`should not be allowed to destroy the jury's perception that the defendant is representing himself.'" Id. at 206 (quoting McKaskle, 465 U.S. at 184, 104 S.Ct. 944).
The role of advisory counsel need not be as narrow as the majority suggests. In Richards, we cited the United States Supreme Court's discussion of advisory counsel in McKaskle. The issue considered in McKaskle was the role of advisory counsel when the district court appointed such counsel for a pro se defendant, who objected to the presence of any advisory counsel. 465 U.S. at 170-71, 104 S.Ct. 944. In McKaskle, the Supreme Court articulated the minimal role of advisory counselto help the pro se defendant with the basic mechanics of courtroom procedures. Id. at 184, 104 S.Ct. 944. In contrast, Clark affirmatively requested that the district court provide him with the assistance of advisory counsel. If advisory counsel had been appointed, it may be that Clark would have utilized such counsel to a far greater extent than the minimal role the Court envisioned for a pro se defendant who did not want help in the first instance. Importantly, neither the Supreme Court nor our court has held that advisory counsel is limited to helping the pro se defendant with procedural issues.
With this more expansive view of advisory counsel in mind, I turn to the fact that the district court violated Minn. R.Crim. P. 5.02, subd. 2. This rule gives the court discretion in appointing advisory counsel upon the defendant's request. At trial, the court mistakenly informed him that the "rules have now changed. There is no stand-by counsel." Thus, the court committed error by not contemplating the exercise of its discretion to appoint advisory counsel. Yet, the majority concludes that "Clark has not made a showing that lack of advisory counsel resulted in prejudice to him." I do not reach the same conclusion, as I believe it is too difficult, if not impossible, to measure the impact advisory counsel may have had on Clark's trial. I do not believe that we can say with any fair degree of certainty that if Clark had been granted his request for advisory counsel, it would not have led to additional witnesses, better arguments, and perhaps even a different outcome. I agree with the California Supreme Court when it reversed a trial court that failed to exercise its discretion because it "[m]istakenly believ[ed] it had no authority to appoint advisory *471 counsel." People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994, 1000 (1984). The California court reversed and granted a new trial because of the "impossibility of assessing the effect of the absence of counsel upon the presentation of the case." Id., 209 Cal.Rptr. 328, 691 P.2d at 1001. For this same reason, the court in Clark's case must at least consider the effect of granting advisory counsel, as the rules of criminal procedure dictate.
Finally, while I do not conclude that a district court's failure to exercise its discretion regarding the appointment of advisory counsel should result in per se reversal, I nevertheless conclude that the circumstances in Clark's case do require reversal. Therefore, I would hold the court's error was prejudicial and warrants granting a new trial.
HANSON, J. (dissenting).
I join the dissent of Justice Paul H. Anderson but write separately to state additional grounds for dissent.
On the issue of the district court's denial of Clark's request for substitute counsel, I would structure the analysis differently than the majority opinion. First, because Clark's request was not made until after the Rasmussen hearing had been completed and jury selection had commenced, Clark's right to defend himself was not "unqualified," but was "`subject to the trial court's discretion which requires a balancing of the defendant's legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress.'" State v. Christian, 657 N.W.2d 186, 191 (Minn. 2003) (quoting United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.1986)). In Christian we held that when a self-representation motion is made after jury voir dire begins, the district court must exercise its discretion and we affirmed the district court's denial of such a motion. Id. at 193-94.
Here, the district court did not exercise that discretion but simply proceeded to secure Clark's waiver of his right to counsel. Of course, it could be said that Clark can hardly complain about the district court's grant of his own motion. But, because the court's discretion to deny a request for self-representation requires the court to consider the defendant's interest, I would conclude that a defendant who makes such a motion, against the advice of or without the support of his appointed counsel, has not waived the requirement that the district court exercise discretion.
More important, even if the district court does not consider the possibility of denying the motion for self-representation, the court is obliged to assure that the defendant's waiver of counsel is knowing, voluntary, and intelligent. State v. Worthy, 583 N.W.2d 270, 276 (Minn.1998); Minn. R. Crim P. 5.02, subd. 1(4). And, where a defendant seeks substitute counsel on the basis of a claim that his present counsel is ineffective, a defendant's waiver of counsel may not be voluntary where the court narrows the defendant's options to either self-representation or proceeding with his present counsel. See, e.g., Pazden v. Maurer, 424 F.3d 303, 313 (3d Cir.2005); Gilbert v. Lockhart, 930 F.2d 1356, 1360 (8th Cir.1991) (holding that a defendant's waiver was invalid where he was required to choose between proceeding with unprepared counsel or no counsel). At the very least, the court was required to make a searching inquiry of Clark's reasons for wanting to dismiss his present counsel. On their face, Clark's claims that counsel had not visited him in jail, had not discussed the case with him, would not seek out suggested witnesses, and would not have the gun checked for *472 fingerprints, raised serious questions that required inquiry. See, e.g., United States v. Morrissey, 461 F.2d 666, 669 (2d Cir. 1972) (holding that a defendant's claim that his attorney did not meet with him or seek out witnesses required a searching inquiry before denying the request for new counsel).
The majority suggests that Clark's claims do not constitute "serious allegations of inadequate representation." But, to reach that conclusion, the majority must speculate because no inquiry was made on the record. In the end, the majority relies on the district court's apparent conclusion, without record basis, that "appointed counsel had conducted a proper investigation, was thoroughly prepared for trial, and had, in fact, maintained contact with Clark." Because the district court did not devise a procedure to inquire of appointed counsel about Clark's claims,[1] the court had no basis to know what investigation had been conducted or what contact had been maintained. The court's only basis for knowledge was the performance of counsel in the Rasmussen hearing and voir dire, and perhaps the court's familiarity with counsel in other cases, but neither of these would provide information about the nature and extent of counsel's investigation or communication with Clark.
I would conclude that the district court abused its discretion by not making a searching inquiry into Clark's claims; by narrowing Clark's choices to only self-representation or representation by current counsel; and by granting Clark's motion for self-representation without balancing all interests, including the interests of Clark in the effective assistance of counsel.
On the issue of the district court's denial of Clark's request for advisory counsel, I conclude that the harmless error analysis must not focus on the strength of the state's case, which was not known to the court when the motion was made and which, even at the close of trial, only reflects a record that was created without the assistance of defense counsel. The analysis should focus, instead, on whether Clark was effective in his attempts at self-representation. My review of the record reveals that, as could be expected, Clark was repeatedly stymied by his lack of expertise in trial procedure. He could not assess the significance of evidence presented by the state, present proper objections to the state's evidence, develop meaningful cross-examination of the state's witnesses, or secure and present evidence of his own.
Accordingly, I would reverse Clark's conviction and grant a new trial.
NOTES
[1] The receiving-stolen-property offense was "merged" with the theft offense at sentencing.
[2] When defense counsel and defendant disagree on significant matters of tactics or strategy, we have suggested that a record should be made by "means which best serves to protect both the confidentiality of the attorney-client relationship and the safeguards present in the criminal system." State v. Eling, 355 N.W.2d 286, 294-95 (Minn.1984).
[3] In pretrial discussions, counsel for both sides and the court talked about the admissibility of copies of certain web pages obtained from the internet website "wunderground.com" containing weather information for the time period when Clark was arrested. Because the documents did not contain the relevant precipitation data, the public defender attempted to locate a reporting service that did have that information. Clark wanted to impeach the officer's testimony that Clark could not "accelerate" away from the officer during the police chase because of snowy conditions in the alley, but the officer also said that Clark was driving a vehicle with a four-cylinder engine. Whether there was snow in the alley during the police chase was not germane to any of the disputed elements of the charged offenses.
[1] See, e.g., State v. Eling, 355 N.W.2d 286, 294-95 (Minn.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571970/ | 2 So.3d 944 (2006)
EX PARTE JAMES WILLIAMS, JR.
No. CR-06-0132.
Court of Criminal Appeals of Alabama.
October 27, 2006.
Decision of the Alabama Court of Criminal Appeal without opinion. Mand. pet. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571979/ | 2 So.3d 1272 (2009)
Chester ARMAND
v.
DENTON-JAMES, L.L.C.
No. 08-920.
Court of Appeal of Louisiana, Third Circuit.
February 4, 2009.
*1273 Mark A. Watson, Stafford, Stewart & Potter, Alexandria, Louisiana, for Defendant/Appellant, Denton-James, L.L.C.
Joseph J. Bailey, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, Louisiana, for Plaintiff/Appellee, Chester Armand.
Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
SULLIVAN, Judge.
Employer appeals a judgment which denies its La.R.S. 23:1208.1 and 23:1208 defenses and awards Claimant relief he sought in this workers' compensation matter. For the following reasons, the judgment is affirmed, and Claimant is awarded additional attorney fees for work performed on this appeal.
Facts
Chester Armand was injured on March 14, 2007, while working in the course and scope of his employment with Denton-James, L.L.C. (Denton-James). Denton-James began paying indemnity benefits. Mr. Armand filed a disputed claim, asserting that his benefits were not properly calculated, his benefits were not being paid timely, he was not receiving transportation to doctor appointments, and he was denied medical treatment as prescribed by his treating physician. Mr. Armand amended his claim to request penalties and attorney fees.
Denton-James admitted in its answer and stipulated at trial that Mr. Armand had been injured in a job-related accident. However, it denied that he was entitled to *1274 benefits on the basis that he did not correctly complete a Medical History Questionnaire regarding prior injuries and violated the provisions of La.R.S. 23:1208.1. Thereafter, Denton-James filed a motion for summary judgment, asserting this defense. After receiving Mr. Armand's affidavit in opposition to its motion for summary judgment, Denton-James amended its answer, urging that the affidavit violated La.R.S. 23:1208. The motion for summary judgment was referred to the merits of the case.
The matter proceeded to trial on Mr. Armand's claims that Denton-James denied him prescribed medical treatment and that the denial entitled him to penalties and attorney fees. At the conclusion of the trial, the Workers' Compensation Judge (WCJ) denied Denton-James's motion for summary judgment and awarded judgment in favor of Mr. Armand, approving his request for neck surgery, as recommended by his treating physician, and awarding penalties in the amount of $2,000 and attorney fees in the amount of $6,500.
Denton-James appealed the judgment, and Mr. Armand answered the appeal, seeking an award of attorney fees for work performed on appeal.
Discussion
Mr. Armand began working for Denton-James on January 15, 2007. At that time, he was receiving Social Security disability benefits and was working on a trial basis in an attempt to return to employment. Mr. Armand's disability was the result of injuries he suffered to his neck and back in automobile accidents which occurred in 1989 and 1995. His disability benefits were discontinued February 1, 2007.
Mr. Armand testified that he learned of the job with Denton-James from an acquaintance, Zelian Armand (Zelian), a Denton-James employee, in late fall of 2006. According to Mr. Armand, Zelian asked him at that time if he wanted a job. He explained to Zelian that he had hurt his back and had been disabled but was doing better and wanted to return to work. He also explained that Denton-James probably would not hire him because he had been on disability and that other potential employers would not hire him when they learned he was receiving disability benefits. Mr. Armand testified that Zelian told him his prior injuries were not a problem because Denton-James did not require physical examinations for employment.
According to Mr. Armand, he never completed any documents before beginning his employment with Denton-James. Instead, he testified that he signed documents Zelian presented to him on two occasions, but he did not place any marks, other than his signature, on any document.
Zelian, a concrete foreman for Denton-James, had the ability to hire and fire personnel who worked under him, such as Mr. Armand. Zelian testified that he did not recall any conversation with Mr. Armand before Mr. Armand went to work for Denton-James and that he had no knowledge of Mr. Armand having any prior neck or back injuries for which he received Social Security disability benefits. Zelian further testified that he gave Mr. Armand an application, which Mr. Armand filled out and returned to him, and that he then gave the application to office personnel but did not review it before doing so. He denied placing checks in any of the boxes on Mr. Armand's Medical History Questionnaire.
The office employee to whom Zelian delivered Mr. Armand's application faxed it to Denton-James's Baton Rouge office. She testified that Mr. Armand was with Zelian when Zelian handed her the application. *1275 She did not remember reviewing the application. Denton-James's Baton Rouge personnel manager testified that she only reviewed the application to ensure that it had been completed and that Mr. Armand would not have been allowed to begin working for Denton-James if his application was incomplete. A copy, not the original, of Mr. Armand's original application was produced by Denton-James.
When questioned by counsel for Denton-James, Zelian disagreed with statements in Mr. Armand's affidavit that he had knowledge of Mr. Armand's prior injuries and receipt of Social Security disability benefits. However, on crossexamination by Mr. Armand's counsel, he stated that he did not remember Mr. Armand advising him of his prior injuries and his receipt of Social Security disability benefits. When asked about the difference in his testimony, he questioned whether there was a difference between disagreeing and not remembering. On reexamination by Denton-James's counsel, Zelian testified that he would not have hired anyone receiving Social Security disability benefits.
Bryan Johnson, the adjustor who handled Mr. Armand's claim, testified that when questioned about Mr. Armand's incident, Zelian told him he did not know Mr. Armand and Mr. Armand was never hurt at work. Mr. Johnson also testified that Mr. Armand did not attempt to hide his previous injuries from him, as evidenced by his returning to Dr. Louis C. Blanda, the physician who treated his prior injuries.
Louisiana Revised Statutes 23:1208.1 Forfeiture
Denton-James urges that the WCJ erred when he determined it did not prove Mr. Armand intentionally provided false information on his Medical History Questionnaire which resulted in forfeiture of his benefits. It also contends that if Mr. Armand simply did not answer the pertinent questions on his Medical History Questionnaire and provided no information concerning his prior medical conditions and/or disabilities, he prejudiced its ability to recover from the Second Injury Fund, resulting in forfeiture of his benefits.
Louisiana Revised Statutes 23:1208.1 allows employers to ask employees about prior injuries. It provides for the forfeiture of an employee's benefits when the employee fails to truthfully answer a medical questionnaire regarding previous injuries, disabilities, or other medical conditions if an answer directly relates to the medical condition for which he seeks benefits or if the untruthfulness affects the employer's ability to seek reimbursement of benefits it paid the employee from a special fund. This special fund, known as the "Second Injury Fund," was designed to:
"[E]ncourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers ... from excess liability for workers' compensation for disability when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone."
La.R.S. 23:1371(A).
Under certain circumstances, an employer can seek reimbursement from the Second Injury Fund for a work injury which occurred subsequently to a known permanent, partial disability (PPD). La. R.S. 23:1371 and 23:1378. A PPD is "any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining *1276 reemployment if the employee should become unemployed." La.R.S. 23:1378(F). There are thirty conditions which the law presumes to be PPDs. Id. Employers have employees complete questionnaires which seek information that may establish the employee has a PPD. Questions concerning any conditions or injuries not listed in La.R.S. 23:1378(F) must be narrowly tailored for the purpose of determining the existence of a PPD. See Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214; King v. Grand Cove Nursing Home, 93-779 (La.App. 3 Cir. 3/9/94), 640 So.2d 348, writ denied, 94-865 (La.5/13/94), 641 So.2d 204.
Noting that this provision must be strictly construed because forfeiture is such a harsh remedy, the supreme court outlined in Nabors Drilling USA v. Davis, 03-0136, pp. 4-5 (La.10/21/03), 857 So.2d 407, 414 (citations omitted), when forfeiture is allowed:
By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. The employer has the burden of proving each of the elements required by the statute. The lack of any one of the elements is fatal to the employer's avoidance of liability under the statute.
The supreme court specifically held in Wise, 707 So.2d 1214, that proof of an untruthful statement alone is insufficient to forfeit an employee's benefits. The employer must also establish that it was prejudiced. It can do this in one of two ways. First, the employer can establish that there is a direct relation between the prior injury and the post-employment injury; however, it is insufficient to simply establish that the injured body part at issue was previously injured. "[A] direct relation is established when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition." Id. at 1220. Additionally, the employer can establish with medical evidence that the pre-employment injury/disability "merged" with the post-employment injury to "produce a greater disability than would have occurred" with the post-employment injury/disability alone. Id.; see also, La.R.S. 23:1371(C).
Mr. Armand testified that he performed his work, which included operating a backhoe, driving a truck, loading lumber, moving generators, stacking wood, and working in the office, as directed. He had worked two months prior to his injury and had performed all his job duties without a problem. He was not injured while performing his job duties but when a co-employee deliberately pulled his leg while he was seated on a backhoe. Mr. Armand testified that he put out his leg to stop the co-employee, who was climbing up the backhoe toward him, and that the co-employee pulled his leg and twisted his foot. He further testified that he felt like his lower back was "coming apart." He had been holding onto the backhoe's steering wheel but let go of it to blow the horn. When he did, he felt his neck and wrist pop. Mr. Armand's description of the incident was not disputed.
Mr. Armand's prior back and neck injuries did not cause the accident in which he was injured, and he was not injured while performing his regular job duties. There is no medical evidence which establishes that his post-employment injury was very likely to occur because of a preexisting condition or that his prior injuries merged with his post-employment injury and resulted in a greater disability than would have occurred as a result of the post-employment injury alone. In fact, Mr. Johnson admitted there was no medical *1277 evidence which indicated Mr. Armand's pre-employment disability was worsened by the incident. Therefore, Denton-James failed to prove it was prejudiced by Mr. Armand's Medical History Questionnaire, whether Mr. Armand made untruthful statements on it or left pertinent questions unanswered, and the WCJ did not err in finding that Denton-James did not prove the affirmative defense of forfeiture under La.R.S. 23:1208.1.
Louisiana Revised Statutes 23:1208 Forfeiture
Denton-James next contends that Mr. Armand made untrue statements in his affidavit filed in opposition to its Motion for Summary Judgment, which forfeited his benefits. Louisiana Revised Statutes 23:1208 provides that any employee who "willfully make[s] a false statement or representation" in order to obtain workers' compensation benefits forfeits his right to such benefits.
As previously noted, forfeiture of benefits is a harsh remedy which must be strictly construed. Nabors, 857 So.2d 407; see also, Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227. Whether or not an employee has forfeited his right to benefits under La.R.S. 23:1208 is a question of fact, which will not be reversed on appeal in the absence of manifest error. Smith, 741 So.2d 829.
The WCJ denied Denton-James's forfeiture claim under La.R.S. 23:1208 because Zelian testified that he disagreed with Mr. Armand's statements, then testified that he did not remember anything regarding his conversations with Mr. Armand before his employment with Denton-James. Zelian later testified that he never would have hired anyone receiving Social Security disability benefits. The evidence also established that when questioned by Mr. Johnson, Zelian falsely denied knowing Mr. Armand and knowing that he was injured while working. In light of Zelian's equivocal testimony and false statements, it was reasonable for the WCJ to question his credibility.
From the record, it appears as though the WCJ concluded that Denton-James did not prove Mr. Armand made false statements in his affidavit after weighing the credibility and reliability of Zelian's testimony. With nothing more than the testimony of these two men to decide this issue, there is no basis in the record which would allow us to find error with this conclusion; therefore, the denial of Denton-James's affirmative defense under La. R.S. 23:1208 is affirmed.
Authorization for Surgery
Denton-James's assignment of error regarding the WCJ's order that it authorize the surgery prescribed by Mr. Armand's treating physician is premised on its claims that Mr. Armand forfeited his benefits. Finding no error with the WCJ's determinations that Denton-James's La.R.S. 23:1208.1 and 23:1208 defenses are without merit, we find no error with this order.
Penalties and Attorney Fees
In its last assignment of error, Denton-James asserts that the WCJ erred in awarding penalties and attorney fees. It urges that it did not approve or deny the requested surgery because of the defenses it asserts herein and that its inaction was reasonable, especially in light of its continuous payment of indemnity benefits and medical expenses, except for the requested surgery.
Louisiana Revised Statutes 23:1201(F) subjects the employer or insurer to penalties and attorney fees for failure to pay benefits owed, unless the claim is reasonably controverted or if the nonpayment *1278 results from conditions beyond the control of the employer or insurer. An award of penalties and attorney fees is a factual determination which we will not reverse absent a finding of manifest error. Harris v. Christus St. Patrick Hosp., 02-1502 (La.App. 3 Cir. 10/22/03), 857 So.2d 1278, writ denied, 03-3193 (La.2/13/04), 867 So.2d 697. An employer's failure to authorize a necessary medical procedure is deemed to be a failure to furnish the benefits required by La.R.S. 23:1203, and failure to authorize such treatment subjects the employer to the sanctions of La.R.S. 23:1201(F). Authement v. Shappert Eng'g, 02-1631 (La.2/25/03), 840 So.2d 1181.
The WCJ determined that Denton-James's failure to authorize surgery was arbitrary and capricious in light of jurisprudence on this issue. Citing Hickman v. Jim Smith Logging, 04-157 (La.App. 3 Cir. 9/29/04), 883 So.2d 1072, writ denied, 04-2682 (La.1/14/05), 889 So.2d 269, Denton-James urges that the imposition of penalties and attorney fees was error because it reasonably controverted Mr. Armand's claim. In Hickman, 883 So.2d at 1078-79 (emphasis added), this court denied the claimant's request for penalties and attorney fees, explaining:
In order for the claimant to recover penalties and attorney fees, there must be a showing that the defendant did not raise a seriously disputed issue. "To reasonably controvert a workers' compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant." Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. The defendant had a legitimate defense because the plaintiff failed to disclose his prior injury and this area has been the subject matter of much debate.
It is unimportant that the defendant did not dispute every single point, as long as it raised a legitimate issue. Provision of worker's [sic] compensation statute authorizing award of attorney fees to claimant is penal in nature and, thus, must be strictly construed and employer should not be penalized for taking close factual or legal question to court for resolution. Lindon v. Terminix Servs., Inc., 617 So.2d 1251, 1253 (La. App. 3 Cir.), writ denied, 624 So.2d 1226 (La.1993).
Consideration of the evidence in light of this passage establishes that Denton-James did not raise a seriously disputed issue. It relied on Zelian's testimony to establish that Mr. Armand failed to disclose a prior injury. His testimony was equivocal at best, and Mr. Johnson's trial testimony indicates that Zelian's deposition testimony[1] called into question the veracity of Zelian's statements to him shortly after Mr. Armand's injury; yet, Denton-James maintained its prior position and did not approve surgery.
More importantly, Denton-James did not present any evidence to establish that it was prejudiced by Mr. Armand's Medical History Questionnaire. Its refusal to approve the surgery was not based on medical evidence at all. Furthermore, Mr. Johnson testified that the basis for this position was Mr. Armand's receipt of Social Security disability benefits for those prior injuries. Therefore, even if Denton-James had established that Mr. Armand answered questions on the Medical History Questionnaire falsely or just did not answer the questions, it did not prove it was prejudiced. Accordingly, Denton-James *1279 did not seriously dispute Mr. Armand's request for surgery.
Denton-James's La.R.S. 23:1208 defense that Mr. Armand's affidavit opposing its motion for summary judgment contains false statements made for the purpose of obtaining benefits also has no merit. In Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-0109 (La.3/7/97), 689 So.2d 1375, this court held that "the employer must rely on competent medical advice when the decision to deny the medical treatment is made" and cannot rely on "actions taken after the denial of treatment to support the denial of treatment." Id. at 459-60. As previously discussed, Denton-James did not present any medical evidence to establish that its denial of surgery was reasonable. Furthermore, Dr. Blanda's records indicate that he requested approval for surgery in October 2007, and Mr. Armand's affidavit was not filed into the record of this matter until March 8, 2008, more than ninety days after the request. Therefore, Mr. Armand's affidavit is not a valid basis for denying surgery.
Mr. Armand answered Denton-James's appeal to request an increase in attorney fees for work performed by his counsel on appeal. We award an additional $2,500 in attorney fees for work performed by counsel in connection with this appeal.
Disposition
The judgment of the WCJ is amended to award Mr. Armand additional attorney fees in the amount of $2,500 for work performed on appeal and is affirmed in all other respects.
AFFIRMED AS AMENDED.
GREMILLION, J., dissents in part and assigns written reasons.
GREMILLION, Judge, dissents in part and assigns the following reasons.
I wholly concur with affirming the workers' compensation judge's ruling regarding the denial of benefits to the employee. Moreover, the employer did not prove its case. However, I respectfully dissent in affirming the workers' compensation judge's award of penalties and attorneys fees.
This dispute arose when Denton-James refused to authorize neck surgery based upon La.R.S. 23:1208.1. Up to that point all indemnity payments were made, and all medical expenses paid. Denton-James did not seek to terminate benefits under La. R.S. 23:1208 until Armand executed his affidavit opposing summary judgment. Denton-James asserted the affidavit contained false statements.
The cases interpreting § 1208.1 prescribe what the employer must prove in order to succeed in denying benefits to the employee. Those elements are: 1) an untruthful statement; 2) prejudice to the employer; and 3) compliance with the statute's notice requirements. Nabors Drilling USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407. However, the plain language of the statute allows an employer to deny benefits if the failure to truthfully answer the questionnaire directly relates to the medical condition for which benefits are sought, or affects the employer's ability to receive reimbursement from the second injury fund. Jurisprudence also expresses, with specificity, what the executed questionnaire must show to evidence an untruthful answer. That is, the employee must clearly indicate "no" on the questionnaire with regard to prior injuries. Boh Bros. Construction Co. v. Price, 00-2233 (La.App. 4 Cir. 8/29/01), 800 So.2d 898, writ denied, 01-2623 (La.12/14/01), 804 So.2d 634.
*1280 Here, that is exactly what the injury questionnaire indicates. Armand's questionnaire expressly notes "no" in response to the question regarding prior neck and back injuries. While the majority understandably focuses its analysis on the factfinder's credibility determination of the trial testimony, the workers compensation judge actually premised the imposition of penalties on Denton-James' reliance on the questionnaire. He felt it was vague in asking whether Armand had any previous back or neck "problems." The questionnaire is not vague. As I stated hereinabove, it meets even to most precise requirements of Louisiana statutory and case law. Boh Bros. Construction, 800 So.2d 898, and La. R.S. 23:1208. Furthermore, it was undisputedly signed by Armand, and no evidence was ever presented to suggest that it was filled out by anyone other than the employee.
Failure to authorize medical treatment as required under La.R.S. 23:1203 can result in the imposition of a penalty; however, the penalty is not imposed if the claim is reasonably controverted. La. R.S. 23:1201(F)(2). A claim is reasonably controverted when the employer or insurer produces factual or medical information of such a nature that it reasonably counters the claimant's evidence. Davis v. Jones Baldwin Music Co., 27,545 (La.App. 2 Cir. 11/1/95), 662 So.2d 803. When the second injury questionnaire expressly denies a previous condition directly related to the condition for which benefits were sought, the employer or insurer can surely have been said to have produced factual information of a nature to reasonably counter the employee's evidence.
In Hickman v. Jim Smith Logging, 04-0157 (La.App. 3 Cir. 9/29/04), 883 So.2d 1072, writ denied, 04-2682 (La.1/14/05), 889 So.2d 269, we stated that it is unimportant that the defendant did not dispute every single point, as long as it raised a legitimate issue. I see no difference here. There is no dispute that the form provided to Denton-James failed to disclose a prior injury, and indeed denies a previous injury. Armand had two previous neck and back injuries, for which he received Social Security disability benefits.
While I agree that the workers' compensation judge did not manifestly err in denying the defenses under §§ 1208, and 1208.1, I do feel that the award of penalties and attorneys fees was clear error.
NOTES
[1] Zelian's deposition is not in the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858397/ | County Management, Inc. v. Hillboldt
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-82-13762-CV
COUNTY MANAGEMENT, INC.,
APPELLANT
vs.
GROVER L.R. HILLBOLDT AND CHARLOTTE B. HILLBOLDT,
APPELLEES
FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
NO. 13,333, HONORABLE OLIVER S. KITZMAN, JUDGE PRESIDING
PER CURIAM
Grover L.R. Hillboldt and Charlotte B. Hillboldt, appellees, filed suit against
County Management, Inc., appellant, to terminate an oil and gas lease. The district court
rendered summary judgment for the Hillboldts, and County Management appeals. We will
dismiss the appeal for want of jurisdiction.
The following relevant events have occurred in this cause:
March 18, 1982 Judgment rendered in state district court
April 16, 1982 Motion for new trial filed
May 18, 1992 County Management files for involuntary bankruptcy
May 28, 1982 Motion for new trial denied
June 14, 1982 Certificate of cash deposit filed with district clerk
June 18, 1982 Transcript filed with court of appeals
July 19, 1982 Appellant's brief filed
July 23, 1982 Appellees' motion to extend time to file brief filed and extension
granted until September 13, 1982
September 7, 1982 Appellees' second motion to extend time to file brief filed
and extension granted until thirty days after bankruptcy stay
lifted (brief not yet tendered for filing)
1985 Adversary case between Hillboldts and County Management
filed in bankruptcy court (No. 82-01374-H1-11 (Bankr.
S.D. Tex.), adversary no. 85-0135-H3)
June 10, 1987 Appellees' motion to substitute attorney filed
June 17, 1987 Appellees' motion to substitute attorney granted (1)
September 22, 1987 Adversary case between Hillboldts and County Management
dismissed for want of prosecution (No. 82-01374-H1-11
(Bankr. S.D. Tex.), adversary no. 85-0135-H3)
October 1, 1991 Bankruptcy dismissed (No. 82-01374-H1-11 (Bankr. S.D.
Tex.))
May 20, 1992 Court of appeals abated appeal due to apparent existence of
bankruptcy
February 17, 1993 Court of appeals reinstated appeal
This Court does not have jurisdiction over the cause because the trial-court
proceeding was an action against the debtor, and, therefore, the automatic stay in bankruptcy
applied to the appeal. See 11 U.S.C. § 362(a) (1988). Since the automatic stay applies to this
cause, the trial court's ruling on appellant's motion for new trial was void, and appellant's filing
of the certificate of cash deposit with the district clerk was of no effect, as were all subsequent
actions by this Court. See Nautical Landings Marina v. First Nat'l Bank, 791 S.W.2d 293, 296
(Tex. App.--Corpus Christi 1990, writ denied). County Management did not properly perfect its
appeal. (2)
The appeal is dismissed for want of jurisdiction.
[Before Justices Powers, Kidd and B. A. Smith]
Dismissed for Want of Jurisdiction
Filed: April 21, 1993
[Do Not Publish]
1. Because we have determined that our action of June 17, 1987, was void, we have since
granted appellees' motion to substitute attorney as of October 2, 1991.
2. We do not address the issue of whether the time for perfecting the appeal was tolled during
the pendency of the stay because County Management took no action after the bankruptcy was
dismissed on October 1, 1991. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1735590/ | 727 N.W.2d 37 (2006)
AUL
v.
GOLDEN RULE INS.
No. 2006AP1035
Supreme Court of Wisconsin
December 5, 2006.
Petition to bypass court of appeals denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917754/ | 1 Mich. App. 265 (1965)
135 N.W.2d 560
PEOPLE
v.
MARTIN.
Docket No. 88.
Michigan Court of Appeals.
Decided June 21, 1965.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
George L. BeGole, for defendant.
FITZGERALD, J.
On May 27, 1964, Betty Martin was arrested by an undercover agent of the Detroit police department and charged with the crime of accosting and soliciting under CL 1948, § 750.448 (Stat Ann 1954 Rev § 28.703) which states:
*267 "Any person who shall accost, solicit or invite another in any public place, or in or from any building or vehicle, by word, gesture or any other means, to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor."
The arrest took place at 1:15 a.m. and defendant appeared in court the next morning with her attorney. When defendant's case was called, her attorney stated to the court:
"The defendant stands mute, waives trial by jury. She is ready to be tried."
The parties were sworn and the trial proceeded, the only witnesses being the arresting officer and the defendant. Defendant was convicted and sentenced to 30 days. After an unsuccessful motion for a new trial, counsel for defendant now assigns as error the fact that the trial judge acted as "judge, jury and prosecutor" and asserts that such a procedure is violative of the due process clause of the 14th Amendment to the United States Constitution.
The record discloses that no representative of the prosecutor's office was present at the trial. The arresting officer gave the court a report as to what happened by referring to his write-up. Defense counsel cross-examined the vice officer and also conducted a direct examination of defendant, thus permitting a full airing of the facts.
It is difficult to understand why defense counsel contends that the absence of a prosecutor prejudiced his case. Such absence might readily be construed as a benefit to the defense in most cases, particularly those where defendant takes the stand and opens himself to cross-examination. A review of the testimony reveals that the judge did not, in fact, act as "prosecutor" but rather listened to the case, asking only pertinent questions, decided it, and passed sentence.
*268 Were there some requirement that a representative of the prosecutor's office be present, it might be said that the absence was prejudicial. We are, however, faced by the statutory provision of CL 1948, § 49.154 (Stat Ann 1961 Rev § 5.752) which states:
"Each prosecuting attorney shall, when requested by any magistrate of the county, appear in behalf of the people of this State, before any such magistrate * * * and prosecute all complaints made in behalf of the people of this State." (Emphasis supplied.)
Clearly, there is no statutory requirement that a representative of the prosecutor's office be present. Buttressing the decision that defendant may not complain of the prosecutor's absence is the fact that the procedure was accepted during the trial and no objection made, thereby preventing it from being urged on appeal. It has frequently been held by the Supreme Court of this State that objections not raised during trial and not passed upon by the trial court are generally not considered on appeal. People v. Elliott (1948), 322 Mich 313, states the concept clearly (p 316): "Counsel cannot sit idly by and then, for the first time interpose objections after the accused has been convicted."
Defendant further contends that the uncorroborated testimony of a police officer as against the testimony of the defendant is not sufficient to constitute guilt beyond a reasonable doubt. It is elemental that the court can choose to believe either one of two witnesses before him. The issue is one of credibility and we do not choose to disturb the judgment of one who saw the witnesses, listened to them and then weighed their testimony in open court. People v. Chesbro (1942), 300 Mich 720.
*269 Particular emphasis is urged by defendant that a comment by the trial judge indicated that she was not able to secure a fair hearing before him. Following is the statement of the judge claimed to be offensive:
"The Court: No, I don't want any prostitutes, at least when I am on duty, I don't want any prostitutes on Washington boulevard. I will find her guilty of accosting and soliciting. Thirty days in the Detroit House of Correction."
Even cursory examination of this statement, made after all the proofs were in, reveals that it goes to the sentencing process and not to the conviction. The remarks were not made to a jury which could be swayed by them.
An exchange between defense counsel and the judge before whom the motion for a new trial was made fairly sums up the fact that such a remark does not indicate prejudice or bias on the part of the trial judge:
"Mr. BeGole: The girls that preceded her were fined and the girls that followed her were fined, and the only reason this case was handled as it was was because of the issue that was involved here, that being that the location was Washington boulevard, and I think that aspect or factor of the case made it impossible for the Judge to view this matter impartially and detachedly and fairly, really.
"The Court: Well, now, here the question is not whether it was on Washington boulevard or any place else. The question is whether or not there was an accosting and soliciting. That is the point."
The most that can be said for the remark of the trial judge concerning Washington boulevard is that it pointed up a specific problem of law enforcement and did not indicate prejudice. Such presentence *270 remarks can be dismissed as nonprejudicial as stated in People v. Fedderson (1950), 327 Mich 213, 219:
"The other alleged prejudicial conduct of the court occurred at the time of sentencing when he displayed an unfriendly attitude toward her. While gruffness is unnecessary no authorities have ever been called to our attention which hold remarks then made to be error."
Defendant further urges that the law of entrapment is a bar to the conviction of this defendant. Yet the testimony at the trial does not bear out this contention. Defendant admits to engaging in conversation with complainant and that the matter of sexual intercourse arose. Nowhere does the record indicate that defendant was "entrapped" in the legalistic sense of the word. It would be interesting to know how many practitioners of "the most ancient profession in the world"[*] believe they were entrapped when in effect the design originated in their own minds and the only needed ingredient was a willing patron. The tenuousness of an entrapment defense for this defendant is best pointed up by a statement in Sherman v. United States (1957), 356 US 369 (78 S Ct 819, 2 L ed 2d 848) in which Mr. Chief Justice Warren stated (p 372), "To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal."
Defendant urges as final argument on appeal that the hearing on appellant's motion for a new trial violated the concept of due process of law, specifically on the ground that the transcript of the trial was not an accurate transcript of those proceedings.
This court has before it the trial transcript, which includes two pages numbered "7." They are identical with the exception that the second version includes *271 the trial judge's remark relative to Washington boulevard, supra. Considering both versions of page 7 of the trial transcript and assuming arguendo either one of them could be correct, it is difficult to see how the result would have been any different. Since the controversial Washington boulevard reference was considered by the judge, it does not appear that defendant was harmed thereby. Reviewing both transcripts, accurate or inaccurate, prejudicial error is not revealed by either.
Defendant's contentions of a multitude of error in a trial that consumes but seven pages do not hold up under scrutiny and fail to present any meritorious arguments for a new trial.
Affirmed.
QUINN, P.J., and T.G. KAVANAGH, J., concurred.
NOTES
[*] Kipling, Soldiers Three (1888), On the City Wall, p 283. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917757/ | 1 Mich. App. 230 (1965)
135 N.W.2d 569
WESTERN CONSTRUCTION COMPANY
v.
R.G. MOELLER COMPANY.
Docket No. 374.
Michigan Court of Appeals.
Decided June 21, 1965.
J. Leonard Hyman, for plaintiff.
Charles W. McDonald and David E. Kull, for defendant.
*232 WATTS, P.J.
This is a civil proceeding brought by plaintiff to recover damages for breach of express and implied warranties arising out of the purchase of highway paving machinery. Judgment, with costs, rendered for plaintiff; defendant appeals. Cause was heard by judge without jury.
A few days prior to April 27, 1959, Edgar Hubler, a representative of Concrete Machinery Limited (manufacturer of Lewis finishing machine) and a Mr. Chapman, a salesman for defendant R.G. Moeller Co., called upon plaintiff, a highway construction contractor, to interest plaintiff in the purchase of highway construction machinery. Plaintiff informed Messrs. Hubler and Chapman that said machinery was to be used in building highways (freeways).
Plaintiff-appellee contends that it relied on defendant to provide highway construction machinery which would do the work required by the Michigan State highway department and that it relied on the express warranties in the written contract, the pertinent part of which reads as follows:
"We warrant every new machine or part thereof, to be free from defects in material and workmanship, subject to replacement free of charge, f.o.b. factory, and in case of accident only to the extent of the broken parts, if defects develop within 90 days, upon return of the broken parts, prepaid to factory. We assume no liabilities for damages on account of delays, nor will we make allowances for repairs or alterations, unless same are made with our written consent or approval."
Plaintiff-appellee further contends that the implied and express warranties arising out of the purchase of highway paving machinery were breached by defendant.
*233 It is the contention of defendant-appellant that the claims made for the Lewis finishing machine in the brochure were representations of the manufacturer and did not constitute warranties of defendant; further, that the uniform sales act, CL 1948, § 440.15(4) (Stat Ann 1959 Rev § 19.255[4]) is applicable to the facts in the instant case; further that the liability of defendant-appellant was limited by the terms of the express warranties contained in the written contract and that the trial court extended plaintiff's recovery beyond this limitation; and further, that plaintiffs did not sustain the burden of proving damages.
The principal question involved is whether there is an implied warranty that the machine was reasonably fit for the purpose for which it was purchased. Decision requires consideration of the uniform sales act, CL 1948, § 440.15 (Stat Ann 1959 Rev § 19.255):[*]
"(1) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose. * * *
"(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. * * *
"(6) An express warranty of condition does not negative a warranty or condition implied under this act unless inconsistent therewith."
The facts are clear in the instant case that plaintiff-appellee relied on the judgment of defendant to *234 furnish a machine suitable for the purpose of constructing highways and that the machine did not do the work for which it was purchased notwithstanding the many man-hours spent on the said machine by mechanics and representatives of plaintiff, defendant, and the manufacturer in an attempt to bring the performance of the machine up to acceptable standards.
Such a record establishes the propriety of the trial court's finding that there was an implied warranty of fitness and that it was breached. Dunn Road Machinery Co. v. Charlevoix Abstract and Engineering Co. (1929), 247 Mich 398 (64 ALR 947). The express warranties refer to certain ascertainable defects of material and workmanship and are in no way inconsistent with the implied warranty of fitness. Lutz v. Hill-Diesel Engine Co. (1931), 255 Mich 98. The record also demonstrates that CL 1948, § 440.15(4) (Stat Ann 1959 Rev § 19.255[4]) has no application here.
There is merit to defendant-appellant's contention that plaintiff did not sustain the burden of proving damages. The proper measure of damages was adopted, viz: the difference between the value of the machine as represented and its actual value at time of sale. The only proof on this point was sale price and salvage value. This is insufficient to support the award. There is evidence to sustain the trial court's award as to consequential damages and it will not be disturbed.
The trial court is sustained with respect to its finding that the implied and express warranties arising out of the purchase of this highway paving machine have been breached by defendant. The cause is remanded to the Wayne county circuit court for the purpose of taking further testimony to establish the difference between the value of the machine *235 as represented and its actual value at time of sale. Neither party having prevailed, no costs are allowed.
J.H. GILLIS and QUINN, JJ., concurred.
NOTES
[*] In effect and applicable to this case. Repealed in its entirety by PA 1962, No 174, uniform commercial code, effective January 1, 1964. Substance of the above provisions appear in PA 1962, No 174 at §§ 2314, 2315, 2317 (CL 1948, §§ 440.2314, 440.2315, 440.2317 [Stat Ann 1964 Rev §§ 19.2314, 19.2315, 19.2317]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917760/ | 135 N.W.2d 57 (1965)
STATE of Minnesota, Respondent,
v.
John Bruce MORRISSEY, Appellant.
No. 39551.
Supreme Court of Minnesota.
April 30, 1965.
Rehearing Denied May 19, 1965.
*59 John Bruce Morrissey, pro se.
Robert W. Mattson, Atty. Gen., St. Paul, George Scott, County Atty., Theodore Rix, Asst. County Atty., Minneapolis, for respondent.
NELSON, Justice.
Appeal from an order denying defendant's motion to amend a sentence. This appeal is concerned with whether or not the terms of imprisonment imposed by two sentences by the same district court are to be served consecutively rather than concurrently.
Defendant was convicted of the felony of burglary in the third degree under Minn.St. 1957, § 621.10 for which he was sentenced on June 4, 1959, to a term of imprisonment not to exceed 5 years. After serving a portion of that term, he was paroled by proper authority, but while on parole he committed another felony, being charged with and convicted of possession of narcotics in violation of Minn.St. 618.01, 618.02, and 618.21. After pleading guilty to one prior conviction, he was sentenced on March 28, 1962, to a term of imprisonment not to exceed 20 years. The trial court did not specify at the time of the imposition of the sentence on the narcotics charge whether it was to run concurrently with the previous sentence or consecutively thereto.
Defendant contends that the sentences should run concurrently rather than consecutively. A consecutive sentence is one which commences at the termination of another term of imprisonment, the prisoner serving only one sentence at a time, while in the case of concurrent sentences he simultaneously serves part of each sentence and is entitled to discharge when he completes the term of the longest sentence. 24B C.J.S. Criminal Law § 1996(1). In support of his contention defendant relies upon the common-law rule that when two or more sentences are imposed upon the same person they are to be served concurrently unless the court in sentencing expressly directs that they shall be served consecutively and thereby commands that the term under the last sentence imposed shall not begin to run until expiration of all prior terms. See, State ex rel. Keyes v. Vasaly, 177 Minn. 338, 225 N.W. 154; Annotation, 70 A.L.R. 1511.
Defendant's contention is without merit since the common-law rule has been abrogated by statute in this state. The statute in effect when defendant was sentenced on March 28, 1962, was Minn.St.1961, § 610.33, which provided:
"* * * [W]hen a person while under sentence for felony commits another felony, and is sentenced to another term of imprisonment such latter term shall not begin until the expiration of all prior terms."
See, State ex rel. Keyes v. Vasaly, supra.
Defendant has cited Puccinelli v. United States (9 Cir.) 5 F.2d 6; United States v. Patterson (C.C.D.N.J.) 29 F. 775; Daugherty v. United States (8 Cir.) 2 F.2d 691; and Howard v. United States (6 Cir.) 75 F. 986, all of which involve the common-law rule. They are not in point because of § 610.33.
Section 610.33 was repealed by L.1963, c. 753, art. II, § 17. Minn.St. 609.15 (L.1963, c. 753, § 609.15) now provides that if a person who is under sentence of imprisonment is being sentenced to imprisonment for another crime committed prior to or while he is subject to the first sentence, the court in the later sentence shall specify whether the sentences shall run concurrently or consecutively. If the court does not so specify, then the sentences run concurrently.
*60 Chapter 753 became effective on September 1, 1963. Defendant, having been sentenced prior to that date, is bound by the provisions of Minn.St.1961, § 610.33, unless the provisions of c. 753 can be applied retroactively. Retroactive application of a statute, however, is forbidden by Minn. St. 645.21 unless the legislature provides to the contrary. Section 645.21 provides:
"No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature."
Chapter 753 neither states nor implies that it is to be applied retroactively. It is therefore clear that the sentences involved on this appeal are controlled by Minn.St.1961, § 610.33, and that the term of imprisonment to be served under the sentence imposed on March 28, 1962, will not begin to run until the term under the sentence of June 4, 1959, has expired.
Defendant also contends that a mittimus should have issued and that such an order must state the sequence of the sentences which are to be served. "Mittimus" is defined as a warrant of commitment to prison in 22 C.J.S., Criminal Law, § 349. It has also been defined as follows:
"* * * The name of a precept in writing, issuing from a court or magistrate, directed to the sheriff or other officer, commanding him to convey to the prison the person named therein, and to the jailer, commanding him to receive and safely keep such person until he shall be delivered by due course of law. * * * Transcript of minutes of conviction and sentence duly certified by court clerk." Black, Law Dictionary (4 ed.) p. 1153.
The rule in this state, in effect since territorial days, has been that persons convicted of crime punishable by imprisonment be committed to prison in accordance with statutory procedures. See, Minn.St. 631.40 and 631.41, presently governing such commitments. Under these statutes a transcript from the minutes of the court of a conviction and sentence must be prepared by the clerk of court and delivered to the sheriff or his deputy, whereupon the sheriff is authorized to execute such sentence in accordance with the transcript. The fact that the transcript in the instant case did not specifically spell out the fact that the sentence on the narcotics conviction imposed March 28, 1962, did not begin to run until the expiration of the sentence for burglary imposed June 4, 1959, is not material since the statute then in effect, Minn.St.1961, § 610.33, unequivocally stated that when a person, while under sentence for a felony, commits another felony and is sentenced to another term of imprisonment, such latter term shall not begin to run until the expiration of the prior term. Thus, § 610.33 eliminated the necessity of specifying in the judgment and the transcript delivered to the sheriff how the sentences were to run.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1571994/ | 437 F.Supp. 631 (1977)
Cleveland FORDE, Plaintiff,
v.
KEE-LOX MANUFACTURING COMPANY, INC. and Burroughs Corporation, Defendants.
No. Civ.-76-458.
United States District Court, W. D. New York.
September 19, 1977.
Emmelyn Logan-Baldwin, Rochester, N. Y., for plaintiff.
Nixon, Hargrave, Devans & Doyle, Rochester, N. Y. (William E. McKnight, Rochester, N. Y., of counsel), for defendant Burroughs Corp.
CURTIN, Chief Judge.
This is an employment discrimination case in which the plaintiff alleges that the defendant, Kee-Lox Manufacturing Company, Inc., discriminated against him in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Until it ceased *632 business operations in 1976, Kee-Lox manufactured carbon paper, typewriter ribbons, ditto masters, and similar materials in Rochester, New York. The plaintiff was employed by Kee-Lox from November 11, 1952 until October 30, 1974. During that time he worked as a material handler, a reel operator, a lacquer machine operator, a shipping clerk, and a foreman.
On December 19, 1974, Kee-Lox filed a petition for an arrangement under Chapter XI of the Bankruptcy Act in the Eastern District of Pennsylvania. Receivers were appointed shortly thereafter. The arrangement apparently failed because, on August 12, 1976, Kee-Lox was adjudicated a bankrupt, and a trustee was appointed. Two days later, on August 14, 1976, Kee-Lox discontinued its business operations and terminated all of its remaining employees.
At a special meeting of the creditors held on September 22, 1976, defendant Burroughs Corporation offered to buy most of the noncash, nonpersonal assets of Kee-Lox. The offer was approved by the Bankruptcy Court in an order dated September 28, 1976, in which the court directed the trustee in bankruptcy to transfer the noncash, nonpersonal assets of Kee-Lox to Burroughs "free and clear of liens, including tax liens, if any, claims, encumbrances, demands and rights of creditors, or any other person . . . ."
The plaintiff filed this lawsuit on October 12, 1976, against both Kee-Lox and Burroughs Corporation. The Bankruptcy Court on October 27 restrained the plaintiff from continuing his action against Kee-Lox. The plaintiff is now proceeding against the Burroughs Corporation, alleging that Burroughs plans to continue the Kee-Lox business without substantial interruption, or change in its operations, and therefore has succeeded to Kee-Lox's liability for employment discrimination. The plaintiff does not allege that Burroughs has itself discriminated against him, but only that Burroughs is responsible for discrimination committed by Kee-Lox up until the time of the plaintiff's termination in December, 1974.
This case is before the court on defendant Burroughs' motion to dismiss or, in the alternative, for summary judgment. The plaintiff has filed a cross motion for summary judgment. Since matters outside the pleadings have been presented to and considered by the court, the defendant's motion shall be treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
The court heard oral argument on both motions on February 14, 1977, and the issues have been extensively briefed by the parties. In reaching its decision, the court has carefully considered the following supporting papers: the affidavits and accompanying exhibits of Gerald L. Paley, Esq., J. Roy Henry, John W. O'Leary and Val E. Coluni, for the defendant; the defendant's memorandum of law; the letter briefs of the defendant's attorneys dated February 24, March 7, and April 19, 1977; the affirmations and accompanying exhibits of Emmelyn Logan-Baldwin, Esq., dated January 13, 1977 and February 14, 1977, for the plaintiff; the affidavit of Cleveland Forde, plaintiff; and the letter briefs of the plaintiff's attorney dated January 13, February 9, February 16, March 1, and May 16, 1977. For the reasons stated below, summary judgment is granted to the defendant.
The defendant bases its motion on three grounds. First, it asserts that it purchased the Kee-Lox assets through the Bankruptcy Court free of all claims, and therefore cannot be held liable for employment discrimination by Kee-Lox. Second, Burroughs argues that it cannot be treated as Kee-Lox's "successor" because it has not continued Kee-Lox's business operations without substantial interruption or change. Finally, Burroughs claims that the plaintiff's failure to file a charge against Burroughs with the Equal Employment Opportunity Commission is a jurisdictional defect compelling dismissal of the complaint. Because the court believes that its ruling on the first ground renders consideration of the other two unnecessary, the following discussion is limited to the first set of arguments raised by the parties.
Under § 70 of the Bankruptcy Act, the trustee in bankruptcy takes title to *633 all non-exempt property of the bankrupt by operation of law. 11 U.S.C. § 110(a). One of his responsibilities is to liquidate the estate and distribute the proceeds to the bankrupt's creditors. 11 U.S.C. § 75. Included among the trustee's liquidation powers is "the power to sell the bankrupt's property, free of all claims, liens, or incumbrances." Van Huffel v. Harkelrode, 284 U.S. 225, 227, 52 S.Ct. 115, 116, 76 L.Ed. 256 (1931); 4A Collier on Bankruptcy ¶ 70.97, at 1133 (14th ed. 1976). Once the sale is approved by the bankruptcy court, the purchaser acquires legal and equitable title to the property purchased. The rights and quantum of property acquired by the purchaser depend on the terms of the sale as ordered by the court. 4A Collier, supra, ¶ 70.98, at 1198.
In this case, Burroughs offered to purchase the Kee-Lox assets from the trustee at a private sale. The offer was accepted by the trustee, and approved by the Bankruptcy Court in an order providing in pertinent part:
ORDERED AND DECREED:
* * * * * *
3. That Alfred Blasband, Trustee, be, and he hereby is, authorized, empowered and directed, upon receipt of the consideration above mentioned and hereinafter mentioned, and in accordance with the provisions of said Agreement, to grant, convey, sell, transfer and assign, at private sale, to Burroughs, free and clear of liens, including tax liens, if any, claims, encumbrances, demands and rights of creditors, or any other person, all of his right, title and interest, in and to: [the purchased Kee-Lox assets] . . . .
The plaintiff's claim against Burroughs stems exclusively from its acquisition of the Kee-Lox assets and not from any employment relationship between Burroughs and the plaintiff. According to the express terms of the court's order, Burroughs acquired title to the Kee-Lox property free of all claims. This presumably includes the plaintiff's claim of employment discrimination.
The plaintiff does not challenge the power of the Bankruptcy Court to order a sale of the bankrupt's assets free from liens, with the lienholder's rights transferred to the proceeds of the sale. He argues, however, that his claim against Kee-Lox amounts to more than a "mere lien," since his demand for reinstatement cannot be reduced to a fixed amount of money that could be satisfied out of the proceeds of the sale. As stated in his motion to compel:
Plaintiff's interest relates to gaining and continuing employment in a job for which he is qualified by virtue of competence and experience, to being paid fairly for his work in the past, present and future, and to being given the opportunity to advance in his employment without being limited by barriers of race, color or creed. Although part of his interest could be fulfilled by remitting him to the proceeds of the sale of Kee-Lox's assets, the major part of his interest, that which relates to present and future employment, would go unfulfilled by such a requirement.
Claims that amount to more than mere liens, he argues, cannot be extinguished by a sale of the bankrupt's assets.
The plaintiff concedes that he cannot find direct authority supporting his position. The court has been similarly unsuccessful. Yet he urges the court to accept his argument as a sound basis for decision.
There are two major difficulties with the plaintiff's position. First, the plaintiff would allow claimants such as himself to assert their claims against purchasers of the bankrupt's assets, while relegating lienholders to the proceeds of the sale. This elevates claims that have not been secured or reduced to judgment to a position superior to those that have. Yet the Bankruptcy Act is clearly designed to give liens on the bankrupt's property preference over unliquidated claims.
An additional difficulty with the plaintiff's position is that it would seriously impair the trustee's ability to liquidate the bankrupt's estate. If the trustee in a liquidation sale is not able to transfer title to the bankrupt's assets free of all claims, including civil rights claims, prospective purchasers may be unwilling to pay a fair *634 price for the property, leaving less to distribute to the creditors. See 6 Remington on Bankruptcy § 2577, at 87 (5th ed. 1952); 4A Collier, supra, ¶ 70.97, at 1132.
Although there may be an apparent conflict between the policies of the Bankruptcy Act and the laws prohibiting employment discrimination, the provisions of the Bankruptcy Act should be given their full import in the absence of legislation to the contrary. In Shopmen's Local Union No. 455 v. Kevin Steel Products, Inc., 519 F.2d 698 (2d Cir. 1975), the Bankruptcy Act was read literally, allowing the bankrupt to reject a collective bargaining agreement entered into prior to bankruptcy, even though the policies of the Labor Act called for a different result. The situation here is analogous. The Bankruptcy Act clearly entitles purchasers at liquidation sales to take title to the property free of all claims. If this conflicts with the policies of the Civil Rights Act, the legislature should amend the Bankruptcy Act to create an exception for civil rights claims.
The plaintiff also argues that even if his claim is treated as a lien interest, it should survive the sale in this case because the bankruptcy remedy is inadequate. This argument is based on the general principle underlying the Bankruptcy Act that valid liens cannot be affected by bankruptcy proceedings. See 4A Collier, supra, ¶ 70.70; 6 Remington, supra, § 2577, at 87. In the context of liquidation sales, transferring a lien to the proceeds of the sale has repeatedly been upheld on the theory that it only affects the lienholder's remedy for enforcing the lien obligation, and not the underlying obligation itself. Implicit in these holdings is the determination that the substituted remedy adequately protects the lienholder's rights. 6 Remington, supra, § 2577 at 87.
The plaintiff argues that his remedy in bankruptcy is inadequate because he is demanding prospective non-monetary relief which Kee-Lox obviously cannot provide, and therefore his claim survives the sale of the Kee-Lox assets to Burroughs.
The plaintiff's argument is unconvincing. First, the Bankruptcy Act principle requiring preservation of valid liens refers to contractual obligations protected by the Constitution. In this case, the plaintiff's claim against his former employer is not based on a contract, but stems from rights given to the plaintiff by the Civil Rights Act of 1964. He therefore cannot invoke the protection afforded to contractual obligations in arguing that his claim survives the sale.
Second, Burroughs is not responsible for the plaintiff's inability to obtain prospective relief from Kee-Lox. As a practical matter, the plaintiff in this case may be left without a prospective remedy for a meritorious claim of discrimination. This state of affairs is one of the unfortunate yet unavoidable consequences of our bankruptcy system. It does not, without more, justify the imposition of liability on Burroughs for the acts of Kee-Lox.
The Bankruptcy Act provides a procedure for civil rights claimants such as the plaintiff to follow. This was recognized by the court in Young v. Kerr Industries, Inc., 13 E.P.D. ¶ 11,340 (M.D.N.C.1974). In that case, the plaintiffs brought a civil rights action against the defendant in federal court prior to the initiation of reorganization proceedings under Chapter X of the Bankruptcy Act. The Bankruptcy Court subsequently stayed the civil rights action. The plaintiffs, contending that the order had no effect on their civil rights case, moved to compel discovery. The federal district court held that the stay must be honored, and suggested that the plaintiffs pursue their claims in Bankruptcy Court:
Plaintiffs will not be prejudiced by requiring them to initially prosecute their action through the bankruptcy court. A well established procedure exists to file proof of their claims and to apply, if they so choose, to have the matter of their claims resolved in a separate judicial proceeding. See Vol. 3, Collier on Bankruptcy, ¶ 57.15.
The plaintiff's remedy in this case was to file a claim with the trustee in bankruptcy.
Although the analysis in this case might change if Kee-Lox were merely undergoing *635 an arrangement or a reorganization, liquidation of a corporation is too drastic a step to justify the fear that employers will use bankruptcy to avoid their responsibilities under Title VII. In Shopmen's Local Union No. 455 v. Kevin Steel Products, Inc., supra, at 705-06, the court rejected the plaintiff's suggestion that businesses would "swarm into bankruptcy proceedings in order to free themselves of labor agreements," pointing out that the adverse consequences of bankruptcy are far too harsh. Certainly the same holds for civil rights claims, which typically are much smaller than union claims in terms of monetary impact and the threat of labor unrest.
Even assuming, as the plaintiff alleges, that Burroughs has continued the Kee-Lox business operations without substantial interruption or change, the court would nevertheless grant defendant's motion for summary judgment. Since Burroughs purchased the Kee-Lox assets at a liquidation sale which by its express terms was free of all claims, the plaintiff cannot assert his Title VII claim against Burroughs.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572003/ | 722 N.W.2d 567 (2006)
2006 WI App 182
STATE of Wisconsin, Plaintiff-Respondent,
v.
Andrae D. HOWELL, Defendant-Appellant.[]
No. 2005AP731-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs October 11, 2005.
Opinion Filed August 31, 2006.
*568 On behalf of the defendant-appellant, the cause was submitted on the briefs of Ellen Henak, assistant state public defender of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before LUNDSTEN, P.J., DYKMAN and VERGERONT, JJ.
¶ 1 LUNDSTEN, P.J.
Andrae Howell complains that the circuit court wrongly denied his plea withdrawal motion without an evidentiary hearing. After he was convicted and sentenced, Howell filed a motion alleging that his plea was unknowingly entered because he did not understand what the State needed to prove to show that he acted as a party to a crime. Howell's motion requested an evidentiary hearing, but did not allege a plea colloquy defect, therefore, did not seek to shift the burden of proof to the State under Bangert.[1] Instead, Howell's *569 motion contained several factual allegations that, he argues, are sufficient to entitle him to an evidentiary hearing at which he would have the burden of proof. Non-Bangert plea withdrawal motions such as this have long been assessed under what is commonly referred to as the Nelson test or the Bentley test or, as we do here, the Nelson/Bentley test.[2]
¶ 2 Howell first argues that his plea withdrawal motion should be analyzed under a hybrid test that is a combination of the tests applied to Bangert and non-Bangert motions. His argument is complicated. For now, it must suffice to say that Howell asserts his hybrid test is needed because his case represents a class of cases that do not involve an actual Bangert violation, but are nonetheless "akin" to Bangert.[3]
¶ 3 In the alternative, Howell argues that, under the Nelson/Bentley test, his motion was sufficient to require an evidentiary hearing because he alleged non-conclusory facts that, if true, entitled him to relief.
¶ 4 We reject both arguments and affirm the circuit court's denial of Howell's plea withdrawal motion without an evidentiary hearing.
Background
¶ 5 The victim in this case is a man named Marcus Pearson. Pearson had a relationship with Howell's sister, April. Because of a dispute between Pearson and April, Howell feared that Pearson would hurt April. According to Howell, he was willing to "physically confront Mr. Pearson if necessary." On February 8, 2004, Howell, along with a cousin and a different sister, got into a car driven by that sister. These three people located Pearson. Howell and his cousin got out of the car and approached Pearson. Pearson was shot twice. One bullet fractured one of Pearson's fingers and another fractured a leg bone.
¶ 6 The State charged Howell with first-degree reckless injury in a complaint that alleged Howell was the shooter. On a date originally set for trial, new information came to light and the case was set over. Approximately one month later, the prosecutor moved to amend the complaint to add party-to-a-crime liability. The amendment was based on the possibility that the evidence at trial might show that Howell's cousin, not Howell, was the shooter. The court permitted the amendment and that same day Howell entered a guilty plea to the amended charge. Judge Richard Sankovitz presided over Howell's plea hearing.
¶ 7 Howell was subsequently sentenced by Judge Jean DiMotto. Judge DiMotto imposed seven years of initial confinement *570 followed by seven years of extended supervision.
¶ 8 After sentencing, Howell filed a motion seeking plea withdrawal. In that motion, Howell asserted that his plea was not knowingly entered because he did not understand party-to-a-crime liability. Howell's motion contained several allegations, discussed below, purporting to support his general claim. Judge DiMotto denied the motion without a hearing.
Discussion
¶ 9 Howell asserts that the circuit court erred by denying his post-sentencing plea withdrawal motion without holding an evidentiary hearing. Howell's motion asserted that his plea was not knowing because he did not understand that a person's mere presence at a shooting, combined with that person's failure to prevent the shooting, is not sufficient to prove party-to-a-crime liability. Howell's motion did not assert that his plea colloquy was defective within the meaning of State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). Thus, the motion did not seek to shift the burden of proof to the State per the Bangert procedure. In his initial appellate briefing, Howell relied on Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972), and argued that he was wrongly denied an evidentiary hearing because, under the Nelson standard, his motion contained non-conclusory allegations that, if true, entitled him to plea withdrawal.
¶ 10 We previously issued a decision in this appeal concluding that Howell's plea withdrawal motion was properly denied without a hearing because the allegations in his motion were conclusory under the Nelson/Bentley test. Thereafter, Howell's counsel filed a motion for reconsideration, arguing that our decision was in conflict with the supreme court's decision in State v. Hampton, 2004 WI 107, 274 Wis.2d 379, 683 N.W.2d 14, a Bangert plea withdrawal case. We withdrew our opinion with an order acknowledging that we should have, at a minimum, addressed language in Hampton that is arguably inconsistent with applying the Nelson/Bentley test to the allegations of misunderstanding in Howell's motion. The parties filed supplemental briefs, and we now issue this revised opinion addressing and rejecting Howell's new argument based on the Bangert line of cases and especially Hampton.[4]
¶ 11 Howell's new argument is not easily summarized, but it goes something like this:
1) The essence of a Bangert plea withdrawal motion is that it asserts the existing record shows the circuit court said or failed to say something that arguably contributed to a defendant's alleged misunderstanding.
2) Therefore, if a defendant is able to point to something in a plea hearing transcript that may have contributed to his or her alleged misunderstanding, then, as with Bangert motions, even a conclusory allegation of a misunderstanding should be deemed sufficient to compel an evidentiary hearing, albeit a non-Bangert plea withdrawal hearing at which the defense has the burden of proof.
Applied here, Howell contends that he is entitled to an evidentiary hearing because his motion (1) identified plea hearing statements *571 by the court and the prosecutor that could have contributed to Howell's alleged misunderstanding about party-to-a-crime liability and (2) alleged Howell did not understand party-to-a-crime liability when he entered his plea. A key component in this argument is that an evidentiary hearing was required here even if Howell's motion contained only a conclusory allegation that he misunderstood party-to-a-crime liability.
¶ 12 Howell's argument is based on two assumptions. First, that in Hampton the supreme court held that conclusory allegations of misunderstanding are sufficient in the context of a non-Bangert motion assessed under the Nelson/Bentley test. Second, that it is possible to define a category of flawed plea hearings that do not involve an actual Bangert violation, but do contain statements by the court (or perhaps others) that could have contributed to a defendant's alleged misunderstanding.
¶ 13 Before explaining why we disagree with both of Howell's assumptions, we think it helpful to summarize the difference between a Bangert plea withdrawal argument and a Nelson/Bentley plea withdrawal argument.
A. Bangert and Nelson/Bentley
¶ 14 In the 1986 Bangert decision, the supreme court adopted a new procedure designed to encourage circuit court compliance with statutorily and judicially mandated plea requirements. See Bangert, 131 Wis.2d at 275, 389 N.W.2d 12; see also Hampton, 274 Wis.2d 379, ¶65, 683 N.W.2d 14. Under the newly created Bangert procedure, if a defendant files a plea withdrawal motion that (1) identifies a failure by the circuit court to comply with WIS. STAT. § 971.08 (2003-04)[5] or a court-mandated plea hearing procedure, and (2) alleges that the defendant did not understand the information at issue, then the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly and voluntarily entered.[6]Bangert, 131 Wis.2d at 274-75, 389 N.W.2d 12. Notably, the second Bangert prong is satisfied by a conclusory allegation that the defendant did not know or understand. Hampton, 274 Wis.2d 379, ¶ 57, 683 N.W.2d 14.
¶ 15 The two Bangert prongs constitute a prima facie showing that the plea was unknowingly entered. See State v. Plank, 2005 WI App 109, ¶ 6, 282 Wis.2d 522, 699 N.W.2d 235, review denied, 2005 WI 136, 285 Wis.2d 630, 703 N.W.2d 379 (No. 2004AP2280-CR); State v. Jipson, 2003 WI App 222, ¶ 9, 267 Wis.2d 467, 671 N.W.2d 18. If a defendant's motion makes this prima facie Bangert showing, the circuit court must hold an evidentiary hearing at which the burden shifts to the State to prove by clear and convincing evidence that the plea was knowingly entered. State v. Brown, 2006 WI 100, ¶¶ 36, 40, ___ Wis.2d ___, 716 N.W.2d 906; Bangert, 131 Wis.2d at 274-75, 389 N.W.2d 12. To meet its burden, the State may use the *572 existing record and may "examine the defendant or defendant's counsel to shed light on the defendant's understanding or knowledge." Bangert, 131 Wis.2d at 275, 389 N.W.2d 12. If the State fails to meet this burden, plea withdrawal is required.
¶ 16 But before Bangert, and to this day, there is a different route to plea withdrawal. Regardless whether plea colloquies contain Bangert violations, defendants are entitled to post-sentencing plea withdrawal if they can show by clear and convincing evidence that their plea was not knowingly or voluntarily entered. See State v. Reppin, 35 Wis.2d 377, 384-86, 151 N.W.2d 9 (1967); State v. Giebel, 198 Wis.2d 207, 212, 541 N.W.2d 815 (Ct.App. 1995). That is, regardless whether courts comply with mandated plea hearing requirements, defendants are entitled to plea withdrawal if they can prove that their plea was unknowingly or involuntarily entered. When a defendant files a motion containing a non-Bangert plea withdrawal argument, and requests an evidentiary hearing, the Nelson/Bentley test is used to determine whether a hearing is required.
¶ 17 The Nelson/Bentley test asks whether a motion alleges "facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record [otherwise] conclusively demonstrates that the defendant is not entitled to relief." State v. Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433 (paraphrasing Nelson, 54 Wis.2d at 497, 195 N.W.2d 629, and State v. Bentley, 201 Wis.2d 303, 309-10, 548 N.W.2d 50 (1996)); see also State v. Love, 2005 WI 116, ¶ 26, 284 Wis.2d 111, 700 N.W.2d 62. A motion requesting an evidentiary hearing must contain non-conclusory allegations, that is, allegations that "`allow the reviewing court to meaningfully assess [the defendant's] claim.'" Allen, 274 Wis.2d 568, ¶ 21, 682 N.W.2d 433 (quoting Bentley, 201 Wis.2d at 314, 548 N.W.2d 50).
¶ 18 The Nelson/Bentley test strikes a balance. Defendants need not detail all of the evidence they would present at an evidentiary hearing, but they may not "stand on conclusory allegations, hoping to supplement them at a hearing." Levesque v. State, 63 Wis.2d 412, 421, 217 N.W.2d 317 (1974). The reason the supreme court requires more than conclusory legal or factual allegations was first explained in Levesque, and then repeated in Bentley:
"With the vast amount of work ... the trial courts have with petitions for postconviction relief, some of them duplications, many of them filed with only a last hope or chance, and some of them filed without factual basis, there is need for a prescreening procedure which is fair to the petitioner and to the courts. If there is merit in the facts, it should be an easy matter and a prime requisite to state those facts in the petition so they can be evaluated at the commencement of the proceeding."
Bentley, 201 Wis.2d at 317-18, 548 N.W.2d 50 (quoting Levesque, 63 Wis.2d at 421-22, 217 N.W.2d 317). Thus, the supreme court recognized the need to avoid hearings that amount to nothing more than fishing expeditions for defendants.
¶ 19 In Allen, the supreme court provided additional guidance. See Allen, 274 Wis.2d 568, ¶¶ 12-24, 682 N.W.2d 433. The court explained that a motion sufficient to meet the Nelson/Bentley standard should "allege the five `w's' and one `h'; that is, who, what, where, when, why, and how." Allen, 274 Wis.2d 568, ¶ 23, 682 N.W.2d 433.[7]
*573 ¶ 20 Although courts often speak in terms of Bangert motions and Nelson/Bentley motions, the two are not mutually exclusive. A defendant may, in the same physical motion, request a plea withdrawal hearing based on an alleged Bangert violation and, in the alternative, assert that a hearing must be held because the motion contains allegations that are sufficient under the Nelson/Bentley test. When motions contain these alternatives, they must be assessed, respectively, under Bangert and under Nelson/Bentley. Moving parties would be wise to be clear about which argument is being made, or that both are being made.[8]
B. The Hampton Decision
¶ 21 In this section, we address and reject Howell's assertion that in Hampton the supreme court held that a conclusory allegation of a misunderstanding is sufficient for purposes of a non-Bangert plea withdrawal motion, that is, a motion assessed under the Nelson/Bentley test.
¶ 22 In Hampton, the court addressed whether a plea withdrawal motion was sufficient under the two-pronged Bangert test. This means, of course, that Hampton alleged a plea colloquy defect, in other words, a Bangert violation. The alleged Bangert violation was the circuit court's failure to personally advise Hampton that the court was not bound by the terms of the plea agreement, including the prosecutor's recommendation. Hampton, 274 Wis.2d 379, ¶¶ 2, 20, 32, 38, 683 N.W.2d 14. The Hampton court agreed with Hampton that such a requirement exists and, because it was undisputed that the circuit court failed to comply with the requirement, id., ¶ 15, Hampton satisfied the first prong of Bangert: he demonstrated a Bangert violation.
¶ 23 The Hampton court then turned its attention to the second prong of Bangert the allegation in the plea withdrawal motion that Hampton did not understand that the court was not bound by the agreement. Although Bangert itself appears to require only a bald allegation that the defendant did not understand, the State asked the supreme court to require more in Bangert motions. The State urged the court to apply the Nelson/Bentley non-conclusory pleading requirement to the portion of Hampton's Bangert motion alleging that Hampton misunderstood. Hampton, 274 Wis.2d 379, ¶¶ 50-51, 683 N.W.2d 14. The supreme court rejected the State's argument, pointing out several differences between motions assessed under Bangert, and non-Bangert motions assessed under *574 Nelson/Bentley. Hampton, 274 Wis.2d 379, ¶¶ 50-65, 683 N.W.2d 14.
¶ 24 One of the differences the Hampton court identified as a reason not to apply the Nelson/Bentley non-conclusory pleading requirement to allegations of a misunderstanding in Bangert motions gives rise to Howell's argument here. The supreme court said:
In addition [to demonstrating a Bangert defect in the plea colloquy], the defendant must allege that he did not in fact understand [the information/explanation at issue] because that information/explanation was not provided. We think a [Bangert] motion of this nature passes the test of Nelson and Bentley: a motion to withdraw a plea that alleges facts which, if true, would entitle the defendant to relief. The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution.
The allegation that a defendant did not understand something is qualitatively different from the allegation of a legal conclusion such as "counsel's performance was deficient and resulted in prejudice to the defendant," [the allegation in Bentley] or "the defendant's plea was not voluntary." [one of the allegations in Nelson] These [latter] legal conclusions cry out for supporting facts, and these supporting facts must be alleged to satisfy the defendant's burden for an evidentiary hearing.
Hampton, 274 Wis.2d 379, ¶¶ 57-58, 683 N.W.2d 14 (emphasis added; original emphasis deleted). Read carefully and, we believe, as the court intended, the above language applies only to Bangert motions. But Howell contends this was the Hampton court's way of saying that conclusory allegations of misunderstanding are sufficient in the context of a non-Bangert motion assessed under the Nelson/Bentley test. We disagree for the following four reasons.[9]
¶ 25 First, the language must be read in context. A careful reading of paragraphs 50 to 65 in Hampton reveals that the court intended only to reject the State's argument that the Nelson/Bentley non-conclusory pleading requirement should be applied to Bangert plea withdrawal motions. The Hampton court did not say that in a non-Bangert context a conclusory allegation of a misunderstanding is sufficient.
¶ 26 Second, the supreme court created the Bangert procedure permitting conclusory allegations of misunderstanding and shifting the burden of proof to the State when defendants demonstrate a Bangert violationas a means of prompting circuit courts to follow mandated plea colloquy requirements and encouraging prosecutors to assist courts in doing so. See Bangert, 131 Wis.2d at 275, 389 N.W.2d 12. When circuit courts comply with all mandatory requirements, the very reason the supreme court created the Bangert exception to the general Nelson/Bentley non-conclusory pleading requirement does not exist.
*575 ¶ 27 Third, permitting conclusory allegations of a misunderstanding to suffice is antithetical to the nature of non-Bangert plea withdrawal hearings. In the non-Bangert context, where defendants will have the burden of proof if an evidentiary hearing is held, the reason defendants must meet the Nelson/Bentley pleading standard is to demonstrate to busy trial courts that there is a good reason to hold a hearing. See Levesque, 63 Wis.2d at 421-22, 217 N.W.2d 317. That is the very reason conclusory allegations are insufficient under Nelson/Bentley. Indeed, in both Nelson and Levesque the supreme court held conclusory allegations of a misunderstanding were insufficient to require an evidentiary hearing. Nelson, 54 Wis.2d at 493, 494-95, 497-98, 195 N.W.2d 629 (plea withdrawal motion properly denied without a hearing because motion "presented only [conclusory] allegations," including the conclusory allegations that plea was entered without "a full understanding of the consequences" of the plea and in "ignorance"); Levesque, 63 Wis.2d at 418-19, 421-22, 217 N.W.2d 317 (plea withdrawal motion, alleging defendant did not "understand the proceedings against him due to a mental disease or a mental defect," was properly denied without a hearing "in view of the lack of facts alleged in the motion").
¶ 28 Finally, the supreme court's just-issued Brown decision again emphasizes the difference between Bangert motions and Nelson/Bentley motions:
When the defendant files a dual purpose motion that is, a Bangert motion combined with a motion that alleges ineffective assistance of counsel or some other problem affecting the plea that is extrinsic to the plea hearing record [i.e., a Nelson/Bentley motion] the court should make an initial ruling on whether an evidentiary hearing is required and, if it is, what the hearing will address. It must be remembered that when the defendant makes the type of motion discussed in Bentley, which requires testimony or the examination of evidence outside the existing record, the defendant is entitled to an evidentiary hearing only if his postconviction motion alleges facts that, if true, would entitle him to relief. "To ask the court to examine facts outside the record in an evidentiary hearing requires a particularized motion with sufficient supporting facts to warrant the undertaking." In addition, the defendant maintains the burden of proof in a Bentley-type hearing and the facts adduced must show manifest injustice by clear and convincing evidence before the defendant may withdraw his plea.
Brown, 2006 WI 100, ¶ 42, 716 N.W.2d 906 (citations omitted). We acknowledge that in this passage the supreme court refers only to Bentley, an ineffective-assistance-based plea withdrawal motion case. But the court also expressly refers to motions alleging "ineffective assistance of counsel or some other problem affecting the plea that is extrinsic to the plea hearing record," in which "the defendant maintains the burden of proof," Brown, 2006 WI 100, ¶ 42, 716 N.W.2d 906 (emphasis added), a clear reference to all Nelson/Bentley plea withdrawal motions.
¶ 29 Thus, although there may be some ambiguity in Hampton, we are satisfied that it cannot reasonably be read as holding that conclusory allegations of a misunderstanding meet the Nelson/Bentley test in a non-Bangert context.
C. Howell's Proposed Hybrid Test
¶ 30 In this section, we address and reject the proposition that it is possible to define a category of flawed plea hearings that do not involve an actual Bangert violation, but do contain statements by the *576 court (or perhaps others) that could have contributed to a defendant's alleged misunderstanding.
¶ 31 Howell's plea withdrawal motion did not allege a Bangert violation. There is nothing in his motion suggesting that it is anything other than a request for a hearing at which Howell would have the burden of proof, that is to say, a Nelson/Bentley motion analyzed under the Nelson/Bentley test. Howell, however, now argues that a new hybrid test should be applied to motions like his.
¶ 32 Howell's argument is this. The essence of a Bangert plea withdrawal motion is that it alleges the record shows the circuit court said or failed to say something that arguably contributed to a defendant's alleged misunderstanding. Therefore, if a defendant identifies something in the record that may have contributed to his or her alleged misunderstanding, then, as with Bangert-type motions, even conclusory allegations of a misunderstanding should be deemed sufficient to compel an evidentiary hearing. Applying his proposal here, Howell contends that he is entitled to an evidentiary hearing, albeit a hearing at which he has the burden of proof, because (1) his motion identified plea hearing statements by the court and the prosecutor that could have contributed to his alleged misunderstanding about party-to-a-crime liability, and (2) he alleged in his motion that he did not understand party-to-a-crime liability when he entered his plea.
¶ 33 If we adopted Howell's proposal, there would be three approaches to assessing whether a plea withdrawal motion may be denied without an evidentiary hearing: the Bangert test, the Nelson/Bentley test, and a new test combining the first two. This hybrid test would apply when a plea colloquy complies with Bangert and its progeny, yet still arguably contributes to a misunderstanding.[10] We conclude that this third approach is unworkable and unnecessary. It is unworkable because there is no means of consistently identifying when a colloquy falls short of a Bangert violation but still contributes to an alleged misunderstanding. It is unnecessary because existing law provides defendants like Howell a means of obtaining meaningful review by the circuit court of the validity of his or her plea. In the absence of a Bangert violation, so long as the existing record does not conclusively demonstrate that the plea was valid, a defendant is entitled to an evidentiary hearing if he or she files a motion offering a plausible reason for why the plea was unknowingly or involuntarily entered and providing supporting non-conclusory factual allegations regarding the evidence he or she is prepared to present. See Bentley, 201 Wis.2d at 309-11, 548 N.W.2d 50; Nelson, 54 Wis.2d at 497-98, 195 N.W.2d 629.
D. Application Of Nelson/Bentley To Howell's Motion
¶ 34 Having rejected Howell's argument that our withdrawn decision was in conflict with Hampton, and having reaffirmed that Howell's non-Bangert plea withdrawal motion should be assessed under the Nelson/Bentley test, we now apply that test. The Nelson/Bentley question at issue is whether Howell's allegations permit a meaningful assessment of his claim, or are instead conclusory allegations such that his *577 motion could be denied without an evidentiary hearing. See Allen, 274 Wis.2d 568, ¶ 21, 682 N.W.2d 433; Bentley, 201 Wis.2d at 314, 548 N.W.2d 50.
¶ 35 It bears repeating that Howell does not argue that he mistakenly thought party-to-a-crime liability applies if he approached the victim with his cousin after learning that his cousin was armed with a gun. Howell effectively concedes that would not have been a mistaken belief when he writes in his appellate brief: "[W]hen people knowingly come with guns, one can reasonably infer the intent to help each other if there is a shooting . . . ."
¶ 36 Therefore, Howell's challenge hinges on the following question: Did Howell allege sufficient facts in his postconviction motion to compel an evidentiary hearing on whether, at the time he entered his plea, he acted under the mistaken belief that his presence at the shooting, as a mere witness without knowledge that his cousin approached the victim while armed, and his failure to stop the shooting, were sufficient to support party-to-a-crime liability? For the reasons below, we conclude the answer is no.
¶ 37 Howell's post-sentencing motion asserts that he did not understand that his mere presence at the shooting and his failure to stop the shooting were not sufficient to create party-to-a-crime liability. According to Howell, if he had understood this fact, he would not have entered his guilty plea. Howell's motion provided the following six items in support of his general assertion:
1. Howell acknowledged that he knew the party-to-a-crime allegation was added to his charge because the prosecutor might be able to show that Howell assisted in putting Pearson in danger, but Howell claimed the reason he entered his plea was his mistaken belief that his mere presence at the shooting and his failure to prevent it constituted sufficient intentional assistance for purposes of party-to-a-crime liability.
2. Howell asserted that his mistaken belief was reinforced at the plea hearing when the prosecutor said there were two possibilities regarding what the State could prove at trial, one being that Howell's cousin was the shooter and "[Howell] was there with him, observed him with the gun as they got out of the car and would have approached [Pearson] in this situation."
3. Howell asserted that none of the statements made at the plea hearing indicated that simply failing to act to prevent the shooting was not sufficient to support party-to-a-crime liability.
4. Howell asserted that he would not have pled guilty had he realized "that his mere presence was not enough" because he first learned his cousin had a gun when he saw his cousin raise the gun and shoot it.
5. Howell acknowledged that, at sentencing, his trial counsel told the court that Howell "admitted a role in arranging for that firearm to be present," but Howell asserted he never said any such thing.
6. Howell asserted that, "based" on an out-of-court explanation of the term "party to a crime" by his trial counsel, he believed he was guilty of first-degree reckless injury as a party to a crime because he was present at the shooting and did not prevent it.
We conclude that these assertions, individually and collectively, are conclusory within the meaning of Bentley because they do not "allow the reviewing court to meaningfully *578 assess [Howell's] claim." See Bentley, 201 Wis.2d at 314, 548 N.W.2d 50.[11]
¶ 38 The first item is Howell's assertion that, although he knew the party-to-a-crime allegation was added because the prosecutor might be able to show that Howell assisted in putting Pearson in danger, he nonetheless mistakenly believed his mere presence and his failure to prevent the shooting were sufficient assistance for purposes of party-to-a-crime liability. This is a textbook example of a conclusory allegation. It provides no facts explaining why Howell might have misunderstood.
¶ 39 Turning to the second item, Howell's logic is demonstrably faulty. Howell asserts that his alleged mistaken belief was reinforced at the plea hearing when the prosecutor said that one of the possible reasons Howell was liable was that "[Howell] was there with [his cousin], observed [his cousin] with the gun as they got out of the car and would have approached [Pearson] in this situation." At that point in the plea hearing, the court asked if it could accept those facts as true. Howell's counsel said that those "are the facts upon which Mr. Howell has indicated his guilt to me as well." Howell's counsel then asked Howell if that was correct, and Howell answered, "Yes." Thus, this part of the transcript shows Howell agreeing that he knew his cousin had a gun as the two men got out of the car, before approaching the victim on foot. Thus, both the prosecutor's statement and Howell's admission are completely consistent with Howell's guilt as an aider and abettor.
¶ 40 The third item is Howell's assertion that none of the statements made at the plea hearing communicate the idea that merely failing to act to prevent a shooting is not sufficient to support party-to-a-crime liability. We disagree with this characterization of the plea hearing. Although the circuit court did not define the word "assist," most of the statements made at the hearing in that regard indicated that Howell's participation was in fact active. When the circuit court asked if it would "be fair to state that the [party-to-a-crime] amendment to the information comprises the prospect that at trial the evidence might show that Mr. Howell didn't pull the trigger, but that he assisted people in putting [Pearson] in a place where he could be shot by somebody else," Howell responded, "Yes." Later, the court explained to Howell that the "State would have to prove either that you were the person who did all those things or that you intentionally assisted someone else who was doing those things, knowing what they were doing" (emphasis added). The court asked Howell if he understood that, and Howell again answered, "Yes." Finally, we have already recounted that Howell admitted at the plea hearing that he saw that his cousin had a gun as they got out of the car, yet Howell still approached Pearson with his cousin. At no time during the plea hearing did anyone say that mere presence constituted assistance for purposes of party-to-a-crime liability.
¶ 41 The fourth item is Howell's assertion that he would not have pled guilty had he realized "that his mere presence was not enough" because he first learned his cousin had a gun when he saw his cousin raise the gun and shoot it. Stated differently, Howell is saying that he must have mistakenly thought his mere presence was sufficient for liability because he obviously would not have pled guilty knowing he had *579 no involvement in the shooting other than being a witness to it.[12] If this is Howell's meaning, we disagree. Defendants routinely enter pleas with an understanding of what the State must prove even though they claim, and perhaps believe, that they are not actually guilty of the charged crime. Boiled down, this assertion is nothing more than a conclusory allegation that Howell must have misunderstood because he did not commit the crime.
¶ 42 Howell's fifth assertion involves a statement that his trial counsel made at sentencing. At sentencing, Howell's counsel told the court that Howell "admitted a role in arranging for that firearm to be present." Howell asserted in his plea withdrawal motion that he never said any such thing. However, even if it is true that Howell said no such thing to his counsel, that fact does not address Howell's understanding of party-to-a-crime liability at the time of the plea hearing. Like Howell's fourth assertion, this is nothing more than a bald assertion that he did not commit the crime.
¶ 43 The last item in Howell's motion that we address is his assertion that he misunderstood "based" on an out-of-court explanation by his trial counsel of the term "party to a crime." Howell's motion asserts that this exchange led him to believe he was guilty as a party to a crime because he was present at the shooting and did not prevent it. This too is a conclusory allegation within the meaning of Nelson/Bentley. It does not tell the court, even generally, what counsel allegedly said.
¶ 44 When Howell baldly asserts that his alleged misunderstanding was "based" on some unknown thing counsel told him, what does Howell mean? What did counsel say that might have misled Howell?[13]*580 If Howell came to court and made the assertion he made in his motion, the circuit court could not meaningfully assess whether, in light of other facts in the case, Howell's attorney actually said something misleading. See Allen, 274 Wis.2d 568, ¶ 21, 682 N.W.2d 433 (non-conclusory allegations are allegations that "`allow the reviewing court to meaningfully assess [the defendant's] claim'" (quoting Bentley, 201 Wis.2d at 314, 548 N.W.2d 50)). If Howell wants an evidentiary hearing based on an allegation that he was misled by his trial counsel, Howell's motion must at least inform the circuit court in some fashion what was said to mislead him.
¶ 45 In sum, Howell's motion does not contain factual allegations that are subject to meaningful assessment in light of the record. Indeed, Howell's motion presents a good example showing that volume does not equal sufficiency for purposes of Nelson/Bentley. Howell's motion contains many assertions, references to the record, and arguments. But when we look at his assertions and arguments one by one, each is conclusory or irrelevant. Thus, denial of his motion without an evidentiary hearing was proper.[14]
The Dissenting Opinion
¶ 46 The dissent attributes to the majority statements we do not make, and exhibits the same sort of confusion we endeavor to reduce. In our view, the dissent reflects widespread confusion caused by a body of law that is highly complex and too often counter-intuitive.
Judgment and order affirmed.
¶ 47 DYKMAN, J. (dissenting).
We withdrew our previous opinion and reinstated this case because we recognized that State v. Hampton, 2004 WI 107, 274 Wis.2d 379, 683 N.W.2d 14, facially applied here.[1] This would have resulted in a circuit court evidentiary hearing at which *581 Howell could explain his assertion that he believed his presence at the scene of a shooting was enough to convict him of first-degree reckless injury. But the majority now prefaces its analysis by declaring that Howell makes a non-Bangert[2] claim. Majority, ¶ 1. It then avoids the common-sense conclusion that Hampton speaks to both Bangert and non-Bangert claims. There are two reasons why the majority goes astray. First, I use the majority's own definition of a Bangert claim, and conclude that Howell asserts a Bangert claim. Second, the four reasons the majority cites for not following Hampton are unconvincing.
¶ 48 Howell asserts that he did not understand the charges against him and, "as in Hampton, 274 Wis.2d at 408, 683 N.W.2d 14, the trial court here could have headed off the problem with a sufficient plea colloquy. Had the trial court gone over what is required for party-to-a-crime liability, this issue would not be here." WISCONSIN STAT. § 971.08(1) (2003-04) requires a trial court to determine that a plea of guilty or no-contest is made with understanding of the nature of the charge. Understanding party-to-a-crime liability is necessary if that is how the State prosecutes a defendant. This is a Bangert claim, and the majority concedes that Bangert claims need not explain in detail why a defendant failed to understand an important issue. Majority, ¶ 14.
¶ 49 The majority's decision not to follow Hampton is surprising. We have long understood that the supreme court is the primary law-defining court in Wisconsin, and that other courts must follow its precedents when deciding cases. While the court of appeals has the authority to issue opinions having precedential value, "[t]he supreme court, unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court." Cook v. Cook, 208 Wis.2d 166, 189, 560 N.W.2d 246 (1997) (citing State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis.2d 220, 229-30, 340 N.W.2d 460 (1983)).
¶ 50 Long before Cook, this court was reminded of its limitations in State v. Lossman, 118 Wis.2d 526, 533, 348 N.W.2d 159 (1984). There, the supreme court reversed a court of appeals decision that the supreme court said had side-stepped an established high court precedent. "Had the court of appeals adhered to precedent, as it is required to do, this review would not have been necessary," wrote the court. Id. "It is apparent that [the court of appeals] thought the decision of this court in [State v.] Zdiarstek [53 Wis.2d 776, 193 N.W.2d 833 (1972)] was wrong; and, hence, it attempted to avoid what is a clear and binding precedent." Id. The majority today attempts the same thing the supreme court refused to accept in Lossman.
¶ 51 The first of the majority's four reasons to disregard Hampton is that paragraphs 56 and 57 of Hampton are somehow rendered meaningless when one undertakes a "careful reading of paragraphs 50 to 65 in Hampton." Majority, ¶ 25. I disagree. The Hampton court states that the issue in paragraphs 50 to 65 "concerns a defendant's burden to make a showing that will require the court to conduct an evidentiary hearing on the defendant's motion to withdraw his plea." Hampton, 274 Wis.2d 379, ¶ 50, 683 N.W.2d 14. The court concluded that when a court fails to personally advise a defendant that the court was not bound by the plea agreement and the defendant alleges he did not understand that the court was not bound by the agreement, the defendant is entitled to an evidentiary *582 hearing on a motion to withdraw his plea. Id. In so concluding, the court compared and contrasted Bangert-type cases with Nelson[3]/Bentley[4] cases, and determined that a motion alleging that a defendant did not understand that the court was bound by the plea agreement "passes the test of Nelson and Bentley" by alleging facts which, if true, would entitle the defendant to relief. Hampton, 274 Wis.2d 379, ¶ 57, 683 N.W.2d 14.
¶ 52 A careful reading of paragraphs 50-65 reveals that the supreme court was comparing the two types of plea withdrawals to explain its conclusion that "[r]equiring an evidentiary hearing in the face of a supported allegation that the plea colloquy was defective is an effective means of enforcing the court's plea taking obligations." Hampton, 274 Wis.2d 379, ¶ 65, 683 N.W.2d 14. Here, the defendant correctly notes: "Had the trial court gone over what is required for party-to-a-crime liability, this issue would not be here." He also cites Bangert three times in his brief to support his assertion that the trial court failed to explain party-to-a-crime liability, leading to his misunderstanding of the nature of the charge. See WIS. STAT. § 971.08(1)(a) (trial court must determine that defendant understands nature of charge).
¶ 53 If the supreme court did not mean to analyze failure to understand cases in the same way whether they are Bentley or non-Bentley cases, why did it write the following?
In addition, the defendant must allege that he did not in fact understand that the court was not bound by the plea agreement because that information/explanation was not provided. We think a motion of this nature passes the test of Nelson and Bentley: a motion withdraw a plea that alleges facts which, if true, would entitle the defendant to relief. The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution.
Hampton, 274 Wis.2d 379, ¶ 57, 683 N.W.2d 14. No matter how carefully one reads paragraphs 57 and 58 of Hampton, failure to understand is failure to understand. I am not convinced by the majority's first reason.
¶ 54 The majority's second reason is that Bangert mandated a burden-shifting procedure to ensure that trial courts follow mandated plea colloquy requirements. Majority, ¶ 26. That is certainly true. But even if trial courts comply with Bangert requirements, a defendant may legitimately claim that he or she did not understand something which, had he or she understood, would have negated his or her decision to plead guilty. Underlying both Bangert and non-Bangert claims is a due process right to know all the relevant facts before entering a guilty plea. If conclusory allegations of misunderstanding are adequate to satisfy due process under Bangert, why is a different procedure necessary to satisfy due process in non-Bangert cases? Hampton recognizes this, which is why the supreme court in Hampton permitted conclusory allegations of misunderstanding in non-Bangert cases. The majority's second reason does not convince me.
¶ 55 The majority's third reason merely revisits its disagreement with Hampton. The majority's policy determination is that busy trial courts should not have to spend time dealing with motions to withdraw *583 pleas where an allegation of misunderstanding is conclusory. Majority, ¶ 27. The majority would require defendants to explain in detail why they failed to understand. The supreme court has concluded otherwise: "The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution." Hampton, 274 Wis.2d 379, ¶ 57, 683 N.W.2d 14. Courts may differ as to whether a defendant who signs an affidavit claiming non-understanding should be entitled to a hearing to determine whether the constitutional requirement of understanding is present or absent. But the supreme court has the last word on this issue. Whether that word is troublesome or whether we disagree with the supreme court's policy choices are not valid reasons for departing from the supreme court's clear language.
¶ 56 The final reason the majority believes it can disregard Hampton is that State v. Brown, 2006 WI 100, ¶ 42, 716 N.W.2d 906, No.2003AP2662-CR, makes a "clear reference" to Nelson/Bentley plea withdrawal motions. Majority, ¶ 28. This reason is wishful thinking. I do not cite Hampton to convince a reader that the supreme court is unaware that Bangert and Nelson/Bentley claims are different. It clearly is aware of the difference. That is not the issue here. The issue is whether, in a Nelson/Bentley affidavit, the defendant is required to explain in detail why he or she did not understand something he or she was told or which he or she read. That was decided in Hampton, in the paragraphs I have quoted.
¶ 57 Common sense tells us that the supreme court was correct. It is difficult to the point of impossibility to explain why one misunderstood something. Was there room noise? Did the perceiver have a problem with the meaning of a word? A sentence? Was the defendant's attorney rustling papers? Is a person's vocabulary limited in some respect? We know that some people are more intelligent than others. There are a myriad of reasons why people do not understand each other. No one always remembers why he or she did not understand something. Many people do not know why they do not know what they do not know. For example, appellate judges have been known to say to each other that they do not understand something a colleague believes he or she has explained. Explaining why one does not understand is often difficult if he or she does not understand in the first place.
¶ 58 Brown, another unanimous supreme court opinion, and Hampton were written by the same author. The Brown court cites the same paragraph of Hampton which the majority believes is a paragraph in which the supreme court did not mean what it said. Brown, 2006 WI 100, ¶ 67, 716 N.W.2d 906. One would think that if the supreme court did not mean what it said the first time around, it would not cite the same paragraph of Hampton without noting the problem the majority identifies. But it did not. Instead, it cited Hampton because, earlier, it had questioned why the defendant had not directly alleged that he did not understand the nature of the charges against him. Id., ¶¶ 66-67.
¶ 59 The majority asserts that Hampton is a Bangert case, but in the supreme court the State argued Hampton as a Bentley case. The State asserted: "Moreover, a court's failure to personally inform a defendant that the court is not bound by the negotiated sentencing recommendation does not invoke the Bangert burden-shifting framework because it is not information required to be provided pursuant to Bangert." Brief of Plaintiff-Respondent-Petitioner at 27, State v. Hampton, 2004 WI 107, 274 Wis.2d 379, 683 N.W.2d 14 *584 (available in APPENDICES AND BRIEFS, 274 Wis.2d 324-424 at tab 3). Thus, the supreme court needed to address both approaches to plea withdrawal and determine what was necessary for each approach. The language used in paragraphs 57 and 58 of Hampton is therefore not, as the majority would have us believe, a mere rejection of the State's Bentley argument, but is what it purports to be, a requirement that an allegation of failure to understand is "qualitatively different" and raises a question of fact necessitating an evidentiary hearing at which the defendant's assertion of misunderstanding can be tested. The court's discussion of "understanding" is common to both types of plea withdrawal cases.
¶ 60 As a matter of policy, we employ a burden-shifting analysis in Bangert while we do not in Nelson/Bentley cases. But both types of cases are Wisconsin's response to the Supreme Court's determination that a guilty plea must be intelligent, voluntary and made with understanding. See Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A defendant does not constitutionally "understand" differently under the requirements of Bangert the "understanding" that may be necessary in some Nelson/Bentley cases. A defendant can misunderstand the range of punishments to which he will be subjected or something the trial court is not statutorily or by case law required to explain. Both misunderstandings, if true, are a problem because as a matter of due process, a guilty plea is valid only if voluntary, intelligent and understood.
¶ 61 Hampton recognized this, and Brown followed suit. Indeed, Brown directly addressed the fact that Brown not only failed to offer a detailed explanation of why he did not understand, his motion did not directly state that he failed to understand some vital information in the first place. The supreme court could have held that this was fatal to Brown's case. But it did not. Instead, a unanimous court wrote:
We share the State's concern that this motion does not allege directly that the defendant did not know or understand certain information that should have been provided or addressed at the plea hearing. A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.
Brown, 2006 WI 100, ¶ 62, 716 N.W.2d 906.
¶ 62 As a constitutional matter, there is no reason for the majority to attempt a distinction which depends on its conclusion that it may safely ignore Hampton. Howell tells us that he did not understand party-to-a-crime liability, a complex and not totally intuitive subject to begin with. He says that his attorney explained party-to-a-crime in a way that led him to believe that his presence at a shooting would permit a jury to find him guilty. The majority would require something more than Howell's misunderstanding, though that would not be possible except under the most unusual of circumstances. With the requirements the majority announces, defendants who really do not understand vital information, and therefore cannot enter a voluntary plea, will still be held to the results of the plea. I cannot join in this conclusion.
¶ 63 Guilty pleas are not easy tasks for trial courts or defendants. Hindsight is always twenty-twenty, and pleader's remorse cannot be discounted. Still, with the time appellate courts and continuing judicial education programs have spent on the subject, and with the assistance of a district attorney intent on reaching a just end to a criminal case and defense counsel *585 making sure that his or her client has all the information to make an informed choice, valid guilty pleas are certainly attainable. Evidentiary hearings on motions to withdraw pleas may not end with trials, but they are part of a system that endeavors to assure that the guilty are found guilty and those not proven guilty are released. I do not agree that we get to a better world by interpreting Hampton to mean something other than what it says and going beyond Brown in motion requirements. The majority opinion only adds to the confusion it purports to solve. I conclude that Howell should be given the opportunity to make his case to the circuit court.
¶ 64 I believe that the body of law the majority describes as "highly complex and too often counter-intuitive" is made so by the requirement that we divide due process violations into Bangert and non-Bangert types. Majority, ¶ 46. Neither the majority nor I can change that. Perhaps trial courts need an incentive to avoid certain categories of due process violations, but I am not sure that is necessary. I lay no claim to infallibility. If my interpretation of the cases the majority interprets differently is ultimately rejected, I can only hope that what results will be an easily understood rule. Until then, I can only respectfully dissent.
NOTES
[] Petition for review filed.
[1] State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). We use the term "Bangert violation" as shorthand for a violation of any statutorily or judicially mandated plea hearing requirement. Similarly, we use the terms "Bangert arguments" and "Bangert motions" to refer to arguments and motions involving an alleged Bangert violation. Howell's motion is a non-Bangert motion because it does not allege that the circuit court failed to comply with a mandatory duty during the plea colloquy.
[2] State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996); Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972). We use terms such as "Nelson/Bentley arguments" and "Nelson/Bentley motions" to refer to arguments and motions that do not allege a Bangert violation.
[3] We acknowledge that Howell talks in terms of his case being "akin" to State v. Hampton, 2004 WI 107, 274 Wis.2d 379, 683 N.W.2d 14. In this respect, however, his argument is not based on Hampton in particular, but rather on the fact that Hampton involves an alleged Bangert violation. Thus, clarity is served by recasting this part of Howell's argument as asserting that his facts are "akin" to Bangert.
[4] It remains clear that Howell is not alleging a Bangert plea colloquy defect. We plainly stated in our withdrawn opinion that Howell's plea withdrawal motion neither alleged a Bangert violation nor sought the benefit of Bangert burden shifting. In supplemental briefing, Howell has not disputed our characterizations of either his circuit court motion or his initial arguments on appeal. If Howell means to shift course and allege a Bangert violation, he has failed to present a developed argument on that issue.
[5] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[6] In this decision, we use "knowing" and its variations as including both the concepts of knowledge and understanding. This shorthand is in keeping with the common use of the term and at least one supreme court opinion. See State v. Brandt, 226 Wis.2d 610, 618 n. 5, 594 N.W.2d 759 (1999) ("The State is then given the opportunity to show by clear and convincing evidence that the defendant nevertheless knowingly entered the plea."). We caution, however, that there may be situations in which it is alleged that, although a defendant might know information, he or she does not understand it. See Bangert, 131 Wis.2d at 269, 389 N.W.2d 12. In such cases, writers should clearly state that they are discussing understanding as a concept distinct from mere knowledge.
[7] Of course, these are general principles, not bright-line rules, and there has been much litigation over what is and is not "conclusory." As we shall see, it is the application of the Nelson/Bentley test that is at the heart of this case.
[8] We note that non-Bangert plea withdrawal motions come in several stripes. Indeed, Nelson and Bentley themselves differ in that Bentley involves the additional complexity of an allegation of ineffective assistance of counsel. Bentley, 201 Wis.2d at 306-07, 548 N.W.2d 50. Moreover, plea withdrawal motions are but one type of motion assessed under the Nelson/Bentley standard. The Nelson/Bentley test is used in its pure form, or in a slightly modified form, in a variety of situations to determine whether an evidentiary hearing is required. See, e.g., State v. Samuel, 2002 WI 34, ¶¶ 8, 33-35, 47, 252 Wis.2d 26, 643 N.W.2d 423 (need for pretrial suppression hearing); State v. Velez, 224 Wis.2d 1, 4, 13-14, 589 N.W.2d 9 (1999) (allegation that State deliberately delayed charging defendant to avoid juvenile court jurisdiction); State ex rel. Reimann v. Circuit Court for Dane County, 214 Wis.2d 605, 611, 618-19, 571 N.W.2d 385 (1997) (need for John Doe proceeding); State v. Reynolds, 2005 WI App 222, ¶¶ 1, 7-8, 15, 287 Wis.2d 653, 705 N.W.2d 900 (allegation that counsel rendered ineffective assistance at trial); State v. Pharm, 2000 WI App 167, ¶¶ 1, 8, 27, 238 Wis.2d 97, 617 N.W.2d 163 (allegation that counsel rendered ineffective assistance during post-commitment WIS. STAT. ch. 980 trial).
[9] It appears the Hampton court is suggesting that, unlike Bangert plea withdrawal motions, non-Bangert motions do not involve allegations that a defendant did not understand something necessary to a valid plea. However, the same misunderstandings are often alleged in both Bangert and Nelson/Bentley plea withdrawal motions. For example, regardless of the sufficiency of the plea colloquy i.e., regardless whether there is an alleged Bangert violationa defendant might assert in a plea withdrawal motion that he or she did not understand one of the elements of a crime. What distinguishes a Bangert motion is not the information allegedly misunderstood, but rather whether the burden of proof on the topic should shift to the State because of a plea colloquy defect.
[10] According to Howell, the reason we should apply his hybrid test here is the circuit court's alleged failure to speak about party-to-a-crime liability in terms so clear that there could be no misunderstanding. This failing included, for example, the court stating that the amendment to the information reflected "the prospect that at trial the evidence might show that Mr. Howell didn't pull the trigger, but that he assisted people in putting the victim in a place where [the victim] could be shot by somebody else."
[11] Howell's motion asserts several other factual details. We have reviewed these other details, but none arguably support his general assertion that at the time he entered his plea he did not understand that his mere presence at the shooting and his failure to stop the shooting were not sufficient to create party-to-a-crime liability.
[12] Howell is not required to show that a misunderstanding affected his decision to enter his plea. In State v. Harden, 2005 WI App 252, ¶ 5, 287 Wis.2d 871, 707 N.W.2d 173, we explained that in State v. Bartelt, 112 Wis.2d 467, 334 N.W.2d 91 (1983), the supreme court rejected the argument that a defendant seeking plea withdrawal must show that his or her plea decision was affected by misinformation. See Bartelt, 112 Wis.2d at 483-84, 334 N.W.2d 91. We further explained in Harden that contrary language in our subsequent decision in State v. Quiroz, 2002 WI App 52, ¶ 16, 251 Wis.2d 245, 641 N.W.2d 715, may not be relied on because Bartelt is binding precedent. Harden, 287 Wis.2d 871, ¶ 6, 707 N.W.2d 173. Although Harden and Quiroz are Bangert-type cases, and Bartelt is pre-Bangert, it is readily apparent that the Bartelt rule applies regardless which party has the burden of proof.
We note that both Howell and the State seem to believe it matters whether Howell asserted and explained why his misunderstanding caused him to plead guilty. Howell, in an effort to distinguish Bentley, says: "But here Mr. Howell explained how and why his misunderstanding of `party to a crime' would have affected his decision to plead guilty." The State quotes Hampton as follows: "In [non-Bangert] cases, ... [t]he defendant must prove the linkage between his plea and the purported defect [i.e., external factor]" (quoting Hampton, 274 Wis.2d 379, ¶ 63, 683 N.W.2d 14, bracketed words supplied by the State). If the parties mean to suggest that Howell must prove "linkage" between his decision to enter a plea and something else, they are mistaken. The reference to a "purported defect" in Hampton is plainly a reference to the ineffective-assistance-of-counsel context of Bentley. Hampton, 274 Wis.2d 379, ¶ 63, 683 N.W.2d 14. Bentley is a specific type of plea withdrawal case in which the alleged misunderstanding is based on a claim of ineffective assistance, drawing into the analysis the performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, the part of Hampton the State relies on does not apply here because Howell has not asserted ineffective assistance of counsel.
[13] Howell asserts that the questions asked in this court's withdrawn opinion and in the State's supplemental brief are the "wrong questions." He contends the questions go to his credibility, something that should not be resolved without an evidentiary hearing. We agree with Howell that some of the questions posed in the State's supplemental brief seem directed at Howell's credibility (e.g., "If Howell's postconviction claim were true, then why did Howell acknowledge at the plea hearing that he [saw his cousin with the gun before the shooting]?"). But the questions we ask do not question Howell's credibility; they point out omissions in Howell's motion.
[14] Although we decide this case in favor of the State on other grounds, we briefly comment on the State's argument that Howell's motion was not accompanied by an affidavit from Howell, but only his counsel's affidavit containing hearsay assertions about what Howell claimed to be true. According to the State, there is a general rule that hearsay recitations in an affidavit are insufficient to trigger an evidentiary hearing and we should apply that general rule here. In support, the State cites State v. Lass, 194 Wis.2d 591, 535 N.W.2d 904 (Ct.App.1995), and State v. Bruckner, 151 Wis.2d 833, 447 N.W.2d 376 (Ct.App. 1989). However, these cases provide no support for such a requirement. In Lass, we did not address whether the circuit court wrongly denied the defendant an evidentiary hearing. Rather, we concluded that an affidavit containing hearsay was insufficient to support a request for disclosure of the identity of a confidential informer. Lass, 194 Wis.2d at 599-600, 535 N.W.2d 904. In Bruckner, we did address the denial of an evidentiary hearing, but did not purport to set forth any general rule. Rather, in dictum in a footnote we addressed the prerequisites for holding a Franks hearing, not hearings generally. Bruckner, 151 Wis.2d at 864-65 n. 15, 447 N.W.2d 376. Furthermore, even in the Franks context, the footnote does not say that an affidavit based on personal knowledge is generally required. See id. Finally, we note that in State v. Brown, 2006 WI 100, ___ Wis.2d ___, 716 N.W.2d 906, the supreme court stated: "A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy." Id., ¶ 62.
[1] The most the majority now concedes is that "there may be some ambiguity in Hampton." Majority, ¶ 29.
[2] State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986).
[3] Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972).
[4] State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572195/ | 437 F.Supp. 1068 (1977)
In the Matter of Daniel R. PETERSON, Bankrupt.
No. 1-75 Bky 87.
United States District Court, D. Minnesota, First Division.
March 31, 1977.
*1069 John H. Bix, Minneapolis, Minn., appeared for Postal Thrift Loans of Minnesota, Inc.
MEMORANDUM ORDER
ALSOP, District Judge.
This case is presently before the court on the petition of the creditor Postal Thrift Loans of Minnesota, Inc. (Postal) to review the order by the Bankruptcy Judge, Hon. John J. Connelly, discharging the bankrupt's obligation to repay the amount of Postal's renewed loan to him that does not constitute "fresh cash."
The bankrupt, Daniel Peterson, filed an involuntary petition in bankruptcy on January 24, 1975. Postal then filed a complaint pursuant to Section 17a(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2), to have its debt declared nondischargeable. Hearings were held on September 9, 1975 and the Bankruptcy Judge found that the bankrupt had obtained a loan from Postal on May 20, 1974, in the sum of $2,682.00, which refinanced an earlier loan by Postal as well as advanced $458.63 in new money.
The bankruptcy court found that, as a basis for obtaining the new loan, the bankrupt had executed and presented a written financial statement understating his outstanding debts by $4,516.02. The financial statement showed debts of $2,050.00 excluding the prior loan with Postal, whereas, in fact, the bankrupt's debts amounted to $6,566.02. The Bankruptcy Judge then concluded:
[t]hat said financial statement was made, executed and delivered for the purpose of obtaining a loan from [Postal], that said financial statement was intentionally false and received by [Postal] as and for a true statement of financial condition, and was relied upon by [Postal] in granting defendant said loan, and if the true debts and liabilities had been stated by the defendant, no loan would have been made.
*1070 However, rather than declaring the entire debt to be nondischargeable, the Bankruptcy Judge held that under Section 17a(2) of the Bankruptcy Act,[1] only the $458.63 fresh cash advance was nondischargeable. The only issue on appeal is whether the Bankruptcy Judge erred in concluding, as a matter of law, that only the new money advanced was nondischargeable.
A clear majority of the federal courts[2] that have addressed this issue have limited recovery to the amount of the fresh cash advanced. In re Ellis, 400 F.Supp. 1112 (S.D.N.Y.1975); In re Pezzella, No. 74 BKY 127 (N.D.N.Y. Jan. 10, 1975); In re McNee, 390 F.Supp. 271 (D.C.N.Y.1975); In re Fuhrman, 385 F.Supp. 1185 (D.C.N.Y.1973); In re Schuerman, 367 F.Supp. 1347 (D.C.Ky. 1973); In re Soika, 365 F.Supp. 555 (W.D.N. Y.1973).
Several courts have reached this result by concluding that when a lender refinances a pre-existing debt and concomitantly advances additional monies, the refinancing is based upon prior dealings with the borrower and hence is not "obtained" as a result of the false financial statement. See, e. g., In re Andrews, CCH Bankr.L.Rep. ¶ 64,376 (E.D.Mich.1972), aff'd (E.D.Mich. April 12, 1973); In re Berkholz, CCH Bankr.L.Rep. ¶ 64,169 (W.D.Wis.1971), aff'd, CCH Bankr. L.Rep. ¶ 64,316 (W.D.Wis.1972). Other courts have arrived at this result by recognizing that the renewal of an existing loan is for the convenience of the loan company and not at the request of the debtor. See, e.g., In re Burke, CCH Bankr.L.Rep. ¶ 64,016 (E.D.Tenn.1971). "Moreover, `under the laws of most states[,] statutory limitations on the rate of interest chargeable by small loan companies dictate that new loans must be consolidated with existing loans when additional credit is extended, because such companies cannot have two loans in effect with one individual at the same time without violating restrictions on interest charges.'" In re Ellis, 400 F.Supp. 1112, 1116 (S.D.N.Y.1972), quoting, Leading Case Commentary 46 Am.Bankr.L.J. 245, 246 (1972).
The court is aware of only two federal courts that have held the entire amount to be nondischargeable. In re Shade, No. 73 BKY 1018 (W.D.N.Y. July 24, 1974); In re DeLong, No. 71 BKY 85796 (C.D.Cal. Sept. 26, 1971).
The court is of the opinion that the better rule of law, which has been adopted by the Bankruptcy Court in Minnesota,[3] is to limit nondischargeability to that portion of the loan actually given in reliance upon the false statement, i. e., the new money advanced. The Bankruptcy Act is to be equitably interpreted to accomplish its evident purposes. Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966). One of the primary purposes of the Bankruptcy Act is to give the debtor "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing *1071 debt . . ." Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). To effectuate this purpose, the liability excluded from discharge under Section 17a(2) should be construed as a tort liability, and the damages resulting should be so measured. See, e. g., In re Ellis, supra; In re Soika, supra; In re Ross, 47 Am.Bankr.L.J. 77 (S.D.N.Y.1972).
Thus the decision of the Bankruptcy Judge will be affirmed.
Upon the foregoing,
IT IS ORDERED That the decision of the Bankruptcy Judge discharging the refinanced portion of the debt is affirmed.
NOTES
[1] Section 17 of the Bankruptcy Act provides as follows:
Debts not affected by discharge.
a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as . . . (2) are liabilities for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive, or for willful and malicious conversion of the property of another.
[2] It should be noted that Bankruptcy Courts have had exclusive jurisdiction to ascertain the dischargeability of debts only since 1970 amendments to the Bankruptcy Act. Prior to 1960, state courts had exclusive jurisdiction to determine nondischargeability. Of the state courts that have addressed this issue, a slight majority held that the entire debt was nondischargeable. See Leading Case Commentary, 46A, Bankr.L.J. 245, 148-49 (1972). The 1970 amendment "obviates the need to either choose, reconcile or refer to state law in this area." In re Ellis, 400 F.Supp. 1112, 1117 (S.D. N.Y.1972).
[3] The Bankruptcy Court in Minnesota has adopted and applied this rule ever since it became vested with jurisdiction to determine the dischargeability matters by the 1970 amendment of the Bankruptcy Act. See the well reasoned opinion in In re McGlynn, No. 4-74 BKY 925 (Sept. 14, 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572032/ | 437 F. Supp. 1268 (1977)
ADMIRAL THEATRE CORPORATION, a Nebraska Corporation, Benson Drive-In Corp., a Nebraska Corporation, and the Chief Theatre Corp., a Nebraska Corporation, Plaintiffs,
v.
The DOUGLAS THEATRE COMPANY, a corporation, Russell Brehm, an Individual, J. S. B. Amusement Corporation of Nebraska, a corporation, Sarge Dubinsky, an Individual, Irwin Dubinsky, an Individual, Mann Theatres Corporation of California, a corporation, Theodore Mann, an Individual, American Multi-Cinema, Inc., a corporation, Stanley Durwood, an Individual, Cooper Theatres, Inc., a corporation, Elwood Thompson, an Individual, Herman Hallberg, an Individual, Northwest Cinema Theatre Corporation, a corporation, Melvin Lebewitz, an Individual, Exhibitor-Defendants, and also, Universal Pictures, a corporation, Paramount Pictures, a corporation, Warner Brothers Distributing Corporation, a corporation, Columbia Pictures Industries, Inc., a corporation, Allied Artists Pictures Corporation, a corporation, Twentieth Century-Fox Film Corporation, a corporation, Avco Embassy Pictures Corporation, a corporation, Distributor-Defendants.
Civ. No. 74-0-82.
United States District Court, D. Nebraska.
August 24, 1977.
*1269 *1270 *1271 *1272 Richard K. Lydick, Zweiback & Laughlin, Omaha, Neb., Earl A. Jinkinson, Robert Foster, Greg Murray, Winston & Strawn, Chicago, Ill., for Admiral Theatre Corp., Benson Drive-In Corp. and the Chief Theatre Corp., plaintiffs.
Leo Eisenstatt, Steven M. Luttbeg, Eisenstatt, Higgins, Kinnamon & Okun, Omaha, Neb., Alan K. Benjamin, Bagby, Benjamin & Arnold, Kansas City, Mo., for The Douglas Theatre Co., Russell Brehm, J.S.B. Amusement Corp. of Nebraska, Sarge Dubinsky, Irwin Dubinsky, American Multi-Cinema, Inc., and Stanley Durwood, exhibitor-defendants.
Bernard R. Kaufman, C/O Mann Theatres Corp., Los Angeles, Cal., Richard A. Knudsen, Kenneth C. Stephan, Knudsen, Berkheimer, Endacott & Beam, Lincoln, Neb., for Mann Theatres Corp. of California, Theodore Mann, Cooper Theatres, Inc., Elwood Thompson and Herman Hallberg, exhibitor-defendants.
Patrick W. Healey, John Tavlin, Healey, Healey, Brown, Wieland & Burchard, Lincoln, Neb., D. Randall Blohm, Minneapolis, Minn., for Northwest Cinema Theatre Corp., and Melvin Lebewitz, exhibitor-defendants.
William E. Morrow, Jr., Richard N. Janney, Donald Buresh, Swarr, May, Smith & Andersen, Omaha, Neb., for Universal Pictures, Paramount Pictures, Warner Brothers Distributing Corp., Columbia Pictures Industries, Inc., Allied Artists Pictures Corp., Twentieth Century-Fox Film Corp., and Avco Embassy Pictures Corp., distributor-defendants.
MEMORANDUM IN SUPPORT OF ORDER OF DIRECTED VERDICT
HANSON, Chief Judge.[*]
This is an action by motion picture theatre corporations against motion picture distributors and exhibitors to recover damages for, and obtain injunctive relief from, alleged violations of Sections 1 and 2 of the Sherman Act.[1] Plaintiffs' complaint alleges that between March 15, 1970 and March 15, 1974 there existed in the Omaha, Nebraska-Council Bluffs, Iowa market area an *1273 overall conspiratorial arrangement, between and among all distributor and exhibitor defendants, which unlawfully interfered with plaintiffs' ability to obtain first-run motion pictures for their Omaha theatres. Jurisdiction is predicated upon Sections 4 and 16 of the Clayton Act and are not in dispute.[2]
At this stage of the proceedings, with plaintiffs having rested their case, there remain pending before this Court several motions. More specifically, these motions include (1) defendants' motions to disqualify plaintiffs' expert and preclude said expert's testimony, filed July 18, 1977; (2) defendants' motions for mistrial, filed July 18, 1977; (3) defendants' motions for directed verdict, filed July 21, 1977; and (4) plaintiffs' motion to admit evidence as to all defendants, filed August 3, 1977. Of primary concern to this Court are defendants' motions for directed verdict filed pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, and it is to these motions that this memorandum directs its focus. The Court, after thoroughly reviewing plaintiffs' evidence and the parties' written arguments, has concluded that the motions for directed verdict are of merit and must be sustained in their entirety. With these motions sustained, all other pending motions, only briefly mentioned herein, are rendered moot.
I.
PRETRIAL PROCEEDINGS
The Court, prior to addressing the motions for directed verdict, digresses to note the historical development of this case. Such background places the present ruling in its proper context and further suggests an underlying reason for the inability of plaintiffs' case to survive directed verdict motions.
Plaintiffs filed their complaint in the United States District Court for the District of Nebraska on March 15, 1974. Nearly three years later, on January 17, 1977, this Court, pursuant to 28 U.S.C. § 292(b), was designated by the Chief Judge of the United States Circuit Court of Appeals for the Eighth Circuit to complete the processing and trying of plaintiffs' cause of action. This Court, on January 28, 1977, accordingly ordered that all parties were to appear for a final pretrial conference on February 22, 1977. At that pretrial conference, it became apparent that the lawsuit and attendant discovery proceedings, for whatever reason, had been essentially stalled for almost a year. Without assessing blame for the inaction, the Court, attempting to ensure justice for all party litigants, adjusted its schedule and permitted the plaintiffs additional time to conduct further discovery. While the scope of plaintiffs' discovery requests were necessarily limited, both in fairness to the defendants and so as to complete the trial within the Court's out-of-district time designation, they were given considerable latitude in their exploration of defendants' alleged conspiratorial activities. Defendants' motions to limit proof at trial to those first-run films upon which plaintiffs had made demand were overruled, and plaintiffs were confined only to first-run films released in the Omaha-Council Bluffs market area between March 15, 1970 and March 15, 1974.
*1274 After these rulings, which were filed in March of 1977, the proceedings were marked by plaintiffs' failure to meet Court imposed deadlines and to take full advantage of those further discovery opportunities that had been permitted. The Court does not herein raise plaintiffs' dilatoriness and inadequate trial preparation, which the record fully documents and which in itself would have been sufficient grounds to dismiss the case, for the purpose of coloring or lending support to its present ruling; rather, it is to suggest that a contributing reason, if not indeed a major reason, for plaintiffs' inability to survive directed verdict motions is that the foundation upon which they attempted to build their case was incomplete and unsound. For that, and the case's subsequent collapse, plaintiffs have only themselves to blame.
II.
PLAINTIFF'S EVIDENCE
In considering defendants' motions for directed verdict, the Court, before appraising the legal contentions, reviewed plaintiffs' evidence and has determined that the following enumerated facts are not in dispute or are facts upon which reasonable persons would not disagree. See Fed.R. Civ.P. 50(a); 5A Moore's Federal Practice ¶ 50.02[1]. A few of these fact enumerations are of a descriptive nature, seeking merely to identify controverted evidence that plaintiffs undeniably offered in support of their case.
1. The plaintiffs are three Nebraska corporations which owned theatres and exhibited first-run motion pictures in the Omaha, Nebraska-Council Bluffs, Iowa, market during the time period in question, March 15, 1970 to March 15, 1974. Specifically, plaintiffs, whose exhibition of motion pictures was confined to Omaha, are known as the Admiral Theatre Corporation, the Chief Theatre Corporation, and the Benson Drive-In Corporation, and said plaintiffs owned and operated the Admiral Theatre, the Chief Theatre, and the Skyview Drive-In, respectively.
2. Plaintiffs are incorporated in the State of Nebraska, with all stock throughout the period being owned by Ralph Blank or members of his immediate family. Ralph Blank, his wife, Geraldine, and his son, Robert, all participated in the operation of plaintiff theatres during the period between March 15, 1970 and March 15, 1974. While Ralph Blank was the principal operating officer for all three theatres, Robert Blank's responsibilities increased after his father's heart attack in the spring of 1971. Since the death of Ralph Blank in November, 1976, Robert Blank has become the principal operating officer for the Admiral and Skyview theatres.
3. The Admiral Theatre, a single screen, indoor motion picture theatre which is located at Fortieth and Farnam Streets in Omaha, was built and opened by Ralph Blank in approximately 1940. It is situated in a residential and light commercial area, approximately one and one-half miles from the central business district of downtown Omaha. During the relevant time period, the Admiral was a first-run motion picture theatre and had a seating capacity ranging from 866 to approximately 966.
4. The Chief Theatre was built and opened by Ralph Blank during 1945. Located on South 24th Street, between K and L Streets, a commercial area approximately three miles from the center of downtown Omaha, it too was a single screen, first-run indoor motion picture theatre. The Chief had a seating capacity in excess of 1200 during the relevant period. Between December 20, 1971 and July 15, 1972, the Chief was closed for repairs following a disturbance during a movie in which the theatre was damaged. The Chief was closed permanently on December 10, 1972 due to substantial operating losses. In commenting upon the closing of the Chief Theatre, Robert Blank, in a published letter to a trade journal, noted the demise of the packinghouses in South Omaha and observed that "`business just isn't there.'"
5. Opened by Ralph Blank in 1954, the Skyview is a single screen outdoor drive-in theatre, which is located at 72nd and Hartman Streets in Omaha. The drive-in, which is situated in a light commercial and residential neighborhood with some industrial development to the north and a public golf *1275 course immediately adjacent to the south, has a capacity of approximately 1200 automobiles.
6. Exhibitor-defendants, competitors of the plaintiff exhibitors, owned, operated, or managed first-run movie theatres in the Omaha-Council Bluffs market area during the period between March 15, 1970 and March 15, 1974. These defendants include: The Douglas Theatre Company, a Nebraska corporation, and Russell Brehm, a Nebraska resident and an officer of The Douglas Theatre Company; the Cooper Theatres, Inc., a Nebraska corporation, and Elwood Thompson and Herman Hallberg, Nebraska residents and officers of Cooper Theatres; the American Multi-Cinema, Inc. (AMC), a Missouri corporation, and Stanley Durwood, a Missouri resident and an officer of AMC; J.S.B. Amusement Corporation of Nebraska, a Nebraska corporation, and Sarge Dubinsky and Irwin Dubinsky, Nebraska residents and officers of J.S.B.; the Mann Theatres Corporation of California, a California corporation, and Theodore Mann, a California resident and an officer of Mann Theatres; and Northwest Cinema Theatre, a Delaware corporation, and Melvin Lebewitz, a Minnesota resident and an officer of Northwest Cinema.
7. The evidence indicates that the theatres operated during the relevant time period in the Omaha-Council Bluffs market area by defendants Cooper Theatres, AMC, J.S.B., Mann Theatres, and Northwest Cinema were part of a chain or circuit of movie theatres operating outside of the market area.
8. As shown in the following table, exhibitor-defendants, at some time during the relevant period, operated 15 theatres in the Omaha-Council Bluffs area. Of these 15 theatres, five are multiscreen theatres, bringing the total number of screens operated by the exhibitor-defendants to 28. However, because of the opening, closing, and selling of several of these theatres, the 28 screens were never being operated by the defendants at one time during the relevant time period.
9. The exhibitor-defendants operated these following theatres in the market area during the relevant time period:
DATES OF OPERATING
TOTAL SEATING BY DEFENDANTS DURING
NO. OF OR CAR (C) RELEVANT TIME
OWNER & THEATRE TYPE SCREENS CAPACITY PERIOD
Douglas:
Capri Drive-In 1 750C 3/15/70 - 9/20/72
Carter Lake, Iowa
Cinema II Indoor 1 550 3/15/70 - 3/15/74
2828 So. 82nd Av.
Omaha, Nebraska
Cinema Center Indoor 1 812 3/15/70 - 3/15/74
2828 So. 82nd Av.
84th & Center Drive-In 1 820C 3/15/70 - 3/15/74
Omaha, Nebraska
Q-Twin Drive-In 2 700C 3/15/70 - 3/15/74
3433 No. 90th St.
Omaha, Nebraska
Maplewood Twin Indoor 2 No.1: 350 10/31/73 - 3/15/74
3433 No. 90th St. No.2: 350
Omaha, Nebraska
Q-Cinema 4 Indoor 4 No.1: 400 6/28/72 - 3/15/74
5909 South 120th No.2: 300
Omaha, Nebraska No.3: 300
No.4: 400
*1276
DATES OF OPERATING
TOTAL SEATING BY DEFENDANTS DURING
NO. OF OR CAR (C) RELEVANT TIME
OWNER & THEATRE TYPE SCREENS CAPACITY PERIOD
Cooper:
Cooper 70 Indoor 1 687 3/15/70 - 3/15/74
1410 Douglas
Omaha, Nebraska
Dundee Indoor 1 475 3/15/70 - 3/12/74
4952 Dodge
Omaha, Nebraska
Indian Hills Indoor 1 804 3/15/70 - 3/15/74
8601 W.Dodge Rd.
Omaha, Nebraska
AMC:
Six-West Indoor 6 No.1: 290 3/15/70 - 3/15/74
245 Boston Mall No.2: 319
Westroads Shopping Ctr. No.3: 280
Omaha, Nebraska No.4: 259
No.5: 259
No.6: 210
J.S.B.:
Astro Theatre Indoor 1 1454 12/13/72 - 3/15/74
2001 Farnam
Omaha, Nebraska
Mann:
Fox Westroads Indoor 1 756 6/30/73 - 3/15/74
264 Boston Mall
Westroads Shopping Ctr.
Omaha, Nebraska
Strand Indoor 1 (?) 6/30-73 - 1/1/74
6th & Broadway
Council Bluffs, Iowa
Northwest:
Park 4 Indoor 4 No.1: 291 7/7/72 - 3/15/74
8558 Park Drive No.2: 238
Ralston, Nebraska No.3: 238
No.4: 296
10. In addition to those theatres owned by the exhibitor-defendants at some time during the period between March 15, 1970 and March 15, 1974, other theatres were operating in the Omaha-Council Bluffs market area. These additional theatres included the Council Bluffs, Golden Spike, and the 76th and West Dodge drive-in theatres, and the Beacon, Bellevue, Center, Crest, Military, Muse, Omaha, Orpheum, Papio, Pussycat and Cinema 16 indoor movie theatres. Together with the predominantly sub-run Strand Theatre in Council Bluffs, these theatres, with the exception of the Orpheum Theatre, were not significant factors in the distribution of quality first-run film in the Omaha-Council Bluffs market during the relevant time period.
11. The distributor-defendants conduct national operations and, at all times relevant to this lawsuit, were in the business of distributing copyrighted first-run motion picture films to exhibitors in the Omaha-Council Bluffs market area. The distributor-defendants *1277 include seven different corporations: Allied Artists Pictures Corporation, a Delaware corporation with its principal place of business in New York, New York; Avco Embassy Pictures Corporation, a New York corporation with its principal place of business in New York, New York; Columbia Pictures Industries, Inc., a Delaware corporation with its principal place of business in New York, New York; Paramount Pictures, a Delaware corporation with its principal place of business in New York, New York; Twentieth Century-Fox Film Corporation, a Delaware corporation with its principal place of business in Beverly Hills, California; Universal Film Exchanges, Inc., a Delaware corporation with its principal place of business in New York, New York; and Warner Bros. Distributing Co., a New York corporation with its principal place of business in Burbank, California.
12. Not all film distributors distributing first-run motion pictures in the Omaha-Council Bluffs market area during the relevant period are defendants in this lawsuit. Non-defendant distributors include United Artists, American International Pictures, Buena Vista (Walt Disney productions), MGM, and other smaller independent motion picture distributors.
13. In distributing motion pictures to exhibitors, distributors do not sell them. Rather, the rights to exhibit motion pictures are acquired by exhibitors under license agreements from the distributors covering specified and limited terms of exhibition in return for which the exhibitors pay license fees or "film rental." The objective of the distributor is to obtain the greatest percentage of film rental it can from the first exhibition of a picture, as first-run gross receipts are the highest.
14. While the method for licensing pictures is the independent and individual choice of the distributor, distributor-defendants licensed first-run pictures in Omaha on a system of competitive bidding and negotiation. Under this system bid invitations were sent at the same time to Omaha exhibitors from the branch office of the distributors Avco Embassy (Minneapolis), Allied Artists (Kansas City), Columbia (Des Moines), Paramount (Des Moines), Twentieth Century-Fox (Des Moines), Universal (Des Moines), and Warner Bros. (Des Moines). These bid invitations set forth the availability date of the picture, and oftentimes also contained minimum terms as to film rental (as a percentage of the gross receipts), opening dates, minimum play time, holdover terms, sharing of advertising expenses, and film rental guarantees or advances. Sometimes the invitations also indicated whether the picture was being offered for exclusive or multiple (day and date) exhibitions, or whether the exhibitor could submit offers for either exclusive or multiple runs, or both. Bid invitations further specified date and time within which bids had to be received by the distributor's branch office in order to receive consideration.
15. Exhibitors responded to bid invitations by submitting written offers of terms or by written or oral notification that they were not submitting a bid but would be willing to negotiate if no bids were accepted. All such bids received were opened on the date due and forwarded by the branch manager to the regional or home office for evaluation. Frequently, the branch managers would also forward a recommendation.
16. A final decision on the bids was made at the regional or home office and the branch manager received instructions either to notify the exhibitors that the picture had been awarded on bid or that all bids had been rejected. Bid invitation letters or forms reserved to the distributor the right to reject all bids and license the picture by direct negotiation.
17. If all bids were rejected, the branch managers were instructed either to rebid the picture or to enter into negotiations to secure the best licensing agreement possible. When the picture was to be negotiated, the branch managers notified exhibitors of their intent to negotiate the license of a picture. Some distributors notified only exhibitors who responded in writing to the bid invitation; others notified all exhibitors to whom bid invitations were sent. In the former situation, where only one bid was submitted, the negotiation might be "noncompetitive"; whereas in the latter situation, *1278 the negotiation would be "competitive."
18. Negotiations were generally conducted orally over the telephone, but frequently the terms were confirmed in writing by the exhibitor by letter or telegram. Offers received on negotiations were also subject to approval by the regional or home office.
19. Final acceptance of an offer by either bid or negotiation was followed by a written license agreement. Although advertising terms were included in these agreements, separate advertising agreements, for determining the distributors' contribution to the expense for advertising the picture, were often entered into. The licensing agreement between the distributor and exhibitor did clearly specify the theatre and screen at which the picture would be shown, the opening date, the length of the engagement, the terms, if any, on which the exhibitor would hold over the picture after the initial term, whether the exhibitor had a right to an exclusive exhibition or whether it would play the picture simultaneously (day and date) with other theatres, the time, if any, which had to elapse after the end of the run before the picture would be available for a subsequent run ("clearance"), and most importantly, the method by which film rental would be computed and paid.
20. In most cases, film rental was determined by a percentage of the gross box office receipts. The method of dividing these receipts varied. One common formula, however, was to total gross receipts each week, deduct from that an agreed upon "house allowance" and divide the balance 90% to the distributor and 10% to the exhibitor. These contracts, which are generally called "90/10" contracts, also included percentage "floors" that usually decreased over the term of the contract. The floors set minimum percentages on weekly box office receipts which would be allocated to the distributor as film rental. Thus, a computation would be made by both the 90/10 method (after deducting the house allowance) and by the percentage "floor" (without regard to any house allowance deduction), and the distributor would receive the greater amount produced by either of these methods.
Another method of paying film rental was by contracts specifying a straight percentage division of gross receipts, which generally decreased each week over the run of a film. Still other contracts specified for the particular theatre a percentage division based on a "sliding scale," a table setting forth percentage divisions of gross receipts as film rental for corresponding ranges of grosses. A few contracts simply specified a flat dollar amount for film rental.
21. In some instances, the distributors requested in their bid invitations that exhibitors include a guarantee of film rental in a specified sum. A guarantee would be paid by the exhibitor regardless of whether or not the picture generated that amount in film rental under the contract terms. Guarantees were generally required to be paid in advance to exhibition, but are to be distinguished from "advances," which were specified amounts that some bid invitations also requested of exhibitors prior to exhibition of a film. Unlike the guarantee, the advance was merely applied against the film rental actually earned under the contract terms, and any portion of the advance not so applied was refundable to the exhibitor.
22. In the licensing of films to exhibitors, the distributors could control the terms of the final agreement and settlement. Not stating any dates by which award decision would be made, bid invitation letters or forms specifically reserved to the distributor the right to reject all bids, even bids that met the minimum suggested terms. The licensing agreement forms utilized by the distributors during the relevant time period to contract the exhibition of films in the Omaha-Council Bluffs market also contained certain penalty clauses or liquidated damage provisions that could be exercised by a distributor should an exhibitor fail to show the film for the period specified by the licensing agreement. On occasion, after the film had been licensed by competitive bidding or negotiation, distributors would request adjustment of contract terms from exhibitors or would grant such adjustments to exhibitors. The practice *1279 and frequency of granting adjustments varied among distributors, but were sometimes granted where gross receipts for a particular picture were unexpectedly low or where other circumstances involving the showing of a film by an individual exhibitor warranted such treatment.
23. The term "moveover" refers to the practice of taking a picture off the screen indicated in the licensing agreement and moving it to another screen or theatre for exhibition. During the relevant time period, some distributors permitted exhibitors to move over films in market area theatres as a continuation of the first run, a practice which permitted exhibitors to compensate for bidding errors of over- or underestimating patronage of a film by placing it in a correspondingly smaller or larger auditorium or theatre. Distributor-defendants Paramount, Universal, and Warner Bros. had company policies prohibiting moveovers by exhibitors.
24. In evaluating exhibitor offers, the distributor had to make a judgment as to which theatre offered the greatest revenue producing possibility. The distributors had to weigh not only the contract terms offered by an exhibitor, but also the "grossing potential" of the theatre offered; that is, the demonstrated ability of the theatre to attract patrons, which is largely a matter of physical quality and location.
25. Though playing some subrun motion pictures, plaintiffs and exhibitor-defendants were primarily interested in licensing first-run film. Quality first-run films were in short supply in the Omaha-Council Bluffs market area during the period from March 15, 1970 to March 15, 1974. Furthermore, the construction in the late 1960's and early 1970's of several theatres (including several with multiple screens) in the western sections of Omaha, to where there was a gradual population movement, substantially increased the number of screens competing for available first-run pictures. While all theatres experienced difficulty in obtaining product, this was particularly true of theatres in downtown Omaha. By the summer of 1974, the Astro, which was owned and operated by exhibitor-defendant J.S.B., and the plaintiff Admiral Theatre were the only viable first-run downtown theatres. Exhibitor-defendant Cooper Theatres had sold the Dundee in March of 1974 and closed the Cooper 70 in June of that year. Exhibitor ABC Midwest had also closed the Orpheum.
26. In response to the shortage of quality first-run film, which had created a sellers' market highly favorable to the distributors, a group of exhibitors entered into a split of product arrangement. The exhibitors under this arrangement split available first-run motion pictures from all the distributors, and they agreed not to bid or negotiate for a film split to another exhibitor, without that exhibitor's consent, in the hope of lowering the film rentals paid to distributors. Usually a film was split to only one exhibitor under this arrangement, though it was sometimes agreed that two split members could play the same film on a day and date basis. In a few instances, though a film had been split to only one exhibitor and despite their apparent arrangement not to bid against one another, more than one member of the split would submit a bid.
27. During the relevant time period there were two separate splitting arrangements: the first split operated during the period between March 15, 1970 and February 29, 1972, and the second split operated during the period between November 29, 1972 and March 15, 1974. There was no split of first-run films in the Omaha-Council Bluffs market area between February 29, 1972 and November 29, 1972. Hence, the two splitting arrangements, each of which was subject to changing membership, operated for a total of approximately thirty-nine months out of the forty-eight month period in question.
28. The members of the first exhibitor split included nondefendants ABC Midwest and National General and defendants AMC, Cooper Theatres, and J.S.B. Exhibitor-defendants J.S.B., however, did not enter the split until April 15, 1971. During the period from March 15, 1970 to February 29, 1972, these exhibitors would hold split meetings in which split members on a predetermined rotating basis would select films from a list of forthcoming motion pictures. After each participant had made his selection, he was *1280 free to attempt to license the selected films from the distributors through bidding or negotiation. A split member was under no obligation to bid or negotiate on those films he selected, nor did the fact that a film had been split to him mean that he would be able to license it from the distributor.
29. This first splitting arrangement came to an end when distributor-defendant AMC indicated that it would no longer participate. The other exhibitor members then determined that there were too many nonmember exhibitors in Omaha to make the arrangement effective. In explaining its withdrawal from the split, AMC's representative noted that exhibitor-defendant Douglas Theatres, which had withdrawn from the split prior to the relevant time period, had been securing too many films over split members.
30. After a nine-month period in which there was no exhibitor split in Omaha, a second splitting arrangement was organized. Initially, members of the new split included nondefendant National General and defendants AMC, Cooper Theatres, J.S.B., Douglas Theatres, and Northwest Cinema. On June 30, 1973, exhibitor-defendant Mann Theatres bought out National General in Omaha and apparently thereafter replaced National in the split. Although the membership and the rotation for selecting films changed, the basic purpose and workings of the second split were identical to those of the earlier split.
31. Prior to split meetings during the relevant period of time, a split member would attempt to secure from the distributors and other sources information regarding the release date, stars and MPAA rating of upcoming first-run motion pictures, and would prepare a list of available films from such information. On a few occasions, split members during their meeting would place phone calls to distributors' home offices to gain additional information. The distributors who provided such information were generally aware of the Omaha split. Results of the split meeting were sometimes communicated to a distributor by the exhibitor to whom that particular distributor's picture had been split.
32. With the exception of defendant Allied Artists, distributor-defendants knew of the Omaha split, though the extent and the time when such knowledge was acquired remains unclear. Defendants Paramount, Universal, and Warner Bros. do not deny knowledge of the split, but there is direct testimony and evidence that these distributor-defendants refused to either recognize or always abide by the results of the split.
33. Some distributor-defendants, knowing the results of the split, did on occasion contact the exhibitor to whom the film had been split and solicited his bid. On at least two occasions reflected in the record, a distributor-defendant likewise personally contacted plaintiffs to secure offers for first-run films.
34. For the purpose of suggesting that distributor-defendants had given exhibitor split members irregular and preferential treatment, Robert Blank, on the basis of documents produced by the defendants and subject to varying interpretations, offered his conclusions regarding a number of the licensing transactions involving first-run motion pictures during the period in the Omaha-Council Bluffs market area. Specifically, this testimony with respect to these transactions of particular films, transactions in which plaintiffs were not often involved, allegedly showed that split members were permitted by the distributor-defendants to engage in moveovers, shorten runs without penalties, have late bids accepted or considered, receive adjustments on terms competitively bid or negotiated after the due date, license films prior to the due date, and cancel films once licensed. This testimony, the introduction of which took several trial days, is not set forth here as to each of the transactions on a specific film in which preferential treatment purportedly occurred (e. g., run shortened on Promise At Dawn). The following table, however, attempts to summarize the testimony and exhibits introduced and total the number of instances in which such treatment allegedly occurred with respect to the bidding on specific films during the relevant time period. (Because testimony of more than one type of treatment as to a *1281 particular film was sometimes introduced, the horizontal tallies with respect to instances of irregular and preferential treatment may be greater than the number of film transactions introduced as to any one distributor-defendant.) (See table, page 1281.) Blank's expertise in interpreting defendants' documents was seriously challenged. Strong contrary evidence was also introduced: in some instances the mere occurrence of preferential treatment was challenged; and in most instances, reasons said to justify such treatment were offered.
35. Plaintiffs, though having knowledge of and not resisting their operation, did not participate in the splitting arrangements at any time during the period. There is conflicting evidence as to whether plaintiffs were asked to join the split. An AMC representative indicated that he had unsuccessfully asked Ralph Blank to join. But exhibitor-defendant Sarge Dubinsky testified plaintiffs were not asked to join, both because they were traditional "loners" and because, having sufficient first-run film, they did not ask to join.
NUMBER OF FILM RUNS FILM BIDS FILM FILM
FILM SHORTENED ACCEPTED OR AVAILABILITY LICENSED FILM
DISTRIBUTOR-DEFENDANT TRANSACTIONS FILM W/OUT ALTERED AFTER DATE MOVED PRIOR TO CONTRACT
IN EVIDENCE MOVEOVERS PENALTIES DUE DATE UP BID DUE DATE CANCELLED
Allied 0 0 0 0 0 0 0
Artists
Avco Embassy 5 3 2 1 0 0 0
Columbia 7 0 3 5 1 0 0
Paramount 15 0 3 9 0 1 2
Twentieth
Century-Fox 6 1 0 4 0 1 0
Universal 4 0 1 1 0 0 1
Warner Bros. 9 1 0 4 1 1 0
__________________________________________________________________________________________________
TOTAL 46 5 9 24 2 3 3
36. During the 1960's and until the latter part of 1970, Ralph Blank had an agreement with United Artists, a major distributor of motion pictures, to play United Artists pictures first-run in plaintiffs' three theatres (day and date among the three). United Artists did not license pictures in Omaha on a competitive bidding system and Ralph Blank was United Artists' outlet for first-run pictures in Omaha until the summer of 1970. (Sometime thereafter, defendant J.S.B. and the Astro Theatre became the United Artists outlet.) Prior to January of 1971, Avco Embassy also did not license by competitive bidding, and plaintiffs during the preceding year had been their exclusive first-run customers in Omaha. Furthermore, during 1970 and 1971, plaintiffs had an arrangement with AIP (American International Pictures) to play their product. This arrangement terminated when plaintiffs refused to pay increased rental rates.
37. Plaintiffs, through the uncorroborated testimony of Robert Blank, assert that the Admiral, Chief and Skyview Drive-In theatres were only successful in licensing the lower quality first-run films during the period between March 15, 1970 and March 15, 1974. The Admiral Theatre did license and play "Fiddler on the Roof" (March 15, 1972 through February 27, 1973), "Man From LaMancha" (March 28, 1973 through May 1, 1973), and "Last Tango in Paris" (June 20, 1973 through September 11, 1973). While further testimony showed the Skyview Drive-In to be capable of large grosses, the drive-in theatre business is generally seasonal in nature and is particularly keyed to exploitation films.
38. Whenever first-run film was being released in the Omaha-Council Bluffs market *1282 area, distributor-defendants sent bid notices to plaintiffs. Plaintiffs also received screening notices, though the Blanks, as other exhibitors in the area, had to travel to Lincoln, Nebraska or Des Moines, Iowa to attend such screenings. Exhibitor-defendants Douglas Theatres, Cooper Theatres, and J.S.B., which controlled a majority of the first-run screens in Omaha, had their offices in Lincoln.
39. There is no evidence that plaintiffs attempted to and were not permitted to engage in moveovers, shorten runs without penalties, submit late bids, receive adjustments on pictures licensed by competitive bid or negotiation, or have availability dates moved up.
40. Based upon exhibits introduced into evidence, conflicting and inconclusive testimony was offered regarding plaintiffs' claim that on many occasions throughout the period distributor-defendants rejected their bids or offers in favor of lesser bids or offers from exhibitor-defendants. Plaintiffs, with respect to four films in particular ("The Conversation," "The Exorcist," "Cromwell," and "Camelot"), offered extensive evidence in an attempt to show that their bids or offers were clearly superior and yet still rejected. Furthermore, though unsubstantiated, Robert Blank testified that while plaintiffs responded with over a hundred "no bid, will negotiate" communications during the relevant period, they were seldom contacted by the distributor-defendants to negotiate.
41. During the relevant time period, plaintiffs and officials of Twentieth Century-Fox at one time quarreled over the amount of film rental that was owing on pictures that had played at plaintiffs' theatres. A lawsuit resolved the dispute in favor of the plaintiffs.
42. Plaintiffs, throughout the period in question, submitted formal written bids on 12 pictures, submitting their first such bid during the relevant period for the "New Centurions" in July of 1972.
Distributor-Defendant Picture Accepted
Allied Artists None
Avco Embassy None
Columbia New Centurions No
Paramount Bang The Drum Slowly Yes
Fox Butch Cassidy No
Universal None
Warner Bros. Camelot No
Jeremiah Johnson No
Deliverance No
Cancel My Reservation No
Exorcist No
Magnum Force No
Deadly Trackers Yes
Mame No
McQ Yes
43. The evidence and plaintiffs pretrial contentions show that plaintiffs, during the period between March 15, 1970 and March 15, 1974, made some type of offer of specific terms for the following first-run pictures and with the results indicated.
Distributor-Defendant Picture Accepted
Avco Ski Bum Yes
People Next Door Yes
CC & Company Yes
Nice Girl Yes
Swimming Pool Yes
Rider on the Rain Yes
Soldier Blue Yes
*1283
Distributor-Defendant Picture Accepted
Avco Sporting Club No
Macho Callahan Yes
Jory Yes
Hercules Combination Yes
All the Way Boys Yes
Thumb Tripping Yes
Promise At Dawn No
Zulu No
House Is Not A Home No
Day of the Dolphin No
17 offers, 12 accepted, success rate 71%
Columbia New Centurions No
Cromwell No
10 Rillington Place No
Last Rebel No
Owl & Pussycat Yes
Never Sang For My Father Yes
Lady in The Car Yes
Pursuit of Happiness Yes
Man Called Sledge Yes
Brother John Yes
Brotherhood of Satan/
Fragment of Fear Yes
Horsemen Yes
Creatures The World
Forgot Yes
13 offers, 9 accepted, success rate 69%
Paramount Bang The Drum Slowly Yes
Conversation No
Unman Wittering Zigo No
Red Tent No
4 offers, 1 accepted, sucess rate 25%
Twentieth Century-Fox Vanishing Point Yes
Celebration At Big Sur Yes
Escape From Planet of
the Apes Yes
3 offers, 3 accepted, success rate 100%
Universal Company of Killers Yes
Guns of A Stranger Yes
Sugarland Express No
3 offers, 2 accepted, success rate 67%
Warner Bros. Jeremiah Johnson No
Deliverance No
Cancel My Reservation No
Exorcist No
Magnum Force No
Deadly Trackers Yes
McQ Yes
Mame No
Camelot No
*1284
Distributor-Defendant Picture Accepted
Warner Bros. Enter the Dragon Yes
Sacred Knives of Vengeance Yes
Badlands No
12 offers, 4 accepted, success rate 33%
In sum, plaintiffs' testimony indicated that their theatres made specific offers on 52 pictures released during the period by all distributor-defendants and were licensed 31, or approximately 60% of these. There may be some slight discrepancies in the tabulations, but plaintiffs did not deny that their success rate was near 60%.
44. Of those first-run films upon which they assertedly submitted offers of specific terms that were rejected, plaintiffs, through the testimony of Robert Blank, have presented evidence of irregular conduct which may have affected consideration of their offer on five of those films "The Red Tent," "The Last Rebel," "The Exorcist," "Camelot," and "Butch Cassidy."
45. With respect to those first-run films upon which plaintiffs introduced evidence of specific offers of terms, the evidence further showed that nineteen of those films had been split by exhibitor-defendants. The results of these confrontations are summarized in the following table.
Exhibitor
Split to: Film Distributor Licensed to:
Cooper Red Tent Paramount Cooper
New Centurions Columbia Douglas
Drive He Said Columbia Cooper
Mame Warner Bros. Cooper
Soldier Blue Avco Plaintiffs
Sporting Club Avco Plaintiffs
Mann Exorcist Warner Bros. Mann
Douglas Magnum Warner Bros. Douglas
McQ Warner Bros. Plaintiffs
Bang the Drum Slowly Paramount Plaintiffs
Conversation Paramount Douglas
Sugarland Express Universal Douglas
AMC Hercules Combination Avco Plaintiffs
Day of the Dolphin Avco AMC
Escape from Planet of Twentieth
the Apes Century-Fox Plaintiffs
Deadly Trackers Warner Bros. Plaintiffs
Owl & The Pussycat Columbia Plaintiffs
Paul & Michelle Paramount Plaintiffs & AMC
JSB Trinity Is Still My
Name Avco Northwest
Thus, of the nineteen pictures allocated by the split, nine were licensed to plaintiffs (including one day and date with the split member), nine were licensed to the split members to whom they were allocated (including one which played day and date with plaintiffs), and two were licensed to a split member other than the one to whom it was allocated.
46. Plaintiffs' expert, Dr. Felton, testified that the defendants' activities during the period from March 15, 1970 to March 15, 1974 caused damages of $151,085 to the Admiral Theatre. This figure was derived by a "comparable theatre" theory of damages, with the theatre comparable to the Admiral being a hypothetical theatre constructed by averaging the Astro and Dundee theatres.
47. No damage evidence was admitted with respect to the Chief Theatre and the Skyview Drive-In Theatre.
III.
DIRECTED VERDICT STANDARDS
Plaintiffs find in the foregoing facts evidence that exhibitor-defendants, by the split of product agreements, engaged in a conspiracy, the object of which was to deprive *1285 plaintiff theatres of quality first-run films and the result of which was substantial damages to the Admiral, Chief, and Skyview theatres. Distributor-defendants, plaintiffs further infer and find from these facts, knew of and joined in the implementation of that conspiracy by engaging in such practices as providing the split with advance release information not available to plaintiffs, rejecting plaintiffs' bids for inferior split member bids, and affording split members irregular and preferential treatment in the bidding and licensing of first-run films in the Omaha-Council Bluffs market area. Defendants, however, dispute plaintiffs' reading of the facts. In moving for directed verdicts, defendants submit to the Court that this evidence regarding the split and the alleged "irregularities" in the bidding and licensing of films is even legally insufficient pursuant to Section 1 of the Sherman Act to warrant submission of the case to the jury.
To establish their claims pursuant to Section 1 of the Sherman Act, plaintiffs, by a preponderance of the evidence, must prove three essential elements:
(1) That there was an agreement, conspiracy, or combination among the defendants in restraint of trade;
(2) That as a direct and proximate result thereof plaintiffs have been injured in their business and property; and
(3) That the damages which the plaintiffs sustained are capable of reasonable ascertainment and are not speculative or conjectural.
See Zenith Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969); Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652 (1946). Both distributor-defendants and exhibitor-defendants contend that plaintiffs' evidence is incompetent and insufficient as a matter of law to establish any of the preceding three elements. Such a contention, however, has to be measured not only against the antitrust laws, but must also be considered in the context of case law pertaining to directed verdicts.
In the Eighth Circuit, the standard to be applied in considering a motion for directed verdict is essentially the same as the standard for entering judgment notwithstanding the verdict; the question is whether there is sufficient evidence to support a jury verdict against the non-moving party. Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir. 1968).
In passing upon the defendants' motion for a directed verdict the district court [is] required to view the evidence in the light most favorable to the plaintiff, to give the plaintiff the benefit of all inferences in his favor reasonably to be drawn from the evidence, and to deny the motion unless the evidence was so one-sided as to leave no room for any reasonable difference of opinion as to how the case should be decided factually. Kennedy v. United States Construction Co., 545 F.2d 81, 82 (8th Cir. 1976).
While the burden upon the defendant distributors and exhibitors is considerable, this Court must nevertheless sustain the pending motions as a matter of law if, without weighing the credibility of the witnesses, it concludes that plaintiffs have offered no substantial evidence which would sustain a favorable jury verdict. Banks v. Keohring Co., 538 F.2d 176 (8th Cir. 1970); United States v. Strebler, 313 F.2d 402 (8th Cir. 1963); Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101 (5th Cir. 1954).
IV.
PROOF OF ANTITRUST VIOLATIONS
As is often true in a case of this type, plaintiffs, particularly with respect to distributor-defendants, have indirectly attempted to prove their conspiracy allegations by inferences drawn from defendants' conduct, rather than by direct proof of conspiratorial activities, joint agreements, or group decisions. Because it is difficult to prove the existence of an illegal scheme, which is the gravamen of an action under Section 1 of the Sherman Act, the law clearly does permit plaintiffs to rely upon all inferences that may be reasonably drawn from the defendants' course of conduct in light of the surrounding circumstance. American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946). Plaintiffs, in presenting *1286 their evidence against the distributors, have relied heavily upon two related forms of inferential proof. First, they attempted to prove that distributors' actions were taken against their own self-interest, which absent a valid explanation is inconsistent with decisions independently made and indicative of joint action. Bergjans Farm Dairy Co. v. Sanitary Milk Producers, 241 F. Supp. 476 (E.D.Mo.1965), aff'd, 368 F.2d 679 (8th Cir. 1966). Secondly, plaintiffs tried to create a jury issue as to the existence of a conspiracy between and among all defendants by evidence showing that distributor-defendants followed similar exclusionary business practices "conscious parallelism." Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc., 394 U.S 700, 89 S. Ct. 1391, 22 L. Ed. 2d 658 (1969), rev'g per curiam 404 F.2d 1008 (4th Cir. 1968).
There are, nevertheless, limitations upon proving conspiracy indirectly by means of inferences drawn from the circumstances surrounding defendants' conduct. The facts of those circumstances cannot themselves be based upon inference.
Before considering the nature of the circumstances relied upon it is well to have in mind the rule of law relative to the probative force of such evidence. Even in a conspiracy case, which is ordinarily not susceptible of proof by direct evidence, facts and circumstances to sustain a verdict must be such as legitimately tend to sustain an inference. Inferences must be based upon proven facts or fact of which judicial notice must be taken and one inference cannot be based upon another inference. To sustain a finding of fact the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion. Wesson v. United States, 172 F.2d 931, 933 (8th Cir. 1949).
See also Brown v. Maryland Casualty Co., 55 F.2d 159 (8th Cir. 1932). Furthermore, the bare fact that defendant-distributors may have taken action against their apparent self-interest does not necessarily point to conspiratorial motivation.
The Sherman Act's prohibition of `every contract, combination, or conspiracy' in restraint of trade does not forbid a supplier from independently deciding to refuse to do business with another, no matter how harmful that decision may be to the latter. Section 1 `does not prohibit independent business actions and decisions. A person still has the right to refuse to do business with another, provided he acts independently, and not pursuant to an unlawful understanding, tacit or expressed.' Michelman v. Clark-Schwebel Fiberglass Corp., 534 F.2d 1036, 1042 (2d Cir. 1976).
See also Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17 (9th Cir. 1971). Even parallelism among the practices of distributor-defendants would not necessarily raise the inference of conspiracy where such practices were also expedient responses to business considerations. To reach the jury, plaintiffs must present sufficient evidence in addition to mere parallel conduct to warrant an inference that defendants have consciously and mutually reached an accord and are not merely individually reacting in a like fashion to business forces. Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285, 299 (3rd Cir. 1963).
The crucial question is whether [defendants'] conduct toward [plaintiffs] stemmed from independent decision or from an agreement, tacit or express. To be sure, business behavior is admissible circumstantial evidence from which the fact finder may infer agreement. . . But this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offense. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional attitude toward conspiracy; but "conscious parallelism" has not yet read conspiracy out of the Sherman Act entirely.
Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540-541, 74 S. Ct. 257, 259, 98 L. Ed. 273 (1954).
Therefore, while plaintiffs may rely upon inferences drawn from circumstantial *1287 evidence in proving their charges of conspiracy, the facts and circumstances underlying those inferences "must attain the dignity of substantial evidence and not be such as merely to create a suspicion." Johnson v. J. H. Yost Lumber Co., 117 F.2d 53, 61 (8th Cir. 1941). In the situation of a directed verdict motion, the situation presently confronting this Court, the Eighth Circuit has stated the following rule with regard to the utilization of circumstantial evidence and inferences in proving up a case.
The old notion that a jury should not be allowed to draw any inference from circumstantial evidence, if the one is probable as the other, has fallen into discard and has been replaced by the more sensible rule that it is the province of the jury to resolve conflicting inferences from circumstantial evidence. Permissible inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.
Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195, 1202-03, n. 8 (8th Cir. 1969).
V.
CONSPIRACY IN RESTRAINT OF TRADE
Plaintiffs, presuming their ability to prove the presence of a "combination" or "conspiracy" under Section 1 of the Sherman Act, must further offer at least circumstantial evidence that defendant distributors and exhibitors knowingly participated in the split of product and alleged attendant sham bidding practices with the intent to deprive plaintiffs of their "fair share" of quality first-run film. Flintkote Co. v. Lysfjord, 9 Cir., 246 F.2d 368, cert. denied, 355 U.S. 835, 78 S. Ct. 54, 2 L. Ed. 2d 46 (1957). As to this membership in the alleged conspiracy, the evidence with respect to each individual defendant must be separately considered. The actions or statements of other defendants are of no consequence until the existence of a conspiracy is independently established and membership proven. American Tobacco, supra; United States v. Scholle, 553 F.2d 1109, 1117 (8th Cir. 1977); United States v. Wixom, 529 F.2d 217, 220 (8th Cir. 1976).
A. DISTRIBUTOR-DEFENDANTS
Assuming that the exhibitor split of product, the existence of which is not in dispute, does constitute an illegal combination or conspiracy pursuant to Section 1 of the Sherman Act, the question as to distributor-defendants then becomes one of knowledge, intent, and participation. Plaintiffs' evidence of distributor-defendants' knowledge of the Omaha exhibitor split is not strong. The extent of and time when such knowledge was gained is uncertain, and, as plaintiffs' evidence reflected, direct proof of Allied Artists' knowledge is totally absent. Nevertheless, viewing the record in a light most favorable to plaintiffs, the evidence pertaining to knowledge, with the exception of Allied Artists, is sufficient to overcome directed verdict motions. Evidence as to the knowledge of Allied Artists and the intent of all distributor-defendants could conceivably be inferred from those activities allegedly evidencing participation. The law is clear that one is held to have intended the probable consequences of his acts. William Goldman Theatres v. Loew's, Inc., 150 F.2d 738, 743 (3rd Cir. 1945), cert. denied, 334 U.S. 811, 68 S. Ct. 1016, 92 L. Ed. 1742 (1948).
Critical, therefore, to plaintiffs' case against the distributor-defendants is evidence of their participation in implementing or promoting the split of first-run film in the Omaha-Council Bluffs market area. Plaintiffs have offered four general types of evidence to prove the participation of distributor-defendants: (1) the provision of advance information to exhibitor split members; (2) the rejection of plaintiffs' bids and offers, even when superior to those of split members; (3) the irregular and preferential treatment accorded to split members in the form of moveovers, shortened runs, acceptance of late bids, adjustments of bids and film rental, advance licensing, and cancellation of licensed films; and (4) the acquiescence of distributor-defendants to the splitting of their product. Having previously reviewed this evidence, the Court proceeds *1288 to determine the legal sufficiency of that evidence with regards to proof of distributor participation.
1. Advance Information
Plaintiffs have insisted throughout the trial of this lawsuit that distributor-defendants, during the period between March 15, 1970 and March 15, 1974, provided exhibitor-defendants with advance film information that was not unavailable to the Blanks. In surveying plaintiffs' evidence, the Court did note testimony indicating that defendants Avco Embassy, Columbia, and Universal did supply such information to the split members upon request. It is further apparent, though the source remains unknown, that the exhibitor-defendants had release information regarding the other distributor-defendants' films. Defendant Sarge Dubinsky further testified that phone calls were placed to "distributors" during split meetings so that additional information might be gained. Advance screening too was made available to split members in Lincoln, where defendants Douglas Theatres, Cooper Theatres, and J.S.B. had their corporate offices.
Even assuming that this advance information was unavailable to plaintiffs through the various trade journals, it is clear that plaintiffs neither requested nor were designedly refused the information that their competitors had acquired. Further conceding to plaintiffs that the provision of this information by three distributor-defendants raises an inference that all distributor-defendants so provided information, a thin inference at best, this similarity in behavior does not distinguish them from nondefendant distributors. Nondefendant AIP also provided information, and the information as to nondefendant films was sufficient to permit splitting of their product. That any distributor would provide information is not particularly surprising. Communication between exhibitors and distributors, by telephone or otherwise, is a part of the movie industry, and it is not at all inconsistent with their self-interest that distributors would want to provide information to drum up business and rentals for forthcoming films. Nor were the Lincoln screenings inconsistent with self-interest: distributors incurred costs to screen their films where those exhibitors owning the majority of Omaha screens could be found.
The Court is uncertain what plaintiffs view to be the upshot of this supposed favoritism. Arguably advance release information gave split members an advantage in more intelligibly entering into the bidding process. However more knowledgeable they may have been, the evidence does not indicate that their success in licensing first-run films was any better than that of the plaintiffs.
2. Plaintiffs' Bids
An examination of those first-run films upon which plaintiff theatres made a specific offer of terms belies their claim that distributor-defendants participated in the implementation or promotion of the Omaha split. As indicated in a preceding table, plaintiffs licensed approximately 60 percent of those films upon which they submitted offers of specific terms to distributor-defendants. Their least success was with Paramount and Warner Bros., where their success rate during the period was 25 percent and 33 percent, respectively. When it is recalled that there were nearly thirty screens in the Omaha-Council Bluffs market bidding for first-run film, even these percentages could not be considered excessively low.
Plaintiffs have countered, through the assertions of Robert Blank, that their theatres were notably unsuccessful in their bids for high grossing first-run motion pictures. With respect to those pictures, plaintiffs claim, their bids were ignored by defendant-distributors, even when equal or superior to those of the exhibitor-defendants. But, again as indicated in a preceding table, the evidence shows plaintiffs to have had no moderate success when bidding against the split. Of nineteen films upon which plaintiffs made specific offers of terms and which were allocated to the split, nine were licensed to the plaintiffs. There can be no reasonable inference from such figures that plaintiffs' specific term bids were ignored.
*1289 The record is long and involved as to plaintiffs' argument that their bids or offers on better quality film were unjustifiably rejected in favor of those from split members. The Court does not herein undertake the prodigious task of considering each of plaintiffs' claims. It does, however, briefly review in an exemplary fashion those four films upon which plaintiffs believe their suggested terms to have been unquestionably superior. Those films include "The Conversation," "The Exorcist," "Cromwell," and "Camelot."
The Court, notwithstanding its dutiful construction of the evidence in favor of the plaintiffs, has difficulty in determining the relevance of their claim of unjustified rejection with respect to "The Conversation." Blank's initial offer was rejected. But distributor-defendant Paramount then offered the film on a rebid, a transaction entirely separate from the first. During this rebid of the film, plaintiffs submitted neither a bid nor an offer.
Plaintiffs have argued at length that their bid on "The Exorcist," one of the three top grossing films of all time, was superior to that of defendant Mann Theatres, to whom the film was ultimately licensed. The decision to accept the bid of Mann Theatres for their Fox Westroads screen was made by Leo Greenfield, president of Warner Bros., with the concurrence of his district and regional managers. Greenfield testified that this decision was made upon his judgment that the Mann bid was "clearly superior to any other submitted." Mann's bid was seen as being superior to plaintiff Admiral's bid in that Mann bid the same $75,000 guarantee but with a fifteen as opposed to a twenty week minimum playing time. This was viewed as more desirable since in effect defendant Mann was guaranteeing that it could earn $75,000 for Warner Bros. in a month's less time than the plaintiff. Plaintiff, unlike Mann, did provide a "no pass" provision in its original offer, though the final contract executed by Mann Theatres also contained such a provision. Evidence also showed that the producers of the film forced Warner Bros. to move up the availability date to a time when if the Admiral's bid had been accepted, plaintiff Admiral would have had to cancel another Warner Bros. picture ("McQ") which was booked for that time period. Furthermore, Greenfield believed the Fox Westroads' location was better than that of the Admiral.
The record reveals that plaintiffs submitted a negotiated offer for "Cromwell." It was, however, awarded on negotiation to the National General for the Fox Westroads Theatre. Again the evidence shows that plaintiffs could not have played "Cromwell" on the release date without having cancelled another picture belonging to that particular distributor. Plaintiff Admiral Theatre had been previously awarded on competitive negotiation "Owl and The Pussycat," a major first-run motion picture.
Defendant-distributor Warner Bros. rejected plaintiffs' bid in favor of Cooper Theatres' on "Camelot," a film which the evidence shows was not even split to Cooper. The picture was licensed for the Indian Hills, which Robert Blank concedes was perhaps the finest theatre in the Omaha-Council Bluffs area. With regard to this bid, as all the preceding bids, Blank's opinion that plaintiffs' bid was superior is premised largely on the fact that the Admiral's seating capacity was slightly larger than the theatre to which the picture was licensed. Besides ignoring such other important factors in grossing potential as location, an opinion based upon seating capacity assumes that the Admiral would have attracted more patrons than the smaller theatres where the pictures played. The record is void of any such evidence. In fact, the facts in evidence run counter to Blank's opinion. As previously indicated, six Omaha theatres with 700 or more seats were closed during the relevant time period. Among these theatres were two split members, including the Orpheum the largest theatre in Omaha. Those theatres built since 1970 have generally been multi-screen theatres with the smaller individual auditoriums.
Plaintiffs' evidence as to first-run films upon which they offered specific terms, even their strongest evidence, fails to suggest distributor-defendants' participation *1290 in the implementation or promotion of the Omaha split. No proof of action contrary to self-interest has been offered. Even if, when construing the evidence in a light most favorable to plaintiffs, there should remain individual instances of discrimination, such proof would be legally unavailing in establishing a pattern of conspiratorial activity. This evidence would merely suggest that the distributor, in exercising its judgment as to which offer was better, had made a mistake. Courts, confronting the same directed verdict motions herein pending, have recognized that mistakes can be made in the competitive licensing of films, and that comparing bids in this context is made difficult because the variety of factors entering into a distributor's licensing decision are necessarily judged with a hindsight knowledge of a film's grossing potential. Viking, 320 F.2d at 296; Brown v. Western Massachusetts Theatres, Inc., 288 F.2d 302, 304 (1st Cir. 1961). Hence, when there is no evidence that a distributor in choosing between offers did anything but exercise his own business judgment, the fact that the unsuccessful offer in retrospect may appear to have been better does not by itself indicate that the distributor acted improperly. A.L.B. Theatre Corp. v. Loew's Inc., 355 F.2d 495, 501 (7th Cir. 1966).
3. Bidding Irregularities and Preferential Treatment
Plaintiffs introduced the evidence of alleged irregularities and preferential treatment in the licensing of first-run films for the purpose of inferentially arguing that distributor-defendants participated in a scheme to exclude plaintiffs from the market. These alleged irregularities and instances of preferential treatment were introduced solely through the opinion testimony of Robert Blank, whose conclusions were based upon his examination of documents produced during discovery by the defendants. When offered, this Court permitted such opinion testimony to come in under a ruling that it was being admitted both "temporarily" and "preliminarily." The Court recognized then and recognizes now that this particular testimony raises serious foundational problems. In the first instance, the documents upon which Blank based his opinion had themselves been only "temporarily" admitted into evidence and were not without serious foundational infirmities. See N.L.R.B. v. Sharples Chemical, 209 F.2d 645 (6th Cir. 1954); Standard Oil Co. v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S. Ct. 1139, 2 L. Ed. 2d 1148 (1958); Fed.R.Evid. 803(6). Blank's opinion testimony, moreover, is based upon inferences drawn from his interpretation of the documents, and it is upon this testimony that distributor-defendants' participation in an illegal scheme is inferred. Such testimony is in clear disregard for the rule against pyramiding inferences, which has heretofore been discussed. See Twin City Plaza, supra. Finally, although claiming that the "irregular" conduct of distributor-defendants deviated from accepted practice or standards of the industry, plaintiffs have failed to offer any evidence other than Blank's opinion testimony as to the nature of those practices and standards.
The Court certainly does not believe that it would be error to strike that portion of Blank's testimony regarding the alleged moveovers, shortened runs, altered bids, advanced licensing, and cancelled contracts. However, such a ruling is unnecessary. The Court, as set forth in the preceding table, has fully considered this evidence in a light most favorable to plaintiffs (defendants' denial and defenses were ignored) and finds it completely lacking with respect to proving distributor-defendants' participation in the alleged conspiracy. Plaintiffs introduced evidence on only 46 of the some 400 first-run films released during the relevant period, and their proof of the purported irregularities and instances of preferential treatment, even when considered collectively as to all distributor-defendants, borders on the de minimis.
Supposing, for the sake of giving plaintiffs the full benefit of their argument, that there were a sufficient number of irregularities and instances of preferential treatment with which to be concerned, serious problems remain as to what these occurrences would in fact demonstrate. *1291 Plaintiffs' evidence indicates that consideration of only five of their specific term offers for film could have been affected by such occurrences. Even then it must be remembered that competitive bidding and negotiation in the motion picture industry is not required by any rule of law. United States v. Paramount Pictures, Inc., 334 U.S. 131, 161-166, 68 S. Ct. 915, 92 L. Ed. 1260 (1948). Distributors, as herein earlier noted, are in a position to control the licensing transactions and are free to impose or forego the penalty clauses of their own contracts. Hence, if parallel conduct could be shown as to shortened runs or moveovers between auditoriums of multi-screen theatres, a practice of which single-screen theatre owners as plaintiffs and several exhibitor-defendants are incapable, this without more would not point to conspiratorial conduct. Brown, supra, at 304. Such conduct would be entirely within the distributors' business interests. Moveovers, as shortened runs, are generally utilized by exhibitors to accommodate the revenue flow, and an exhibitor's business interests in these situations are usually not contrary to those of the distributor. Also, it should be recalled that alterations of bid or license terms, as the evidence has revealed, are often initiated at the distributor's request and are made for his benefit. The acceptance too of a late superior bid, as opposed to a timely inferior bid, certainly is not damaging to a distributor's economic betterment.
Plaintiffs claim that the common factor which inheres in distributor-defendants' conduct and points to conspiratorial participation is that plaintiff theatres have not been permitted the irregularities and preferential treatment afforded split members and cannot, therefore, submit high bids with the expectation that those bids might subsequently be altered if not fulfilled. Fatal, however, to plaintiffs' claim is the absence of demand. The law of this Circuit is clear that where charges of irregular or preferential treatment are made, there can be no conclusion drawn unless plaintiffs requested and were denied similar treatment.
`In order for plaintiffs to recover for defendants' denial of runs and clearances to them, plaintiffs must show that they requested defendants to grant them such runs and clearances.' Vilastor Kent Theatre Corp. v. Brandt, D.C.S.D.N.Y., 1955, 18 F.R.D. 199, 200. `In the absence of such demand upon the part of [the] plaintiffs, the courts have consistently held there can be no recovery in an antitrust action.' Lawlor v. National Screen Service Corp., 3 Cir., 1959, 270 F.2d 146, 154.
Columbia Pictures Corp. v. Charles Rubenstein, Inc., 289 F.2d 418, 421 (8th Cir. 1961). The rationale underlying this demand rule is made apparent in this case. Plaintiffs, for whatever reason, admittedly never requested the alleged irregular or preferential treatment given to other exhibitors; therefore, having never been denied that which other exhibitors practiced or received, plaintiffs cannot claim any pattern of discrimination against them. Without having asked and been denied, plaintiffs can make no claim that it was futile to request any type of adjustment in licensing terms. This particular evidence in the record, therefore, is not susceptible to an inference of conspiracy. See Dahl, supra, at 20.
4. Acquiescence
Referring to United States v. Paramount Pictures, 344 U.S. 131, 161, 68 S. Ct. 915, 92 L. Ed. 1260 (1948), plaintiffs have argued that acquiescence in an illegal scheme is a form of participation and is as much a violation of the Sherman Act as the creation and promotion of the scheme. The record, however, does not indicate that there was either acquiescence or forbearance upon the part of distributor-defendants. Indeed, the evidence is otherwise. Once receiving, if they received, the results of split meetings, the distributors might deal with the exhibitor to whom their picture was split, but on the distributor's terms. If an agreement was not struck, the bids of other exhibitors were solicited. On two such occasions, the record indicates that plaintiffs' bid was personally solicited by officers of the distributor-defendants. Moreover, on several occasions bids of specific terms offered by the plaintiffs were accepted over split members' bids. This evidence supports neither an inference of acquiescence nor of futility in bidding. If *1292 plaintiffs made a clear demand upon a film, either by a bid or offer of specific terms, the evidence consistently suggests that it was considered.
5. Absence of Proof
Plaintiffs have failed as a matter of law to introduce evidence that is sufficient to create a jury question as to all distributor-defendants. Looking at the evidence with respect to each distributor-defendant as a whole and giving it the benefit of all reasonable inferences, it simply cannot be said to show that these defendants were participating members of the alleged conspiracy. Continental Co. v. Union Carbide, 370 U.S. 690, 699, 82 S. Ct. 1404, 8 L. Ed. 2d 777 (1964).
Far from being circumstantial evidence of a conspiracy, the conduct of the distributors tabulated above would appear to be evidence to the contrary. Plaintiffs do not dispute that they were invited to bid and negotiate on first-run films. Their evidence regarding the distribution of advance information and the practice of sham bidding fails to uncover any pattern of similarity in conduct by the distributor-defendants that is sufficient to raise an inference of concerted action between or among any of those defendants. Neither has any circumstance present in the market during the period, such as other illegal action, nor conduct contrary to economic self-interest been offered to suggest that "conscious parallelism" might be present. See Bordonaro Bros. Theatres v. Paramount Pictures, 176 F.2d 594, 598 (2d Cir. 1949). There is no evidence that plaintiffs' offers were considered on anything other than their own merit, and there is not the slightest evidence of any mutual action or scheme on the part of distributor-defendants to exclude plaintiffs, who did enjoy measurable success in securing films throughout the period, from the market. Indeed, there has been no solid evidence presented to suggest why distributors would cooperate with a splitting arrangement, an arrangement designed to operate contrary to their apparent desire to obtain the largest film rentals possible. Only defendant Twentieth Century, which was in a financial dispute with Ralph Blank, had any apparent reason not to deal with plaintiffs, and this can scarcely be considered evidence of a conspiracy. Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 635-36 (E.D.N.C.1960), aff'd per curiam, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959, 88 S. Ct. 1039, 19 L. Ed. 2d 1153 (1968).
There being, therefore, "no basis upon which to draw an inference that the actions taken and the decisions made by the defendants were motivated by anything other than independent business judgment," the Court finds it must direct a verdict for each of the distributor-defendants. Viking, supra, at 300. The supposed inferences suggesting that these defendants participated in a conspiracy in restraint of trade, the first essential element of proof pursuant to Section 1 of the Sherman Act, are so tenuous that any unfavorable jury verdict could only be rooted in improper speculation and conjecture.
B. EXHIBITOR-DEFENDANTS
In contrast to distributor-defendants, proof of knowledge and participation as to the exhibitor-defendants is a relatively simple matter. Activity or membership in the exhibitor split at any time during the relevant four-year period is sufficient. Nevertheless, with respect to exhibitor-defendants Stanley Durwood, Elwood Thompson, and Theodore Mann, there has been no such evidence, and verdicts as to them must clearly be directed. As for the remaining exhibitor-defendants, and especially Mann Theatres, proof of participation is thin but sufficient for purposes of surviving a directed verdict. Having thus both shown the presence of a "combination" or "conspiracy" in the form of a split and sufficiently proven the defendants' knowledge of and participation in that split, the critical question becomes whether this particular combination or conspiracy was in "restraint of trade." A "conspiracy" pursuant to Section 1 of the Sherman Act, is not in itself a violation; it must be a conspiracy in restraint of trade.
The language of the Sherman Act, if read literally, makes illegal nearly every type of agreement between businessmen. Early in the Act's history, however, *1293 the United States Supreme Court limited this language, holding under the "rule of reason" that only those agreements which "unreasonably" restrain trade are in violation of the law. See Standard Oil Co. v. United States, 221 U.S. 1, 31, 31 S. Ct. 502, 55 L. Ed. 619 (1911); Northern Pac. R. Co. v. United States, 356 U.S. 1, 78 S. Ct. 514, 2 L. Ed. 2d 545 (1958); Mackey v. National Football League, 543 F.2d 606, 618 (8th Cir. 1976). Subsequently, as antitrust law developed, courts began to consider certain types of agreement as being so consistently unreasonable that they were deemed to be illegal per se.
. . . [T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. Northern Pac. R. Co., supra, 356 U.S. at 5, 78 S.Ct. at 518.
See Mackey, supra. Plaintiffs here argue that the Court should apply a per se rule to the exhibitor split agreement. Defendants disagree, arguing that the rule of reason applies. Having weighed these respective arguments, the Court has determined that the rule of reason should govern the legality of the split.
The Court, in invoking the rule of reason, would note that plaintiffs have offered no evidence from which price-fixing, a per se violation, might be inferred. Nor do the facts, as previously set forth, support plaintiffs' claims of bid rigging or group boycott, both of which are per se violations. Without distributor participation, bid rigging would be impossible. As for any claim of boycott, it is belied by the fact that the target of the split was the distributors and not the plaintiff-exhibitors, who never requested to participate in the split and were never denied admittance. See generally Mackey, supra. Clearly, if the per se rule were to apply, it would have to do so pursuant to plaintiffs' contention that the split constituted a horizontal market division, a division found illegal per se by the Supreme Court in United States v. Topco Associates, 405 U.S. 596, 92 S. Ct. 1126, 31 L. Ed. 2d 515 (1972).
The Court does not agree that this particular motion picture split, by its purpose and effect, can be properly characterized as a market division arrangement pursuant to Topco. Confronted with a shortage of quality film and a seller's market, exhibitors formed the split, as all parties concede, to lower the amount of film rental paid to distributors; thus, its direct purpose was to cut the price of an incoming product and not to limit competition among exhibitors in the market area. The split attempted to guarantee that a member would not have to compete against other members for the licensing of a particular film, but it did not stop other members from competing for patrons by the simultaneous showing of other split first-run films. Furthermore, unlike the association in Topco, the split was not in control of the product that its members distributed, and once split there was no collective effort to impose restrictions upon its sale in the market. See Sullivan, Law of Antitrust, 381 (1977).
In any case, the Court finds that the law as expressed by the Viking Theatre court, and as affirmed by an equally divided Supreme Court, still controls.
. . . [T]he failure to include all exhibitors in the split system will not render it illegal in the absence of evidence that it was so employed as to unreasonably restrict the competitive market, or had this result. . . . [W]e decline to hold the split system to be per se illegal, and we do not consider the system, standing alone, as evidence of a conspiracy to violate the antitrust laws. (Emphasis added.) Viking, 320 F.2d at 293, aff'd per curiam, 378 U.S. 123, 84 S. Ct. 1657, 12 L. Ed. 2d 743 (1964).
Accord, Dahl, supra; Seago, supra; Royster Drive-In Theatres Inc. v. American Broadcasting Paramount Theatres, Inc., 268 F.2d 246 (2nd Cir. 1959). For two reasons, whatever the effect of the Topco case, the Court anticipates that the Supreme Court will retain Viking and the rule of reason as the law with respect to exhibitor splits in the motion picture industry. First, considerations *1294 of stare decisis are given particularly strong weight in the area of antitrust law. Illinois Brick Co. v. Illinois, ___ U.S. ___, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977). And secondly, while Continental T.V. Inc. v. GTE Sylvania, Inc., ___ U.S. ___, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977), dealt with vertical as opposed to horizontal market restrictions, the Court in that case railed at the expansive application of the per se doctrine.
Per se rules of illegality are appropriate only when they relate to conduct that is manifestly anti-competitive. . . . [W]e do make clear that departure from the rule of reason standard must be based upon demonstrable economic effect rather than . . . upon formalistic line drawing. GTE Sylvania, supra, at ___, 97 S.Ct. at 2558, 2562.
In applying the rule of reason standard, this Court must identify the nature of the restraint and then determine whether its effect is no more restrictive than necessary.
The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of the intent may help the court to interpret facts and to predict consequences. Chicago Board of Trade [v. United States], supra, [246 U.S. 231], at 238 [38 S. Ct. 242, 62 L. Ed. 683].
See, GTE Sylvania, supra, n.15; Mackey, supra, at 620. In identifying and determining the effect of the split, it is important to recall that the facts in evidence show the operation of two different splitting arrangements in the Omaha-Council Bluffs market area during the period between March 15, 1970 and March 15, 1974. Conceivably one of the splits could be found reasonable and legal, and the other not. Cf. United States v. Varelli, 407 F.2d 735, 742-43 (7th Cir. 1969); Milwaukee Towne Corp. v. Loew's Inc., 190 F.2d 561, 566 (7th Cir. 1951).
Courts confronted with similar motion picture splits have found that such arrangements, by reducing the number of competitors for any one film, improve rather than harm a nonmember's ability to compete in the market. Viking, supra; Dahl, supra; Seago, supra. Despite plaintiffs' assertions to the contrary, the evidence indicates that the effect of the splitting arrangement in this case was no different. Exhibitor-defendants' split, which was formed to lessen the distributors' ability to extract onerous rental terms, was designed to limit competition among the split members by dividing films in such a way that any member would not have to bid against another member to obtain a film. This arrangement resulted in a windfall to the plaintiffs, who were put in a position identical to that of the split member each had only one other exhibitor to bid against for any one film. There were, as plaintiffs argue, occasions when the split member would have no competition in bidding. But since split members were not obligated to bid on the films split to them, and sometimes did not, there were also occasions when plaintiffs had no competition. Furthermore, owing to the rotational nature of the split, split members often lacked bidding incentive because of their inability to bid on those pictures they actually wanted. Plaintiffs, who were not prevented from bidding by the split, could select films without any choice limitation.
The history of the splits during the relevant time period supports defendant-exhibitors' claim that the effect of these arrangements was not to suppress or destroy competition between member and nonmember exhibitors. When Douglas Theatres was not a participant in splitting, it rigorously and successfully competed for film against split participants, largely contributing to the termination of the first split. *1295 The record also shows that plaintiffs, upon submission of specific term demands, were able to compete successfully against the split members. Competition among exhibitors in the market was undeniably reduced by the splits, hence their formation; however, outside of Blank's opinion, plaintiffs' case is void of testimony to the effect that competition between split and nonsplit exhibitors was unnecessarily restrained.
The Court, therefore, finds that even permitting plaintiffs the benefit of all reasonable inferences to be drawn from the evidence, there is insufficient proof that either one of the Omaha splits constituted an unreasonable restraint of trade. This being so, plaintiffs have failed to prove the necessary element of conspiracy in a Section 1 violation. The Court, though, need not and does not rest its directed verdict for exhibitor-defendants on this failure of proof alone. The verdict rests rather on the collective failure of plaintiffs to prove any one of the essential elements that are required pursuant to section 1 of the Sherman Act. The Court, while sanguine in its belief that the per se rule does not apply to the split, proceeds forward to consider these other elements of proof, because, in fairness to the parties, it does not want to leave any impression that this case turns on the rejection of the per se argument.
VI.
CAUSATION AND INJURY
A. CAUSATION
In order to prevail in an antitrust case, the plaintiffs must prove not only a violation of the antitrust laws but also that such violation was a proximate and substantial cause of injury to plaintiffs' business or property. Clayton Act, § 4; Carlson Companies, Inc., v. Sperry and Hutchinson., 507 F.2d 959, 961 (8th Cir. 1974); Cinema-Tex Enterprises, Inc. v. Santikos Theatres, Inc., 414 F. Supp. 640 (W.D. Tex.1975), aff'd in part and rev'd, 535 F.2d 932 (5th Cir. 1976). In this case, plaintiffs are apparently claiming that an illegal split among exhibitors, though without distributor participation, still caused them business losses, as the effectiveness of the split was such that its members could consistently outbid nonmembers for the available product. Exhibitor-defendants have replied that even conceding injury to the plaintiffs, plaintiffs, as exhibitors, have no standing to challenge the legality of a split that was unquestionably aimed at the distributors. Long Island Lighting Co. v. Standard Oil Co., 2 Cir., 521 F.2d 1269, 1273-1274; Calderone Enterprises Corp. v. United Artist Theatre Circuit, Inc., 454 F.2d 1292, 1295 (2nd Cir. 1971).
The Court finds no difference between the question of plaintiffs' standing and the question of causal connection between defendants' alleged antitrust violation and plaintiffs' injury.
There must also be a proximate causal connection between the violation alleged and the injury sustained, a necessity which the above federal courts have elaborated into a varied set of standing requirements. These have been expressed in numerous ways that the injury to plaintiff must be direct, not indirect; that the antitrust violation must be the proximate cause of the injury; that the plaintiff must have been within the `target area' that defendant `aimed at' or intended to hit; or that the rationale for the antitrust rule which defendant violated must be intended to protect those in plaintiff's position. Sullivan, supra, § 247 at 772.
See also Harsh v. CPC Int'l, Inc., 395 F. Supp. 578 (N.D.Tex.1975). Adopting a more liberal position on standing than most circuits, the Eighth Circuit has been less concerned with the rather rigid terminology distinctions and determinations and more interested in whether the facts in the record are sufficient to infer a causal connection between plaintiffs' injury and defendants' antitrust violations. See Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679, 688-89 (8th Cir. 1966); Ragar v. T. J. Raney & Sons, 388 F. Supp. 1184 (E.D.Ark.1975). This Court, in view of the more liberal position of the Eighth Circuit, declines exhibitor-defendants' invitation to extend the United States Supreme Court's ruling on standing in Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, *1296 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977), which involved future-oriented injury and merger pursuant to Section 7 of the Clayton Act, to the pending case, wherein the issue is primarily past injury pursuant to Section 4 of the Clayton Act.
Under the law of the Eighth Circuit, this Court must then determine whether the facts in evidence are such that a causal connection between the exhibitor-defendants' split and the plaintiffs' business losses could reasonably be inferred. While there may be more than one proximate cause for an injury, the presence of other plausible alternative explanations for plaintiffs' losses makes any causal inference more suspect and the connection between plaintiffs' injury and the alleged antitrust violation more difficult to prove.
The evidence is undisputed that plaintiffs' Chief Theatre closed in December of 1972, at a time when downtown theatres were losing business and suburban multiscreen theatres were capitalizing on a general population shift to the western sections of Omaha. Other downtown theatres, including theatres belonging to split members, closed soon after the Chief. Only the Admiral and Astro remained in the downtown area as viable first-run movie theatres. The business, Blank conceded at the closing of the Chief, "`just [wasn't] there'."
As for the plaintiff Skyview Drive-In, exhibitor-defendants do not dispute its large grossing potential. They do, however, stress that the Skyview was a drive-in theatre. Despite Blank's denials, the testimony of a local nondefendant distributor employee, who worked for a distributor primarily dealing in "drive-in motion pictures," and two exhibitor-defendants, one of whom operated drive-ins in the Omaha-Council Bluffs market area, has been that the drive-in business is seasonal in character. Though a drive-in may remain open throughout the winter, its bids for quality film during those months are given less consideration. Moreover, the evidence further indicates that the drive-in theatre business is keyed throughout the year to "exploitation" pictures, lesser quality first-run films that generally play for only short periods of time. Plaintiffs, who complain that the Skyview was unable to obtain quality first-run films, have failed to rebut this testimony.
The Court, recalling that "permissible inferences [in antitrust cases] must still be within the range of reasonable probability," cannot reach any other conclusion than that the business losses which the Chief and Skyview theatres suffered resulted from independent factors not chargeable to the exhibitor-defendants' splitting arrangement. Twin City Plaza, supra, at 1202-1203, n.8; see G. & P. Amusement Co. v. Regent Theatre Co., D.C., 107 F. Supp. 453, aff'd, 6 Cir., 216 F.2d 749, cert. denied, 349 U.S. 904, 75 S. Ct. 579, 99 L. Ed. 1240 (1952). The facts and circumstances relied upon by plaintiffs, which simply do not "attain the dignity of substantial evidence," could only create an unfounded "suspicion" in the minds of the jury. Yost Lumber, supra, at 61. Plaintiffs' case as to the Chief and Skyview theatres must be directed. As for the Admiral Theatre, plaintiffs through the testimony of a questionable expert, attempted to offer more than the necessary scintilla of evidence that the split may have been responsible for its losses.
Prior to reviewing that expert testimony, the Court would observe that the failure to prove the element of causation and injury as to the Chief and Skyview theatres also relates back to plaintiffs' complete failure to prove the necessary element of conspiracy.
Suffice it to say that it appears from the record that there were many reasons given by the [defendants] which would explain [the plaintiff theatre's] lack of financial success even in the absence of conspiracy and would negative any inference of conspiracy that might arise from the existence of unexplained damages or losses.
Dipson Theatres v. Buffalo Theatres, 190 F.2d 951, 961 (2nd Cir. 1951), cert. denied, 342 U.S. 926, 72 S. Ct. 363, 96 L. Ed. 691 (1952).
B. INJURY TO THE ADMIRAL THEATRE
Whereas the amount of damage in a private antitrust action is subject to *1297 some liberality in proof, the fact of damage, or legal injury, must be proven with reasonable certainty. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S. Ct. 574, 90 L. Ed. 652 (1964); McCleneghan v. Union Stockyards of Omaha, 349 F.2d 53, 56-57 (8th Cir. 1965). Proof of an alleged restraint of trade by the exhibitor split and evidence that the Admiral Theatre, as a competitor of those exhibitors belonging to the split, did suffer financial losses during this period is not, absent connecting evidence, sufficient to entitle plaintiffs to a recovery under Sections 1 and 4 of the Sherman and Clayton Acts. Id. at 56. To establish that plaintiffs were entitled to recovery, Dr. John Richard Felton, plaintiffs' expert, testified that such losses were the result of legal injury.
The Court, prior to considering the testimony of Dr. Felton, addresses itself to the issue raised by defendants' motions to disqualify plaintiffs' expert and preclude said expert's testimony. The question of the qualifications and competency of Dr. Felton to testify as an expert witness on the issues of injury and damages has been extensively briefed and argued. Although the general rule is that an expert's lack of qualifications affects only the weight to be given his testimony, a trial court, pursuant to its sound discretion and Rule 702 of the Federal Rules of Evidence, is to make a threshold determination whether the expert is in fact qualified to testify as such on the basis of his "knowledge, skill, experience, training, or expertise." Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907, 96 S. Ct. 2229, 48 L. Ed. 2d 832 (1976); White v. United States, 399 F.2d 813 (8th Cir. 1968). Here there was doubt as to whether the threshold requirement had been met. See Sablosky v. Paramount Film Distributing Corp., 137 F. Supp. 929, 936-37 (E.D.Pa.1955). Dr. Felton's expertise lies in the area of economics and industrial organization, with special emphasis on problems pertaining to transportation and public utilities. Notwithstanding his subsequent testimony that the field of industrial organization requires a knowledge of the industry's "structure, behavior, and performance," Dr. Felton admitted to having no specific knowledge or information concerning the motion picture industry prior to his preparation for this case, a preparation which has largely taken place since May of this year. Nevertheless, the Court, with "some reservation," imposed certain limitations and preliminarily received Dr. Felton's testimony. In part as a result of having received this questionable expert testimony, the Court is now confronted with further foundational problems.
It became readily apparent during his testimony that Dr. Felton had relied on others in the formation of his opinions. Disclaiming expertise as a "professional statistician," Felton, without personally verifying the accuracy, relied on a colleague to develop many of the statistical studies and correlations underlying and allegedly justifying his conclusions. Even more critically, he relied entirely upon the plaintiffs' knowledge of the theatre business to set forth the comparability model upon which his opinions as to injury and damages were based. Claiming no expertise as to the theatre quality, and needing a theatre to compare with the Admiral, Dr. Felton adopted Blank's conclusion that the Admiral theatre was comparable to the Astro and Dundee "taken together and halved." Blank's belief is apparently based primarily upon the geographical proximity of the three theatres, and the fact that the seating capacity of the Astro plus that of the Dundee divided by two is roughly equivalent to that of the Admiral. It was never made clear why a hypothetical composite theatre, derived by a method for which there is no judicial precedent, was used as the base theatre as opposed to another larger downtown theatre, such as the Cooper 70 or the Orpheum. To maintain that these theatres have not been used because they are closed is to admit that the critical comparisons between theatres were not made during the relevant time period.
As exhibitor-defendants have noted, in addition to its highly hypothetical nature, this scheme of comparing the Admiral Theatre with a composite of the Astro and Dundee theatres suffers from other foundational infirmities. Plaintiffs argue that the injury to the Admiral, or its inability to *1298 license its "fair share" of quality first-run films, is evidenced by the fact that during the period the Admiral's patronage and hence net revenue, which is a direct function of film quality for any theatre, was less than the average net revenue of the "Astro-Dundee." This revenue difference, a difference that plaintiffs view as damage, was allegedly the sole result of the Astro and Dundee having belonged to the split, which enabled them to get more quality films under identical market conditions. Even boldly accepting that film quality is a determinate of net revenue for a theatre, this technique of comparing theatres to prove injury ignores the interrelationship of factors that would affect ultimate damage calculations and is rooted in foundational infirmities:
(1) it assumes, without any basis, that the Admiral could have achieved a larger patronage without affecting the patronage of the Astro and Dundee;
(2) it is unsupported by any study or examination showing a substantial similarity of the markets from which the Admiral, Astro, and Dundee draw their patrons;
(3) it assumes that a higher quality of film would have been available to the Admiral without impact upon the quality of film and hence the patronage of the other two theatres;
(4) it assumes that the Admiral had not yet reached that point where increased rental for higher quality film is not merited by a like increase in patronage, and that plaintiffs would have accordingly submitted bids other than on their accustomed sliding scale basis;
(5) it does not consider the fact that the Astro, during most of the relevant period, had an independent source of film supply through United Artists which was not available to other exhibitors, and which resulted in the Astro not actively making selections in the split or competing with plaintiffs and other exhibitors for film released by distributor-defendants;
(6) it does not take into consideration the fact that during the period, plaintiffs had "exclusive customer" arrangements with United Artists and AIP, which gave them a source of film supply not available to the Astro or Dundee;
(7) it does not differentiate or exclude revenue derived by the three theatres from exhibition of sub-run films;
(8) it does not differentiate or exclude revenue derived by the three theatres from exhibition of films licensed from nondefendant distributors;
(9) it does not consider the effect of increased advertising and overhead expenses generated by increased gross receipts; and
(10) it makes no attempt to eliminate the "fruits" of the alleged illegal conduct of the Astro and Dundee theatres from the revenues generated by those theatres.
See Homewood Theatre, Inc. v. Loew's, Inc., 110 F. Supp. 398 (D.Minn.1952); Columbia Pictures v. Charles Rubenstein, Inc., 289 F.2d 418 (8th Cir. 1961); Hoyt, Dahl and Gibson, Comprehensive Models for Assessing Lost Profits to Antitrust Plaintiffs, 60 Minn.L.Rev. 1233, 1237-39.
All the foregoing foundational infirmities aside, Dr. Felton's technique of comparing theatres to prove injury and damage to the Admiral still fails, for it is contrary both to the law and evidence of the case. The "comparable theatre" theory has been principally approved in cases involving attacks upon systems of uniform runs and clearances, where certain theatres were designated as sub-run and completely deprived of the opportunity to license first-run films. See, e. g., Bigelow, supra; Loew's Inc. v. Cinema Amusements, 210 F.2d 86 (10th Cir. 1954); Milwaukee Towne Corp., supra. In these cases the "injury" suffered by the sub-run theatres, which were comparable in all other respects to the first-run theatres, was complete market exclusion with respect to first-run films. The "comparable theatre" theory was developed *1299 to measure the variation in earnings between a sub-run and first-run theatre.
The facts of this case are easily distinguished. Plaintiff theatres were not of a sub-run status, and their claim is that they, because of the split, did not obtain a fair share of the first-run films. To make an even plausible use of the "comparable theatre" theory, which is based upon market exclusion, plaintiffs would essentially have to prove that the first-run market was such that it was futile for them to make specific demands for films. The Court's position with respect to futility and damages has been consistent and clear since its ruling of March 7, 1977:
Plaintiffs are not entitled to collect damages under the antitrust acts unless they show a violation of law and a causal connection between that violation and their losses. To ensure that there exists such causal connection, case law pertaining to the motion picture industry has relied heavily upon the `demand' rule. That is, plaintiff exhibitors claiming an unlawful conspiracy to deprive them of motion pictures are generally entitled to relief only as to those motion pictures upon which they made specific unsuccessful demands, by bid or negotiation, to motion picture distributors. An important corollary to this general rule, however, is that plaintiff exhibitors are also entitled to relief with respect to those motion pictures for which they can show that they were conspiratorially prevented from bidding.
In its Order of July 8, 1977, the Court, having reviewed plaintiffs' damage exhibits and noting that damages were determined under a comparability theory not keyed to demand films, observed that the damage calculations prepared by Dr. Felton
. . . apparently assume that, pursuant to the Court's Order of March 7, 1977, plaintiffs will be able to prove that futility made specific demand upon first-run films unnecessary.
Plaintiffs' counsel acknowledged this assumption. For the Admiral Theatre, there was no offer of damage evidence limited to those films upon which plaintiffs made specific unsuccessful demands. Thus, by their own choosing, plaintiffs decided to rest their case as to injury and damages on their ability to prove futility of demand.
Plaintiffs' effort to prove the futility of making demand upon the distributor-defendants for first-run films has centered primarily around the evidence introduced to establish the allegedly irregular and preferential treatment afforded exhibitor-defendants. The insufficiency and complete failure of this evidence has been discussed and need not be reviewed. Also pertinent to the futility question was the evidence introduced to establish that plaintiffs' offers of specific terms had been inexplicably rejected and their notices of willingness to negotiate ignored. In fact, the evidence showed plaintiffs had a nearly 60 percent success rate on their specific offers. A notice of a willingness to negotiate is simply insufficient, for the law, as this Court recognized in its earlier rulings, requires a "clear request or demand" before futility can be argued. 608 Hamilton Street Corp. v. Columbia Pictures Corp., 244 F. Supp. 193, 195 (E.D.Pa.1965); see also Royster Drive-In, supra, at 251; Milwaukee Towne Corp., supra, at 568; J. J. Theatres v. Twentieth Century Fox Film Corp., 212 F.2d 840, 845 (2nd Cir. 1954); Webster Rosewood Corp. v. Schine Chain Theatres, Inc., 263 F.2d 533, 536 (2nd Cir. 1959), cert. denied, 360 U.S. 912, 79 S. Ct. 1296, 3 L. Ed. 2d 1261 (1959); Dahl, supra, at 19; Cinema-Tex, 414 F.Supp. at 643. Nor was Dr. Felton able to state unequivocably that in his opinion it had been futile for plaintiffs to make specific offers for films.
In the absence of any evidence to support a premise of futility, Dr. Felton's comparability theory, upon which his opinions as to injury and damage to the Admiral Theatre are based, becomes speculative and lacking wholly in proper foundation. The Court has no doubt that pursuant to Judge Lay's admonition in Twin City Plaza, the entire testimony of Dr. Felton could, as defendants requested, be stricken from the record.
When basic foundational conditions are themselves conjecturally premised, it behooves a court to remove the answer from one of admissible opinion to one of excludable speculation. 409 F.2d at 1200. *1300 However, such a ruling is no longer necessary, for the Court now finds that the plaintiffs, who are left only with the unsupported assertions of Robert Blank regarding the Admiral's losses, have failed to create a submissible jury question with respect to the element of causation and antitrust injury.
With only his ipse dixit to establish the fact of damage, [plaintiffs] would have this Court find his testimonial speculation and contentions supply the basis for a jury issue as to the fact of damage. But more evidence than this is necessary to demonstrate that there has been injury before the jury can be allowed to consider the amount that would properly compensate him for injury. . . . It is incumbent upon [a] plaintiff to produce some credible evidence to support his various allegations of injury and its cause. Failure to do so makes a directed verdict correct.
Shumate & Co., Inc. v. National Ass'n of Security Dealers, Inc., 509 F.2d 147, 153 (5th Cir. 1975), cert. denied, 423 U.S. 868, 96 S. Ct. 131, 46 L. Ed. 2d 97 (1976).
Parenthetically, the Court would note that the failure of plaintiffs' comparability theory would provide further reason, if it were needed, to direct a verdict as to the Chief and Skyview theatres. Although the testimony was not received, Dr. Felton attempted to show injury as to these theatres by way of statistical correlations to and projections from the grosses of the Admiral Theatre, which grosses themselves had been derived from a comparison with the hypothetical Astro-Dundee theatre. For these theatres, more so than with the Admiral, there is a complete lack of sufficient nonspeculative evidence to support the fact of damage.
VII.
DAMAGES
The damage element pursuant to Section 1 of the Sherman Act requires that the damages sustained by plaintiffs must be capable of reasonable ascertainment and not be speculative or conjectural. While it is true that the amount of damages need not be proven with mathematical certainty, there still must be sufficient evidence so "the jury may make a just and reasonable estimate of the damage based on relevant data and render its verdict accordingly." Bigelow, supra, 327 U.S. at 264, 66 S.Ct. at 580; National Wrestling Alliance v. Myers, 325 F.2d 768 (8th Cir. 1963). Here, even were there proof of injury, the evidence as to each of the plaintiff theatres is insufficient to make out a jury case, as plaintiffs have failed to offer any evidence as to the amount of damages incurred by their alleged inability to license specific films for which they made demand. As for the Chief and Skyview theatres, there is in fact no damage evidence of any kind in the record. Nor is there in the record any evidence as to how damages would be apportioned among the various exhibitor-defendants, some of whom only participated in the second split.
Thus, while the Court fully recognizes that it is most often a better course of action to send plaintiffs' claims to a jury and then, if necessary, consider a judgment notwithstanding the verdict, it would be but idle ceremony in this case where any jury damage verdict for plaintiffs would of necessity be impermissibly "based upon speculation and guesswork." Likewise, there is nothing to be gained by sending to the jury only the question of liability, even as to the Admiral Theatre alone, for a liability verdict without ascertainable damages would be of no consequence. The Court, having found neither a violation of the law nor injury to the plaintiffs, would under no circumstances consider injunctive relief.
In their complaint, plaintiffs, pursuant to Section 2 of the Sherman Act, have also charged all defendants with conspiring or attempting to monopolize. The Court will not again review the evidence for the purpose of showing such claims to be without merit. Rather, the Court merely observes that there has also been no adequate proof of damages as to these claims, or any other claim alleged in plaintiffs' "laundry list" complaint. Hence, defendants' motions for directed verdict as to all other allegations *1301 contained within plaintiffs' complaint have been sustained.
VIII.
CONCLUSION
Defendants' motions for directed verdict must be allowed because plaintiffs have failed to prove by a sufficient quantum of admissible evidence that a conspiracy in fact existed, and have further failed to prove either that the alleged conspiracy had an injurious impact on their business or that such business suffered reasonably ascertainable damages therefrom.
In granting defendants' motions for directed verdict, all other pending motions are rendered moot and need not be specifically considered.
NOTES
[*] William C. Hanson, District Judge, Northern and Southern Districts of Iowa, sitting by special designation to the District of Nebraska at Omaha, Nebraska.
[1] Section 1 (15 U.S.C. § 1) provides in pertinent part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal . . ..
Section 2 (15 U.S.C. § 2) provides in pertinent part:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . shall be deemed guilty of a felony.
[2] Section 4 (15 U.S.C. § 15) provides in pertinent part:
[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.
Section 16 (15 U.S.C. § 26) provides in pertinent part:
Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief . . . as against threatened loss or damage by a violation of the antitrust laws, . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue . . .. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572035/ | 437 F. Supp. 262 (1977)
UNITED STATES of America
v.
Marvin MANDEL et al.
Cr. No. 75-0822.
United States District Court, D. Maryland.
July 19, 1977.
*263 Barnet D. Skolnik, Ron Liebman, Baltimore, Md., Daniel Hurson, for the Government.
Arnold M. Weiner, Baltimore, Md., for Marvin Mandel.
William G. Hundley, Washington, D. C., for W. Dale Hess.
Thomas C. Green, Washington, D. C., for Harry W. Rodgers, III.
Michael E. Marr, Baltimore, Md., for William A. Rodgers.
Norman P. Ramsey, Baltimore, Md., for Irvin Kovens.
Charles G. Bernstein, Federal Public Defender, Michael Schatzow, Asst. State Public Defender, William C. Brennan, Jr., College Park, Md., for Ernest N. Cory, Jr.
MEMORANDUM
ROBERT L. TAYLOR, District Judge, sitting by designation.
Defendant Mandel has proffered to the Court the testimony of Mrs. Dorothy Rodgers, wife of defendant William Rodgers. His attorneys have summarized part of Mrs. Rodgers' testimony as follows:
"Mrs. Rodgers would testify that she and her husband left Mr. Hollander's office in the company of Dale Hess and his wife. As they were walking to lunch, they continued to talk about the purchase of the racetrack and the secrecy of their act. In the course of the conversation, Mr. Hess, excited at the prospect of the new acquisition, exclaimed, in substance, that the Governor would be shocked if he were to learn that this group had purchased Marlboro. Mrs. Rodgers would also testify that, after lunch, while driving home, she participated in further discussion with her husband. Mrs. Rodgers would say that her husband instructed her that the acquisition to the racetrack was to remain a secret; that she was not to reveal it to anyone, including the Governor; and that the acquisition of interests in the track, by Mr. Hess and the Rodgers brothers was `none of the Governor's business.'"
The Government objects to her proffered testimony wherein she would repeat statements made in her presence by defendant Hess and by her husband. The Government argues that this part of Mrs. Rodgers' testimony would be rank hearsay and is not admissible under any of the exceptions to the hearsay rule.
The initial question to be considered is what is Mandel trying to prove by this testimony. If he is trying to prove his own state of mind, the testimony would be inadmissible.[1] Only declarations made by Mandel would be relevant to his state of mind. If he is trying to prove Hess' or Rodgers' state of mind, then he should wait and let them prove their state of mind in their parts of the case.
However, if he is trying to prove the fact of concealment,[2] the fact that they were acting to conceal their interests from him, then he might make a different argument on the basis of Mutual Life Insurance Company v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892).
The Hillmon case holds that statements made by a person of his intention to do an act in the future are admissible to show that he may have done the act in the future. Hillmon prohibits the admission of statements of facts remembered or believed to prove the facts remembered or believed. That is to say, a person's statements that he did something in the past are not admissible to prove that he did that something in the past.
Hillmon involved letters rather than oral statements. The court recognized that letters by the declarant showing what was on his mind are more trustworthy than testimony by some third party about what the declarant stated orally. Nevertheless, the *264 court used language suggesting that whether the statements were oral or written did not control the legal issues involved:
"A man's state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and the evidence of its tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or by pen." (emphasis added).
145 U.S. at 295, 12 S.Ct. at 912.
Rule 803(3) of the new rules of evidence preserves the basic Hillmon rule. The Advisory Committee's Note to the rule states:
"The rule of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892), allowing evidence of intention as tending to prove the doing of the act intended is, of course, left undisturbed."
The Government's brief contains only a cursory and conclusory analysis of Rule 803(3). The sole ground asserted for exclusion under Rule 803(3) is that the testimony refers to a fact remembered and is therefore inadmissible to prove the fact remembered. The Government's statement of the law is correct, as far as it goes. Rule 803(3) expressly excludes statements of facts remembered or believed to prove the fact remembered or believed. The rule is a sound one because, as the Advisory Committee observes, such a rule "is necessary to avoid virtual destruction of the hearsay rule."
The Government claims that the statements of Mrs. Rodgers pertain solely to past events. The statements, at least impliedly, refer to past, present and future events. Three separate inferences can be drawn from a statement which implies that Hess and Rodgers were keeping their ownership interests secret from Mandel:
(1) They entered into an agreement in the past to keep their interests secret.
(2) They were in the process of keeping the interests a secret at the time the statements were made.
(3) They intended to keep their interests secret in the future.
If the event occurs on a given date, at a given time, the question of whether the statement was made before or after the event may be determined without difficulty. The defendants contend that the event in question, concealment, took place over a period of many months and perhaps years.
The real issue in this case is not whether the statements refer to a past or future event. The precise issue is whether a statement that impliedly refers to past, present and future events runs afoul of Rule 803(3)'s prohibition against testimony about facts remembered to prove the facts remembered or believed. This is a difficult question of law that is not free from doubt.
This legal issue was considered by Judge Friendly in the Second Circuit case of Annunziato v. United States, 293 F.2d 373 (1961). Annunziato was the prosecution of a public official for accepting a bribe. The Government sought to prove that the defendant public official accepted a bribe from the president of a corporation. The president of the corporation was not a defendant, and thus his out-of-court statements were not admissible as admissions.
At trial, the son of the corporation president was permitted to testify that his father told him that he had, in the past, received a telephone call from the defendant in which the defendant asked for a bribe. The son further testified that he asked his father what he intended to do in the future, and the father told the son that he intended to send the money to the defendant.
The son's testimony combined hearsay statements by his father about both past and future events. The past event was his father's out-of-court statement that the defendant had called him (in the past) and asked him for a bribe. The future event was the father's out-of-court statement that he intended to pay the defendant the bribe (in the future). The Government introduced the hearsay statements of the father to prove that the father probably did fulfill his stated intention to pay the bribe to the defendant.
*265 Judge Friendly held that the fact that a statement showing a plan or design to do something in the future was accompanied by a statement of a fact remembered (that the defendant had called him) did not render the testimony inadmissible.
It can be said that the rule of Annunziato applies to the present case for the following reasons. One implication of the statements made by Hess and Rodgers is that they had an agreement, entered into in the past, to conceal their interests from Mandel. Another implication of the statements is that they intended to keep their interests secret in the future. The reference to the past event, the agreement, is an explanation of why they intended to pursue a future course of conduct, that is, to keep the matter secret in the future. Annunziato holds that a reference to a past event does not automatically require exclusion when it was made simultaneously with a reference to a future course of conduct.
Weinstein has criticized Annunziato. He says:
"The difficulty with the conclusion in Annunziato is that the evidence was much more powerful and probative in looking backwardsto show that the defendant had requested the payment as a bribethan in looking forward. The elephant of the past is pulled in by the tail of the future. None of these cases where past, present and future are intertwined in a statement are easy. In the ultimate analysis, it is the principles of Rule 403 that control.
"In any event, in Annunziato it would no longer be necessary to press the Hillmon doctrine so far. Under the subsequently adopted federal rules, such a statement of a past event might have been admissible, even if it stood alone, as a declaration against interest pursuant to Rule 804(b)(3), since the declarant father was dead by the time of trial; or pursuant to Rule 803(24), if the court was satisfied that sufficient guarantees of trustworthiness were present."
What Weinstein means by his statement that "in the ultimate analysis, the principles of Rule 403 control" is explained in another part of his treatise:
"However, if the judge finds that the statement was made in circumstances which do not negate the presence of a motive to misrepresent, and the inference to be drawn that the declarant acted in a particular way is highly prejudicial, the Court may exclude the statement pursuant to its discretion afforded by Rule 403 on the finding that the probative value of the statement is outweighed. In reaching this decision, the possibility of bad faith is but one factor for the judge to consider. He must weigh all the factors on both sides of the questionthose affecting relevancy (such as the legitimacy of the inference from the statement of intent to act) and those dangers stemming from admission (as, for example, whether this is a civil or criminal case)."
If Weinstein is correct, the Court may exclude the testimony (or defer it until later) if the Court concludes that its probative value and weight are outweighed by the prejudice the admission of such statement will cause the Government.
If Annunziato is correct, it may be argued that the statement should be admitted without reference to the balancing test.
It should be noted, however, that in Annunziato, there were several compelling reasons for admitting the hearsay testimony that are not present in the Mandel case. First, there was a strong need for the testimony because the declarant, the father, was dead. However, Rule 803(3) provides that the admissibility of testimony under the rule does not depend on whether the declarant is available. Availability of the declarant is immaterial.
Second, the past event, the telephone call from the defendant to the father, occurred shortly before the father made the hearsay statements to his son. We do not know whether the defendants in Mandel made the alleged agreement a long time or a short time before the statements about it were allegedly made.
*266 Third, the hearsay declarations of the father were against his interest. Judge Friendly could not hold that they were declarations against interest because before the new rules of evidence were enacted declarations against penal interest were not admissible. The new rules provide that a declaration against penal interest is admissible if the declarant is dead or otherwise unavailable. See Rule 804(b)(3), Fed.R. Evid.
Fourth, Judge Friendly had an alternative basis for admitting the testimony of the son about what his father told him. The father, although dead and not a defendant, was a co-conspirator, and the statements were made in the furtherance of and during the course of the conspiracy.
In the Hillmon and Annunziato cases, as well as the other cases cited by the defendant in his brief, there was a pressing need for the hearsay testimony. The need in the present case is absent, as presumably defendants Hess, Harry Rodgers and William Rodgers can and will testify of the alleged secrecy agreed upon by them.
The problem that gives the Court much concern is that if testimony of this character is received, it could open the door for widespread fabrication. This Court has tried many cases in which a defendant was charged with aiding and abetting the operation of a moonshine still. The usual defense in such a case is that the defendant was rabbit hunting when he happened to see the still and, through curiosity, planted himself nearby. Defendant will usually offer to bring forth witnesses who will say that he told them, either before he was found at the still or afterwards, that he was rabbit hunting. It is noted that the case of Fields v. United States, 221 F. 242, 244 (4th Cir. 1915), involved such self-serving statements made by an alleged moonshiner after he was arrested. Often these self-serving statements are concocted or fabricated.
What is said is certainly not intended to imply that the proposed testimony of Mrs. Rodgers is concocted, in any form or fashion. The thing uppermost in this Court's mind is the precedential effect of admitting this type of evidence when the need is not overwhelming.
Incidentally, the article about res gestae written by the late Professor Morgan (the Court's former evidence teacher), and cited by the defendants, deals with:
(1) An utterance which is an operative fact in combination with other utterances creates a legal relation and without which the legal relation would not exist. In those cases, the utterance is offered not for the purpose of proving its truth, but merely for the purpose of showing that it was made. As an example, in a breach of contract action a witness in behalf of the plaintiff tenders the words constituting the offer, the acceptance or the repudiation.
(2) Cases in which the utterance, regardless of its truth, has probative value on the question of the existence or non-existence of a material fact.
(3) Cases in which the operative effect of non-verbal conduct depends upon verbal conduct accompanying it.
(4) Cases in which the operative effect of non-verbal conduct depends upon the intent which accompanies it.
(5) Cases in which the utterance is a direct declaration of a presently existing mental condition, made naturally and without circumstances of suspicion.
(6) Cases in which the utterance is contemporaneous with a non-verbal act, independently admissible, relating to that act and throwing some light upon it.
(7) Utterance concerning a startling event by a declarant laboring under stress or excitement.
It is very doubtful that the alleged statements in the present case come within any of these classifications. See, Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229 (1922).
The Court is of the opinion that Judge Weinstein's criticism of the Annunziato case is well taken.
*267 Accordingly, the Court holds that the testimony of Mrs. Rodgers as it relates to the statements made by her husband and by defendant Hess is not to be received into evidence at this time as the Court desires to hear more testimony in the case before a final decision is reached.
NOTES
[1] Thus, the testimony would not be competent to prove that Mandel would have been shocked to find out about their interests.
[2] The hearsay statements strongly imply that Hess and Rodgers planned and intended to conceal their interests from Mandel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572052/ | 546 S.W.2d 902 (1977)
Nelson PHILLIPS, Jr., et al., Appellants,
v.
Frank WERTZ et al., Appellees.
No. 19078.
Court of Civil Appeals of Texas, Dallas.
February 1, 1977.
Rehearing Denied March 3, 1977.
*904 Gregory L. Ceshker, Robert F. Ashley, Ashley & Welch, Dallas, for appellants.
William Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellees.
GUITTARD, Chief Justice.
This action arose out of a dispute between neighboring landowners. Plaintiffs Phillips, Sartain, and Nelms own and reside on adjoining lots in a subdivision known as Turtle Creek Estates. Their lots face to the east and front on Turtle Creek Drive, which they allege to be a private driveway maintained by the lot owners. Defendants Frank and Dorothea Wertz own property outside the subdivision, but abutting it on the east. Between Turtle Creek Drive and the Wertz property is a narrow strip of land across which defendants attempted to put a driveway between their land and Turtle Creek Drive. Plaintiffs sued for title and possession of this strip, for actual and exemplary damages because of defendants' attempted use of the strip, and for an injunction restraining defendants from taking possession or entering upon the strip and from using Turtle Creek Drive. After a jury trial and a verdict favorable to plaintiffs, the trial court rendered judgment for plaintiffs Phillips for title to the strip, actual damages in the amount of $341.20, and exemplary damages in the amount of $10,000, but denied other items of damage found by the jury and also denied injunctive relife. Defendants appeal from the judgment against them, and plaintiffs also appeal from the court's failure to grant injunctive relief and to award the full damages found. We affirm the judgment for title, but we reverse the judgment for damages, and we remand with instructions to grant the injunctive relief sought and to make a new assessment of both actual and exemplary damages.
Title to Disputed Strip
The controlling question governing title to the disputed strip is whether a person in possession of land, though without any claim to record title, may recover a judgment for title and possession against an intruder or trespasser who enters upon the land and dispossesses him. We hold that he may recover such a judgment.
Plaintiffs Phillips and wife sued in trespass to try title and alleged both adverse possession for a period of more than ten years and also that they and their predecessors *905 in title have had possession of the property "for many years prior to any possession of said property by the Defendants Wertz." They further alleged that on December 9, 1974, defendant Frank Wertz entered on the property with a bulldozer, cut down a portion of a bamboo hedge, tore down a fence, drove a truck over the property and spread a load of gravel across it, and destroyed grass and other vegetation. They made the conventional allegation that they were in possession of the property on December 9, 1974, that on that date defendants unlawfully entered upon and dispossessed them, and still withhold from them the possession of their property.
Defendants answered by general denial and plea of not guilty, and further alleged that title to the strip had never been divested out of the corporate developer, which had forfeited its charter many years ago for nonpayment of the franchise tax. Defendants did not allege any claim of title in themselves.
The evidence shows that record title to the disputed strip stands in the name of the original developer, a defunct corporation. Plaintiffs Phillips have lived on the west side of Turtle Creek Drive, directly across from the disputed strip, for many years. The strip is 166.7 feet long and varies in width from ten to fifteen feet. A ten-foot easement for public utilities extends its entire length, as shown by the subdivision plat. The Phillipses have landscaped this strip with flowers and shrubs. The evidence shows without dispute that on December 9, 1974, defendant Frank Wertz removed a portion of the fence between his property and the disputed strip, entered on the strip with a bulldozer, knocked down about four feet of bamboo hedge planted by the Phillipses, and dumped a load of gravel which Wertz subsequently spread on the property for the purpose of constructing a driveway between his land and Turtle Creek Drive. The evidence further shows that on March 29, 1975, a landscape company employed by the Phillipses replaced the fence posts and replaced a portion of the bamboo hedge, and that on the same day defendants again removed the posts and pulled the bamboo out of the ground. Defendants did not deny these acts, but rather testified that if another fence were put in or any more bamboo were planted in the area where they had started to construct the driveway, they would tear it up.
The jury found that the Phillipses had had peaceful and adverse possession of the disputed land continuously for ten years before the suit was filed and also found that these plaintiffs had had possession of the land prior to any possession by the defendants. Judgment was accordingly rendered for plaintiffs for title and possession. Defendants complain on this appeal of the adverse possession issue and finding on various grounds, including lack of evidence, but they make no complaint of the issue or the finding concerning plaintiffs' prior possession. Accordingly, the question presented is whether this unchallenged finding is sufficient in itself to support the judgment for title and possession. Defendants argue that this finding is not sufficient without some claim by plaintiffs under color of right, and that the undisputed evidence that the title never passed out of the developer defeats plaintiffs' suit.
Without passing on any of defendants' complaints concerning the adverse possession issue and finding, we hold that the finding of prior possession provides independent support for the judgment. In our opinion, this question is ruled by Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 249-51 (Tex.1964). There, the supreme court announced the rule that a plaintiff's prior possession is sufficient to authorize him to maintain suit for title against a trespasser, and that proof of title in a third person, through whom the defendant makes no claim, does not justify the defendant's ouster of the plaintiff. The court observed that this doctrine is designed to maintain public peace and order and proceeds on the theory that one in possession should not be disturbed unless by one having a better title. Id. at 251. This *906 court also has held that although the plaintiff's claim of title may be weak, prior possession is enough to make it stronger than that of a defendant who is a mere intruder. Dinwitty v. McLemore, 291 S.W.2d 448, 451 (Tex.Civ.App.Dallas 1956, no writ).
Although in Reiter, the plaintiff was claiming under a defective deed, the policy announced, in our view, extends to a case like the present in which the plaintiff has no color of record title, but was in possession when defendant entered and dispossessed him. Cf. Land v. Turner, 377 S.W.2d 181, 187 (Tex.1964) (holding that if plaintiff does not have possession when ousted, he must show that his possession has not been abandoned). As the Reiter opinion explains, the doctrine of prior possession is recognized in a long line of authorities in Texas and other common-law jurisdictions. The philosophical basis for protecting a possessor against one who dispossesses him without right is examined and justified by O. W. Holmes, Jr., in his celebrated treatise on the common law. O. Holmes, The Common Law, 206, 208, 244 (1881). Holmes points out that the only intent required is the general intent of the occupant to exclude the public. Id. at 224. We conclude that the rule of prior possession does not require a claim of legal title.
In Reiter, the supreme court also held that the fact that a tract of land is subject to an easement for an electric power line or water conduit does not render the tract immune from operation of the doctrine of prior possession. 382 S.W.2d at 247. Consequently, the existence of the utility easement on the strip now in question does not defeat plaintiffs' action for title and possession.
Defendants objected to the prior possession issue in the trial court and also made the argument orally here that this issue was not controlling because defendants' plea of not guilty admitted plaintiffs' prior possession. Apparently counsel is under a misapprehension with respect to Tex. R.Civ.P. 790, which provides that a plea of not guilty in a trespass to try title action is an admission that the defendant (rather than the plaintiff) was in possession of the premises at the time the action was commenced. We know of no authority that such a plea is an admission of the plaintiff's prior possession. Such a rule would be contrary to the authorities holding that prior possession is in itself an independent ground of recovery. Land v. Turner, supra. Since Tex.R.Civ.P. 788 expressly authorizes the plea of not guilty as a means of putting the title in issue, it would be contradictory to hold that such a plea constitutes an admission of a matter which may be asserted by the plaintiff as an independent ground of recovery.
Actual Damages
As we have already noted, defendants entered upon the disputed strip for the purpose of constructing a driveway on December 9, 1974, and again on March 29, 1975. The evidence shows that on both occasions they took down part of the fence between their property and the disputed strip and disturbed some of the shrubbery and other vegetation planted by the Phillipses. The jury found that the reasonable cost of the repairs necessary to restore the land after the first entry was $164.80, and after the second entry, $341.20. The court rendered judgment for plaintiffs for the second amount, but not for the first. Plaintiffs complain on this appeal of the court's failure to render judgment for the first amount, and defendants contend that the court was not authorized to render judgment for either amount because in both instances the repairs included an unspecified amount for repairing the fence, which was not shown to be the property of plaintiffs.
On this point we agree with defendants. The amounts found by the jury are those given in the testimony of plaintiffs' landscaper, Curtis Taber, who replanted the shrubbery and repaired the fence, but he did not specify how much was for shrubbery *907 and how much for fence repairs. The only testimony concerning ownership of the fence is that of plaintiff Nelson Phillips. He testified that the fence is on the property line between the disputed strip and the Wertz property, which was formerly part of the right-of-way of the Katy Railroad. The fence runs continuously parallel to the right-of-way beyond the disputed property. Plaintiff said that he did not know who built the fence, but assumed that the railroad put it up. He testified that he doesn't know who owns the fence, but "guesses" that he owns it.
This evidence is not sufficient even to raise a fact issue concerning ownership of the fence. A statement concerning ownership without supporting facts is an inadmissible conclusion if ownership is an issue. Magee v. Paul, 110 Tex. 470, 221 S.W. 254, 258 (1920); Southwest Bank and Trust Co. v. Executive Sportsman Ass'n, 477 S.W.2d 920, 924 (Tex.Civ.App.Dallas 1972, writ ref'd n. r. e.). Here, Phillips's testimony does not even rise to the dignity of a conclusion that he is the owner since he only "guesses" that he is, and he gives no factual basis for this guess. On the record before us, we cannot segregate the damages allowed for repairs to the fence from the other damage assessed for defendants' actions on either of the occasions in question, although the evidence indicates that on each occasion plaintiffs did sustain other recoverable damages. Consequently, we reverse and remand the cause for a new trial insofar as it concerns the claim of plaintiffs Phillips for damages to the disputed land. Moran Corp. v. Murray, 381 S.W.2d 324, 328 (Tex.Civ.App.Texarkana 1964, no writ).
Exemplary Damages
Our reversal of the Phillipses' recovery for actual damages raises the question of whether we must also reverse the judgment in their favor for exemplary damages. The jury found that on the occasions when defendants entered on the land, they "acted with willful, wanton or reckless disregard" of the rights of plaintiffs Phillips and that the Phillipses should be awarded exemplary damages against them for $10,000. The jury also assessed exemplary damages against defendants for entry upon Turtle Creek Drive in the amount of $100.00 in favor of plaintiffs Phillips, $100.00 in favor of plaintiffs Nelms, and $1.00 in favor of plaintiffs Sartain. The court rendered judgment for the $10,000 exemplary damages found, but denied recovery of the exemplary damages for entering upon Turtle Creek Drive.
It is well settled that recovery of exemplary damages cannot stand in the absence of a finding of actual damages. Jones v. Matthews, 75 Tex. 1, 12 S.W. 823 (1889); Upjohn Company v. Petro Chemicals Suppliers, Inc., 537 S.W.2d 337, 341 (Tex.Civ.App.Beaumont 1976, writ ref'd n. r. e.). This rule applies even when the defendant has been found guilty of a trespass. Texas Electric Service Co. v. Linebery, 333 S.W.2d 596, 599-600 (Tex.Civ.App. El Paso 1960, no writ); and see Giraud v. Moore, 86 Tex. 675, 26 S.W. 945 (1894) (holding that nominal damages will not sustain an award of exemplary damages). Consequently, if a finding of actual damages is not supported by the evidence, an award of exemplary damages must also fail. Securities Investment Co. v. Finance Acceptance Corp., 474 S.W.2d 261, 270 (Tex. Civ.App.Houston [1st Dist.] 1971, writ ref'd n. r. e.). Accordingly, we reverse that portion of the trial court's judgment which awarded plaintiffs Phillips exemplary damages of $10,000, and remand that claim for a new trial. Upon another trial, the court should review any finding of exemplary damages in the light of the rule that the amount of exemplary damages should be reasonably proportioned to the actual damages found. Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex. 1970).
Under the above authorities it is clear also that the court properly disregarded the findings of exemplary damages with respect to defendants' entry on Turtle *908 Creek Drive because there was no evidence and no findings of actual damages.
Injunctive Relief
All plaintiffs complain of the trial court's denial of a permanent injunction restraining defendants from entering upon Turtle Creek Drive, and plaintiffs Phillips complain of the court's denial of an injunction restraining further entry by defendants on the disputed strip. Defendants contend that the injunction was properly denied with respect to Turtle Creek Drive because plaintiffs had failed to show it to be a private drive and also with respect to the disputed strip because defendant Frank Wertz testified that he would not go upon the strip if the court held he did not have the right to do so.
We conclude that the injunction should have been granted in both respects. The evidence is sufficient at least to raise a fact issue as to whether Turtle Creek Drive is a private driveway. The original subdivision plat recorded in 1925 shows a winding strip of land between the lots, marked "reserved for driveway." The parties stipulated that this driveway has come to be known as Turtle Creek Drive and that it "has never been dedicated to the public." The evidence shows that the roadway was originally constructed at the expense of the developer and that since that time all repairs and maintenance have been done at the expense of the lot owners rather than the city. About the year 1955 the city posted signs at each end stating that the roadway is a private drive. Plaintiffs presented testimony to the effect that lot owners had from time to time advised persons using the driveway that it was private and had sought to prevent them from passing through. On the other hand, defendants testified that they had driven along Turtle Creek Drive on many occasions before the present dispute arose and had never been stopped or warned not to do so. Two other witnesses called by defendants testified to the same effect.
The jury found that Turtle Creek Drive is a private drive for the use and benefit of the lot owners in Turtle Creek Estates and answered "no" to an issue inquiring whether the general public has traveled over Turtle Creek Drive by general custom. Defendants attack these findings for lack of evidence, but in our view the evidence recited above is sufficient to support them. The original plat showing that the driveway was "reserved" rather than dedicated to the public, together with the stipulation that it has never been dedicated, is sufficient without more to support these findings in the absence of conclusive evidence establishing that the public has acquired some character of easement. Casual use by members of the public, with no visible public appropriation, does not establish a public right-of-way. The use of land by the public as a roadway will not ripen into a prescriptive right unless the evidence shows, circumstantially or otherwise, that the use was by claim of right adverse to the landowner, of which the owner has notice, for the statutory period of limitation. Ladies' Benevolent Soc'y v. Magnolia Cemetery Co., 288 S.W. 812, 815 (Tex.Com.App. 1926, jdgmt adopted). The evidence here falls far short of establishing a prescriptive right as a matter of law.
Since Turtle Creek Drive is thus established by the evidence and jury findings to be a private driveway and the evidence shows that defendants have used it in the past and have announced their intention to continue using it, we hold that the trial court erred in failing to grant a permanent injunction restraining such use.
Defendants have also announced their intention to continue to use the disputed strip for a driveway between their property and Turtle Creek Drive. In view of the Phillipses' recovery of title and possession, the injunction should also restrain defendants from further entry on the disputed strip. The fact that they do not specifically threaten to disregard the court's order does not bar plaintiffs' right to an injunction restraining defendants from commission of wrongful acts which they have committed in the past and have *909 threatened to continue in the future. Neither does the attempted unilateral "stipulation" by defendants' counsel that defendants would not violate the court's order constitute proof that defendants would discontinue their attempts to use the land for a driveway.
Judgment
Since the rulings announced above are sufficient, in our opinion, to dispose of the actual controversy between the present parties, we do not pass on plaintiffs' points which seek a declaration of their rights and claim of title to Turtle Creek Drive. The judgment is reversed insofar as it denies injunctive relief, and the cause is remanded with instructions to issue a permanent injunction restraining defendants from using Turtle Creek Drive and from entering upon and using the disputed strip. The judgment of the trial court is reversed insofar as it concerns the cause of action of plaintiffs Phillips for actual and exemplary damages for entry upon and use of the disputed strip, and that cause is severed and remanded for a new trial. In all other respects the judgment of the trial court is affirmed. Costs of the appeal are divided equally between plaintiffs Phillips and defendants.
Reversed and remanded in part and affirmed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572036/ | 2 So. 3d 489 (2008)
Johnny BRUMFIELD
v.
ANTHONY TIMBERLANDS, INC.
No. WCA 08-380.
Court of Appeal of Louisiana, Third Circuit.
December 10, 2008.
Randall Brian Keiser, Keiser Law Firm, Alexandria, LA, for Defendant/Appellee, Anthony Timberlands, Inc.
Johnny Brumfield, In Proper Person, Many, LA.
Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
EZELL, Judge.
Johnny Brumfield appeals a judgment from the Office of Workers' Compensation which denied him permanent and total disability benefits. For the following reasons, we affirm.
FACTS
Mr. Brumfield was injured in 1994 while working for Anthony Timberlands, Inc. He was attempting to clean a piece of equipment at the mill when his right hand got caught in the motor. Ultimately, his thumb had to be amputated. He received the maximum ten years of supplemental earnings benefits, which were terminated in December 2004. Mr. Brumfield then filed a claim for permanent and total disability benefits (PTD). Trial on the matter was held on December 20, 2007.
After hearing the testimony of Mr. and Mrs. Brumfield, the workers' compensation *490 judge (WCJ) denied Mr. Brumfield's claim for PTD. Mr. Brumfield appealed that decision to this court.
PERMANENT AND TOTAL DISABILITY
In denying Mr. Brumfield's claim for PTD, the WCJ recognized that while Mr. Brumfield experiences a lot of pain, that is not the only the factor entitling a worker to PTD. The WCJ, relying on La.R.S. 23:1221, considered the testimony of Mr. and Mrs. Brumfield that he receives income for cutting grass and found that Mr. Brumfield was engaging in self-employment and not entitled to PTD.
To be entitled to PTD benefits, the claimant must prove that he is physically unable to engage in any employment, regardless of the nature or character of the employment. La.R.S. 23:1221(2). Additionally, the claimant is entitled to PTD:
[O]nly if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
La.R.S. 23:1221(2)(c)(emphasis supplied).
The clear and convincing standard for proving that claimant is physically unable to engage in any employment or self-employment, as required to obtain PTD, is a heavier burden of proof than the usual civil preponderance of evidence standard, but less burdensome than the beyond a reasonable doubt standard used in criminal law. Comeaux v. City of Crowley, 01-32 (La.7/3/01), 793 So. 2d 1215.
The only people to testify at trial were Mr. Brumfield and his wife. They both testified as to the pain that Mr. Brumfield suffers with on a daily basis and that he can not physically work. At the time of trial, Mr. Brumfield was still in treatment with a pain management specialist, Dr. Stephen Katz. A list of the medications he was taking was introduced into the record.
Both Mr. and Mrs. Brumfield testified that he does on occasion cut grass for family and friends. Sometimes they pay him. It was this testimony that prompted the WCJ to find that Mr. Brumfield was capable of some type of work and not entitled to PTD.
While we may not agree that occasionally cutting a yard is consistent work that would be considered employment sufficient to preclude an award of PTD, we find that the evidence does not clearly and convincingly establish that Mr. Brumfield is entitled to PTD.
In order to prove a disability by clear and convincing evidence, the claimant must present objective medical evidence. Bailey v. Smelser Oil & Gas, Inc., 620 So. 2d 277 (La.1993); Stoute v. Petroleum Ctr., 07-1533 (La.App. 3 Cir. 4/2/08), 980 So. 2d 818; Williams v. Children's Hosp., 07-464 (La.App. 4 Cir. 1/23/08), 996 So. 2d 291.
During the presentation of evidence, trial counsel for Mr. Brumfield indicated that he would rely on the medical records introduced by Anthony Timberlands, Inc. At the end of the presentation of Mr. Brumfield's case, Anthony Timberlands, Inc. requested that Mr. Brumfield's case be dismissed due to lack of evidence of the right to PTD. The WCJ granted this motion.
There is absolutely no medical evidence in the record to indicate that Mr. Brumfield *491 is physically unable to engage in any employment. We agree with the WCJ that the evidence does not establish Mr. Brumfield's right to PTD. Therefore, we affirm the judgment of the Office of Workers' Compensation. Costs of this appeal are assessed to Johnny Brumfield.
AFFIRMED.
COOKS, Judge, Dissents and assigns written reasons.
COOKS, J., Dissents.
I agree with that portion of the majority opinion finding occasional grass cutting is not "consistent work" sufficient to preclude an award of PTD; and, therefore, the WCJ erred in holding so in this case.
However, I disagree with the majority's conclusion that because Mr. Brumfield failed to introduce objective medical evidence he fails to prove his disability by clear and convincing evidence. The opinion references Bailey v. Smelser, 620 So. 2d 277 (La.1983); Stoute v. Petroleum Ctr., 980 So. 2d 818 (La.App. 3 Cir.2008).
The Plaintiff's and his wife's testimony established that he is unable to work because of the medications he is taking. The exhibit, listing the medications he is taking, was introduced into evidence and corroborated his testimony and that of his wife. Mr. and Mrs. Brumfield's testimony, that he must take large doses of medication daily, including strong pain medication, and that the daily effects of such medications render him unable to work, stands uncontradicted. Nothing in the record indicates that either of the witnesses' testimony was not credible nor does the record, in any way, indicate that the WCJ did not believe the Brumfields' testimony.
Involuntary dismissals are recognized in La.Code Civ. P. Art. 1672(B), which states:
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. (Emphasis added)
Mr. Brumfield established, at the close of his case, that he had a right to relief. His testimony established he suffered a work-related disabling injury and that defendant was his employer at the time of the injury. The WCJ granted the involuntary dismissal because he found that Mr. Brumfield had not proven he is entitled to the relief sought. Not only was this determination improperly based upon an erroneous application of the facts, i.e. that Plaintiff's mowing neighbors' and relatives' grass was "self employment" such as would deny Plaintiff's PTD claim, but the law does not sanction the premature grant of involuntary dismissal at this stage of the proceedings, particularly considering the only evidence in the record is uncontradicted and establishes that Mr. Brumfield's daily consumption of prescribed pain medication prevents him from seeking "any meaningful" employment. The question of Mr. Brumfield's ultimate entitlement to PTD should follow only "after a full trial on the merits and after due consideration is given to all of the testimony and documentary evidence admitted at trial". Brown v. Paducah Rigging, Inc., 757 So. 2d 79 (La.App. 5 Cir.2000). As the court in Brown noted, "[w]hile a hearing officer's ruling on a motion for involuntary dismissal should not be disturbed absent manifest error, an involuntary dismissal is *492 not a substitute for a full trial on the merits." Brown, Supra, and Trench v. Harmony Construction, Co., 672 So. 2d 330 (La.App. 1 Cir.1996), writ denied, 674 So. 2d 973 (La.1996).
In Thomas v. Irving Place Rehabilitation Care Center, 771 So. 2d 820 (La.App. 2 Cir.2000), the Court of Appeal Second Circuit upheld the WCJ's denial of the motion for involuntary dismissal at the close of Plaintiff's case. In that case the Plaintiff had not introduced any medical depositions when defendant moved for involuntary dismissal alleging she failed to provide sufficient evidence to meet her burden of proof. The Second Circuit expressly stated "[w]e observe that the testimony of a worker's compensation claimant may suffice to establish a work-related accident and resulting injury, provided there is no other evidence sufficient to discredit or cast doubt upon the claimant's version of the incident and the claimant's testimony is corroborated by circumstances following the incident." Thomas, 771 So.2d at 823 and Tippet v. Mid-State Wood Preservers, 756 So. 2d 659 (La.App. 2 Cir.2000) cited therein. This Court has held that "[t]he trial court's grant of an involuntary dismissal is proper if, after weighing and evaluating all of the evidence that has been presented by the plaintiff, the trial court determines that the plaintiff has failed to prove his claim by a preponderance of the evidence". Touchet v. Hampton, 950 So. 2d 895 (La.App. 3 Cir.2007) rehearing denied. The record reflects Mr. Brumfield proved, at the very least, by credible and uncontradicted testimony and exhibit, that he had a right to relief and that he is entitled to PTD. At the time the dismissal was granted, the record evidence preponderated in favor of his claim benefits; and, ultimately if left unrefuted would suffice to establish by clear and convincing evidence that he is entitled to an award of PTD. Application of the clear and convincing burden of proof imposed upon a claimant in the ultimate determination of entitlement to PTD cannot be imposed upon the Plaintiff in the ruling on a Motion For Involuntary Dismissal for which the appropriate standard is preponderance of the evidence. Touchet v. Hampton, 950 So. 2d 895 (La.App. 3 Cir.2007); see also Kite v. Carter, 856 So. 2d 1271 (La.App. 3 Cir. 2003).
I would reverse the WCJ's decision and remand the case for further proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572049/ | 546 S.W.2d 41 (1977)
In re the MARRIAGE OF Sara SCHULTE, Appellant, and
Joseph C. Schulte, Respondent.
No. 9807.
Missouri Court of Appeals, Springfield District.
January 11, 1977.
*43 Emerson Foulke, A. L. Shortridge, Joplin, for appellant.
L. R. Buehner, Charles E. Buchanan, Buehner & Buehner, Joplin, for respondent.
HOGAN, Judge.
This is an action for dissolution of a marriage under the Dissolution of Marriage or Divorce Reform Act, now codified as §§ 452.250-452.415, RSMo Supp.1975. The trial court found the marriage irretrievably broken and ordered it dissolved. Further, the court awarded petitioner Sara Schulte 12,000 shares of stock in Talbot-General Wire Products, Inc., as her share of the marital property and granted her an indefinite maintenance order in the amount of $375 per month. Sara appeals, contending 1) that § 452.330 violates Mo.Const. Art. I, § 13, because it retrospectively deprives her of vested property rights, and 2) that the disposition of marital property and the amount of maintenance allowed are unconscionable, if authorized by law. No issue is tendered concerning the irretrievable breakdown of the marriage nor the custody of the parties' three children.
By way of brief background sketch, it appears that Sara and J.C., as the parties are referred to in the record, were married August 26, 1950, J.C. was, and is, a practicing dentist. Before their marriage, Sara worked as a dental assistant in J.C.'s office. Sara had been married before she married J.C., and J.C. adopted her son, James.
After the marriage, Sara continued working in J.C.'s dental office. Sara was the only employee. Her testimony was that she worked at the office and at home on the bookkeeping, and that she and her husband lived very frugally, because J.C. "didn't believe in debts". From time to time, Sara was warned "don't spend a dime this week other than what you have to" because the two "wanted to pay on [their] property, stocks and bonds." At the time of their marriage, Sara owned no property, and J.C. owned only a lot at 1720 Annie Baxter Street in Joplin. The two had a house built on that lot during the first years of their marriage, and it stands admitted that both J.C. and Sara participated in the construction of the house. Sara's testimony was that during the early years of her marriage, "it was rough for a while, all I got was $20.00 a week [J.C.] gave me for my clothes and grocery money."
Without going into detail, it is apparent from the record that J.C. and Sara prospered, by community standards. They became the parents of two children, built a new home, joined a country club and traveled. They acquired a considerable amount of property, of which we shall speak further. It stands admitted, as we understand the record, that all the property in issue was accumulated before the parties separated. J.C. belittled Sara's assertions that she had lived frugally and denied that Sara had been required to work in the office after the children were born, but he admitted that for 18 years after the two were married, he "couldn't have been more pleased" with Sara as a wife and mother.
The cause of the parties' separation is, of course, disputed. J.C.'s testimony was that Sara started staying out late after her regular Tuesday golf date"she might be late or sometimes didn't show up at all." Sometimes Sara stayed out all night. J.C. asked Sara where she had been, but received only "[v]ague answers". Several times he located her at Glady's Heidelberg Inn, a Joplin bar, at first alone, but later with others. "It eventually became known," according to J.C., that Sara was "running around" with a man named Hughes. Because he was "bird dog enough to want to know", J.C. followed Sara; he had seen her car parked outside Hughes' apartment, sometimes overnight. J.C.'s version of the facts was that he had many times asked Sara to return, but his entreaties had fallen on deaf ears.
Sara's testimony was that she had left home because, "We just couldn't settle our *44 differences." She stated quite unequivocally that J.C. "liked to abuse [her] physically" and she eventually became afraid of him. Sara admitted staying out overnight "once or twice". Mr. Hughes, called as a witness, admitted knowing both parties, said he had "occasionally" kept company with Sara, but denied any impropriety. J.C. admitted striking Sara, but intimated that he had done so only because her conduct had driven him to distraction. There is much evidence other than that which we have recited, but our statement illustrates the tenor of the cause.
Broadly stated, the appellant's first point is that to the extent it permits an unequal distribution of marital property, § 452.330 violates Mo.Const. Art. I, § 13,[1] because it operates to allow a court to divest a spouse of his vested interest in entirety property. Arguing that her point requires only "application" of established constitutional principles, as distinguished from "construction" of Mo.Const. Art. I, § 13, the appellant urges application of that section to void the distribution of marital property. The respondent joins in this clamor, maintaining that Rule 83.06, V.A. M.R.,[2] is inadequate and we should transfer the case to our Supreme Court pursuant to Rule 83.02, V.A.M.R., because of the general interest and importance of the case. There is, in point of fact, no constitutional question present on this appeal, nor would there be any such question before our Supreme Court if we exercised our authority to transfer the appeal there pursuant to Rule 83.02, V.A.M.R.
The transcript shows that this action was commenced in the Circuit Court of Jasper County on July 30, 1969, when Sara filed a petition for divorce together with a motion for suit money, attorneys' fees and alimony pendente lite. Issue was joined by the filing of an answer and crossbill on September 12, 1969. At some time not clearly indicated the trial court awarded Sara the sum of $300 per month as temporary alimony. Sara's action, as she euphemistically puts it, "remained dormant" until February 22, 1974. Sara then asked leave to file an amended petition on the ground that the Divorce Reform Act had become the law of Missouri and amendment of the petition was therefore necessary. The amended petition concludes with a prayer that the trial court dissolve the marriage and "divide the marital property in such proportions as the Court deems just after considering all relevant factors." We find no motion or objection, oral or written, directed to the constitutionality of the Divorce Reform Act at any place in the record. Indeed, the appellant's jurisdictional statement alleges the appeal to be within the general jurisdiction of the Court of Appeals. Having embraced the act as a basis for her recovery, the appellant may not now disclaim it as an infringement of her constitutional rights. Nixon v. Nixon, 525 S.W.2d 835, 837-838[1] (Mo.App.1975).
As for the respondent's contention that the appeal should be transferred because of the general interest and importance of the constitutional issue, we remind counsel that a constitutional issue never raised on trial cannot be considered on appeal. Whatever may have been the appropriate stage to raise a constitutional issue in this bench-tried case, it cannot be raised for the first time on appeal as an inherent matter. Consideration of a constitutional issue raised for the first time on appeal would exceed the powers of this court or our Supreme Court. Christiansen v. Fulton State Hospital, 536 S.W.2d 159, 160[3] (Mo. banc 1976); City of St. Louis v. Butler Co., 358 Mo. 1221, 1230, 219 S.W.2d 372, 378[7] (banc 1949).
The focal issues on this appeal concern the propriety of the distribution of marital property and the award of maintenance.
*45 Essentially, Sara contends that the division of marital property is unconscionably disproportionate and the amount of maintenance allowed is wholly inadequate. In this connection, she argues that fault is irrelevant to the distribution of marital property and that the trial court erroneously evaluated the relevant factors enumerated in § 452.330, RSMo Supp.1975. J.C.'s position is that both the division of property and the amount of maintenance awarded are adequate and proper in light of the evidence presented. These contentions call for a subjective review of the evidence. Rule 73.01, para. 3(a), V.A.M.R.; Murray v. Murray, 538 S.W.2d 587, 588[3] (Mo.App.1976).
The parties testified at length concerning the property they acquired during their marriage. The trial court held, at least informally, that all the property was marital property as defined by § 452.330, paras. 2 and 3, RSMo Supp.1975,[3] and that ruling is not challenged here. We must acknowledge that there is no tabulation of the marital assets, the evidence touching the value of those assets is diffusely scattered throughout the record, and we are left in doubt about some items, for example, J.C.'s Keogh [H.R. 10] Plan. Nevertheless, we are convinced in this particular case that the deficiencies of the record should not prevent an adjudication of appeal. Determination of the parties' rights has been pending since July 1969more than seven yearsand we bear in mind that it is our duty to finally dispose of the cause on its merits, if possible. Rule 84.14, V.A.M.R.; Dickey Co., Inc. v. Kanan, 486 S.W.2d 33, 36[1] (Mo.App.1972); State ex rel. George v. Mitchell, 230 S.W.2d 116, 120[5] (Mo.App. 1950).
At trial time the parties were owners of three parcels of realty:
1) A house and lot at 2539 E. 15th Street in Joplin. This is the family residence. It was built in 1957 for $26,000. Sara's testimony was that the house and lot were worth $35,000 and that the household furnishings, including antiques, were worth $10,000. J.C.'s evidence was that the house and lot were worth $32,000 and the furnishings were worth $5,000.
2) An 80-acre farm in Newton County near Diamond, Missouri. This farm was acquired in 1953 for $12,000. Sara's evidence about the value of the farm was that "[w]e were offered at one time $40,000.00 for it." J.C. maintained the offer was only $26,000 and estimated the value of the farm at $30,000.
3) Two lots, described as the Freeman Grove property, acquired in 1948 for $1,850. Sara believed the two lots were worth $5,000; J.C. estimated their value at $2,500. We may note there was evidence that Sara and J.C. bought another tract of land in 1963 for $7,500; it was sold after their separation for $11,250. The net proceeds of this sale were divided equally; Sara received $4,021.30 as her share. So, the value of the marital realty and household furnishings at trial time, depending upon the estimate of value accepted[4] was either $90,000 (Sara) or $69,500 (J.C.). The trial court apportioned all the realty and household furnishings to J.C.
Marital personalty included 1,150 shares in an investment fund known as Investor's Variable Payment Fund; it was stipulated that the value of this stock three days before the trial was $5.52 per share; the total value was therefore $6,348. Further, the parties owned 22,400 shares of stock in a closely-held corporation, Talbot-General Wire Products Inc. of Neosho, Missouri.
*46 The accountants who regularly audited Talbot-General valued the stock at $5 per share, but testimony of other experts indicated that the stock was not saleable. The corporate secretary projected corporate earnings as being "in the area of 60 to 65 cents per share", but there is other evidence that the book value of the stock was only $1.70 per share, and the accountant's audit for fiscal 1973 shows that the stock paid a dividend of $.04 per share in 1972 and $.05 per share in 1973.
The existence of other assets was shown. J.C. had set up a Keogh [H.R. 10] Plan in December 1968; he had accumulated $11,500 in this account. The details of the plan were not put before the trial court and are not, of course, before us. We shall assume, without specifically deciding, that Sara had some interest in the Keogh Plan.[5] J.C. also "owned" several life insurance policies; the cash value of these policies was $13,690. As we read and understand the record, J.C. had also accumulated the sum of $7,779 in a "fund" known as the American National Investment Fund. The value, or approximate value, of the stocks, insurance policies and savings funds comes to $39,317, excluding the Talbot-General stock. J.C. testified that he owned office equipment worth $5,000 and automobiles valued at $2,287. His debts, excluding current accounts, came to $7,250. To sum up, accepting Sara's estimates and valuing the Talbot-General stock at $5.00 per share, the net value of the marital property was $241,354; accepting J.C.'s estimates, it was $220,854. If we set the value of the Talbot-General stock at its book value, $1.70 per share, the two figures become $167,434 and $146,934. The trial court awarded Sara 12,000 shares of the Talbot-General stock as her full share of the marital property.
In deciding whether the division of marital property was so disproportionate as to be unconscionable, we bear in mind that § 452.330, RSMo Supp.1975, directs the trial court to consider four specifically listed factors: 1) the contributions of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; 2) the value of the property set apart to each spouse; 3) the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and 4) the conduct of the parties during the marriage. The factors enumerated are not exclusive. In re Marriage of Heddy, 535 S.W.2d 276, 280-281[13] (Mo.App.1976).
Before we turn to the fairness of the apportionment of marital property, a preliminary word is appropriate. Counsel have cited a number of cases decided under the former divorce law and a number of authorities from foreign jurisdictions. With one or two exceptions, the authorities are inapposite. We do not criticize counsels' presentations; the case was well-tried by two able advocates, and the appeal has been vigorously argued here. Nevertheless, since this case was triedand apparently since it was briefeda respectable body of precedent dealing with the Divorce Reform Act has developed, and we need not look to precedents under the former law for guidance. We note, in addition, that one or two rules concerning appellate review of orders distributing marital property and orders granting maintenance have developed. The first of these is that § 452.330 does not require an equal division of marital property; it looks only to a subjectively fair and equitable distribution of those assets.[6] The second is that the trial court is vested with considerable discretion in dividing marital *47 property and granting maintenance orders; appellate courts will neither scour and nitpick the record for accounting error nor second-guess the trial court's balance of the equities, but will interfere only if the division of property is so heavily and unduly weighted in favor of one party as to amount to an abuse of judicial discretion, or unless the amount of maintenance is patently unwarranted or wholly beyond the means of the spouse who pays maintenance.[7] Our inquiry into the distribution of marital property is whether the division is so disproportionate as to amount to an abuse of discretion or an erroneous application of the law.
As to enumerated consideration (1) the contribution of each spouse to the acquisition of the marital property, including Sara's contribution as a homemakerit is evident that each spouse contributed materially and substantially to the acquisition of the marital property accumulated during the nineteen years they lived together. J.C. worked five days a week, sometimes six, as a dentist, and this work, as he described it, is "physical work". Sara worked in the dental office, kept books and attended to her home and children with the assistance of a woman who came in to "clean" once a week. Neither spouse was guilty by any standard of any profligate dissipation of the marital property, and it was not necessary for Sara to prove the value of her contribution on a dollar-per-hour basis. See Cain v. Cain, 536 S.W.2d 866, 874 (Mo.App.1976), and Gaskie v. Gaskie, 534 P.2d 629, 631[2][3] (Colo. banc 1975).
In considering factor (2) of those specifically listed, we are remitted for the most part to the parties' estimates of value, but of course the parties were competent to give an opinion of the value of their own property, although the trial court was not bound to accept either estimate as exact. Carnell v. Dairyman's Supply Co., 421 S.W.2d 775, 779[9, 10] (Mo.1967); State ex rel. State Highway Commission v. Northeast Building Co., 421 S.W.2d 297, 301[3] (Mo.1967); In re Marriage of Heddy, supra, 535 S.W.2d at 280[11][12]. We have described the marital assets in detail. Accepting the most sanguine estimate of the value of the Talbot-General stock, the value of the marital property lies between $241,354 and $220.854. The value of the property apportioned to Sara comes to $60,000, but the property is unsaleable, and the record indicates she may expect to receive $.04 to $.05 per share as a dividend on the Talbot-General stock. This would produce a yearly income of $600.
Turning to factor (3), the economic circumstances of each spouse at the time the property is divided, including the desirability of awarding the family home (or the right to live there for reasonable periods) to the spouse having custody, we find that Sara had no assets except the $300 monthly temporary alimony which J.C. had been paying since 1969. She was living in a one-room basement apartment. At trial time Sara was 52 years of age. J.C. was 56 years old, in good health, practicing dentistry five to six days a week. He has occupied the family residence since he and Sara separated in 1969. He has maintained the home and the children have lived with him. He estimated his living expense to be "$18,000.00 a year, $20,000.00 a year, something like that." J.C.'s federal income tax returns for the years 1971 and 1972 indicate a gross annual income of about $35,000.
The final, specific factor for appraisal is the conduct of the parties during the marriage. § 452.330, subd. 1(4), RSMo Supp.1975. In this connection we have considered Sara's contention that "fault" cannot be considered in apportioning the marital property. She is mistaken. As a general matter, there is no necessary correlation between the elimination of fault as a ground for divorce and the elimination of fault as a relevant consideration in the division *48 of marital property,[8] and when, as in Missouri, the legislative decision has been to retain "fault" or "misconduct" as a factor to be considered in dividing marital property, the courts are not at liberty to disregard that decision. Conrad v. Bowers, supra n.6, 533 S.W.2d at 620[6]; Kretzschmar v. Kretzschmar, 48 Mich.App. 279, 210 N.W.2d 352, 356-357[2] (1973). Nevertheless, the statute refers to "conduct" of the parties "during" the marriage; as noted in Conrad v. Bowers, supra n.6, 533 S.W.2d at 620[6], the noun "conduct" includes both good conduct and marital fault, and we find the preposition "during", properly defined, to mean "throughout the whole continuance of", I Oxford English Dictionary p. 819 (Compact ed. 1971); or "throughout the course or continuance of". Merriam-Webster New International Dictionary p. 801 (1955). Inordinate focus on a particular incident or series of incidents is therefore inappropriate, particularly when the dissolution affects a marriage of long duration; § 452.330, subd. 1(4) was not intended to authorize judicial censure of either party by means of a wholly disproportionate distribution of marital property. In re Marriage of Neubern, 535 S.W.2d 499, 502 (Mo.App. 1976); In re Marriage of Powers, supra n.5, 527 S.W.2d at 956-957[13, 14].
Sara's misconduct, her "fault" in bringing about the separation, is an important circumstance here, but it is by no means controlling. The marriage lasted nearly 19 years; there is no doubt that Sara contributed materially and substantially to the accumulation of the parties' property. Taken most favorably to J.C. and the result reached by the trial court, the record establishes that in 1969 Sara started frequenting bars, staying away from home overnight, and developed an adulterous relationship with a man named Hughes. Several times Sara and J.C. attempted to become reconciled, but those attempts were unsuccessful. Sara has been guilty of misconduct, but her "fault" or misconduct has not been such as to deprive her of her right to share equitably in the marital property. In re Marriage of Powers, supra n.5, 527 S.W.2d at 956-957[14].
To recapitulate the evidence touching the four factors enumerated in § 452.330, and at the expense of some repetition, the record shows that the marital property is a product of "team effort", so to speak; J.C.'s cross-examination indicates that what he and Sara accumulated, they accumulated while they "were living together". As noted the trial court found that all the property was marital property, and that finding is in no wise challenged here.
As to factor two, the value of the property set apart to each spouse, our calculation, necessarily imprecise, indicates a marital estate having a net value between $220,854 and $241,354, or a net value between $146,934 and $167,434, depending on the value placed on the Talbot-General stock. Sara has been awarded 12,000 shares of the stock. The Talbot-General stock originally represented an investment of $16,000 for 3,200 shares in 1967. The stock thereafter split seven for one. Assuming a number of things, "continuity of management and everything else along that line", and "apply[ing] a factor of 10 to 12 times earnings", Talbot-General's accountant valued the stock at $5 per share, perhaps $6 per share. However, the testimony of Mr. Robert E. Talbot, Vice President and Treasurer of Talbot-General, indicates the stock cannot be sold, and the evidence of Mr. Gene Schwartz, corporate secretary, indicates the stock has a book value of $1.70. As indicated the corporate audit received in evidence indicates Sara may expect to earn $.04 to $.05 per share on the stock. In short, Sara has received about half of one single marital asset, the value and utility of which is extremely nebulous and open to doubt.
The economic circumstances of each spouse, the third consideration listed in § 452.330, para. 1, stand in stark contrast, as Sara argues. As we have said, Sara has no assets; J.C. has considerable property *49 and a gross income of more than $30,000 per year. It must be conceded that J.C. has maintained the family home and that it is desirable to award that home to him, even though it would obviously have been his duty to maintain that home if Sara had not left it.
Summed up, the record shows the parties lived together happily or at least compatibly, for 18 years. Sara then began drinking, staying away from home, and eventually began consorting with a paramour. J.C.'s response, we note, was to become emotionally upset to the point of striking his bride of 18 years, the mother of his children. We cannot judicially approve adultery nor the abdication of a spouse's family responsibilities, but Sara's misconduct has not been such as to warrant the grossly disproportionate award of marital property. True, Sara has been granted a maintenance order, but as she argues, the distribution of marital property is final, § 452.330(4), and her economic future and security should not be made dependent upon a single marital asset of problematic value and upon the continuance of J.C.'s good health and earning capability. Such a distribution constitutes a misapplication of the law. Sara has taken some continued interest in the farm in Newton County. The farm is a saleable asset. If Sara is to be turned out of house and home once and for all, she should be awarded some asset of more tangible value than the stock. We hold that the farm should be awarded to Sara, in addition to her share of the Talbot-General stock.
There remains the question whether the order granting maintenance can be sustained in light of the requirements of § 452.335. Contrary to Sara's apparent understanding, maintenance under § 452.335 is not the legal equivalent of alimony; maintenance may be awarded to either party upon dissolution of a marriage, but unless the spouse seeking maintenance is the custodian of a child, it must appear that he or she 1) lacks sufficient property, including the marital property apportioned to her to provide for her reasonable needs, and 2) is unable to support herself through appropriate employment. § 452.335(1)(1) and (2); In re Marriage of Neubern, supra, 535 S.W.2d at 503[4, 5]. Nevertheless, the statutory conditions are relative, not absolute, Casper v. Casper, 510 S.W.2d 253, 254-255 (Ky.1974), and the spouse seeking maintenance is not required to consume her part of the marital property before being entitled to maintenance. In re Marriage of Powers, supra n.5, 527 S.W.2d at 955[10]; In re Marriage of Eller, 552 P.2d 30, 31[1] (Colo.App.1976). The most that can be accurately said about the amount to be granted is that it is neither the policy of the law to give the spouse receiving maintenance a lifetime annuity nor to reduce her to menial labor to eke out an existence. See In re Marriage of Powers, supra n.5, 527 S.W.2d at 954-956 [9, 10][11][12]; Casper v. Casper, supra, 510 S.W.2d at 254-255; In re Marriage of Kitson, 17 Or.App. 648, 523 P.2d 575, 578-579 (1974).
Sara testified at length concerning her reasonable needs. At trial time she was living in a one-room basement apartment. Her rent was $65 per month. She was driving a 1971 Volkswagen on which she owed $1,100. She was looking for a new apartment because her landlord had sold his property, and she estimated that new living quarters would cost between $125 and $150 per month. She spent $100 per month on groceries, gasoline cost between $25 and $35 per month, and her medicine cost about $40. Her utility bill ran between $30 and $35 per month, her telephone cost $10 per month, and incidentals, including clothing, came to $84. Sara said her "miscellaneous expenses" ran from $100 to $200 per year, and her monthly car payment was $62.12 per month. In response to a direct question, Sara stated that her living expense came to $464 per month, and even at that rate she was unable to keep her current accounts paid.
Does Sara have sufficient property, including marital property apportioned to her, to provide for her reasonable needs? We believe not. Sara has no property other than the marital property apportioned to *50 her and the productivity of what she has is open to question. Manifestly the dividend she may expect from the Talbot-General stock is insufficient to provide for any person's reasonable needs. There was evidence that the Newton County farm had been acquired as a sort of security, as J.C. put it, "someplace to retire" "should something happen to me", but other evidence indicates that it has been used as a residence for Sara's mother and stepfather, and J.C.'s federal income tax returns suggest that the farm has been used as a tax shelter; at least it has been operated at a net loss for several years. Sara testified that she had done some farm work in the past, but she is now in her middle fifties and her health is uncertain. In our opinion, the farmin Sara's handsprobably will constitute a marginal enterprise rather than a source of regular income. It may be said, therefore, that the first condition prescribed by § 452.335 is met even when the farm is apportioned to Sara.
Is Sara employable at an income sufficient to meet her reasonable needs? To determine this question, it is proper to consider her education, training, experience, age, health and the length of her marriage. The length of the marriage is important because the longer the marriage, the less likely it is that the wife can acquire training sufficient to find suitable employment and become completely self-sufficient. From the record it appears that Sara has a high school education. She has been trained as a dental assistant, but she has no professional skill or training. The last time she worked as a dental assistant, she was paid $10 for a nine-hour day. Sara "used to be" a typist, but "can't any more." She has worked as a bookkeeper, but kept books "sort of by guess". She has worked at various types of employment since she and J.C. were separated; she had one traveling job at which she earned between $100 to $125 per week, but was unable to continue in that employment because she didn't feel well. More recently she has been employed as a desk clerk at several Joplin motels, earning from $.75 per hour to $1.60 per hour.
When the trial was had, Sara was 52 years of age. She is a "heart patient" and suffers from hyperglycemia. It is necessary for her to take medicine regularly and see her physician regularly. Her hearing is now impaired, and this impairment has prevented her from becoming an efficient employee. It seems obvious to us that Sara is unlikely to acquire any significant new skills and that her prospects for future regular employment sufficient to meet her reasonable needs are negligible. We bear in mind that Sara and J.C. were married and lived together nearly 19 years, and we consider that the second statutory precondition to a grant of maintenance exists here.
The amount of maintenance awarded $375 per monthis obviously not sufficient to maintain Sara by itself. However, as indicated, it is not the purpose of an award of maintenance to provide Sara with a comfortable annuity in view of the fact that she can work and earn sufficient money to supplement the award of maintenance. If the parties' financial circumstances change significantly, the award may be modified in a future proceeding. See In re Marriage of Powers, supra n.5, 527 S.W.2d at 955-956.
The cause is remanded with directions to the trial court to modify its apportionment of marital property and to apportion the farm, described as the east one-half of the southeast one-quarter (E ½ of SE ¼) in Section 21, Township 27, Range 31 West, Newton County, Missouri, to Sara Schulte as her sole and separate property. In all other respects, the judgment and decree of the trial court is affirmed.
All concur, except TITUS, J., who took no part in the consideration or decision of this case.
NOTES
[1] "That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted." (our emphasis)
[2] Which provides for transfer to the Supreme Court upon application of a party prior to opinion if such application is filed within ten days of filing the transcript with the Court of Appeals.
[3] During J.C.'s cross-examination and again at the close of the hearing, the trial court indicated it would find all the property in issue to be marital property. J.C.'s counsel was asked to prepare an appropriate decree. The order prepared does not reflect the trial court's announced finding but of course no specific, written finding was required by § 452.330 in the absence of a request. Stark v. Stark, 539 S.W.2d 779, 781 [1] (Mo.App. 1976). Neither party requested findings pursuant to Rule 73.01, V.A.M.R.
[4] The parties' estimates of value varied, e.g., J.C.'s estimates on trial were at variance with his answers to interrogatories; we have taken the most definite figures we can find in the record.
[5] See: In re Marriage of Powers, 527 S.W.2d 949, 957[16] (Mo.App.1975); In re Marriage of Brown, 15 Cal. 3d 838, 126 Cal. Rptr. 633, 544 P.2d 561, 566-568[7] [8-10] (bank 1976); Blitt v. Blitt, 139 N.J.Super. 213, 353 A.2d 144 (Ch. Div.1976); DeRevere v. DeRevere, 5 Wash. App. 741, 491 P.2d 249, 251-252[3] (1971).
[6] In re Marriage of B.K.S., 535 S.W.2d 534, 536[4] (Mo.App.1976); Conrad v. Bowers, 533 S.W.2d 614, 620[7] (Mo.App.1975); In re Marriage of Powers, supra n.5, 527 S.W.2d at 957[15]; Reed v. Reed, 516 S.W.2d 568, 570[5] (Mo.App.1974).
[7] See, e.g., Naeger v. Naeger, 542 S.W.2d 344, 347[6] (Mo.App.1976); Murray v. Murray, supra, 538 S.W.2d at 588[4]; In re Marriage of Heddy, supra, 535 S.W.2d at 280-281[13]; In re Marriage of Powers, supra n.5, 527 S.W.2d at 951; In re Marriage of Janko, 533 P.2d 62, 63[2] (Colo.App.1975).
[8] Peterson v. Peterson, 242 N.W.2d 103, 108[4-6][7] (Minn.1976); Clark, Divorce Policy and Divorce Reform, 42 U.Colo.L.Rev. 403, 410 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584832/ | 187 P.3d 270 (2008)
163 Wash.2d 1039
MATHIOUDAKIS
v.
FLEMING.
No. 80732-9.
Supreme Court of Washington, Department II.
June 4, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917815/ | 178 B.R. 13 (1995)
In re Gary C. MURPHY, d/b/a Murphy Interiors, Debtor.
Bankruptcy No. 93-33344-BKC-SHF.
United States Bankruptcy Court, S.D. Florida.
February 10, 1995.
Brad Culverhouse, Ft. Pierce, FL, for debtor.
ORDER ON OBJECTION OF UNITED STATES TRUSTEE TO CONFIRMATION OF CHAPTER 11 PLAN
STEVEN H. FRIEDMAN, Bankruptcy Judge.
THIS CAUSE came on to be heard on January 12, 1995, at the confirmation hearing on the Debtor's First Amended Plan of Reorganization (the "Plan"). Objections to the Plan were filed by the United States Trustee (the "UST") and by Curt Ogden Equipment Co. ("Ogden"), the largest creditor of this estate. Ogden, which holds a disputed judgment against the Debtor in the approximate amount of $1,280,000, failed to timely file its proof of claim, and consequently, the claim stands as disallowed. With the elimination of Ogden's claim, the Debtor's Plan is now a consensual plan, whereby the terms of the secured debt encumbering the Debtor's real property in Palm City, Florida, and Fenton, Missouri are slightly modified (without objection), and wherein, in addition to a six-year pay out to the Internal Revenue Service of the Debtor's unpaid 1992, 1993 and 1994 federal income taxes, the allowed general unsecured creditors (totaling $3,100.00) are to be paid monthly over fifteen years. Both of the creditors holding allowed general unsecured claims accepted the Plan.
The Court harbors some reservations as to the feasibility of the Plan under 11 U.S.C. § 1129(a)(11). However, having reviewed the financial projections contained in the Debtor's Disclosure Statement, and having compared these projections to the historical data contained in the Debtor's schedules relating to his substantial income level, the Court finds that the financial projections are not unrealistic, particularly with the elimination of Ogden's claim. The Court further finds that all of the other requirements for *14 confirmation delineated under § 1129 have been met. Therefore, the Court, by separate order, will enter an order confirming the Debtor's Amended Plan of Reorganization.
The gravamen of the objection raised by the UST relates to the allowance and treatment of the claim for attorney's fees submitted by Brad Culverhouse, Esq. ("Culverhouse"), the Debtor's counsel. Culverhouse has filed a fee application seeking compensation for legal services in the amount of $50,687.50 together with reimbursement of expenses for $1,640.34. The fee request subsequently was reduced by Culverhouse to $25,000.00, plus expenses, and the Debtor, at the confirmation hearing, confirmed his agreement to pay the $26,640.34 to Culverhouse on an installment basis. The UST does not object to the amount of the fee request, but rather, to the manner in which the compensation was secured by Culverhouse. The Debtor has granted a mortgage in favor of Culverhouse against his residence located at 727 S.W. 33rd Street, Palm City, Florida, to secure payment of attorney's fees incurred by the Debtor during the course of this case. This home is listed as the Debtor's homestead, and since no objection to his claim of exemption was filed, his equity in the property is exempt pursuant to Article X, § 4, Florida Constitution, and 11 U.S.C. § 522(b)(1). The Debtor estimates the market value of his home to be $250,000.00, subject to a first and second mortgage encumbering the property in the aggregate amount of approximately $60,000.00. Thus, the Debtor holds substantial equity in his home, which equity now secures payment of the $26,640.34 in attorney's fees and expenses due Culverhouse.
The UST argues that the granting of a mortgage against the Debtor's homestead to secure payment of his counsel's attorney's fee is inappropriate and is contrary to public policy. The UST both in its written objection and its argument at the confirmation hearing, asserts that counsel's action in taking a mortgage against the homestead property constitutes overreaching, and creates a conflict of interest in violation of 11 U.S.C. § 327(a).
In response, Culverhouse contends that the granting of a lien against the Debtor's homestead should be of no concern to the UST because the homestead is exempt and, as such, would not otherwise be available to satisfy the claims of creditors. Thus, Culverhouse argues that no creditor of the estate is adversely affected by the grant of a mortgage in favor of Culverhouse. Culverhouse further argues that unless the Court approves such a procedure, individuals and entities considering relief under the Bankruptcy Code will be unduly limited in their ability to seek protection. Without the ability to assure counsel of compensation for services to be rendered, such prospective debtors will be unable to obtain effective representation. The UST responds by contending that the arrangement whereby Culverhouse was to obtain a mortgage against a Debtor's homestead, at the very least, should have been fully disclosed at the commencement of the case.
As a prerequisite to serving as an attorney for a debtor, the Bankruptcy Code demands that the attorney does not ". . . hold or represent an interest adverse to the estate," and further, that such counsel be a "disinterested person". Section 101(14)(E) defines a disinterested person as one that ". . . does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity holders, by reason of any direct or indirect relationship to, connection with, or interest, in the debtor. . . ." It seems obvious that this broad definition cannot reasonably be construed so as to preclude an attorney providing post-petition services to his debtor/client from seeking compensation for services rendered after the filing of the petition on the basis that the attorney had become a creditor by providing post-petition legal services to his client, thereby rendering the attorney an "interested" party as a creditor.
It stands to reason that the statutory mosaic must, at the least, be read to exclude as a "creditor" a lawyer, not previously owed back fees or other indebtedness, who is authorized by the court to represent a debtor in connection with reorganization proceedings notwithstanding that the *15 lawyer will almost instantaneously become a creditor of the estate with regard to the charges endemic to current and future representation.
In re Martin, 817 F.2d 175, 180 (1st Cir. 1987).
However, a question is raised whether the status of an attorney for a debtor as a "disinterested person" changes when the attorney is granted a mortgage against the Debtor's property to secure payment of compensation. This issue has been discussed at length by numerous courts. The decision in Martin is cited often as setting forth factors that should be considered when examining a transaction where an attorney secures payment of fees by accepting a mortgage on the debtor's property. These noninclusive factors are:
1. The reasonableness of the arrangement.
2. Whether is was negotiated in good faith.
3. Whether the security demanded was commensurate with the predictable magnitude and value of the foreseeable services.
4. Whether the security was needed to ensure the engagement of competent counsel.
5. Whether there are signs of overreaching.
6. Whether there is a likelihood that a potential conflict of interest might turn into an actual conflict.
7. Whether the potential conflict may influence subsequent decision making.
8. The appearance of the arrangement to other parties in interest.
9. Whether the existence of the security interest threatens to hinder or delay the effectuation of a plan.
10. Whether the security is or could be perceived as an impediment to reorganization.
11. Whether fundamental fairness might be unduly jeopardized.
Martin, 817 F.2d at 182. See also, In re Carter, 101 B.R. 563, 565 (Bankr.E.D.Wis. 1989). The court in Martin also noted that
What counts is that the matter not be left either to hindsight or the unfettered desires of the debtor and his attorney, but that the bankruptcy judge be given an immediate opportunity to make an intelligent appraisal of the situation and to apply his experience, common sense, and knowledge of the particular proceeding to the request. If a lawyer is desirous of benefiting from such an arrangement, he has a responsibility to leave no reasonable stone unturned in bringing the matter to a head at the earliest practical moment.
Martin, 817 F.2d at 182 (emphasis added).
What makes this case different than the others that have considered whether an attorney is "disinterested" when a mortgage is given to secure fees is that in all reported cases, the property securing the fees is property of the estate subject to the claims of creditors. Although the Debtor's property is property of the estate, it is exempt under Florida law from levy or execution. The Court finds this distinction sufficient to conclude that Culverhouse is a disinterested party to the proceeding. However, rather than assume that such an arrangement is acceptable merely because the property is claimed as exempt, the arrangement should be disclosed at the outset of the case so that the court can examine the arrangement with the Martin factors in mind. This disclosure will give the Court the opportunity to evaluate whether the arrangement is reasonable, necessary, without conflict, and without overreaching.
It could be argued that Culverhouse provided adequate notice when he stated in his affidavit in support of the Debtor's Motion for Authority to Retain Attorney for Debtor in Possession that:
3. Neither I nor said law firm represent any interest adverse to the debtor or the estate, and we are disinterested persons as required by 11 U.S.C. Section 327(a). The debtors have executed a mortgage with a future advance [sic] clause on their home in favor of Brad Culverhouse, Attorney at Law Chartered.
However, the Court finds this disclosure insufficient especially in light of the Court's practice of approving motions to authorize *16 retention of counsel without a hearing. Rather than burying the fact that the attorney has taken a mortgage to secure his fees in an affidavit, an attorney should file a motion for court approval of this type of arrangement to the same extent that a post-petition creditor would be required to get court approval before extending credit to a debtor in exchange for a lien on the debtor's property.
If an attorney fails to follow this procedure, the Court has numerous remedies that it may implement to rectify the situation, such as disqualification, disallowance of all or some fees, and/or invalidation of the security interest. See, Martin, 817 F.2d at 183; In re Pierce, 809 F.2d 1356, 1363 (8th Cir.1987). In hindsight, the Court determines that, had Culverhouse timely disclosed the mortgage on the Debtor's homestead, it would not have disqualified Culverhouse from representing the Debtor. Further, the fees requested by Culverhouse are reasonable. Because this is the first time the Court has opined on this type of arrangement, penalizing Culverhouse would be unfair. However, in the future the Court will not be reluctant to impose sanctions. Accordingly, it is
ORDERED that Culverhouse's fees in the amount of $25,000 and expenses in the amount of $1,640.34 are approved.
ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572177/ | 722 N.W.2d 614 (2006)
2006 WI App 192
APARTMENT ASSOCIATION OF SOUTH CENTRAL WISCONSIN, INC., Plaintiff-Appellant,
v.
CITY OF MADISON, Defendant-Respondent.[]
No. 2005AP3140.
Court of Appeals of Wisconsin.
Oral Argument June 21, 2006.
Opinion Filed August 10, 2006.
*616 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William F. White, Steven P. Means, and Roisin H. Bell, orally argued by Steven P. Means, Michael Best & Friedrich, L.L.P., Madison.
On behalf of the defendant-respondent, the cause was submitted on the brief of Michael P. May and Katherine C. Noonan, orally argued by Michael P. May, Office of the City Attorney, Madison.
Before VERGERONT, DEININGER and HIGGINBOTHAM, JJ.
¶ 1 VERGERONT, J.
The issue on this appeal is whether a provision of the City of Madison's inclusionary housing ordinance is pre-empted by WIS. STAT. § 66.1015 (2003-04),[1] titled "Municipal rent control prohibited." The Apartment Association of South Central Wisconsin, Inc., (the Association) seeks a declaratory judgment that MADISON, WIS., ORDINANCE (MGO) § 28.04(25)(e)[2] is void with respect to rental dwelling units because it is pre-empted by § 66.1015. The circuit court concluded the statute does not pre-empt the ordinance provision and granted summary judgment in favor of the City. On appeal, the Association renews its argument that MGO § 28.04(25)(e) as it relates to rental dwelling units is pre-empted by § 66.1015 and is therefore void.
¶ 2 We conclude that in WIS. STAT. § 66.1015 the legislature has expressly withdrawn the power of the City to enact MGO § 28.04(25)(e). Therefore, § 66.1015 pre-empts MGO § 28.04(25)(e) and that ordinance provision is void. Accordingly, we reverse the circuit court's summary judgment in the City's favor and remand with instructions to enter summary judgment in the Association's favor.
BACKGROUND
I. The Ordinance
¶ 3 Effective February 15, 2004, the City enacted MGO § 28.04(25), titled "Inclusionary Housing." The stated purpose of the ordinance is "to further the availability of the full range of housing choices for families of all income levels in all areas of the City of Madison." MGO § 28.04(25)(a). This purpose can be accomplished, *617 the ordinance states, "by providing dwelling units for families with annual incomes less than the area median income." Id.
¶ 4 The ordinance requires a development with ten or more rental dwelling units to provide no less than 15% of its total number of dwelling units as inclusionary dwelling units when the development "requires a zoning map amendment, subdivision or land division." MGO § 28.04(25)(c)1.[3] An "inclusionary dwelling unit" as relevant to this appeal is defined as "[a] dwelling unit for rent to a family with an annual median income at or below sixty percent (60%) of the Area Median Income (AMI)...." MGO § 28.04(25)(b). The monthly rental price for rental inclusionary dwelling units "shall include rent and utility costs and shall be no more than thirty percent (30%) of the monthly income for the applicable AMI." MGO § 28.04(25)(e)1.
¶ 5 The ordinance provides that "[i]f requested, the applicant shall receive one or more incentives for providing inclusionary dwelling units or cash in lieu of inclusionary dwelling units. . . ." MGO § 28.04(25)(d)1. The number of "incentive points" for a development is determined by a formula that takes into account the percentage of units provided for families at specific AMI levels and other factors. MGO § 28.04(25)(d)2. Based on the number of points the applicant has, the applicant may then select from a list of "incentives," subject to the approval of the director of the department of planning and development. MGO § 28.04(25)(d)4. Examples of "incentives" are "density bonuses," a reduction in park dedication requirements, and a specified reduction in parking requirements. MGO § 28.04(25)(d)4.a., c., and d.
¶ 6 The city plan commission may waive the requirement to provide inclusionary dwelling units in the development "if the applicant can establish by clear and convincing financial evidence that providing the required inclusionary dwelling units on-site [in the development] shall render providing the required number of affordable dwelling units financially infeasible." MGO § 28.04(25)(c)8.a. However, a developer *618 who obtains a waiver is still subject to certain requirements in order to meet the "requirement to provide inclusionary dwelling units." MGO § 28.04(25)(c)8.b.[4]
II. Procedural History
¶ 7 After the inclusionary housing ordinance was enacted, the Association filed the complaint that initiated this action.[5] The Association is a Wisconsin not-for-profit corporation consisting of rental property owners, developers, fee managers, housing-related nonprofit organizations, suppliers to the industry, and officials and government agencies involved in the rental housing industry. The complaint alleges that MGO § 28.04(25)(e), the provision limiting the rental price for inclusionary dwelling units, seeks to regulate the amount of rent charged for rental units and thus violates WIS. STAT. § 66.1015. This statute provides:
Municipal rent control prohibited. (1) No city, village, town or county may regulate the amount of rent or fees charged for the use of a residential rental dwelling unit.
(2) This section does not prohibit a city, village, town, county, or housing authority or the Wisconsin Housing and Economic Development Authority from doing any of the following:
(a) Entering into a rental agreement which regulates rent or fees charged for the use of a residential rental dwelling unit it owns or operates.
(b) Entering into an agreement with a private person who regulates rent or fees charged for a residential rental dwelling unit.
The complaint seeks a declaratory judgment that MGO § 28.04(25)(e) is illegal and unenforceable.
¶ 8 Both the Association and the City moved for summary judgment. They agreed there were no factual disputes concerning the validity of the ordinance, so the issue presented by their motions was whether MGO § 28.04(25)(e) violates WIS. STAT. § 66.1015. The City's position was that the ordinance does not violate the statute because para. (2)(b) permits it to "enter . . . into an agreement with a private person who regulates rent . . . for a residential dwelling unit." According to the City, MGO § 28.04(25)(e) is an agreement between property owners and the City because it applies only when property owners choose not to develop their land in accordance with existing zoning or land division status and choose instead to seek the benefits of rezoning or land division.[6]
*619 ¶ 9 The circuit court concluded that the City's construction and application of WIS. STAT. § 66.1015(2)(b) were correct. It therefore granted summary judgment in favor of the City and dismissed the complaint.
ANALYSIS
¶ 10 On appeal, the Association contends that the circuit court erred in its construction and application of WIS. STAT. § 66.1015, and that, correctly construed, the statute pre-empts MGO § 28.04(25)(e). The City responds that the circuit court correctly construed the statute and its grant of summary judgment was therefore proper.
¶ 11 We review de novo the grant and denial of summary judgment, employing the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no issues of material fact and one party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).
¶ 12 The parties agree there are no issues of material fact. Which party is entitled to judgment as a matter of law depends upon whether WIS. STAT. § 66.1015 pre-empts MGO § 28.04(25)(e), which, in turn, depends upon the proper construction and application of § 66.1015. The issue of whether a state statute pre-empts a city ordinance is a question of law, DeRosso Landfill Co., Inc. v. City of Oak Creek, 200 Wis.2d 642, 652, 547 N.W.2d 770 (1996), as is the issue of the proper construction of a statute and its application to undisputed facts. State v. Tremaine Y., 2005 WI App 56, ¶ 9, 279 Wis.2d 448, 694 N.W.2d 462. We review questions of law de novo. DeRosso, 200 Wis.2d at 652, 547 N.W.2d 770; Tremaine, 279 Wis.2d 448, ¶ 9, 694 N.W.2d 462.
¶ 13 We begin by setting forth the framework for a pre-emption analysis. Article XI, section 3(1) of the Wisconsin Constitution vests in cities and villages the right to "determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. . . ." In WIS. STAT. §§ 62.04 and 62.11(5),[7] the legislature has given cities broad powers, such that they possess all powers not denied them by the statutes or the constitution. See Wis. Envtl. Decade, Inc. v. DNR, 85 Wis.2d 518, 532-33, 271 *620 N.W.2d 69 (1978). These broad powers include dealing with matters of local affairs that are also matters of statewide concern. Id. at 533, 271 N.W.2d 69. However, a city's ability to regulate matters of state-wide concern is limited. DeRosso, 200 Wis.2d at 651, 547 N.W.2d 770. If the State chooses to legislate on a matter that is of statewide concern, then it pre-empts a local ordinance in each of these four situations: (1) the legislature has expressly withdrawn the power of the municipality to act; (2) the ordinance logically conflicts with the state legislation; (3) the ordinance defeats the purpose of state legislation; or (4) the ordinance violates the spirit of the state legislation. Id. See also Anchor Savings & Loan Ass'n v. City of Madison Equal Opportunities Comm'n, 120 Wis.2d 391, 397, 355 N.W.2d 234 (1984). If any one of these four tests is met, the municipal ordinance is void. DeRosso, 200 Wis.2d at 652, 547 N.W.2d 770.
¶ 14 The City asserts that it enacted the ordinance at issue here pursuant to the zoning powers granted it under WIS. STAT. § 62.23(7)(a). That provides:
(a) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may regulate and restrict by ordinance, subject to par. (hm), the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, mining, residence or other purposes if there is no discrimination against temporary structures. This subsection and any ordinance, resolution or regulation enacted or adopted under this section, shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated. This subsection may not be deemed a limitation of any power granted elsewhere.
The City's authority to enact zoning regulations for the purposes of promoting the health, safety, morals and the general welfare of the community is broad, and the concept of the general welfare of the community in particular is broad and inclusive. See Step Now Citizens Group v. Town of Utica Planning and Zoning Committee, 2003 WI App 109, ¶¶ 26, 31, 264 Wis.2d 662, 663 N.W.2d 833. The Association does not argue that the ordinance provision at issue here is invalid for any reason other than it conflicts with WIS. STAT. § 66.1015. We take this as a concession that the ordinance provision comes within the broad powers granted to the City under WIS. STAT. §§ 62.04, 62.11(5) and 62.23(7), subject to the limitation of pre-emption by state legislation.
¶ 15 Although neither party discusses whether WIS. STAT. § 66.1015 is a statute of statewide concern, the City's reference to Anchor Savings, 120 Wis.2d 391, 355 N.W.2d 234, as setting forth the applicable pre-emption analysis indicates that the City believes the statute is a matter of statewide concern, and the Association's argument presumes that it is. Therefore, in this case whether § 66.1015 pre-empts MGO § 28.04(25)(e) depends upon whether any one of the four tests in paragraph 13, supra, are met. Answering this question requires a resolution of the parties' dispute over the proper construction and application of the statute, and we turn to that issue now.
¶ 16 When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. *621 Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If this process of analysis yields a plain meaning, then there is no ambiguity and we apply that plain meaning. Id., ¶ 46.
¶ 17 The structure of WIS. STAT. § 66.1015 is that the first subsection contains a prohibition on the listed governmental entities "regulat[ing] the amount of rent or fees charged for the use of a residential rental dwelling unit"; and the second subsection describes two situationsboth involving entering into agreementsthat are not prohibited by the statute. The City acknowledges that subsec. (1) "contains an express withdrawal of power that would preempt the City from adopting the Ordinance . . . if the legislature had not provided the exceptions in § 66.1015(2)." The City agrees with the Association that para. (2)(a) does not apply to the ordinance: this subsection concerns only residential rental dwelling units that the City "owns or operates." (Emphasis added.) The parties' dispute centers on the meaning and application of para. (2)(b): "[e]ntering into an agreement with a private person who regulates rent or fees charged for a residential rental dwelling unit."
¶ 18 The Association argues in its appellate briefs that WIS. STAT. § 66.1015(2)(b) plainly applies only to agreements with private persons who, on their own, choose to regulate rent and makes clear that a municipality is not imposing rent control if it contracts with those persons "for some other purpose or somehow assists [them]." The Association points out that the language used is "an agreement with a private person who regulates rent," not an agreement with a person "to regulate rent." However, at oral argument, the examples the Association gave of the agreements contemplated by para. (2)(b) included agreements whereby the City makes a loan or provides TIF[8] funds to private entities who in return agree to place limits on the rents they charge. This appears to be a different construction than advanced in the Association's briefs. But both in its briefs and at oral argument the Association is very clear that its position is that MGO § 28.04(25)(e) is plainly not an "agreement" within the meaning of § 66.1015(2)(b). Instead, according to the Association, this ordinance provision is an imposition of rent control by regulation, which is plainly prohibited by subsec. (1).[9]
¶ 19 The City's position is that the language "[e]ntering into an agreement with a private person who regulates rent" plainly *622 means entering into an agreement with a private person under which that person is obligated to regulate rent. According to the City, MGO § 28.04(25)(e) plainly is an agreement within the meaning of para. (2)(b).
¶ 20 We first consider whether the language in WIS. STAT. § 66.1015(2)(b) means that the agreement with the private person is an agreement under which the private person regulates rent or, instead, is an agreement on another subject with a person who regulates rent independent of the agreement.
¶ 21 While the rules of grammar might indicate that "who regulates rent" modifies person and has nothing to do with the "agreement," we conclude this is not a reasonable construction of WIS. STAT. § 66.1015(2)(b). It is not reasonable to read subsec.(1) as prohibiting a municipality from entering into an agreement on any subject with a private person simply because that person "regulates rent. . . ." Thus, we can see no reason why the legislature would say in para. (2)(b) that this is not prohibited. In addition, as we have already mentioned, the examples of para. (2)(b) that the Association gave at oral argument involved agreements under which private persons agree to limit the rent they charge as consideration for benefits they obtain under the agreement. Counsel for the Association candidly acknowledged that he could not think of other examples of what the language might mean.
¶ 22 We conclude the only reasonable construction of WIS. STAT. § 66.1015(2)(b) is that the designated entities are not prohibited from entering into an agreement with a private person whereby that person agrees to regulate rent. Our next inquiry is whether MGO § 28.04(25)(e) is an agreement to regulate rent between the City and persons who apply for zoning map amendments, subdivision or land division in order to develop their property with ten or more rental dwelling units.
¶ 23 In order to establish the common meaning of words when construing a statute, we may consult a dictionary. State v. Sample, 215 Wis.2d 487, 499-500, 573 N.W.2d 187 (1998). When words have a legal meaning, it is appropriate to consult Black's Law Dictionary. See State v. Ellis H., 2004 WI App 123, ¶ 15, 274 Wis.2d 703, 684 N.W.2d 157. The phrase "entering into an agreement" connotes that the agreement is a transaction with legal significance, and the City's definition of "agreement" from Black's Law Dictionary is therefore appropriate: "mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more parties." BLACK'S LAW DICTIONARY 74 (7th ed. 1999).
¶ 24 We agree with the Association that MGO § 28.04(25)(e) is plainly not a "mutual understanding" or a "manifestation of mutual assent" between the City and applicants. It is plainly a regulation that imposes a requirement on all applicants for zoning map amendments, subdivisions or land divisions that, in order to develop property with ten or more rental dwelling units, they must charge no more than a specified amount of rent for no less than a specified percentage of rental dwelling units.
¶ 25 The City makes a number of arguments in support of its position that MGO § 28.04(25)(e) is an agreement with persons who apply for zoning map amendments, subdivisions or land divisions in order to develop their property with ten or more rental dwelling units. However, we find none of them persuasive.
*623 ¶ 26 The City first argues that every agreement by its nature contains some provisions that a party wants in the agreement and some provisions that a party would not choose but assents to only because the other party insists. That is no doubt true, but it does not explain why the requirement in MGO § 28.04(25)(e) is an agreement. The City is using its regulatory power to impose that requirement on property owners in the specified situations. The City's argument that there is an "agreement" as to this requirement because property owners can choose not to develop their land in ways that need a zoning map amendment, subdivision or land division, or can choose to have less than ten rental dwelling units, does not comport with the commonly understood meaning of "mutual understanding" or "mutual assent." Under the City's meaning, in every instance that the City issues a license or permit or grants approval of any kind for which conditions are imposed by ordinance, the City is "entering into an agreement" with the applicants as to those conditions, because the applicants could choose not to engage in the activity for which conditions are imposed. This is not a reasonable construction of the phrase.
¶ 27 It is also true, as the City argues, that property owners do not have an unlimited right to develop their property as they choose but can be required to comply with zoning regulations or specific conditions that are based on the general welfare of the community. See, e.g., Buhler v. Racine County, 33 Wis.2d 137, 148, 146 N.W.2d 403 (1966), and Zealy v. City of Waukesha, 201 Wis.2d 365, 381, 548 N.W.2d 528 (1996). However, it does not logically follow that property owners are therefore agreeing to MGO § 28.04(25)(e). Rather, that provision is a requirement the City has imposed on property owners using its authority to regulate for the general welfare of the community. The issue in this case is not whether property owners have a right to be free from that requirement but whether WIS. STAT. § 66.1015 pre-empts the City from enacting it.
¶ 28 The City contends that the targeted nature of MGO § 28.04(25)(e) makes it an agreement between the City and the applicants. The fact that there are many landlords to whom this ordinance provision does not apply does not alter the fact that, as to those persons to whom it does apply, the City is imposing by regulation a requirement that limits the amount of rent they can charge in a specified number of units.
¶ 29 Nor does the availability of incentive points in MGO § 28.04(25)(d) make MGO § 28.04(25)(e) an agreement. The incentive points for the required number of inclusionary dwelling units are not incentive points within the common meaning of the word "incentive:"[10] they do not induce or motivate applicants to provide the required number of inclusionary dwelling units for the simple reason that the applicants have no choice as to that. The incentive points available for providing a greater number of inclusionary dwelling units than required are truly incentive points; and perhaps one might reasonably say that an applicant is agreeing to provide a greater number in exchange for more incentive points. However, it is not reasonable to say that an applicant is agreeing to provide the required number of inclusionary dwelling units in exchange for incentive points when an applicant does not have the option of declining the related *624 incentive points and not complying with MGO § 28.04(25)(e).
¶ 30 Finally, the waiver provision does not make MGO § 28.04(25)(e) an agreement. This provision gives the City the authority to reduce the requirement of MGO § 28.04(25)(e) or impose substitutes if the applicant makes the requisite showing. MGO § 28.04(25)(c)(8). This provision makes the requirement less onerous for those applicants who the City decides qualify for a waiver, but it does not create an agreement between the City and those applicants; nor does it alter the fact that the requirement of MGO § 28.04(25)(e) is imposed on all other applicants who meet the criteria in MGO § 28.04(25)(c)1.
¶ 31 The City also contends that MGO § 28.04(25)(e) is consistent with the scope, context and purpose of WIS. STAT. § 66.1015(2) and related statutes. First, the City points out that subsec. (2) includes not just municipalities, as does subsec. (1), but also housing authorities and the Wisconsin Housing and Economic Development Authority (WHEDA), whose purposes include providing housing and other services to low and moderate income families. See WIS. STAT. §§ 66.1201(2); 234.03(8), (9), (10), (15), and (15m). Because the purpose of the ordinance as stated in MGO § 28.04(25)(a) is consistent with the purposes of those authorities, the City asserts, MGO § 28.04(25)(e) is consistent with the purposes of those authorities.
¶ 32 The City's argument ignores the significant language in WIS. STAT. § 66.1015(2)(a) and (b) of "entering into a rental agreement . . ." and "entering into an agreement . . .," respectively. When we consider the scope, context and purpose of the statute as expressed in the text of the statute, we do not view words in isolation but consider the language of the statute as a whole. See Kalal, 271 Wis.2d 633, ¶ 46, 681 N.W.2d 110. Thus, the addition of "housing authority" and "[WHEDA]" to subsec. (2) expresses the legislature's intent to permit these entities to fulfill their purpose of making housing available to low and moderate income families by entering into the agreements described in paras. (2)(a) and (b). Similarly, the language of subsec. (2) shows the legislature's intent to permit municipalities to further the goal of making available affordable housing for people with low and moderate incomes by entering into the agreements described in paras. (2)(a) and (b). On the other hand, the language in subsec. (1) plainly prohibits municipalities from "regulat[ing] the amount of rent . . ." even if the purpose of doing so is to make available affordable housing to persons of low and moderate incomes. In other words, in § 66.1015(1) the legislature has expressly withdrawn from municipalities the option of "regulat[ing] the amount of rent ..." as a means of making affordable housing available; while in § 66.1015(2) the legislature has permitted (not prohibited) municipalities and housing authorities to enter into the agreements described as a means of making affordable housing available.
¶ 33 The City's argument based on other statutes has a similar analytical deficiency in that it overlooks the plain language of WIS. STAT. § 66.1015 in favor of the purposes expressed in more generally worded statutes. The City first points to the requirement in WIS. STAT. § 62.23(2) and (3) that cities must adopt a master plan containing certain elements, among them a "housing element." WIS. STAT. § 66.1001(2)(b). This element
. . . shall . . . identify specific policies and programs that promote the development of housing for residents of the local governmental unit and provide a range of housing choices that meet the needs of persons of all income levels and *625 of all age groups and persons with special needs, policies and programs that promote the availability of land for the development or redevelopment of low-income and moderate-income housing, . . . .
We agree that requiring this element in a master plan expresses the legislature's intent that cities take steps to make affordable housing available to persons of low and moderate income. However, while a city's regulation of the amount of rent charged for residential dwelling units might otherwise be a policy or program that fulfills this element, the legislature has expressly prohibited such regulation in § 66.1015(1). At the same time, the agreements expressly permitted (not prohibited) in subsec. (2) are options for cities to employ to fulfill the housing element of their master plans.
¶ 34 The City also refers to WIS. STAT. §§ 1.13(2)(i)[11] and 16.965(4)(b)9,[12] both of which express a legislative policy of encouraging local governments to provide an adequate supply of affordable housing for persons of all income levels. However, local governments may not choose a means of achieving that goal that is prohibited by WIS. STAT. § 66.1015.
¶ 35 In summary, we conclude that in WIS. STAT. § 66.1015(1) the legislature has expressly withdrawn the power of the City to enact MGO § 28.04(25)(e) because this ordinance provision regulates the amount of rent that property owners in the specified circumstances may charge for rental dwelling units. We also conclude that MGO § 28.04(25)(e) is not permitted by § 66.1015(2)(b) because this ordinance provision is plainly not an "agreement" with the property owners to whom it applies. Accordingly, in § 66.1015 the legislature has expressly withdrawn the power of the City to enact MGO § 28.04(25)(e).
¶ 36 We recognize, as did the DeRosso court in deciding there was pre-emption in another context, the importance of the City's local concerns and the goals it is attempting to achieve in MGO § 28.04(25). See DeRosso, 200 Wis.2d 642, 547 N.W.2d 770. However, where the subject is of state-wide concern, local control must yield when any one of the four tests set forth in paragraph 13, supra, are met. See DeRosso, 200 Wis.2d at 657, 547 N.W.2d 770. Because we have determined that the first test has been met as to MGO § 28.04(25)(e)the legislature's express withdrawal of the power of municipalities to actthis provision of the ordinance is void. See id. at 652, 547 N.W.2d 770.
¶ 37 We reverse the circuit court's order granting summary judgment in the City's favor and remand with instructions to enter summary judgment in the Association's favor declaring that MGO § 28.04(25)(e) is *626 void because it is pre-empted by WIS. STAT. § 66.1015.
Order reversed and cause remanded with directions.
NOTES
[] Petition for review filed.
[1] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[2] MADISON, WIS., ORDINANCE (MGO) § 28.04(25) became effective February 15, 2004. The Association's appendix contains a version of MGO § 28.04 in effect on November 2, 2005. The City does not provide another version in its appendix and does not argue that we should not use the version in effect on November 2, 2005. Therefore, that is the version we use.
At oral argument, in response to questions from this court, the parties advised us that the Madison Common Council was considering amendments to MGO § 28.04. The parties agreed that, if passed, the amendments would not affect this appeal. Subsequently, the City filed a motion requesting that we take judicial notice that the Madison Common Council adopted the amendments on July 11, 2006. The motion did not state that the amendments affected this appeal in any way or affected any of the arguments made by the parties. Accordingly, we grant the motion insofar as we take judicial notice that the ordinance was amended on July 11, 2006, but we do not consider the amendments on this appeal.
[3] MADISON, WIS., ORDINANCE § 28.04(25)(c)1 provides in full:
(c) Provision of Inclusionary Dwelling Units.
1. Rental. All development as defined in Sec. 28.03(2), with ten (10) or more rental dwelling units on one or more contiguous parcels that requires a zoning map amendment, subdivision or land division, shall provide a number of inclusionary dwelling units equal to no less than fifteen percent (15%) of the total dwelling units in the development.
Notwithstanding the above:
a. Development that contains only rental dwelling units financed by Section 42 low income housing tax credit shall not be subject to this ordinance.
b. Development with at least fifteen percent (15%) rental dwelling units financed by Section 42 low income housing tax credit and/or qualified housing revenue bonds and in which those dwelling units are dispersed throughout the development per Subdivision (g)6 of this ordinance, shall not be subject to this ordinance.
c. Development that contains fewer than fifteen percent (15%) rental dwelling units financed by Section 42 low income housing tax credit and/or qualified housing revenue bonds are subject to this ordinance and the number of rental dwelling units receiving low income tax credits that count toward the total number of inclusionary dwelling units required shall depend on the dispersion of the inclusionary dwelling units in the development per Subdivision (g)6[.]
The ordinance also imposes requirements for inclusionary dwelling units on owner-occupied dwelling units and other residential occupancy dwelling units. MGO § 28.04(25)(c)2. and 3. However, the Association made clear at oral argument that this action challenges MGO § 28.04(25)(e) only insofar as it affects rental dwelling units.
[4] The waiver provision in MGO § 28.04(25)(c)8.a. and b. provides:
8. Waiver.
a. The Plan Commission may waive the requirement to provide inclusionary dwelling units on-site (in the development) if the applicant can establish by clear and convincing financial evidence that providing the required inclusionary dwelling units on-site shall render providing the required number of affordable dwelling units financially infeasible.
b. If a waiver is granted, the requirement to provide inclusionary dwelling units shall be met by providing some or all of the inclusionary dwelling units off-site by assigning the obligation to provide some or all of the inclusionary dwelling units to another person, by making a payment into the Inclusionary Zoning Special Revenue Fund, or any combination of the above. (Am. by ORD-05-00054, 3-15-05)
[5] Prior to filing the complaint, the Association filed a "Notice of Claim and Claim" pursuant to WIS. STAT. § 893.80(1)(b), alleging MGO § 28.04(25)(e) was illegal rent control and alleging the ordinance caused the Association and its constituent members damage in an amount "currently not ascertainable, but . . . not less than $50,000." The common council disallowed the claim.
[6] The City also moved for summary judgment on the ground that the Association lacked standing and that the controversy was not ripe. The circuit court concluded the Association had standing to bring the action and the controversy was ripe. The City does not appeal these conclusions.
[7] WISCONSIN STAT. § 62.04 provides:
Intent and construction. It is declared to be the intention of the revision of the city charter law, to grant all the privileges, rights and powers, to cities which they heretofore had unless the contrary is patent from the revision. For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that ss. 62.01 to 62.26 shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof.
WISCONSIN STAT. § 62.11(5) provides:
(5) POWERS. Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.
[8] TIF means "tax incremental financing." See WIS. STAT. § 66.1105.
[9] Both in its briefs and at oral argument, the Association contends that it is significant that WIS. STAT. § 66.1015(2) does not begin with the words "notwithstanding subsection 1" but instead begins "this section does not prohibit ... the following." According to the Association, the chosen language means that the two situations in subsec. (2) are not rent control; the language does not mean that they are rent control but are exceptions to the prohibition. We are unable to see how this distinction aids in construing the statute. Whether subsec. (2) contains a clarification of what is not rent control or exceptions to the prohibition on rent control, the legislature has plainly chosen not to prohibit the activities described in this subsection, and our task is to determine what the legislature intended not to prohibit in para. (2)(b).
[10] THE AMERICAN COLLEGE HERITAGE DICTIONARY 686 (3rd ed. 1993) defines the adjective "incentive" as "[s]erving to induce or motivate."
[11] WISCONSIN STAT. § 1.13(2)(i) provides:
(2) Each state agency, where applicable and consistent with other laws, is encouraged to design its programs, policies, infrastructure and investments of the agency to reflect a balance between the mission of the agency and the following local, comprehensive planning goals:
. . . .
(i) Providing an adequate supply of affordable housing for individuals of all income levels throughout each community.
[12] WISCONSIN STAT. § 16.965(4)(b)9. provides:
(4) In determining whether to approve a proposed grant, preference shall be accorded to applications of local governmental units that contain all of the following elements:
. . . .
(b) Planning efforts that contain a specific description of the means by which all of the following local, comprehensive planning goals will be achieved:
. . . .
9. Providing an adequate supply of affordable housing for individuals of all income levels throughout each community. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572178/ | 437 F.Supp. 1231 (1977)
FOTOMAT CORPORATION, Plaintiff,
v.
Steven COCHRAN, d/b/a Quick Stop Photo, Defendant.
No. 75-196-C5.
United States District Court, D. Kansas.
April 12, 1977.
*1232 *1233 *1234 *1235 Welton B. Whann, San Diego, Cal., Michael A. Kaplan, La Jolla, Cal., John E. Wilkinson, Topeka, Kan., for plaintiff.
David R. Gilman, Overland Park, Kan., for defendant.
DECISION OF THE COURT
ROGERS, District Judge.
This is an action for trademark infringement and unfair competition arising from defendant's use of a building design in the provision of drive-in photographic development services which allegedly infringes plaintiff's trademarked building design.
Defendant counterclaimed, arguing that plaintiff's federal registered trademark should be cancelled as unprotectable on non-functionality groups. At the end of the defendant's evidence, we ruled against the counterclaim as a matter of law, concluding that defendant had not met its burden of proof in challenging a presumptively valid federal trademark registration. We felt the evidence clearly showed that plaintiff's trademark was distinctive and arbitrary. The shape of plaintiff's building design with specific emphasis as to the shape of the roof, was not dictated by the function it was to serve. Nor would enjoining others from using the building design inhibit competition in any way, for defendant's own expert testified that many other designs would provide all the "functional" benefits which defendant claimed inhered in this particular design. While this particular design did shelter the plaintiff's personnel and stock from the elements, it did so no better than a myriad of other building designs. Therefore, while the design had some small element of functionality, it was not "in essence" functional. An analogy can be drawn from this wording in Best Lock Corporation v. Schlage Lock Company, 413 F.2d 1195, 1199, 56 CCPA 1472 (1969):
. . . some articles, made in a purely arbitrary configuration, (e. g., the wine bottle considered in Mogen David) [Application of Mogen David Wine Corporation, 328 F.2d 925, 51 CCPA 1260 (1964)] may perform a function, holding wine, which could equally well be served by containers of many other shapes, and in such circumstances the incidental function should not by itself preclude trademark registrability if the other conditions precedent are present.
See also Time Mechanisms, Inc. v. Qonaar Corp., 422 F.Supp. 905, 913-914 (D.N.J. 1976).
We realize that Judge Gerry has reached a contrary conclusion in Fotomat Corporation v. Photo Drive-Thru, Inc., 425 F.Supp. 693 (D.N.J.1977). Judge Gerry concluded *1236 that the Fotomat building was functional and stated that he had received no evidence that (1) linked confusion to any "similarity in the aspects of the building designs which are distinctive for federal trademark purposes" or (2) confusion was design-related, rather than "caused by generalized similarities in the settings and products." We note (1) Judge Gerry was ruling only on a motion for a preliminary injunction; (2) plaintiff represents, and it appears from the opinion, that Judge Gerry received no specific evidence as to functionality; (3) we received evidence which did clearly link customer confusion to the shape of the roofs; and (4) we received evidence clearly indicating that the shape of the Fotomat roof is only incidentally functional, and is primarily distinctive and arbitrary. Had Judge Gerry been given the benefit of the evidence which we were presented, he might well have reached a contrary conclusion. In support of our conclusion, see Fotomat Corporation v. Houck, 166 U.S.P.Q. 271 (1970).
Thus, it is our conclusion that while the Fotomat building configuration does serve incidentally functional purposes, it is in essence arbitrary and distinctive and may constitute a valid service mark. We will discuss the issue of functionality no further in this opinion; we presume the validity of plaintiff's service mark.
Trial to the Court was held January 24 to 27, 1977. At the close of the evidence, the Court allowed both sides to file final briefs. These have recently been received. We state for the record that this case was well prepared and well tried. Counsel for both sides are to be commended.
Upon reflection, we have concluded that two evidentiary rulings made during the trial should be reversed. First, we have concluded that the testimony of Melville Owen should be disregarded as invading the province of the Court. Second, we have concluded that all passages from the book used by plaintiff to cross-examine defendant's witness Balderson should be disregarded for lack of a proper foundation. We have completely disregarded both of these sources of evidence.
FINDINGS OF FACT
The Plaintiff
1. Plaintiff Fotomat Corporation is a Delaware corporation with its principal offices in La Jolla, California, and Stamford, Connecticut. Fotomat has engaged in the retail drive-in photographic service and supply store business since 1967, when it purchased the rights to its service mark from its predecessor corporation which had begun operations in 1966.
2. Since opening its business, Fotomat has used continuously a building design which includes a small building with a rectangular base. The building is a free-standing kiosk which is normally situated in the parking lot of a shopping center. The base of the building is aluminum with doors and windows suitable for drive-up service. The most distinguishing feature of the design is the large, steeply-pitched roof which overhangs the base of the building. The roof can be variously described as an A-frame, a hip roof, or a gable roof. The Fotomat building is blue with a yellow, three-tiered roof. Fotomat constructs its own buildings and erects them with concrete planters at each end. Fotomat departs from its standard blue and yellow building only when local building regulations or shopping center leases require changes. The most frequent change required is that Fotomat place a brown thatched roof over its normal yellow, three-tiered roof. In practice, the "standard" Fotomat buildings are not identical, but are extremely similar. [See Appendix # 1. The standard Fotomat building is pictured in the left hand column; defendant's allegedly infringing stores are represented in the other two columns]
3. A slight change in the design of the Fotomat store occurred around 1972 when the word "FOTOMAT" was moved from the ends to the sides of the kiosks, and the size of the letters was increased from about 7 inches to about 11 inches.
4. On April 13, 1971, plaintiff's service mark, consisting of a black and white sketch of its building design, was registered on the Principal Register of the United *1237 States Patent and Trademark Office. [See Appendix # 2]
5. On September 5, 1972, plaintiff's building design with color and the word "Fotomat" was registered on the Principal Register of the United States Patent and Trademark Office. [See Appendix # 3]
6. On October 22, 1968, Fotomat registered, with the State of Kansas Service Mark Registration, its building design without color and its building design with color and the word "Fotomat".
7. By October 31, 1976, there were over 2600 Fotomat stores embodying the Fotomat building design in operation in 37 of the United States and Canada. In the last five years, Fotomat has done approximately $450 million worth of retail business.
8. On October 25, 1968, Fotomat expanded into Kansas by opening and operating a store embodying the service mark building design in Kansas City, Kansas.
9. Phil Chamberlain is the area manager for Fotomat, headquartered in Kansas City, Missouri. His area of responsibility includes metropolitan Kansas City and the surrounding areas, including Topeka. There are 53 stores in Chamberlain's area. All 53 utilize the standard shape of the Fotomat building design. Six of the buildings have a changed roof composition or color because of housing and building regulations or because of lease restrictions. The remaining 47 buildings are the standard blue-and-yellow color and standard design.
10. In September, 1974, Fotomat opened four stores in Topeka, Kansas. In May, 1976, Fotomat opened two more stores in Topeka. All six of these stores utilize the standard blue-and-yellow Fotomat building.
11. Plaintiff has established a reputation in Lawrence, Kansas, even though it has no shops presently open there. Fotomat is reasonably likely to expand its business into Lawrence in the future. Fotomat has investigated sites and attempted to arrange leases in Lawrence, Kansas. Mr. Chamberlain has examined several places in Lawrence as possible sites for future Fotomat stores. However, plaintiff has not attempted to negotiate any leases since the summer of 1976.
12. In the past six years, Fotomat has spent approximately $18 million for advertising. All television advertising includes the prominent display of the standard blue-and-yellow Fotomat building. All printed advertising in magazines and newspapers features the Fotomat building design. Until a few years ago, all Fotomat radio advertising described the Fotomat building design, referring the potential customer to the "little blue building with the big yellow roof." Fotomat also displays its building design on processing bags, film boxes, flash cube boxes, merchandising bags, processing envelopes, delivery trucks, letterheads, business cards, checks, invoices, purchase orders, coupons, fliers, and the like. [See Appendix # 4 for example of Fotomat film envelope.]
13. Significant amounts of Fotomat's advertising have been done through Kansas City media that reach Lawrence and Topeka. In the last four years, Fotomat has spent approximately $100,000 on television advertising in the Kansas City television stations. Lawrence is within the ADI [area of dominant influence] of the Kansas City television stations. These stations all reach Topeka, but it is a secondary market. Significant amounts have also been spent on advertising with Kansas City radio stations which reach Lawrence and Topeka. On December 26, 29, and 30, 1974, Fotomat advertised in the morning and evening Kansas City Times and Star. It is estimated that this newspaper puts 2000 papers daily into Topeka, and 7500 into Lawrence.
14. In 1971 and 1972, Fotomat advertised in five issues of Life magazine, which placed 80,000 issues into Kansas each week.
15. Fotomat has advertised on Topeka radio and television in the last two years.
16. The building design which plaintiff has service-marked is a valuable assert to the Fotomat company. The kiosks themselves serve as large, highly-visible bill-boards.
17. The Fotomat building is a symbol of the company. Because of its unusual and original design, it serves as an attention-getting and recall device for customers.
*1238 18. Plaintiff's service mark is distinctive and fanciful. The evidence indicates, and defendant admits, that the Fotomat design is a well-known, attractive, and famous service mark.
The Defendant
19. Defendant Steve Cochran resides in Lawrence, Kansas. Excluding one early walk-in store which was open only a short time, Cochran has, at one time or another, operated four retail drive-in photo processing stores under the name "Quick Stop Photo". His first store was located in the North Plaza Shopping Center, 2008 North Central, in Topeka. (the "North Topeka" store) It was opened on November 27, 1972. Cochran's second store was located in the Eastboro Shopping Center in Topeka, at 3158 East 6th Street. It opened in June of 1974, but is now closed. Cochran's third Topeka store is located in the Brookwood Shopping Center, at 2910 Oakley. It opened in October, 1974. Defendant's fourth store is located in the Mall Shopping Center, 711 West 23rd Street, in Lawrence, Kansas. It was opened in December, 1974.
20. The Brookwood and Eastboro stores are not alleged to be infringing stores. Plaintiff does allege that the North Topeka and Lawrence stores are designed so similarly to the standard Fotomat design as to infringe Fotomat's service mark. These two buildings are of the same general configuration as the Fotomat building. Most importantly, these two buildings have a large roof shaped similar to the Fotomat roof. The defendant's roofs are painted orange. Defendant built these two buildings himself with the help of his cousin. [See Appendix # 1]
21. Defendant began his business after Fotomat had received its Federal and Kansas registration and after Fotomat had begun business in the State of Kansas. Defendant entered the Topeka market before plaintiff. As explained above, plaintiff has not yet entered the Lawrence market although it does have expansion plans which would include entering the Lawrence area.
22. Defendant is the owner of two service marks registered in the Office of the Kansas Secretary of State. One is "Quick Stop" and the other is "Steve's Quick-Stop One Day Photofinishing". Defendant has not registered his building design.
23. Defendant Cochran has advertised on a modest scale in the Topeka and Lawrence areas. Defendant's radio advertisements stress that Quick Stop Photo is "the little building with the orange roof."
24. Defendant's clerks answer the telephone by stating "Quick Stop Photo". The name "Quick Stop Photo" is on a large sign on the two allegedly infringing stores, although it cannot always be seen by a customer coming in from the side.
25. Cochran prominently displays a drawing of his North Topeka store on his fliers, processing envelopes, and other written advertisements. He associates the color orange with his building as much as possible. [See Appendix # 5 for an example of defendant's film envelope.]
Similarity
26. Plaintiff and defendant provide the public with substantially similar services. Both provide drive-through service by a shop that offers quick film processing at discount rates. Both offer for sale film and other photographic accessories.
27. Both plaintiff and defendant cater primarily to amateur photographers.
28. Defendant's buildings in North Topeka and Lawrence have numerous similarities to plaintiff's building design. Both are small, free-standing buildings situated in parking lots. Both are rectangular buildings with planters at each end, suitable for drive-up services, as are plaintiff's buildings. Both defendant's buildings have a steeply pitched roof that is large in proportion to the base, and which overhangs the base. Silhouettes of the defendant's buildings would be extremely similar to those of plaintiff's buildings, primarily because the roofs are similar in height, shape, angle, and overhang. Arrangement of windows, doors, and advertising placards are also similar.
29. If viewed side-by-side, defendant's buildings would be distinguishable from plaintiff's buildings. The exact dimensions *1239 of the base of the building and the exact angle of the roof are not identical. Defendant's North Topeka store is topped by a sign which reads "Kodak-Film, Quick Stop Photo Shop", and has a skirt around the overhang of the roof which reads: "Quick Stop Photo One Day Photo Finishing". Defendant's Lawrence store has a skirt around the overhang which reads: "Quick Stop Photo One Day Photofinishing". Defendant's two buildings have artificial red brick bases, while plaintiff's buildings have blue aluminum bases.
30. Despite many minor distinctions in building design and construction, the overall visual appearance of these two buildings is exceedingly similar to plaintiff's service mark.
31. Neither of defendant's allegedly infringing shops is located where it can be compared on a side-by-side basis with a Fotomat store.
32. Plaintiff and defendant employ the same advertising format; they feature pictures or logos of their respective buildings on all printed advertisements and on film and processing sacks. At first glance, the designs of the buildings used on plaintiff's and defendant's ads, processing envelopes and other materials are very similar. Plaintiff's motto "the little blue building with the big yellow roof" is similar to defendant's motto "the little building with the orange roof."
Likelihood of Confusion
33. Defendant knew of plaintiff's building design and had done business with plaintiff before he began his "Quick Stop Photo" business.
34. A myriad of alternative designs were available to defendant, yet he built his buildings in a design very similar to Fotomat's.
35. Defendant, perhaps without consciously intending to unfairly steal Fotomat's business, intended to utilize a building design similar to Fotomat's.
36. On June 26, 1975, Fotomat, by letter from house counsel, notified defendant Cochran of its objection to his use of what it considered its building design. In another letter on July 18, 1975, Fotomat urged Cochran to respond to its earlier letter because it considered the matter to be of utmost importance. Cochran continues to utilize the building design in his North Topeka and Lawrence stores.
37. Defendant's own witness (McRorey) testified, and we so find, that there exists a group of consumers who, when seeking drive-up photographic services, specifically desire to do business with plaintiff Fotomat.
38. The services offered by plaintiff and defendant are not especially expensive. Therefore, customers will not pay as much attention in seeking such services as they would if the services involved a larger monetary expenditure.
39. There exists among customers of this type of service a significant amount of confusion concerning the source of drive-up photo processing services. The evidence shows that no matter how different in design two buildings might be, some customers will manage to confuse them. As an example, a clerk for a competing company, Meller's, testified that customers frequently confused Meller's with Fotomat. The Meller's buildings are square buildings with flat roofs. They are painted white and look nothing like Fotomat buildings. Defendant's evidence suggests, and we so find, that some people do not distinguish between companies and store designs offering this type of drive-through photographic service. Some customers tend to associate all such small buildings located in shopping center parking lots, never stopping to think (or care) which company might own the particular shop.
40. Shape, size, location, arrangement of elements, color, texture, and wording are all factors that contribute to the perception by a consumer. For some consumers it is obvious that mere similarity of size and location of buildings are sufficient to cause confusion, and differences in other factors will not prevent the confusion. Therefore, some customers will associate all small buildings in shopping center parking lots, and will not stop to analyze whether they might be owned by the same or different *1240 companies. For other, more observant consumers, it is clear that mere differences in color between stores will be sufficient to distinguish them. However, it appears that a large group of people fall between these less observant and more observant groups. This large "middle-range" group has perceptions which respond to shape and perhaps size, over color, wording, texture, and location. We find that given two small buildings in a parking lot offering photographic services, most people will be able to distinguish them if they have different shapes. However, if the size, location, and shape of the buildings are the same, changes in color, texture, and wording of signs will not distinguish the buildings for an appreciable number of ordinary consumers using ordinary caution.
41. Plaintiff produced at trial many customers who fall within this "middle range" of consumers. They testified as to instances of actual confusion between plaintiff's buildings and defendant's buildings. They testified, and we believe, that the actual confusion was caused primarily by the similarity in shape, particularly the roofs, of plaintiff's and defendant's buildings. It was clear from the testimony of these witnesses that the most distinctive feature of both defendant's and plaintiff's buildings is the large, steeply pitched roof. Witness after witness referred to the roof of defendant's buildings as the source for their confusion, describing its size and shape both verbally and with hand gestures.
42. This evidence of actual confusion, taken in connection with the other evidence presented, convinces us of the "likelihood of confusion" caused by the similarity in building design. Therefore, we believe that over and above the "irrelevant confusion" which defendant demonstrated will exist no matter what the buildings look like, we believe there exists a significant group of people who face a likelihood of confusion caused specifically by the similarity of roof shape and size in plaintiff's and defendant's buildings. The specific examples of actual confusion which plaintiff produced "dovetailed" with the plaintiff's expert's testimony as to how the average consumer's perception would operate.
43. This likelihood of confusion is enhanced by the fact that most people who are driving in a parking lot will have much of their perceptive capacity devoted to the act of driving the car. Therefore, they will not be able to pay close attention to the qualities of the building which they approach. Many of these people will perceive the factors of location, shape, and size of the building, and examine the building no further. They will be satisfied that they have found what they are looking for and will not examine the further building details of color, texture, arrangement of elements, or printed signs.
44. While color may be a very significant factor in the identification of some objects (e. g., a fire engine), it is not so significant in architecture. Color and texture of a building surface are arbitrarily selected; therefore, a particular color is not associated with a particular building unless that perception is built up artificially. For this reason, the fact that defendant's buildings are a different color than plaintiff's buildings does not serve to eliminate actual confusion caused by the similarity of shape.
45. Details are lost in memory. Therefore, a time lapse will make identification more difficult. When one has seen a Fotomat store, over time his memory will lose details such as color and texture. However, the memory will probably retain the shape of the building. The unique feature of the peaked roof might even be exaggerated by memory. The similarity in roof design that defendant's buildings have to the Fotomat building is a factor that will probably outweigh all other items of perception such as color, texture, arrangement of elements, and printed signs.
46. Having seen a Fotomat building before, the average consumer, when looking for one again, will probably spot a free-standing building in a shopping center parking lot and will gain a perception of the overall shape of the building, particularly *1241 the shape of the roof and the proportion of roof to base. At that point, the consumer will probably be satisfied, and will not further examine the details of the building.
47. Defendant's efforts to distinguish his stores by the use of signs and other means have not been successful. Defendant's North Topeka and Lawrence stores remain confusingly similar to plaintiff's shops because of the similarity in roof design.
48. In addition to the confusing similarity between plaintiff's and defendant's buildings, there is confusion caused by the similarity in the two-dimensional representations of the buildings used by the parties on their advertising, fliers, processing envelopes, and other printed material.
General
49. The plaintiff uses its service mark extensively in interstate commerce. Such use would be significantly affected by localized, intra-state infringement. Plaintiff's reputation has been harmed by defendant's infringing conduct in the Lawrence, Kansas, market.
50. Plaintiff, wherever it can, continues to use the blue-and-yellow version of its service mark. Plaintiff, in addition, has taken necessary steps to combat what it considers infringement of its service mark in other areas of the country. There is no hint in the evidence that plaintiff has any intention to abandon its service mark.
51. All conclusions of law included herein which are labeled as findings of fact shall be deemed to be conclusions of law.
CONCLUSIONS OF LAW
Infringement
1. This Court has jurisdiction over this action pursuant to 15 U.S.C. § 1121, 28 U.S.C. § 1332, and 28 U.S.C. § 1338.
2. A trademark is a distinctive mark of authenticity through which the merchandise or services of a particular producer or manufacturer may be distinguished from those of others. Reynolds & Reynolds Co. v. Norick, 114 F.2d 278 (10th Cir. 1940); Ph. Schneider Brewing Co. v. Century Distilling Co., 107 F.2d 699 (10th Cir. 1939); Schwinn Bicycle Co. v. Murray Ohio Manufacturing Co., 339 F.Supp. 973, 979 (M.D.Tenn.1971), aff'd 470 F.2d 975 (6th Cir. 1972).
3. The purpose of a trademark is to designate, identify and point out distinctively the origin of the products or services with which it is associated. Drexel Enterprises, Inc. v. Richardson, 312 F.2d 525, 527 (10th Cir. 1962). When the origin of a product or service is clearly identified, both the consumer and the owner of the trademark, who has expended money and effort to develop the trademark, are protected. See also Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1172 (2d Cir. 1976).
4. The same rules that apply to a trademark apply to a service mark, which is merely a trademark that has been applied to services rather than products. 15 U.S.C. § 1127.
5. In a proper case, a uniquely designed building can constitute a valid service mark. See Fotomat Corporation v. Photo Drive-Thru, supra; McDonald's Corp. v. Moore, 243 F.Supp. 255 (S.D.Ala.1965), aff'd 363 F.2d 435 (5th Cir. 1966); 2 Callmann, Unfair Competition, Trademarks and Monopolies § 61.3 (3d ed. 1967).
6. The plaintiff's certificates of federal registration provide prima facie evidence of the validity of plaintiff's two registered trademarks. Venetianaire Corp. of America v. A & P Import Co., 429 F.2d 1079 (2d Cir. 1970); Drexel Enterprises, Inc. v. Richardson, supra at 527; Aluminum Fab. Co. of Pittsburgh v. Season-All W. Corp., 259 F.2d 314, 316-17 (2d Cir. 1968); Coit Drapery Cleaners v. Coit Drapery Cleaners *1242 of N. Y., 423 F.Supp. 975, 978 (E.D.N.Y. 1976); Masterpiece of Pa., Inc. v. Consolidated Novelty Co., 368 F.Supp. 550, 552 (S.D.N.Y.1973).
7. A corporation holding a validly registered service mark is entitled to have its mark protected. Fotomat is entitled to avoid having its reputation placed in the control of another, even though its reputation is not presently being harmed. James Burrough, Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 276 (7th Cir. 1976); Swee-Tarts v. Sunline, Inc., 380 F.2d 923, 927 (8th Cir. 1967); Carling Brewing Company v. Philip Morris, Inc., 277 F.Supp. 326, 335 (N.D.Ga.1967).
8. Plaintiff's mark is a famous and strong mark, and therefore entitled to broad protection. J. B. Williams Co., Inc. v. Le Conte Cosmetics, Inc., 523 F.2d 187, 192 (9th Cir. 1975), cert. den. 424 U.S. 913, 96 S.Ct. 1110, 47 L.Ed.2d 317 (1976); E. I. DuPont de Nemours & Co. v. Yoshida International, Inc., 393 F.Supp. 502, 510 (E.D.N. Y.1975).
9. The burden of proving infringement of plaintiff's service mark is upon plaintiff. David Sherman Corp. v. Heublein, Inc., 340 F.2d 377, 380 (8th Cir. 1965); Checker Food Prod. Co. v. Ralston Purina Co., 232 F.2d 477, 481 (8th Cir. 1956); Pepsi-Co., Inc. v. Grapette Company, 288 F.Supp. 923, 931 (W.D.Ark.1968), rev'd on other grounds, 416 F.2d 285 (8th Cir. 1969).
10. Fotomat's service mark has been infringed if there is a "likelihood of confusion" caused by the similarity of defendant's two buildings to plaintiff's building design. 15 U.S.C. § 1114(1)(a); K.S.A. § 81-121(a); Miss Universe, Inc. v. Patricelli, 408 F.2d 506, 509 (2d Cir. 1969); Swee-Tarts v. Sunline, Inc., supra at 928; Drexel Enterprises, Inc. v. Richardson, supra at 528; Mershon Company v. Pachmayr, 220 F.2d 879, 883 (9th Cir. 1955) cert. den. 350 U.S. 885, 76 S.Ct. 139, 100 L.Ed. 780; Sid Berk, Inc. v. Uniroyal, Inc., 425 F.Supp. 22, 29 (C.D.Cal.1977); Amana Society v. Gemeinde Brau, Inc., 417 F.Supp. 310, 311 (N.D. Iowa 1976); Eaton Allen Corp. v. Paco Impressions Corp., 405 F.Supp. 530, 532 (S.D. N.Y.1975). This likelihood of confusion should extend to an appreciable number of people. [Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 542 (2d Cir. 1956)], who are actual or potential customers. David Sherman Corp. v. Heublein, Inc., supra at 379.
11. The test of likelihood of confusion is essentially four-pronged:
(1) the degree of similarity between the protected service mark and the allegedly infringing building design (see Findings of Fact # 28-32);
(2) the intent of the defendant in adopting the allegedly infringing building design (see Findings of Fact # 33-36);
(3) the relation in use and manner of marketing between the goods or services marketed by the defendant and those marketed by the plaintiff (see Findings of Fact # 10, 11, 19, 26 and 27);
(4) the degree of care likely to be exercised by purchasers (see Findings of Fact # 38 and 43).
Restatement of Torts § 729 (1938); Drexel Enterprises, Inc. v. Richardson, supra at 528; Chips 'N Twigs, Inc. v. Chip-Chip, Ltd., 414 F.Supp. 1003, 1013 (E.D.Pa.1976).
12. For plaintiff to prevail on an infringement claim, it is not necessary that plaintiff prove fraudulent intent on the part of the defendant. Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 613 (7th Cir. 1965); Chips 'N Twigs, Inc. v. Chip-Chip, Ltd., supra at 1015.
13. When defendant entered the drive-through photographic services business, knowing of plaintiff's service mark, he was under a duty to take reasonable precautions to avoid adopting a confusingly similar building design. Tisch Hotels, *1243 Inc. v. Americana Inn, Inc., supra at 613; Harold F. Ritchie, Inc. v. Chesebrough-Pond's, Inc., 281 F.2d 755, 758 (2d Cir. 1960); McNeil Laboratories v. American Home Products Corp., 416 F.Supp. 804, 808 (D.N.J. 1976); Londontown Manufacturing Co. v. Cable Raincoat Co., 371 F.Supp. 1114, 1119 (S.D.N.Y.1974). One who adopts a design similar to the service mark of another who is already well established in the field does so at his own peril. United Merchants & Manufacturers v. R. A. Products, 404 F.2d 399 (Cust. & Pat.App. 1968); Masterpiece of Pa., Inc. v. Consolidated Novelty Co., supra at 552.
14. When defendant entered the drive-through photographic services business and knowingly selected a building design very similar to plaintiff's registered building design, an inference was raised that defendant intended to copy plaintiff's service mark. Fleischmann Distilling Corp. v. Maier Brewing Company, 314 F.2d 149, 157 (9th Cir. 1963); Time, Inc. v. Ultem Publications, 96 F.2d 164, 165 (2d Cir. 1938); E. I. DuPont de Nemours & Co., v. Yoshida International, Inc., 393 F.Supp. 502, 514 (E.D.N.Y.1975).
15. When, as here, a defendant intentionally copies the service mark of another, it is presumed that he did so in order to cause confusion between his products and those of the one holding the service mark. The Courts accept the business judgment of the defendant in those matters and from such intent presume a likelihood of confusion. National Ass'n of Blue Shield Pl. v. United Bankers L. Ins. Co., 362 F.2d 374, 377 (5th Cir. 1966); National Lead Company v. Wolfe, 223 F.2d 195, 202 (9th Cir. 1955), cert. den. 350 U.S. 883, 76 S.Ct. 135, 100 L.Ed. 778; National Lampoon, Inc. v. American Broadcasting Cos., Inc., 376 F.Supp. 733, 747 (S.D.N.Y.1974), aff'd 497 F.2d 1343 (2d Cir.); Ortho Pharmaceutical Corp. v. American Cyanamid Co., 361 F.Supp. 1032, 1042 (D.N.J.1973); Wells Fargo & Co. v. Wells Fargo Express Co., 358 F.Supp. 1065, 1091 (D.Nev.1973).
16. Continued use by defendant of the infringing design after notice of Fotomat's charges of infringement constitutes evidence of intent to copy. Restatement of Torts § 716 (1938); Fleischmann Distilling Corp. v. Maier Brewing Company, supra at 157; Kelly Girl Service, Inc. v. Roberts, 243 F.Supp. 225, 228 (E.D.La.1965); R. B. Davis Co. v. Davis, 11 F.Supp. 269, 274 (E.D.N.Y. 1935).
17. When evaluating similarity for purposes of discovering likelihood of confusion, the key is the "overall impression" given by the service mark and the allegedly infringing design. Grandpa Pidgeon's of Missouri, Inc. v. Borgsmiller, 477 F.2d 586, 587 (Cust. & Pat.App. 1972) ("overall commercial impression"); National Ass'n of Blue Shield Pl. v. United Bankers L. Ins. Co., supra at 378 ("mental impact"); Finn v. Cooper's, Inc., 292 F.2d 555, 558, 49 CCPA 1132 (1961) ("visual impact").
18. To be guilty of infringing, defendant need not copy plaintiff's entire building design if the portion that he copies contains enough similarity to the distinctive portions of Fotomat's mark to be likely to cause confusion. United Merchants & Manufacturers, Inc. v. R. A. Products, Inc., supra at 400; David Sherman Corp. v. Heublein, Inc., supra at 380; Mershon Company v. Pachmayr, supra at 884; Grotrian, Helfferich Schulz, etc. v. Steinway & Sons, 365 F.Supp. 707, 715 (S.D.N.Y.1973), modified 523 F.2d 1331 (2d Cir. 1975). The most distinctive feature of plaintiff's design, the roof, was copied by defendant.
19. Merely changing the color of a confusingly similar design will not necessarily distinguish similar marks. National Ass'n of Blue Shield Pl. v. United Bankers L. Ins. Co., supra at 378; Kampgrounds of America v. N. Del. A-OK Campground, 415 F.Supp. 1288, 1296 (D.Del.1976). 3 Callmann, Unfair Competition: Trademarks and Monopolies § 82.1(j)(3d ed. 1969).
20. Since plaintiff and defendant offer virtually identical services, the similarity *1244 of building design need not be as great to prove confusion as would be required were the services offered completely different. David Sherman Corp. v. Heublein, Inc., supra at 382; Louis Rich, Inc. v. Horace Longacre, Inc., 423 F.Supp. 1327, 1339 (E.D.Pa.1976); Eaton Allen Corp. v. Paco Impressions Corp., supra at 533; Exquisite Form Indus., Inc. v. Exquisite Fabrics of London, 378 F.Supp. 403, 412 (S.D.N. Y.1974); A. Smith Bowman Distillery, Inc. v. Schenley Distillers, Inc., 198 F.Supp. 822, 826 (D.Del.1961).
21. When a purchaser can view two objects side-by-side, it is easier to distinguish them than if they are viewed on a basis separated by time and space. Therefore, a side-by-side comparison of plaintiff's and defendant's buildings would not give an accurate view of what the ordinary consumer using ordinary care would likely perceive. James Burrough, Ltd. v. Sign of Beefeater, Inc., supra at 275; Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 382 (7th Cir. 1976); Grandpa Pidgeon's of Missouri, Inc. v. Borgsmiller, supra at 587; Finn v. Cooper's, Inc., supra at 559-560.
22. The law protects the gullible and ignorant consumer as much as the careful and intelligent consumer. Tisch Hotels, Inc. v. Americana Inn, Inc., supra at 614; Kampgrounds of America v. N. Del. A-OK Campground, supra at 1294.
23. The test of "likelihood of confusion" is not gauged by the careful and scrupulous shopper, but by the ordinary consumer using ordinary care under ordinary buying conditions. McLean v. Fleming, 96 U.S. 245, 251, 24 L.Ed. 828 (1878); David Sherman Corp. v. Heublein, Inc., supra at 379-80.
24. If a product or service is, as here, relatively inexpensive, the customer will normally pay less attention to what he is purchasing than if the goods or services were expensive. Therefore, less similarity between building designs is required to show likelihood of confusion than would be required if the plaintiff and defendant competed in a market of expensive goods. Grotrian, Helfferich, Schulz, etc. v. Steinway & Sons, 523 F.2d 1331, 1342 (2d Cir. 1975); Beer Nuts, Inc. v. King Nut Company, 477 F.2d 326, 329 (6th Cir. 1973).
25. It is very difficult for a plaintiff such as Fotomat to prove actual confusion in a trademark case. Therefore, plaintiff need not show actual confusion to prevail; likelihood of confusion is, of course, sufficient. Scarves by Vera, Inc. v. Todo Imports, Ltd., supra at 1175; Beef/Eater Restaurants, Inc. v. James Burrough Ltd., 398 F.2d 637, 639 (5th Cir. 1968); Maternally Yours v. Your Maternity Shop, supra at 542; G. D. Searle & Co. v. Chas. Pfizer & Co., 265 F.2d 385, 387 (7th Cir. 1959), cert. den. 361 U.S. 819, 80 S.Ct. 64, 4 L.Ed.2d 65; McNeil Laboratories v. American Home Products Corp., supra at 806.
26. Proof of actual confusion which was presented in this case, constitutes substantial evidence of likelihood of confusion. Tisch Hotels, Inc. v. Americana Inn, Inc., supra at 612; Harold F. Ritchie, Inc. v. Chesebrough-Pond's, Inc., supra at 762; Chips 'N Twigs, Inc. v. Chip-Chip, Ltd., supra at 1013.
27. Where likelihood of confusion is a close issue, it should be resolved against the newcomer to the business. E. I. DuPont de Nemours & Co. v. Yoshida International, Inc., supra at 510.
28. When our findings of fact are viewed in light of the legal framework just presented, it is clear that defendant's buildings, and two-dimensional representations thereof, are "confusingly similar" to plaintiff's service mark.
Defenses
29. Even though defendant's business is primarily "intrastate", because the infringing buildings affect plaintiff's interstate *1245 use of the trademark, the "in commerce" requirement of 15 U.S.C. § 1127 is met in this action. World Carpets, Inc. v. Dick Littrell's New World Carpets, 438 F.2d 482, 488 (5th Cir. 1971); Franchised Stores of New York, Inc. v. Winter, 394 F.2d 664, 669 (2d Cir. 1968); Trail Chevrolet, Inc. v. General Motors Corporation, 381 F.2d 353, 354 (5th Cir. 1967); Kampgrounds of America, v. N. Del. A-OK Campgrounds, supra at 1291; Minute Man of America, Inc. v. Coastal Restaurants, Inc., 391 F.Supp. 197, 199 (N.D.Tex.1975); Wells Fargo & Co. v. Wells Fargo Express Co., supra at 1079-81.
30. The burden of proof relating to defendant's abandonment claim is upon defendant. Drexel Enterprises, Inc. v. Richardson, supra at 527; Friedman v. Sealy, Inc., 274 F.2d 255 (10th Cir. 1960); National Lead Company v. Wolfe, supra at 205. Defendant has not met that burden of proof.
31. A requirement of abandonment is a showing of intent by Fotomat to abandon its service mark. Carl Zeiss Stiftung v. Veb Carl Zeiss Jena, 433 F.2d 686, 704 (2d Cir. 1970), cert. den. 403 U.S. 905, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971); Tillamook County Cream. Ass'n v. Tillamook Cheese & Dairy Ass'n, 345 F.2d 158, 162 (9th Cir. 1965), cert. den. 382 U.S. 903, 86 S.Ct. 239, 15 L.Ed.2d 157; Drexel Enterprises, Inc. v. Richardson, supra at 527. Defendant has not shown this intent.
32. Minor modifications of a trademark do not constitute abandonment. A change in a mark that does not affect the distinctive characteristics of the mark represents a continuity of the prior mark. Drexel Enterprises, Inc. v. Richardson, supra at 527; 74 Am.Jur.2d Trademarks and Tradenames, § 36, p. 726 (1974) 3 A.L.R.2d 1226, § 24 (1949). Defendant has shown no intentional modification by Fotomat of a distinctive portion of its service mark.
33. Our findings of fact indicate that plaintiff was the prior user, both nationally and in Kansas, and that plaintiff was the prior registrant, both nationally and in Kansas. We further have found that the Lawrence, Kansas, market is within plaintiff's zone of reputation, zone of advertising, and zone of natural expansion. Therefore, defendant's "equitable trade area" defense is wholly invalid, and plaintiff is entitled to injunctive relief as to the Lawrence market, as well as the Topeka market. Burger King of Florida v. Hoots, 403 F.2d 904, 908 (7th Cir. 1968); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 844 (9th Cir. 1969); Tisch Hotels, Inc. v. Americana Inn, Inc., supra at 613; Dawn Donut Company v. Hart's Food Stores, Inc., 267 F.2d 358, 362 (2d Cir. 1959); Weiner King, Inc. v. Wiener King Corp., 407 F.Supp. 1274, 1281 (D.N.J.1976); Minute Man of America, Inc. v. Coastal Restaurants, Inc., supra at 198; HMH Publishing Co. v. Turbyfill, 330 F.Supp. 830, 832 (M.D. Fla.1971); 3 Callmann, supra at § 76.3; Comment, The Scope of Territorial Protection of Trademarks, 65 Nw.U.L.Rev. 781 (1970). Defendant entered the Lawrence market with both actual and constructive notice of plaintiff's mark, and actual confusion and damage to plaintiff's reputation occurred in Lawrence. Compare Value House v. Phillips Mercantile Company, 523 F.2d 424 (10th Cir. 1975).
Conclusion
34. By using a confusingly similar building design in both a three-dimensional (the building itself) and a two-dimensional (the logo on printed material such as advertising) form, defendant has
a) violated plaintiff's common law trademark rights as protected by the Lanham Act;
b) violated the plaintiff's rights under the Kansas law, K.S.A. § 81-111 et seq.; and
c) committed unfair competition. The law of unfair competition is more than adequately discussed in Fotomat Corporation v. Photo Drive-Thru, supra, although our findings of fact dictate an ultimate conclusion different than that reached by Judge Gerry.
*1246 When plaintiff proved the elements required for a trademark infringement cause of action, it also proved the elements required for an unfair competition cause of action. James Burrough, Ltd. v. Sign of Beefeater, Inc., supra at 274, fn. 16; G. LeBlanc Corporation v. H. & A. Selmer, Inc., 310 F.2d 449 (7th Cir. 1962); Jewel Tea Co., Inc. v. Kraus, 187 F.2d 278 (7th Cir. 1951), (citing Armstrong Paint & Varnish Works Co. v. Nu-Enamel Corp., 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195 (1938).
35. All findings of fact which are herein labeled as conclusions of law shall be deemed to be findings of fact.
DISCUSSION
Plaintiff placed before the Court a very well organized and thoroughly supported case. Most of the issues before the Court such as functionality, validity of plaintiff's mark, prior use, and similarity in design were easily resolved in plaintiff's favor.
However, one issue in this case was very close, and the Court has struggled long and hard with it. That issue is the extent of confusion caused by the similarity of building design that existed apart from general confusion between the different businesses offering such services.
Defendant's evidence made it clear that some customers do not care which company they do business with. They seek only to find a small building in a shopping center where there is located a business which will develop pictures. They care not which company operates the business. Plaintiff characterizes this type of confusion as "irrelevant" confusion, arguing that in any field certain customers will exhibit such confusion no matter how much of a distinction is made between building designs or other trademarks. For instance, plaintiff adduced proof that certain customers confuse McDonalds and Hardee's with Burger King, all being purveyors of hamburgers on a fast-food style basis.
We fully accept defendant's evidence that such general confusion does exist. The question we are faced with, however, is whether there is, in addition to this unavoidable confusion, confusion caused specifically by the similarity of building design. This was a difficult question, but it is our conclusion that such confusion does in fact exist for an appreciable number of ordinary consumers. Many of plaintiff's witnesses testified about confusion caused specifically and primarily by the similarity in shape between defendant's two buildings and plaintiff's building design. Plaintiff's expert in perception provided a convincing theoretical explanation for this customer conduct.
We know that some consumers just want their film developed and, absent a bad experience, do not care which company happens to operate the particular small store in the shopping center parking lot. However, it also appears that there is a class of consumers who, because of Fotomat's advertising, reputation, or past service, desire to trade with Fotomat specifically. We think the evidence shows that an appreciable number of people are in this class and that many of these people are actually confused by the similarity in defendant's building design. Given the level of actual confusion demonstrated in this case, we conclude that a likelihood of confusion exists for an appreciable number of ordinary consumers utilizing ordinary caution. Therefore, defendant's use of the infringing building designs must be enjoined.
ORDER
IT IS THEREFORE ORDERED that defendant and his attorneys, agents, employees, and representatives and all others in privity with them, be enjoined and restrained from
(1) using in the North Topeka, Lawrence, or any other drive-through photographic service stores, any building or structure which is likely to be confused with the distinctive features of plaintiff's building design or design service mark; or
(2) using any building design or mark in two-dimensional form which is likely to be confused with the plaintiff's registered service marks.
Dated this 12th day of April, 1977, at Topeka, Kansas.
See Appendices on following pages.
*1247 APPENDIX #1
*1248 APPENDIX #2
*1249 APPENDIX #3
*1250 APPENDIX #4
*1251 APPENDIX #5 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572058/ | 2 So. 3d 937 (2006)
A.W.P.
v.
STATE.
No. CR-05-1579.
Court of Criminal Appeals of Alabama.
November 9, 2006.
Decision of the Alabama Court of Criminal Appeal without opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572200/ | 437 F.Supp. 247 (1977)
UNITED STATES of America
v.
James H. EISENHARDT.
Civ. No. Y-76-1564.
United States District Court, D. Maryland.
May 24, 1977.
*248 Mikal H. Frey, U. S. Dept. of Justice, Washington, D. C., for plaintiff.
James H. Eisenhardt in pro. per.
MEMORANDUM AND ORDER
JOSEPH H. YOUNG, District Judge.
This action is brought by the United States of America pursuant to Sections 1340 and 1345 of Title 28, United States Code, and Section 7402 of Title 26, United States Code, to reduce to judgment a sum of monies representing taxes and penalties and interest allegedly owed the United States by the defendant, James H. Eisenhardt. The defendant has moved to dismiss the action on the grounds that he was not given statutorily sufficient notice of tax deficiency as required under the Internal Revenue Code, 26 U.S.C. § 6212(a), and that as a result the assessment of his tax liability prepared by the government is not enforceable.
Notice of tax deficiency is a prerequisite to the Internal Revenue Service's power to make an assessment and collection. 26 U.S.C. § 6213(a). Luhring v. Glotzbach, 304 F.2d 556 (4th Cir. 1962). If notice is sent to the "last known address" of the taxpayer, it is sufficient under the statute even if the taxpayer does not in fact receive actual notice, provided that the notice is sent by certified or registered mail. 26 U.S.C. § 6212(a) & (b).
Notice of tax deficiency was sent to the defendant by registered mail in a letter dated April 10, 1969, addressed to 1608 Northeast 20th Avenue, Fort Lauderdale, Florida 33308. The unopened letter was returned by the postal service to the sender, the Internal Revenue office in Jacksonville, Florida, marked "Moved, left no forwarding address" and postmarked April 29, 1969. The government, in its response to the defendant's motion to dismiss, claims that the Fort Lauderdale, Florida address was the "last known address" of the defendant at that time. The defendant, in his uncontroverted affidavit accompanying his motion to dismiss, states that he was interviewed by an Internal Revenue agent at that address on or about February 25, 1969 for purposes of discussing his tax situation and that the agent was told by him (Eisenhardt) that he had been convicted of an (unrelated) federal offense, had been sentenced to five years in prison, would be turning himself in to the United States Marshal on March 3, 1969 and would be imprisoned in the United States penitentiary in Atlanta, Georgia, thereafter. Notwithstanding that information, the April 10, 1969 notice of deficiency was mailed to the Fort Lauderdale address.
In its memorandum the government argues that the failure of the defendant to leave a forwarding address "even though he apparently expected a statutory notice of deficiency, as evidenced by his allegation that he informed a revenue officer of his pending incarceration" and the failure of the defendant to inform the Internal Revenue Service what prison he was in support a finding that the Fort Lauderdale address *249 was the last known address. This argument is without merit.
In Luhring v. Glotzbach, supra, a case which the government cites in its opposing memorandum, the court held that a mailing to the address on the taxpayer's last tax return was sufficient when the "local officials have no knowledge of a change of address". Id., at 559. In Cohen v. United States, 297 F.2d 760 (9th Cir. 1962), which the government also cites as authority, the court was concerned with two separate incidents involving notice of deficiencies. In the first, a "90 day letter" was sent to Cohen at the address where his wife, a joint taxpayer on the returns in question, still resided. The notice, which had not been sent by certified or registered mail and had not been returned to the sender, was never received, according to the defendant. No duplicate notice had been sent to him at the local jail where he was housed temporarily. The court held that Mr. Cohen had two addresses at the time, with the jail address being "temporary" by virtue of the fact that he would be transferred to a federal institution to serve time on a federal conviction. Under the provisions of the Internal Revenue Code governing notice of deficiency in a joint tax return situation, 26 U.S.C. § 6212(b)(2), notice sent to the address where Mrs. Cohen resided was sufficient. In the incident involving the second notice of tax deficiency, the court held that notice sent to the same home address was still sufficient, under the same provision of the Code, even though the wife had moved, because neither she nor her husband informed the Internal Revenue Service of any change. The circumstances of the joint tax return were determinative, although the government was aware that Cohen had taken up residence in a federal penitentiary at MacNeil Island.
The Cohen case is readily distinguishable from the one under consideration. In the instant case, there is no allegation that there is a joint tax return involved, and therefore the provisions of 26 U.S.C. § 6212(b) cannot be relied upon, and there is further the defendant's uncontroverted assertion that he did tell a local IRS agent of the forthcoming change in his residence from Fort Lauderdale to the federal penitentiary in Atlanta, Georgia, a location familiar to the government.
A case more applicable to the defendant's situation is DiViaio v. Commissioner of Internal Revenue 539 F.2d 231 (D.C. Cir. 1976), where the court held that when a defendant had been incarcerated in the Atlanta, Georgia penitentiary (in his case for two years) and "his address in the Atlanta Penitentiary was well known" to the government, mailing of a duplicate notice to a former address was not sufficient notice under the statute. The court quoted from Cohen, supra, where that court stated: "The Commissioner or one of his agents may learn that the taxpayer has changed his address, or he may be so advised by the taxpayer. In such a case he must use the new address". Cohen at 773. See also Kennedy v. United States, 403 F.Supp. 619 (W.D.Mich.1975), where the court noted that various characterizations had been put by courts on the term "last known address". The judge in Kennedy concluded:
It is best seen as the address which the Internal Revenue Service reasonably believed the taxpayer wished it to use . . However, the Commissioner is required to exercise reasonable care and diligence in ascertaining and mailing a deficiency notice to the correct address of the person or persons to whom the statutory notice must be sent.
Id., at 623. See also, United States v. Lehigh, 201 F.Supp. 224, 227 (W.D.Ark.1961) (". . . if after the return is filed, the Government learns that the taxpayer has moved and has acquired a new address, the notice must be sent to that address . . When a notice of deficiency is to be given, the Commissioner is required to exercise ordinary care to ascertain the correct address of a taxpayer and to mail the notice to that address".)
Because the defendant in this action informed an Internal Revenue agent responsible for his case that he (the defendant) would be located in the federal penitentiary *250 in Atlanta, Georgia on or shortly after March 3, 1969 this knowledge is imputable to the Commissioner on whose behalf the government has brought this case. The Court finds that the last known address of the defendant as of the date of the notice, April 10, 1969, was the federal penitentiary in Atlanta, Georgia and that sufficient notice of a tax deficiency was not provided the defendant by the mailing to the Fort Lauderdale address. Without proper notice, the subsequent assessment of penalties and interest became a nullity. For that reason the defendant's motion to dismiss this action, accompanied by an affidavit, is properly considered as a motion for summary judgment under Rule 56 F.R. Civ.P., and will be granted.
For the aforementioned reasons it is this 24th day of May, 1977 by the United States District Court for the District of Maryland, ORDERED:
1. That summary judgment for the defendant be, and the same is, hereby GRANTED; and
2. That the complaint on behalf of the plaintiff be, and the same is, hereby DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572337/ | 499 S.W.2d 45 (1973)
Elmer E. WHITMORE, Jr., Plaintiff-Appellant,
v.
The KANSAS CITY STAR COMPANY, Defendant-Respondent.
No. KCD 26089.
Missouri Court of Appeals, Kansas City District.
July 23, 1973.
Motion for Rehearing and/or Transfer Denied September 4, 1973.
*46 Robert J. Barbieri, and Commodore M. Combs, Jr., Kansas City, for plaintiff-appellant.
David R. Hardy, John T. Martin, Robert E. Northrip, Shook, Hardy, Mitchell & Bacon, Kansas City, for defendant-respondent.
Before DIXON, C.J., PRITCHARD, and SOMERVILLE, JJ., and DONALD B. CLARK, Special Judge.
SOMERVILLE, Judge.
Elmer E. Whitmore, Jr.'s action against The Kansas City Star Company is predicated on libel per se. The purported malediction was contained in an article published on July 29, 1967, in the "Times Edition" of The Kansas City Star Company.
Whitmore was employed by the Jackson County Juvenile Court as a Deputy Juvenile Officer in the Foster Home Department. Homer Ontman, who also figured prominently in the article, was likewise an employee of the Jackson County Juvenile Court, although working in a different department. The "backdrop" for the complained of article was a series of articles *47 by the Star concerning operation of the Jackson County Detention Home and a grand jury investigation of the home.
The article complained of bore the following headline: "Use Boy As Lever In Controversy". Cut to the marrow the article reported: That a fourteen year old boy, who was a ward of the Jackson County Juvenile Court, "was used as a pawn" to "hold down adverse publicity about the Jackson County parental school"; that the fourteen year old boy, who had been placed in the Ontman home, was removed therefrom by the efforts of Whitmore; that Ontman, in reference to Whitmore, was quoted as saying, "He told me that if I would resign from my position at the parental school and quit talking, I could have the boy back."; following an article in the "Star Edition" of defendant reporting on the grand jury's findings concerning the Jackson County Detention Home, Ontman, in reference to Whitmore, was quoted as saying, "He told me this time that I would not have a chance of ever seeing the boy again." . . . "He said I had gone too far with this thing and it would not be possible for the boy to come back in my home. He said I should have taken the first offer and all the trouble would not have come about."; when questioned by the scrivener of the article, concerning the purported statement by Ontman attributed to Whitmore, Whitmore "agreed to the substance of the conversation and agreed he had made the original offer, and then the second call", and, further, that he (Whitmore) "was considering placing the boy back at Ontmans."; additionally, the article reported Whitmore as saying, "I told him if things quieted down he (sic, the boy) might be able to go back."; moreover, during the questioning of Whitmore by the scrivener of the article, Whitmore was quoted as saying, "I told him (sic, Ontman) the boy was being used as a pawn and I was not going to put that boy back there.", the context of which was that Ontman was using the boy as a "pawn"; the article further reported that a Deputy Juvenile Officer could only make recommendations to the Juvenile Court concerning placement of wards of the court, however, Whitmore was quoted as saying, "Most of the time" such "recommendations are followed" and the fourteen year old boy who had been removed from the custody of Ontman was placed in another foster home "on Whitmore's recommendation."
The trial court, over the objection of Whitmore, excised and excluded from the jury all of that part of the principal article following the sub-headline "To Hold A Hearing". The excised portion reported that the day preceding publication of the article the Judge of the Juvenile Court of Jackson County had ordered a hearing to investigate the matters reported in the principal article. There was absolutely no contention on Whitmore's part that the matters reported in the excised portion of the article were untrue or inaccurate. Although Whitmore claims prejudicial error resulting from the excision, controlling disposition of the case makes it unnecessary to rule the point.
At the close of Whitmore's evidence, the Star filed a motion for a directed verdict which was sustained by the trial court and judgment was rendered in favor of the Star. Whitmore duly perfected his appeal.
Slander, since the time of Adam and Eve, together with libel since Johann Gutenberg invested the printing press, have met in head on confrontation with mankind's inherent belief in freedom of oral and written expression. The genesis for mankind's inherent belief in freedom of expression was, and continues to be, that unfettered freedom of expression serves the greater good of a majority of the people, as opposed to serving the smaller good of a minority of the people by its stiflement. Involved, almost inexorably, in the determination of this, or any other, libel action, is which way do the scales of justice tip, in favor of the scrivener by virtue of mankind's inherent concept of freedom of speech and press, or in favor of the maligned *48 by virtue of mankind's opposing concept of vindication of honor and redress for injury. Voltaire expressed the concept of freedom of expression in the extreme when he wrote, "I disapprove of what you say, but I will defend to the death your right to say it." Conversely, there exists a galaxy of libel decisions, in this and other states, placing the burden of showing truth of the publication on the publisher (however good his intent), and void of any requirement as to proof of malice save only with respect to punitive, but not actual, damages. The First Congress of the United States, on September 25, 1789, proposed to the Legislatures of the several States the first Ten Amendments to the Constitution of the United States, same comprising the Bill of Rights. It is surely not without note that the First Amendment proscribed any law that abridged freedom of speech and press. Subsequently, the Fourteenth Amendment proscribed the various states from abridging freedom of speech and press as mandated by the First Amendment.
The underlying philosophy of the broad latitude attached to the First Amendment's guarantee of freedom of the press found eloquent expression in the words of John Marshall, which were quoted with approval by James Madison, 6 Writings of James Madison 1790-1802, p. 336 (G. Hunt ed. 1906):
"`Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America.'" (Emphasis in original.)
Chief Justice Hughes in DeJonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937) tersely stated the underlying philosophy inherent in the First Amendment's quarantee of freedom of speech and press in the following words:
"(I)mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."
Until New York Times Company v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), courts literally groped for some measurable standard with which to strike a legally acceptable balance between freedom of the press on the one hand and vindication of individual honor and redress for injury on the other hand. It is appropriate to point out that media irresponsibility undoubtedly allayed and continues to do soultimate resolve of whether the First Amendment is to be literally applied to all written and oral expression in this country. But be that as it may, New York Times Company v. Sullivan, supra, laid down the following mandate applicable to state court libel actions involving public officers:
"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'that is, with knowledge that it was *49 false or with reckless disregard of whether it was false or not."
Subsequently, the "actual malice" rule was made applicable in 1967 to libel actions brought by public figures (Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L.Ed.2d 1094 (1967)), and in 1971 to libel actions brought by individuals involved in events of public or general interest (Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971)). This case clearly falls within the controlling purview of New York Times v. Sullivan, supra, Curtis Publishing Company v. Butts, supra, and Rosenbloom v. Metromedia, Inc., supra.
New York Times v. Sullivan, supra, Curtis Publishing Company v. Butts, supra, and Rosenbloom v. Metromedia, Inc., supra, a trilogy of libel, after careful analysis, force the conclusionprior legal concepts applicable to the law of libel in this state asidethat the rule of "actual malice" imposes upon a party claiming to have been libeled the burden of proving by "clear and convincing" proof the falsity of the purported defamatory article, and, additionally, that the false and defamatory article was published "with knowledge that it was false, or with reckless disregard of whether it was false or not." Additionally, in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), the Supreme Court of the United States imposed a further refinement on the weighty burden resting on a party claiming libel with respect to the elusive standard of determining whether or not the scrivener's conduct was reckless:
"(R)eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to truth of his publication."
The rationale for the "actual malice" ruleand the consequent weighty burden of proof imposed upon one claiming libel is to preclude the First Amendment's guarantee of freedom of speech and press from being a debilitated guarantee because of "self censorship" fostered by fear of financial retribution. New York Times Company v. Sullivan, supra.
The criterion for appellate review is clearly mandated by the Supreme Court of the United States in Rosenbloom v. Metromedia, Inc., 403 U.S. at 54, 91 S.Ct. at 1825:
"The simple fact is that First Amendment questions of `constitutional fact' compel this Court's de novo review." (Emphasis in original.)
Constitutional facts, necessarily, are those determinative of whether an alleged defamatory article was published with "actual malice" in the constitutional sense. This court subscribed to the principle of reviewing "questions of `constitutional fact'" de novo in libel cases in Rowden v. Amick, 446 S.W.2d 849 (Mo.App.1969).
De novo review, appellate-wise, has certain attendant principles, not the least of which are that the reviewing court will defer to the findings of the trial court as to controverted factual matters involving the credibility of witnesses, and will not disturb the ruling of the trial court unless it is clearly erroneous. Peerless Supply Company v. Industrial Plumbing & Heating Company, 460 S.W.2d 651 (Mo.1970); K-V Builders, Inc. v. Thomas, 353 S.W.2d 130 (Mo.App.1962); Craft v. Politte, 454 S.W.2d 534 (Mo.1970); Clay v. Eagle Reciprocal Exchange, 368 S.W.2d 344 (Mo.1963). It should be pointed out that the aforementioned cases are in the context of de novo review of court tried cases. Nevertheless, the rationale from which the attendant principles of review spring appears equally compelling regarding de novo review of "questions of `constitutional fact'" in libel cases.
Attention now focuses on a de novo review of constitutional facts to determine *50 whether the trial court erred in sustaining the Star's motion for directed verdict at the close of Whitmore's evidence. An inescapable nexus exists throughout all of Whitmore's evidence which, in its totality, is common to this court's de novo determination regarding (1) the "clear and convincing" character of the evidence and whether, measured thereby, (2) the article was false, (3) the Star published the article knowing it to be false, (4) the Star published the article "with reckless disregard of whether it was false or not", and (5) the evidence "permits the conclusion" that the Star "in fact entertained serious doubts as to the truth" of the article.
With respect to the statements in the article attributed to Homer Ontman, Whitmore admitted he did not know what Ontman said, or did not say. Moreover, Whitmore introduced no evidence that Ontman did not make the statements in the article attributed to him. Under the most minimal burden of proof, much less the weighty burden of "clear and convincing" proof, Whitmore failed to prove that statements attributed to Ontman in the article had not, in fact, been made. Any attack made by Whitmore on the statements attributed to Ontman, in the article, was at best enigmatic. Essentially it consisted of Whitmore's attempt to introduce into evidence records of juvenile complaints against Ontman, a summary of testimony given under oath by Ontman and hearsay statements purportedly made by a Mr. Smith, all of which were rejected by the trial court. Suffice it to say, in the context of submissibility, Ontman was cleared by a grand jury of the juvenile complaints prior to the date the alleged libelous article was published, the date of the testimony given by Ontman in the summary post dated publication of the alleged libelous article, and the Smith statements failed to constitute evidentiary support of constitutional malice since there was no evidence that the Star or its scrivener had knowledge of them prior to publication of the article.
Thus the de novo review imposed on this court is substantially contracted and now converges on those portions of the article attributed to Whitmore and the substance of Ontman's statements. Whitmore denied he told the scrivener of the article that he "agreed to the substance of the conversations" reported in the article (quoting Ontman) as having occurred between him and Ontman; he denied he told the scrivener of the article he had made the original offer (that the boy would be returned to Ontman if he resigned his position with the juvenile court and quit talking); he denied he told the scrivener of the article "if things quieted down" the boy might be able to go back to the Ontman home; and he denied he told the scrivener of the article the boy had been placed in another home "on his recommendation". Additionally, Whitmore testified that all of the aforementioned was false and defamatory; also the statement in the article that the boy was being used as a "pawn""to hold down adverse publicity about the Jackson County parental school" appearing in the lead paragraph of the article was false and defamatory. Whitmore also contended there was no factual foundation for the statements in the article attributed to Ontman.
In reviewing this matter de novo, as this court is compelled to do, Whitmore is not entitled to have the evidence viewed from the standpoint most favorable to him, nor is he entitled to the benefit of all reasonable inferences. To the contrary, the crux of appellate disposition is whether the evidence, cumulatively, satisfies the weighty burden of "clear and convincing" proof, and when measured by such standard so militates in Whitmore's favor regarding falsity of the alleged libelous article, its publication by the Star knowing it to be false, or its publication by the Star "with reckless disregard of whether it was false or not", and, if false, that it "permits the conclusion" that the Star "in fact entertained serious doubts as to the truth" of the article, that the trial court erred in not *51 submitting the case to the jury. There is substantially more than a dearth of evidence, as well as a genuine question as to the credibility of Whitmore as a witness, militating against Whitmore regarding part, if not all, of the aforementioned and certainly sufficient evidence to preclude Whitmore from meeting the weighty burden of "clear and convincing" proof as to part, if not all, of the requirements necessary to prove constitutional malice.
Prior to the time the boy was removed from the Ontman home, Whitmore believed the boy was making good progress in the Ontman home. The boy's removal was precipitated by the fact that a grand jury was investigating complaints against Ontman leveled by several juveniles. Whitmore, when he picked the boy up at the Ontman home, indicated to Ontman that Ontman had done a pretty good job with the boy and he would not be against recommending that the boy be returned to the Ontman home if Ontman was cleared by the grand jury. Later Whitmore told Ontman that return of the boy was contingent on three conditions, namely: (1) the result of the grand jury investigation of Ontman, (2) the wishes of the boy, and (3) the approval of the Juvenile Court.
On or about July 20-21, 1967, Whitmore learned that Ontman had been cleared by the grand jury. Ontman called Whitmore and sought return of the boy. Whitmore responded to the request by reiterating the three conditions mentioned above. Whitmore further testified that at that period of time he was seriously considering returning the boy to the Ontman home, and although he did not have any authority to do so, he could have made a recommendation, and such a recommendation made by him would probably have been followed. Whitmore also told Ontman on the July 20-21 occasion that he would interview the boy to determine his wishes regarding return to the Ontman home.
On July 22, 1967, Ontman advised Whitmore there was going to be more publicity concerning conditions at the Jackson County juvenile facilities. Whitmore admitted that the reason he did not bring the boy in for an interview to ascertain his wishes about returning to the Ontman home was because of Ontman's statement to him there was going to be more publicity about conditions existing at the Jackson County juvenile facilities. At this point of time Whitmore began developing reservations about the return of the boy to the Ontman home. On July 24, Ontman asked Whitmore's immediate superior, in Whitmore's presence, if his (Ontman's) chances of getting the boy back would be any better if he resigned.
On the morning of July 27, 1967, Whitmore received a call from the scrivener of the article, during which time, according to Whitmore, the conversation related to his telling the scrivener that he had no knowledge that the boy had been returned to the detention home because of troubles in the foster home the boy had been abiding in, that he had no plan to return the boy to the Ontman home, and that any further questions concerning the placement of the boy could not be discussed without approval of the Juvenile Court. Whitmore's testimony concerning the telephone conversation can be fairly characterized as somewhat vague and chronologically unconnected. On direct examination, however, he admitted that he had used the word "pawn" during his telephone conversation with the scrivener of the article.
Sometime around noon July 27, 1967, the scrivener of the article had a telephone conversation with the Judge of the Juvenile Court of Jackson County, at which time the scrivener of the article related to the judge the purported conversations with Whitmore indicating Ontman's refraining from criticism of juvenile facilities in Jackson County would be a determinative factor as to whether the boy would be returned to Ontman's home. The judge responded to the aforementioned by saying that such was "one hundred and eighty degrees different from what Mr. Whitmore *52 told me a little while ago". The following day, same being the day preceding publication of the article in question, the judge ordered a formal inquiry into the matter reported by the scrivener of the article to the judge over the telephone. The fact that a formal inquiry was ordered certainly gives credence to the alleged libelous article that was subsequently published, and, standing alone, makes baseless any contention that the scrivener of the article "entertained serious doubts as to the truth" of the publication.
Whitmore consistently and vehemently denied that he ever made an offer to Ontman concerning return of the boy. However, Whitmore testified he could not "recall specifically" and "would have to by-pass" that portion of the article making reference to his being asked "what Ontman's resignation had to do with the welfare of the boy".
Additional testimony by Whitmore can fairly be summarized as having the effect that he cemented his decision not to recommend return of the boy to the Ontman home because Ontman told him there was going to be more publicity about the juvenile court facilities; moreover, that he made no effort to bring the boy in to determine the boy's wishes as to whether or not he wanted to return to the Ontoman home.
Whitmore admitted that he "approved" placement of the boy in the foster home, although he denied such was a "recommendation" on his part. Such seems to be more of a play on words than substance.
The record in the case is replete with overt indications that Whitmore was subjected to a vigorous, in-depth cross examination concerning all aspects of his testimony on direct examination. Whitmore's reaction to, handling of and response thereto was such that the trial court, on at least three occasions, admonished Whitmore to answer questions put to him by the Star's counsel.
On his own volition, Whitmore, by means of answers to interrogatories he submitted to the Star, offered as a part of his case that prior to publication of the article the scrivener had approximately fifteen meetings or conferences with Ontman, varying in length from five minutes to an hour; that the truth and veracity of the statements contained in the article were checked and verified by the scrivener by means of conversations with Homer Ontman, Whitmore, a member of the County Court of Jackson County, the Judge of the Juvenile Court of Jackson County, the head of the Jackson County parental school, the chief probation officer of the Jackson County Juvenile Court and by checking the official records of the Juvenile Court of Jackson County; further, that the scrivener of the article had no information from any of such sources of inquiry that the quoted statements attributed to Whitmore were not true prior to publication of the article in question.
Viewing Whitmore's evidence in its totality, there is no escape from the ultimate conclusion that it falls short of "clear and convincing" proof that the article published by the Star was false, or that the Star knowingly published a false article. The totality of Whitmore's evidence falls even shorter of "clear and convincing" proof that the Star published the article with "reckless disregard of whether it was false or not", or that the Star, "in fact, entertained serious doubts as to the truth" of the article. Consequently, the trial court did not commit error in sustaining the Star's motion for a directed verdict at the close of Whitmore's evidence.
Whitmore also asserted on appeal that the trial court erred in its rulings on certain evidentiary matters, but candidly and forthrightly conceded that such were moot if the trial court's sustainment of the Star's motion for a directed verdict at the close of his evidence was correct. Having held that the ruling of the trial court in the respect mentioned was correct, a determination *53 of the evidentiary matters raised by Whitmore becomes unnecessary to properly dispose of this appeal.
Although this case is not one presenting a delicate balance between the existence or non-existence of constitutional malicenor are the following observations directed specifically or generally to the Starthe present spectrum reflected by the law of libel is far from palatable to the ordinary man on the street. This pervasive feeling should, hopefully, be viewed as a "bellwether" by the news media whereby they discipline themselves regarding licentious and irresponsible reporting. Impressing a point of view at the expense of factual accuracy is the antithesis of First Amendment responsibility; likewise, sensationalism without caution for truth; likewise, weighting a point of view by excluding opposing or contradictory matters. The news media itself bears the greater responsibility, even more than the courts, to preserve the First Amendment's guarantee of freedom of speech and press. Self discipline on the part of the news media, and it alone, can give purity of meaning to the First Amendment and justification for its literal interpretation and application. On the other hand, courts, in their disposition of libel cases must vigilantly guard against succumbing to a decisional atmosphere that known instances of media irresponsibility stand as justification to debilitate or destroy the First Amendment's guarantee of freedom of speech and press.
Judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584860/ | 187 P.3d 773 (2008)
In re the MARRIAGE OF Claudia Maureen TRESELER, Respondent, and
Michael Austin TREADWELL, Appellant.
No. 59092-8-I.
Court of Appeals of Washington, Division 1.
May 5, 2008.
Publication Ordered July 10, 2008.
*774 Chris Robert Youtz, Eleanor Hamburger, Sirianni Youtz Meier & Spoonemore, Seattle, WA, for Appellant.
John Gilbert Bergmann, Helsell Fetterman LLP, Seattle, WA, for Respondent.
Ellen Conedera Dial, Perkins Coie LLP, Jonathan Mark Weiss, Law Office of J. Mark Weiss PS, Seattle, WA, Jean A. Cotton, Attorney at Law, Elma, WA, Rachel Lee Felbeck Law Office of Rachel L. Felbeck, Kirkland, WA, Amicus Curiae on behalf of Wash. State Bar Association-Family Law Section.
Michele Lynn Earl-Hubbard, Allied Law Group, LLC, Seattle, WA, Greg Overstreet, Allied Law Group, LLC, Olympia, WA, Amicus Curiae on behalf of Washington Newspaper Publishers Et Al Allied Dailey Newspapers.
COX, J.
¶ 1 Documents that are filed with a court are presumptively open to public access unless there are compelling reasons for sealing or redacting them.[1] Such reasons may be found by the proponent of closure satisfying the standards set forth in Seattle Times Co. v. Ishikawa.[2] Because Michael Treadwell fails in his burden to show that the trial court abused its discretion in declining to seal or redact the documents at issue in this case, we affirm.
¶ 2 In May 2004, Claudia Treseler petitioned in Washington for dissolution of her marriage to Michael Treadwell. Later that month, she amended her petition and also obtained at least two temporary restraining and show cause orders against Treadwell.[3] Both orders in the record adopt as their findings particular paragraphs from Treseler's motions for and declaration in support of the restraining orders. The orders also restrain Treadwell from molesting or disturbing the peace of Treseler and further restrain both parties from transferring or otherwise *775 dealing with property other than in the normal course.
¶ 3 In July, Treadwell moved to dismiss the dissolution proceeding on the ground that a divorce proceeding between these parties was pending in Texas and that venue of a dissolution proceeding in Washington was not proper in King County. In response, Treseler's counsel filed a statement dated August 31 in which she addressed the issue of personal jurisdiction by making certain statements about Treadwell's business activities in Washington.
¶ 4 Thereafter, in an agreed order dated September 2, 2004, the parties agreed to the dismissal with prejudice of the dissolution proceeding. A superior court judge entered the order on that date.
¶ 5 Two years later, Treadwell moved for an order to show cause why certain documents filed in the dissolution proceeding should not be redacted and sealed. Treseler filed a response. A superior court judge denied the motion to seal or redact. The court also denied Treadwell's motion for reconsideration.
¶ 6 He appeals both orders.[4]
SEALING OR REDACTING DOCUMENTS
¶ 7 Treadwell argues that the trial court abused its discretion in denying the motion to seal or redact. He claims a showing of good cause is all that is required to seal allegedly irrelevant documents filed in court. He also claims the same showing should apply where filed documents are not used by the court to make a decision. Finally, he argues that the trial court should have entered findings and conclusions to support the denial of his motion. We disagree with all of these arguments.
¶ 8 Documents filed with the court will presumptively be open to the public unless compelling reasons for closure exist consistent with the standards set forth in Ishikawa.[5] Our supreme court has set forth five factors that a trial court should consider in deciding whether to seal court records (the "Ishikawa factors"):
1. The proponent of closure and/or sealing must make some showing of the need therefor. . . . If closure and/or sealing is sought to further any right or interest besides the defendant's right to a fair trial [in a criminal case], a "serious and imminent threat to some other important interest" must be shown.
. . . .
2. "Anyone present when the closure (and/or sealing) motion is made must be given an opportunity to object to the (suggested restriction)."
. . . .
3. The court, the proponents and the objectors should carefully analyze whether the requested method for curtailing access would be both the least restrictive means available and effective in protecting the interests threatened.
. . . .
4. "The court must weigh the competing interests of the defendant and the public . . . and consider the alternative methods suggested."
. . . .
5. "The order must be no broader in its application or duration than necessary to serve its purpose. . . . "[[6]]
These factors apply to both criminal and civil cases.[7]
¶ 9 "In determining whether court records may be sealed from public disclosure, *776 we start with the presumption of openness."[8] The Washington State constitution requires that "[j]ustice in all cases shall be administered openly. . . ."[9] Despite the presumption of openness, however, court records may be sealed "to protect other significant and fundamental rights."[10] The party seeking to seal records has the burden to overcome the presumption of openness unless a criminal defendant's right to a fair trial is implicated.[11]
¶ 10 The legal standard for sealing or unsealing records is an issue of law we review de novo.[12] We review a trial court's decision on a motion to seal records for an abuse of discretion, but if the trial court applied an incorrect legal rule, we remand for application of the correct rule.[13]
Good Cause
¶ 11 Treadwell first argues that we should apply a "good cause" standard to his motion to seal records in this case either because the documents allegedly contain irrelevant material or the court did not use them in making any decisions. Because a compelling interest standard, not a good cause standard, applies to documents filed with the trial court in support of any motion, we reject this argument, which directly conflicts with the rule set out in Rufer v. Abbott Laboratories.[14]
¶ 12 In Rufer, the supreme court majority held that trial courts must apply the Ishikawa factors to requests to seal "any records that were filed with the court in anticipation of a court decision (dispositive or not)" and only seal such records when a compelling interest overrides the public's right to the open administration of justice.[15] The court also reiterated that discovery documents that were neither used at trial nor filed as an attachment or exhibit to any motion may be sealed merely for good cause.[16]
¶ 13 Here, it is undisputed that all the documents at issue were filed with the superior court during the pendency of the dissolution proceeding. We also conclude that it is beyond dispute that the documents were all filed in anticipation of a court decision, whether or not such decisions were dispositive. Finally, we note that Treadwell does not argue that any of the documents at issue in this appeal are discovery documents of the type that potentially would be subject to sealing or redaction on a showing of "good cause" under the relevant Civil Rules for Superior Court. Thus, the question is whether Treadwell has met his burden to overcome the presumption of openness that Rufer dictates as the starting point for analysis.
¶ 14 Treadwell asks us to apply the Rufer court's reasoning and adopt a good cause standard for documents that were never part of a trial court's determination, similar to unused discovery documents. We decline that invitation.
¶ 15 First, this argument is inconsistent with the presumption of openness by filing and the compelling interest standard that Rufer sets as the standard. It also would be impractical in many cases, requiring speculation about whether a trial court used all, a part of, or none of any filed document that a proponent of closure seeks to have sealed. In any event, we know from this case that the trial court did consider some of the documents that Treadwell sought to have sealed in making its rulings. For example, the court commissioner who entered the show cause *777 orders expressly incorporated into her findings material from the declaration supporting the request for the order.[17]
¶ 16 Second, we believe the more applicable reasoning from Rufer to apply here is in that court's discussion of non-dispositive motions. There, the court recognized that everything that passes before a trial court is relevant to the fairness of the fact-finding process, even if a document is later deemed inadmissible at trial or unsupportive of a viable claim.[18]Rufer did not hold that only documents that a trial court considered in rendering a decision are subject to the Ishikawa test. Rather, the court held that any document filed in "anticipation of a court decision," whether or not dispositive of the entire case, triggers the public's right of access and requires a compelling interest to seal.[19]
¶ 17 Treadwell argues that the concurring opinion in Rufer supports his view that a good cause standard should apply to irrelevant documents, and that the majority in that case did not reach the issue of whether documents irrelevant to the motion to which they were attached should be governed by the Ishikawa test. In actuality, the minority opinion in Rufer concurred in part and dissented in part.[20] On the issue of whether courts should apply a different standard to irrelevant documents, the opinion was clearly in dissent from the majority.
¶ 18 The majority concluded that trial courts should take relevance into account in applying the Ishikawa test, but not in determining which test applies.[21] The majority recognized that there is a potential for a party to embarrass or harass another by attaching irrelevant, confidential documents to motions. But it, nevertheless, concluded that courts should not presume that attorneys act in bad faith, and the civil rules provide remedies for abusing the discovery or pleading processes.[22] Finally, the court recognized that the Ishikawa factors themselves allow the trial court to take into account the level of confidentiality and relevancy of a document in balancing the competing interests involved.[23] Thus, courts must presume documents filed in conjunction with a motion are open to the public and leave the assessment of their relevance to the application of the Ishikawa factors.
¶ 19 As amicus curiae, the Washington State Bar Association (WSBA) Family Law Section argues that a good cause standard should apply in all family law cases for purposes of sealing or redacting documents. For the reasons we have already discussed and because this case does not warrant our consideration of such a large step in light of Rufer, we reject the argument.[24]
Ishikawa Test
¶ 20 Treadwell next argues that the trial court abused its discretion in declining to seal portions of the record under the Ishikawa compelling interest test. We disagree.
¶ 21 The Ishikawa factors require a trial court to analyze: (1) whether the proponent of sealing has established a "serious and imminent threat to some . . . important interest"; (2) whether everyone present was given the opportunity to object to sealing; (3) *778 whether the requested sealing or redaction is the least restrictive means available to effectively protect the threatened interest; (4) the weight of the competing interests of the defendant, the public, and alternative means suggested; and (5) the scope of the order to ensure that it is no broader in scope or duration than necessary.[25]
¶ 22 The fifth factor is not relevant to the analysis in this case because there was no sealing order. It is undisputed that Treseler had an opportunity to respond to the motion, satisfying the second factor. This left the trial court with the task of weighing the competing interests involved and determining whether the requested sealing was the least restrictive means to protect Treadwell's interests.
¶ 23 As to the first factor, the trial court concluded that Treadwell did not identify a compelling interest generally. That conclusion was not manifestly unreasonable. Although Treadwell claims that the allegations of financial impropriety harmed his business interests, it was not untenable for the trial court to conclude that this reason was not sufficiently compelling to overcome the public's compelling interest in the open administration of justice.
¶ 24 Treadwell argues that all of the documents he moved to redact are irrelevant to the motions they were filed to support. In applying the Ishikawa factors, the trial court was required to consider the relevance of the documents in question because under the fourth factor, a party has little or no valid interest in attaching a confidential, irrelevant document to a motion.[26] We have no reason to think the trial court failed to do so. The relevance of each document will be addressed below.
¶ 25 Turning to the specific documents at issue, Treadwell moved to have sealed portions of several documents that have not been made part of the record on appeal. Those documents include a motion for order to show cause, a memorandum of law, a third temporary restraining order, a motion and declaration to serve by mail, a declaration of attempted service, and an order continuing temporary restraining order.[27] Because these documents are not part of the record on appeal, we reject Treadwell's arguments as to these documents.[28]
¶ 26 We turn our attention to the documents contained in the appellate record that Treadwell addresses on appeal.
¶ 27 First, Treadwell moved to seal portions of Treseler's petition and amended petition for dissolution. The statements he moved to redact are assertions, without explanation, that Treadwell should be responsible for certain credit card debts, in the names of Treseler and her mother, upon a court's division of the marital property.[29] The trial court did not abuse its discretion in denying the motion to redact these statements. The complaint is presumptively open to the public. More importantly, these allegations were relevant to the relief Treseler sought in the dissolution proceeding. Moreover, Treadwell does not make a convincing argument that such assertions harm his interests.
¶ 28 Next, Treadwell sought to redact a declaration in support of Treseler's ex parte motion for a temporary restraining order, as well as portions of the restraining orders themselves. Treadwell appears to argue that the declaration was irrelevant to the motions because it was unnecessary to obtaining the relief she sought. But Treadwell cites no authority to support such a contention, and we are unaware of the existence of any such authority. Significantly, his argument fails to acknowledge the fact that the court commissioner explicitly incorporated portions of Treseler's declaration as findings in the restraining orders.[30] Thus, we can be confident *779 that the commissioner not only considered the declaration in deciding the motion, but specifically considered the information to be relevant to the restraining orders. The trial court, therefore, did not abuse its discretion in concluding that the balancing tipped against sealing these particular records.
¶ 29 Finally, Treadwell moved to seal Treseler's response to his motion to dismiss the case that was allegedly based on improper venue. Treseler's response to the motion contained several exhibits.[31] In that response, Treseler agreed that venue was not proper in King County. But she maintained that Washington had personal jurisdiction over Treadwell based on his contacts in this state and that venue was proper in Snohomish County. Despite this, Treseler stated that she was willing to allow the matter to proceed in Texas if Treadwell would agree to a dismissal without prejudice with each party bearing its own costs and fees, to which he had not yet agreed. The record does not reflect why she eventually agreed to dismiss the King County proceeding.
¶ 30 The trial court likewise did not abuse its discretion in denying the motion to seal this document. Treadwell argues that Treseler's opposition to his motion to dismiss for improper venue was irrelevant because she conceded that venue was improper. In fact, Treadwell's declaration appears to challenge Washington's personal jurisdiction over him. But his memorandum of law supporting his motion to dismiss was not made part of the record on appeal, and the motion to dismiss itself does not state the grounds for the motion. Treseler responded by describing Treadwell's business contacts with the state of Washington. Again, these statements are arguably relevant to the motion then pending before the court. And in the absence of a compelling interest on the part of Treadwell, the balance again tips against sealing the declaration.
Written Findings and Conclusions
¶ 31 Treadwell argues that the trial court erred in failing to enter written findings and conclusions on each of the Ishikawa factors. We disagree.
¶ 32 Although none of the briefing before us mentions the point, CR 52(a)(5) appears to be dispositive of whether findings and conclusions are required in the denial of the motion to seal or redact. That rule states in relevant part:
Findings of fact and conclusions of law are not necessary: . . . On decisions of motions under rules 12 or 56 or any other motion, except as provided in rules 41(b)(3) and 55(b)(2).
¶ 33 Treadwell fails to cite any authority to show that the decision on his motion qualifies under any of the exceptions stated above. For that reason alone, we find his argument largely unpersuasive.
¶ 34 Most of the Washington cases involving the sealing of records involved an appellate court's review of a trial court's order sealing particular records. Here, to the contrary, the court denied the motion to seal or redact.
¶ 35 Rufer, in which the supreme court reviewed an order to open previously sealed records, is factually similar to this case to the extent that review involved an order to deny a motion to seal rather than an order to seal records. After recognizing the distinction, the court in Rufer noted, "While the Ishikawa factors are used by trial courts to balance all competing fundamental interests, review of a trial court's use of those factors would be most apt when the trial court ordered that one or more records be sealed."[32]
¶ 36 Thus, articulating findings on each of the five Ishikawa factors is required before a trial court may seal portions of a trial court record.[33] But Treadwell has cited no Washington case in which a trial court was required to enter written findings when denying a motion to seal.
*780 ¶ 37 Treadwell cites a federal case, Pintos v. Pacific Creditors Ass'n,[34] to support his argument that written findings were required. That case does not control the outcome of this one under Washington state law. Moreover, unlike in Pintos, the trial judge in this case specifically applied GR 15 and relevant Washington law and made a reasoned determination that Treadwell had not overcome the presumption of openness.
¶ 38 The trial court did not commit error by deciding the motion without also entering findings and conclusions.
¶ 39 Treadwell also appealed the order denying reconsideration of the denial of his motion, but does not offer any separate analysis in support of reversing that order. Because there is no showing that the court abused its discretion in denying the motion for reconsideration,[35] we decline to overturn that order.
¶ 40 We affirm the orders on appeal.
WE CONCUR: ELLINGTON and AGID, JJ.
NOTES
[1] Rufer v. Abbott Laboratories, 154 Wash.2d 530, 535, 114 P.3d 1182 (2005).
[2] 97 Wash.2d 30, 640 P.2d 716 (1982); see also Dreiling v. Jain, 151 Wash.2d 900, 93 P.3d 861 (2004) (extending the use of the Ishikawa factors to civil proceedings).
[3] The only restraining and show cause orders in the record before us are those entered on May 17 and 26, 2004. Clerk's Papers at 101-03 and 110-13, respectively.
[4] On appeal, Treseler filed a brief in which she states that "she does not object to the relief [Treadwell] seeks on appeal." But she also states that she does not concede that the declarations filed below by her or on her behalf are inaccurate in any way. Brief of Respondent at 1. Amici Washington State Bar Association Family Law Section, Allied Daily Newspapers of Washington, Washington Newspaper Publishers Association, and the Washington Coalition for Open Government have also filed briefs in response to this court's request.
[5] Rufer, 154 Wash.2d at 535, 114 P.3d 1182.
[6] Ishikawa, 97 Wash.2d at 37-39, 640 P.2d 716 (quoting Federated Publ'ns, Inc. v. Kurtz, 94 Wash.2d 51, 62-64, 615 P.2d 440 (1980)).
[7] Dreiling, 151 Wash.2d at 907, 93 P.3d 861.
[8] Rufer, 154 Wash.2d at 540, 114 P.3d 1182.
[9] WASH. CONST. art. I § 10.
[10] Rufer, 154 Wash.2d at 540, 114 P.3d 1182 (quoting Dreiling, 151 Wash.2d at 909, 93 P.3d 861).
[11] Ishikawa, 97 Wash.2d at 37, 640 P.2d 716.
[12] Rufer, 154 Wash.2d at 540, 114 P.3d 1182.
[13] Id.
[14] 154 Wash.2d 530, 114 P.3d 1182 (2005).
[15] Id. at 549, 114 P.3d 1182 (emphasis added); see also id. at 535, 114 P.3d 1182 ("We hold that documents filed with the court will presumptively be open to the public unless compelling reasons for closure exist consistent with [Ishikawa].") (emphasis added).
[16] Id. at 550, 114 P.3d 1182.
[17] Clerk's Papers at 102, 111.
[18] Rufer, 154 Wash.2d at 542, 114 P.3d 1182; see also id. at 546-47 n. 11, 114 P.3d 1182 (limiting Dreiling and Ishikawa to their specific facts "would undermine the constitutional principle of openness").
[19] Id. at 549, 114 P.3d 1182.
[20] Rufer, 154 Wash.2d at 553, 114 P.3d 1182 (Madsen, J., concurring in part and dissenting in part).
[21] Id. at 547-48, 114 P.3d 1182; see also id. at 559, 114 P.3d 1182 (Madsen, J., concurring in part and dissenting in part) (noting the view that the poor logic in the majority's requirement that a compelling interest exist even when there is little or no interest of a party attaching an irrelevant document to support a motion).
[22] Id. at 547, 114 P.3d 1182.
[23] Id. at 547-48, 114 P.3d 1182.
[24] We note that the supreme court has adopted General Rules 15 and 22 governing the procedures for sealing and redacting filed documents. A blanket standard of good cause for categories of cases conflicts with the standards set forth in those rules.
[25] Ishikawa, 97 Wash.2d at 37-39, 640 P.2d 716.
[26] Rufer, 154 Wash.2d at 547-48, 114 P.3d 1182.
[27] See Clerk's Papers at 58-59, 74-75 (listing the documents Treadwell moved to seal or redact).
[28] See State v. Meas, 118 Wash.App. 297, 303 n. 6, 75 P.3d 998 (2003) (Appellate courts do not consider matters argued in briefs that are not included in the record.).
[29] Clerk's Papers at 4-5, 8-9.
[30] See Clerk's Papers at 102, 111.
[31] Clerk's Papers at 114-33.
[32] 154 Wash.2d at 544 n. 8, 114 P.3d 1182 (emphasis added).
[33] Ishikawa, 97 Wash.2d at 38, 640 P.2d 716; see also GR 15(c)(2) (court may only seal record after entering the appropriate written findings); GR 15(e) (written findings not explicitly required for unsealing previously sealed records).
[34] 504 F.3d 792 (9th Cir.2007).
[35] See Meridian Minerals Co. v. King County, 61 Wash.App. 195, 203, 810 P.2d 31 (1991) (we review a trial court's ruling on a motion to reconsider for an abuse of discretion). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/530904/ | 887 F.2d 1088
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Edward Lennar BROWN, Defendant-Appellant.
Nos. 88-6412, 89-5657.
United States Court of Appeals, Sixth Circuit.
Oct. 17, 1989.
Before KENNEDY and KRUPANSKY, Circuit Judges and WENDELL A. MILES, Senior District Judge.1
PER CURIAM.
1
Edward Lennar Brown appeals his sentence in this prosecution for conspiracy to distribute cocaine and possession with intent to distribute. After careful analysis of all of Brown's assignments of error in these consolidated cases, we conclude that the judgment below should be affirmed.
2
On October 7, 1988 Brown entered into a plea agreement whereby the government would dismiss four counts of the July 1977 indictment in exchange for a guilty plea to two counts charging violation of 21 U.S.C. Secs. 846 and 841(a)(1). On November 28, 1988 a sentencing memorandum was filed and the following day the Court held a sentencing hearing. Brown was sentenced to a term of imprisonment of twelve years on each of the two counts, to be served concurrently, along with a special parole term of three years on count two, and a special assessment of $50 on each count. Brown's requested sentence was also rejected on November 29, 1989.
3
Notice of appeal was filed on December 8, 1988 as to the sentence, which appeal constitutes Case No. 88-6412. Later, on April 11, 1989 Brown filed a Motion for Correction of Presentence Investigation Report, under Rule 32(c)(3)(D), Fed.R.Crim.P.2 On April 28, 1989 the district court denied this motion, which order is the subject of the appeal in Case No. 88-5657. Both matters have been carefully considered and are discussed below.
4
As to the motion to correct, Brown argues that the district court should have allowed his proposed newly discovered documentation refuting the allegations of Patricia Dodd, one of the government's witnesses at the November 29, 1988 sentencing hearing. Dodd testified that Brown first told her that he had killed a certain R.T. Melton, and then later told her it was not he who committed the murder, but some others. In support of his motion to correct, Brown submitted among other exhibits a Tennessee state court order evidencing a guilty verdict against a certain Stacy Ratcliff for the murder of R.T. Melton. Accordingly, Brown requested that references to any suspected involvement by him in the death of Melton be stricken from the Presentence Investigation Report.
5
At the sentencing hearing, Brown had objected to the inclusion of Dodd's testimony and unsuccessfully sought a continuance to rebut it. He argued that his counsel first saw the report on the evening prior to sentencing and that he was thus unable to adequately prepare to refute the disputed portions. The motion to correct was denied on April 28, 1989.
6
Appellant offered no jurisdictional basis for his motion to correct and indeed he could not. The federal rule of criminal procedure governing sentencing does not grant the lower court jurisdiction to hear post-judgment collateral attacks on sentences for alleged inaccuracies in the presentence report. Rule 32(c)(3)(D), Fed.R.Crim.P., provides as follows:
7
If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available in the Bureau of Prisons.
8
Nor does case law suggest any cognizable basis for allowance of Brown's motion to correct. First, as this court has unequivocally ruled, Fed.R.Crim.P. 32, standing alone, does not provide the district court with jurisdiction to hear a motion making a post-judgment collateral attack on one's sentence for a Rule 32 violation. United States v. Sanduy, 838 F.2d 157, 158 (6th Cir.1988), citing United States v. Fischer, 821 F.2d 557, 558 (11th Cir.1987). Further, the procedural history indicates no such grant of a jurisdictional basis; it rather suggests the narrow Congressional intent that a defendant be given the opportunity to comment on the presentence investigation report prior to sentencing. In this case the rule's requirement was satisfied. Although defendant saw the report only on the eve of sentencing, conspicuous by its absence is any assertion by Brown that the report was unavailable at an earlier and more reasonable time. Finally, governing case law from this circuit is replete with support for finding a lack of jurisdictional basis for Brown's motion to correct. E.g., United States v. Graham, 856 F.2d 756 (6th Cir.1988), cert. denied, 109 S.Ct. 1144 (1989); United States v. Stevens, 851 F.2d 140 (6th Cir.1988); United States v. Shackleford, 777 F.2d 1141 (6th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1981 (1986). There should be little doubt but that Brown's remedies in this respect are limited to a direct appeal of his sentence or the avenue provided by a writ of habeas corpus under 28 U.S.C. Sec. 2255. Brown's argument that the claimed inaccuracies in the report will adversely affect his parole opportunities cannot change this conclusion.
9
In any event, in his motion to correct, filed almost four months after the sentencing, Brown asserted that he had evidence proving that it was not he who committed the Melton murder. However, Dodd had not testified that Brown had murdered Melton, only that Brown claimed to have done so, and then changed his story. Thus, the motion to correct cannot be said to undercut the Dodd testimony in a material respect. Furthermore, after hearing the testimony at the sentencing hearing, the court made a finding that Dodd was credible. In short, even assuming a jurisdictional basis, Brown has failed to demonstrate a violation of Rule 32(c)(3)(D) by the court below. The appeal in Case No. 88-5657 is therefore denied.
10
In Brown's direct appeal of his sentence, he challenges the ruling of the sentencing court in several respects. First, Brown claims his fifth and sixth amendment rights were infringed because an FBI agent was allowed to testify concerning an informant without establishing sufficient reliability or credibility. Because rank hearsay was allowed, Brown claims a lack of due process and a violation of his right to confrontation. Federal law is clear, however, that "a judge may consider hearsay information in sentencing a defendant.... Only when the hearsay is so inadequately supported that 'the factual basis for believing [it is] almost nil' can it be argued that the evidence should not have been considered." United States v. Fernandez Vidana, 857 F.2d 673, 675 (9th Cir.1988), citing United States v. Weston, 448 F.2d 626, 633 (9th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748 (1972). In this case the FBI agent's testimony was corroborated by that of Dodd, who had already been sentenced on her federal conviction. Also, Brown testified at the hearing and so could have rebutted the evidence if he had the desire and ability to do so. Finally, in United States v. Reme, 738 F.2d 1156, 1167 (11th Cir.1984), cited by both parties, the court stated that where a defendant claims his due process rights have been violated by the sentencing court's reliance on false information, he must show that the "challenged evidence is materially false or unreliable" and that it actually served as the basis for the sentence. Brown having failed to satisfy this two-pronged test, his argument must be rejected.
11
Defendant further contends that the court below abused its discretion in disallowing a continuance so that a certain Perry Young could be called for cross examination. At the sentencing hearing, FBI Agent Brownell testified that he had interviewed Young, who told about his involvement with Brown in trafficking drugs, which information was included in the presentence report. Dodd's testimony corroborated that of the FBI agent about Brown.
12
In United States v. Cusenza, 749 F.2d 473 (7th Cir.1984), under similar circumstances, the court rejected a due process argument, so ruling because the critical elements of the testimony were the witness' personal observations rather than hearsay and the defendant had an adequate opportunity to offer countervailing evidence. These factors if applied here justify a finding of no abuse of discretion.
13
We must also reject Brown's argument which alleges that the government breached its plea agreement by including in the presentence report references to quantities of drugs and events which were not mentioned in the indictment. The plea agreement contains no such promise by the prosecution, and courts will not "imply as a matter of law a term which the parties themselves did not agree upon." United States v. Benchimol, 471 U.S. 453, 456 (1985). Also, we note that the court below specifically gave Brown the opportunity to withdraw from the plea agreement after revealing what information in the presentence report it would consider. After consulting counsel, Brown elected to carry through with his bargain. He should not be heard to complain of an alleged breach at this late juncture.
14
Error is also assigned to the court's reliance on the veracity of information in the presentence investigation about which Brown raised grave doubts. Specifically, Brown points to information regarding his alleged involvement in the murder of Melton. Defendant cites numerous cases which hold that the defendant is entitled to accurate information in the evidence considered for sentencing purposes. But as the government points out, Dodd's testimony was corroborated by that of Agent Walls and was consistent with the hearsay about Perry Young given by Brownell. Also, the court found Dodd to be credible, following observations of her at separate proceedings. It is likewise relevant that Brown may have been present at the murder of Melton, even if he did not commit the act. Enough indicia of reliability exist in this case to disallow defendant's claimed error in this respect.
15
Finally, defendant challenges the court's use of discretion in imposing a sentence exceeding 41 months, which is claimed to be disproportionate in view of the sentencing guidelines. The standard of review of a sentencing decision is "utmost deference." United States v. McCann, 835 F.2d 1184, 1187 (6th Cir.1987), cert. denied, 108 S.Ct. 2004 (1988). "Gross abuse" must be shown to reverse the court below. United States v. Dudley, 436 F.2d 1057, 1059 (6th Cir.1971). Further, the "sentence itself is insulated from appellate review if within the statutory limits." United States v. Restrepo, 832 F.2d 146, 148 (11th Cir.1987). This standard is satisfied. In fact, Brown could have been sentenced to 30 years. Finally, to the extent defendant's argument is premised on the sentencing guidelines it is unfounded; these do not apply inasmuch as the crimes at issue occurred prior to 1987 and thus were not subject to the guidelines. No reversal is warranted and the decision of the court below is affirmed.
1
The Honorable Wendell A. Miles, United States Senior District Judge for the Western District of Michigan, sitting by designation
2
Appellant also claims to have filed a Motion to Supplement that motion, on April 25, 1989. However, the record discloses that the supplementary pleading was never filed, and the lower court did not rule on it. Accordingly, this Court has no jurisdiction to review the matter. 28 U.S.C. Sec. 1291 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2584879/ | 44 Cal.4th 843 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
TONY LEE ALLEN, Defendant and Appellant.
No. S148949.
Supreme Court of California.
July 28, 2008.
*848 Christopher Blake, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Jeffrey J. Koch and Gary W. Schons, Assistant Attorneys General, Brad Weinreb and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GEORGE, C. J.
Defendant Tony Lee Allen committed two forcible rapes in 1990. (Pen. Code, § 261, subd. (a)(2).) He pleaded guilty to those offenses and was sentenced to 20 years in state prison. Upon his release from prison in 2001, he was committed to Atascadero State Hospital (Atascadero) under the Sexually Violent Predator Act. (Welf. & Inst. Code, § 6600 et seq. (SVPA or Act).)[1] This case arises from a proceeding to extend defendant's commitment as a sexually violent predator. At the trial by jury in the underlying proceeding, defendant personally asserted a right and a desire to testify, but his counsel advised the court that for tactical reasons counsel was opposed to defendant's testifying. After informing defendant that counsel controlled this decision, the court agreed it would not be in defendant's interest to testify. For this reason, defendant did not testify. After the jury reached a verdict, the court extended his commitment.
We granted defendant's petition for review to address the issue whether a defendant in a sexually violent predator proceeding has a state or federal constitutional right to testify over the objection of his or her counsel.[2] We conclude that a defendant in such a proceeding has a right under the California and the federal Constitutions to testify despite counsel's decision that he or she should not testify. We further conclude that the denial of the right to testify is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). *849 Finally, we conclude that the trial court's error in refusing to allow defendant to testify was harmless.
I.
On November 29, 2004, the San Bernardino County District Attorney's Office filed a petition to extend defendant's commitment under the Act. On January 5, 2005, the trial court held a hearing to determine whether there existed probable cause to believe defendant was likely to engage in sexually violent predatory criminal behavior absent appropriate treatment and custody. On January 28, 2005, the trial court found probable cause and set the petition to extend defendant's commitment under the SVPA for a jury trial. (§ 6602.) Trial was held in August 2005, but the jury was unable to reach a verdict, and the trial court declared a mistrial.[3] Following retrial in November 2005, the jury found true the allegation that defendant met the criteria of a sexually violent predator under sections 6600 through 6604, and the court ordered defendant committed to a state mental hospital for two years of confinement. (Former § 6604.)[4]
At trial, the People presented testimony of Drs. Robert Owen and Shoba Sreenivasan, psychologists retained by the State Department of Mental Health to evaluate defendant. The People also presented testimony of Dr. Jackson Rowland, a psychiatrist employed at Atascadero. Defendant presented no evidence.
Dr. Robert Owen testified that he reviewed police reports and court documents from the cases in which defendant pleaded guilty to rape, documents from the Department of Corrections and from Atascadero, and other medical and psychiatric records and reports concerning defendant.[5] Subsequently, in October 2004, Owen met with defendant at Atascadero and interviewed him for approximately one and one-half hours about his life, including his sexual history. Owen also interviewed Michael Pritchard, a psychologist who was treating defendant at Atascadero.
*850 Owen began by describing the two rapes of which defendant was convicted. In January 1990, defendant entered Sandra C.'s vehicle as she stopped in the parking lot of a small store to buy a soda. He asked for a ride, and she told him to leave. He demanded that she drive him "somewhere." After she did so, he directed her to stop the vehicle in an alleyway. He then pulled wires out of her ignition, disabling her vehicle. He unscrewed the lock on her side of the car and locked the doors, smoked cocaine and drank wine and forced her to do the same, grabbed her by the hair, held a screwdriver to her throat, hit her with the wine bottle, and sexually assaulted her. As he tried to reconnect the ignition wires, she escaped from the car and was assisted by a passing driver in contacting the police.
Approximately two weeks later, defendant entered Lisa L.'s automobile while she was waiting in the vehicle for a friend. Defendant wrapped his hands around Lisa's neck and dragged her out of her vehicle and to a dark area. She resisted, but noticed that he had a hammer. He raped and sodomized her. In the course of sexually assaulting her, defendant became angry and hit her in the face and arms with his fist. After sexually assaulting her, he smoked cocaine and blew smoke in her face and vagina.
Owen testified that these two offenses were predatory in nature because both victims were strangers to defendant, and opined that any future offenses also would be predatory. Owen explained that in evaluating whether a person's behavior reflects a sexual disorder, he focuses upon any pattern reflected in the behavior. In support of his opinion that defendant suffers from a sexual disorder, Owen testified concerning three incidents that occurred prior to the commission of the rapes of Sandra C. and Lisa L. but that did not lead to convictions.
In July 1989, defendant asked for a ride from Rhonda A., a woman he knew. She gave him a ride to one location, but then declined to drive him to another location. He became angry, grabbed her by the hair, pulled out a knife, forced her to the passenger side of the vehicle, and drove to various locations, smoking cocaine and speaking with persons where he stopped. At one home where they stopped, the occupants of the residence encouraged defendant to return the vehicle to Rhonda, but he refused. Rhonda reported the incident to the police.[6]
*851 The next day, he smoked cocaine with Tambria R., a woman he encountered at a friend's apartment. Defendant then removed his clothing and asked Tambria to have sex with him. She was frightened by him and agreed to have sexual relations to avoid being raped. Later the same day, he returned with more cocaine, and when Tambria refused to have sex with him, he slapped her face, threatened her with a bottle, and raped and sodomized her for more than an hour. When defendant went to the restroom, Tambria escaped to a neighbor's apartment. The neighbor informed the police that Tambria was hysterical as she reported the assault, and that Tambria told the neighbor to call the police because the assailant had a beer bottle and was coming after her.
In September 1989, defendant approached Melanie H., 17 years of age, outside a grocery store where she had arrived at approximately 6:00 p.m. to buy food for her grandmother. Defendant asked Melanie to drink wine with him. When she declined, he grabbed her by the throat, forced her to drink some wine, and took her behind the store, where he ripped off her clothes and raped her on cement steps in a loading zone. Some children walked by while the rape was occurring, and Melanie motioned to them to get help. After raping Melanie, defendant wrote his telephone number on a piece of paper, gave it to her, and told her to call him and meet him the next day or he would kill her. Melanie reported the attack to the police. Owen testified that these assaults were predatory and violent and demonstrated a lack of volitional and emotional control.
Owen further testified that while defendant was in prison, he stalked female prison guards, attempted to be alone with them, made sexual statements to them, wrote a note to one proposing a personal relationship, stared at a female guard while standing in front of his cell door with the lights on and his erect penis protruding from his boxer shorts, and stared at another female guard while masturbating. This conduct led to defendant's repeated segregation in prison, but discipline did not deter him from continuing to engage in inappropriate sexual conduct toward female prison staff. Defendant also violated other prison rules by refusing to enter his cell, defacing property with gang graffiti, fighting with cellmates, stealing, and refusing to report for work.
After defendant was committed to Atascadero in 2001, he sexually harassed female staff members, stared at them for minutes at a time, attempted to move close to them, touched one on the leg, exposed his penis, and wrote sexual notes to staff, some of which were delivered by other patients whom defendant intimidated. Defendant's inappropriate behavior was reported to his *852 parole officer within days after defendant arrived at Atascadero; his parole was revoked, and he was sentenced to an additional year in custody. While serving his sentence in 2002, defendant continued to defy authority and, in one incident, grabbed the arm of a female officer in the county jail and told her, "You know what I want."
Defendant continued to engage in inappropriate sexual behavior after he returned to Atascadero from county jail. He stared at female staff members and approached them. He told a staff member he would see her again outside of Atascadero. He loitered at the door of a female social worker whom he had been stalking, despite having been told he was not allowed to be near the social worker except in a class setting. He stared into her office window intently, said he wanted to speak to the social worker, and declined to leave. According to Owen, defendant "had to be within line of sight of staff because he was stalking so many women at the hospital." Owen viewed this conduct as evidence tending to establish that defendant cannot control his sexual drive.
Owen also noted defendant's long criminal record. When he was a juvenile, defendant was arrested for illegal possession of weapons and placed on probation. In 1985, at 18 years of age, defendant was found in possession of cocaine in a house in which weapons were found. His crimes from 1986 through 1988 included trespass, burglary, grand theft, robbery, possession of drugs, and resisting a peace officer. As noted above, the uncharged conduct against Rhonda A., Tambria R., and Melanie H. occurred in 1989, and the predicate offenses occurred in 1990, after which time he has been continuously in prison, county jail, or Atascadero.
Based upon defendant's long criminal history, deceitfulness, violent conduct, reckless behavior toward others, lack of remorse, and lack of empathy, Owen concluded that defendant's mental disorders include paraphilia (specifically, an urge for sex with nonconsenting adults), antisocial personality disorder, psychosis, and cocaine dependency. To assess the likelihood that defendant will reoffend, Owen reviewed risk factors that are considered in making an assessment on the "Static-99" scale, which predicts the likelihood that an individual will reoffend. Based upon various risk factors, such as his age (37 years of age at the time of trial), history, behavior, and lifestyle, defendant's score on the Static-99 scale was an eight. Men with similar scores have a 39 percent probability of being convicted of a new sexual offense within five years of returning to the community, a 45 percent probability of such a conviction within 10 years, and a 52 percent probability of such a conviction within 15 years. Owen explained that these figures *853 underestimate the probability that an individual will commit another sexual crime, because the figures relate only to convictions for new sexual offenses and do not include conduct that does not lead to an arrest and conviction. Owen also testified that defendant was in the second phase of a five-phase sex offender treatment program at Atascadero, but he explained that defendant's treatment had not really begun, because defendant continued to deny committing any sexual offenses. Owen concluded defendant is in a high-risk category for reoffending.
Owen confirmed that defendant earned his high school graduate equivalency degree and also participated in classes concerning human sexuality and medications and their side effects. Defendant participated in Alcoholics Anonymous, Narcotics Anonymous, anger management, and interpersonal skills groups. He attended popcorn socials and bingo games, and exercised in the gym. Defendant expressed concern regarding his mother, and spoke of his brother and his son.
Dr. Shoba Sreenivasan also reviewed background documents and interviewed defendant. She explained that her diagnosis of defendant was based upon behavior over his lifetime, and provided additional details concerning that behavior. She testified that defendant had reported to her that when he was 13 years of age, he and three other boys of similar age had engaged in sexual relations with a girl who was 13 years of age. Defendant had rejected Sreenivasan's suggestion that the incident was a gang rape, and instead seemed to perceive that "this thirteen-year-old girl really wanted to have sex with all four of these boys." Sreenivasan noted that law enforcement records reflectin addition to defendant's lengthy criminal history and wide range of criminal behaviorthat defendant had used seven or eight aliases, which demonstrated a pattern of being untruthful. She observed that when defendant was confined at Atascadero before his parole was revoked, he received eight "behavioral notes" in a six-day period instructing him to cease engaging in various behavior. She concluded from his behavior that he had "no boundaries" and respected no one. When defendant returned to Atascadero in 2003, he participated in a treatment program, but his participation did not diminish his inappropriate behavior. For example, immediately after concluding a group session, he left the room and began stalking a female social worker. When defendant was told to stop circling female staff in an outdoor courtyard where the staff took their breaks, he laughed and continued the behavior at a further distance. He also was observed staring at a female student while he had a visible erection, and was seen in a public area with a visible erection. In Sreenivasan's opinion, defendant was "just showing up at treatment" and was not making progress in addressing his sexual deviancy.
*854 Sreenivasan diagnosed defendant with untreated paraphilia, a personality disorder, and cocaine dependence. She stated that his Static-99 score of eight is very high; individuals with a score of six or higher are in the highest risk group. She agreed with the probabilities of reconviction as noted by Owen, and added that research data concerning high-risk offenders released from California prisons in 1989 and 1990 reflect that 90 percent of those with a score of six on the Static-99 scale committed another sexual offense within 14 years, and all of those with a score of seven or higher committed another sexual offense within that period. Sreenivasan also testified that approximately two-thirds of sexual assaults are not reported to the police, and that approximately 60 percent of the reported assaults are not solved. Therefore, the probabilities reflected in the Static-99 evaluation underestimate the risk that an individual will reoffend. She confirmed on cross-examination that originally she had given defendant a score of six on the Static-99 scale, which is the low end of the high range, but explained that she arrived at a score of eight after she received more information concerning his criminal history.
Dr. Jackson Rowland treated defendant when he was admitted to Atascadero in 2001, and again beginning in 2003 when defendant returned to Atascadero, until he was transferred to county jail in December 2004 for the underlying proceeding to extend his commitment. Rowland testified concerning defendant's inappropriate behavior toward female staff at Atascadero, such as writing "love letters" to staff, stalking staff, and exposing himself. Rowland stated that defendant suffers from paraphilia, and also seems to have erotomanic delusions, signifying that he believes women are in love with him. According to Rowland, female employees complained about defendant's inappropriate behavior "[a]ll the time." When staff confronted defendant concerning instances of inappropriate behavior, he would deny that such behavior occurred.
Rowland testified that in addition to defendant's paraphilia and delusions, defendant suffers from a psychotic disorder, which is characterized by disorganized and confused thinking. For example, when defendant arrived at Atascadero, he was unable to perform the minimal tasks required by Atascadero "Patient Access System" in order to be allowed to visit areas of the hospital outside of his unit. To travel to another location in the hospital, such as the library, a patient must write his or her destination, and the time of the visit, on two "hall cards." Defendant required several weeks to prepare such cards successfully and to travel to the identified destination; on numerous occasions, he failed to complete the hall cards, or he prepared them incorrectly, or he would be found someplace other than the destination specified on his card.
*855 Rowland recommended to defendant that he take medication for his psychotic disorder. Despite hours spent by Rowland as well as a staff psychologist, the supervisor of defendant's unit, and a social worker, explaining to defendant the necessity of medication, he declined to take medication because he did not believe he had a psychotic disorder. Defendant eventually agreed to take a lower dose of the medication than recommended, if he was rewarded with a peanut butter and jelly sandwich at night. While on medication, defendant's behavior improved sufficiently to elevate him to level three of the Patient Access System, which allowed him to prepare a hall card and travel outside his unit to another location in the hospital. When defendant was not taking medication, he was on level one of the Patient Access System, and therefore was confined to his unit within the hospital.
After several months of taking the first medication prescribed, defendant discontinued its use when he learned that diabetes is a potential side effect, despite defendant's lack of any diabetic symptoms. Some weeks later, he agreed to take a low doseless than half of the therapeutic doseof a different medication, and he took it "on and off" while at Atascadero but complained of its sedative effect. Rowland explained to defendant that he would experience side effects at first, but those would dissipate "and then the good [e]ffects would come into play," but according to Rowland, defendant "never received an adequate trial" of either medication. Rowland testified defendant's medical records reflect that after his transfer to county jail for the present proceedings, defendant was asked numerous times to take medication but refused, stating he did not need to take medication because there was nothing wrong with him.
Rowland described the five phases of treatment provided at Atascadero. Phase one is an "informational phase," during which the staff helps a patient understand the program, and the patient decides whether to accept treatment. If the patient accepts treatment, he or she enters phase two, during which the patient learns about his or her "cognitive distortions," which Rowland described as the distorted thought processes that allow the patient to rationalize, justify, and engage in inappropriate behaviors. In phase three, the patient applies what he or she has learned in phase two to the patient's current behavior, with the goal of interacting more appropriately with staff and other patients. When appropriate behavior is achieved, the patient enters phase four, which involves preparation for entering the community. Finally, in phase five, the patient is released from the hospital and resides in the community, but remains supervised. Rowland testified that defendant is in phase two of the treatment program, and "if he's released today, he'd be as he was when he entered the facility. There's been no substantial progress ... in any regard."
*856 During the trial, defendant's counsel stated his intention not to call any witnesses on defendant's behalf, but informed the court that defendant desired to testify and that counsel desired that defendant not testify. The court expressed the view that, because an SVPA proceeding is not a criminal proceeding, counsel had authority to decide whether his client would testify.
When the court inquired as to the subject matter upon which defendant wished to testify, counsel identified three topics. First, defendant would address the issue of the asserted consent of the female victims to the predicate offenses and the uncharged conduct. The court responded that the issue of consent was "not relevant and germane at this point."
Second, defendant would testify that "he has not refused to take medication to the extent that people in this case have testified to; that he has basically been glad to take medication that he's been offered except for some further and subsequent understanding regarding the side effects." The court asked defendant, "Is that correct?" Defendant responded, "Um, yes. To a degree." The court acknowledged the relevance of such testimony but "suspect[ed] that as soon as he testified in that area, there would be rebuttal testimony on behalf of the People, and it might be counterproductive for him." Defense counsel agreed with the court's assessment. The court observed that "if Counsel has made a decision from a tactical standpoint, the Court has to recognize that decision." The court then inquired whether counsel had adequately described the reasons for counsel's decision. Defendant responded that "he has a right to his opinion, but I do have a right to testify." Defendant also asserted that the SVPA afforded him a statutory right to testify. The court explained to defendant that this is not a criminal proceeding, and informed defendant that "the decision by trial counsel is paramount."
Third, in response to a question from the court, directed to defendant, whether there were any other areas about which he wished to testify, defendant responded "inappropriate behavior."[7] Counsel then explained, "as an offer of proof I believe he would deny many of the allegations that have been made." Defendant interjected, "No. I wouldn't deny." Counsel then stated, "or even worse, I think he would testify thatthat the women somehow flirted with or made some advancements towards him. I think the *857 Court can understand why I believe that testimony would be counterproductive." Defendant did not disagree with counsel's amended description of his proffered testimony. The court predicted that the People would call a witness to rebut such testimony, and the district attorney stated that she would "have Dr. Rowland here who could testify to each and every incident, if we have to, and take the records apart." Defendant countered that Dr. Rowland "doesn't see me. He just looks at the reports, and people write reports, you know. People falsify information." The court responded, "I think it boils down to an issue of credibility, and I don't think it would be in your best interest."
The court proceeded with the trial, without testimony from defendant, and the jury found true the allegation that defendant meets the criteria of a sexually violent predator pursuant to sections 6600 through 6604.
II.
(1) The SVPA was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144 [81 Cal.Rptr.2d 492, 969 P.2d 584] (Hubbart).) At the time of the underlying proceeding to extend defendant's commitment, the Act defined a sexually violent predator as "a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Former § 6600, subd. (a)(1), as amended by Stats. 2000, ch. 643, § 1.)[8] (2) "`Sexually violent offense[s]'" consist of enumerated sex crimes "when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person...." (§ 6600, subd. (b).) In addition, if one of these enumerated crimes is committed against a child under the age of 14 years, the crime constitutes a "`sexually violent offense.'" (§ 6600.1, subd. (a).)
(3) The process for confining an individual pursuant to the SVPA begins when the Secretary of the Department of Corrections and Rehabilitation determines that an individual in the custody of the department may be a sexually violent predator, and the secretary refers the individual to the State Department of Mental Health for an evaluation. If two evaluators concur that *858 the individual meets the statutory criteria of a sexually violent predator, the Director of Mental Health shall request the county in which the person was convicted of the offense for which he or she is incarcerated to file a petition for commitment under the SVPA. (§ 6601.)
(4) If the trial court determines that the petition establishes "probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release," the court shall order a trial to determine whether the person is a sexually violent predator. (§§ 6601.5, 6602.) The individual "shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." (§ 6603, subd. (a).) If the individual is indigent, the court shall appoint counsel and assist the individual in obtaining an expert evaluation and expert assistance at trial. (Ibid.) To secure the individual's commitment, the district attorney must prove beyond a reasonable doubt that the person is a sexually violent predator. (§ 6604.) When a jury decides the case, its verdict must be unanimous. (§ 6603, subd. (f).) The statutory scheme does not, however, expressly grant the defendant a right to testify.
At the time of the hearing upon the petition to extend defendant's commitment, the SVPA provided: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health...." (Former § 6604, as amended by Stats. 2000, ch. 420, § 3.)[9] The Act also required, at least once a year, an examination of the defendant's mental condition, and afforded the defendant a right to retain or, if indigent, to have appointed, an expert to examine the defendant and review all records concerning the defendant. (Former § 6605, subd. (a), added by Stats. 1995, ch. 763, § 3, p. 5922.)[10] The Act required notice to a defendant *859 of his or her right to petition the court for conditional release. If a defendant did not affirmatively waive the right to seek conditional release, the Act required the court to "set a show cause hearing to determine whether facts exist that warrant a hearing on whether [the defendant's] condition has so changed that he ... would not be a danger to the health and safety of others if discharged." (Former § 6605, subd. (b), added by Stats. 1995, ch. 763, § 3, p. 5926.)[11] If such facts were found, the court was required to hold a hearing on the issue, at which the defendant would be entitled to all of the constitutional protections afforded at his or her initial commitment hearing. (§ 6605, subds. (c), (d).) A verdict against the defendant would result in a new two-year commitment, and a verdict for the defendant would lead to his or her unconditional release. (Former § 6605, subd. (e), added by Stats. 1995, ch. 763, § 3, p. 5926.)[12] Alternatively, if the State Department of Mental Health had reason to believe the defendant no longer was a sexually violent predator, it was required to seek judicial review of the commitment pursuant to section 7250. (§§ 6605, subd. (f), 7250 [any person who has been committed to a state hospital for the mentally disordered is entitled to a writ of habeas corpus upon a proper application by the State Department of Mental Health, the person, or a friend or relative].) Finally, the SVPA did not "prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health." (Former § 6608, subd. (a), added by Stats. 1995, ch. 763, § 3, p. 5922.)[13] No hearing could be held on a defendant's petition, however, until the defendant had been committed for at least one year. (§ 6608, subd. (c).)
*860 III.
(5) The defendant in a criminal proceeding has a right to testify over the objection of his or her counsel. As we have explained in that context, "the right to testify in one's own behalf is of such fundamental importance that a defendant who timely demands to take the stand contrary to the advice given by his counsel has the right to give an exposition of his defense before a jury. (People v. Blye[ (1965)] 233 Cal.App.2d 143, 149 [43 Cal.Rptr. 231].) The defendant's insistence upon testifying may in the final analysis be harmful to his case, but the right is of such importance that every defendant should have it in a criminal case. Although normally the decision whether a defendant should testify is within the competence of the trial attorney (see People v. Gutkowsky[ (1963)] 219 Cal.App.2d 223, 227 [33 Cal.Rptr. 79]), where, as here, a defendant insists that he wants to testify, he cannot be deprived of that opportunity." (People v. Robles (1970) 2 Cal.3d 205, 215, fn. omitted [85 Cal.Rptr. 166, 466 P.2d 710] (Robles).)
(6) Proceedings to commit an individual as a sexually violent predator in order to protect the public are civil in nature. (Kansas v. Hendricks (1997) 521 U.S. 346, 361-369 [138 L.Ed.2d 501, 117 S.Ct. 2072] [because Kansas's sexually violent predator scheme was not intended to punish, it did not violate ex post facto prohibition or constitute double jeopardy]; Hubbart, supra, 19 Cal.4th 1138, 1170-1179 [because California's SVPA does not inflict punishment, it does not violate the federal or state ex post facto clauses]; see § 6250 [persons subject to commitment under the SVPA "shall be treated, not as criminals, but as sick persons"].) Therefore, the Fifth Amendment's guarantee against compulsory self-incrimination does not apply in proceedings under the SVPA. (Allen v. Illinois (1986) 478 U.S. 364, 375 [92 L.Ed.2d 296, 106 S.Ct. 2988]; People v. Leonard (2000) 78 Cal.App.4th 776 [93 Cal.Rptr.2d 180] (Leonard).) Nor do the Sixth Amendment rights to self-representation and to confront witnesses apply in such proceedings. (People v. Otto (2001) 26 Cal.4th 200, 214 [109 Cal.Rptr.2d 327, 26 P.3d 1061] (Otto) [reliable hearsay statements concerning the predicate offenses are admissible in an SVPA proceeding; "[t]here is no right to confrontation under the state and federal confrontation clause in civil proceedings"]; People v. Fraser (2006) 138 Cal.App.4th 1430, 1446 [42 Cal.Rptr.3d 424] (Fraser) ["because a civil commitment proceeding under the SVPA has a nonpunitive purpose and is therefore not equivalent to a criminal prosecution, we determine that there is no Sixth Amendment right to self-representation in SVPA proceedings"]; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367 [30 Cal.Rptr.3d 189] [rejecting reliance upon Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] in an SVP proceeding, *861 because Crawford "was based solely on the Sixth Amendment right of confrontation"].)
Notwithstanding the repeated rejection in these and other cases of the applicability of constitutional rights afforded to criminal defendants in the context of proceedings under the SVPA, defendant contends that the right of a criminal defendant to testify over the objection of his or her counsel should apply in such proceedings because these proceedings include many of the procedural protections afforded in criminal cases, such as the right to court-appointed counsel and experts, the right to trial by jury and a unanimous verdict, and the requirement of proof beyond a reasonable doubt to support the verdict. This theory for the importation of criminal constitutional rights into civil commitment proceedings has been rejected in other cases. The state's provision of procedural protections similar to those afforded criminal defendants "does not transform a civil commitment proceeding into a criminal prosecution." (Kansas v. Hendricks, supra, 521 U.S. at 364-365; see also Hubbart, supra, 19 Cal.4th at p. 1174, fn. 33 ["the use of procedural safeguards traditionally found in criminal trials [does] not mean that commitment proceedings [are] penal in nature"].) Defendant also cites the circumstance that both criminal and SVPA proceedings are brought by the district attorney or the attorney general in the name of the People, and notes that both types of proceedings concern "the defendant's liberty interests and society's interest in protecting itself against dangerous persons." These observations fail to establish that proceedings under the SVPA share the characteristics necessary to transform a civil commitment proceeding into a criminal proceeding, the latter having the underlying purpose of punishing the defendant. (Hubbart, supra, 19 Cal.4th at p. 1171.)
Defendant next contends that Proposition 83, which was approved by the voters in November 2006, establishes that a purpose of proceedings under the SVPA is to punish individuals found to be sexually violent predators. The trial of the allegations under the petition to extend defendant's commitment occurred in 2005, prior to the passage of Proposition 83. Moreover, defendant's reliance upon references in the preamble of Proposition 83 to "adequate penalties" and "laws that punish," and upon the circumstance that many of the amendments made by Proposition 83 concern the punishment of sex offenders, is misplaced. Proposition 83 amended the Penal Code as well as the Welfare and Institutions Code. The intent to punish sexually violent predators through Penal Code provisions that apply to criminal prosecutions does not establish an intent to punish sexually violent predators through Welfare and Institutions Code provisions that apply to civil commitment proceedings. Although Proposition 83 made amendments to both the criminal and the civil schemes, it recognized the different purposes of these two *862 schemes, stating in the preamble: "Existing laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (h), p. 127, italics added.) For the same reason, the argument of the proponents of Proposition 83 that "[o]ur families deserve the protection of a tough sex offender punishment and control law" (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 83, p. 46) does not establish that the provisions of Proposition 83 addressing the civil commitment of sexually violent predators were intended to punish defendants.
IV.
(7) Our conclusion that the right of a criminal defendant to testify over the objection of his or her counsel does not extend to an individual who is the subject of a proceeding under the SVPA does not end our analysis. "Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP[A] proceeding is entitled to due process protections. (Foucha v. Louisiana (1992) 504 U.S. 71, 80 [112 S.Ct. 1780, 118 L.Ed.2d 437].)" (Otto, supra, 26 Cal.4th at p. 209; see Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 161 [145 L.Ed.2d 597, 120 S.Ct. 684] ["In light of our conclusion that the Sixth Amendment does not apply to appellate proceedings, any individual right to self-representation on appeal based on autonomy principles must be grounded in the Due Process Clause."]; Fraser, supra, 138 Cal.App.4th at 1446 ["Absent a Sixth Amendment right [to self-representation in SVPA proceedings], the individual right to self-representation `must be grounded in the Due Process Clause.'"].)
(8) "`Once it is determined that [the guarantee of] due process applies, the question remains what process is due.' (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [92 S.Ct. 2593, 33 L.Ed.2d 484].) We have identified four relevant factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a *863 responsible government official. ([In re] Malinda S. [(1990)] 51 Cal.3d [368,] 383 [272 Cal.Rptr. 787, 795 P.2d 1244].)" (Otto, supra, 26 Cal.4th at p. 210.)[14]
We begin with the private interests at stake. As we noted in Otto, supra, 26 Cal.4th 200, "the private interests that will be affected by [a finding that the defendant continues to be a sexually violent predator] are the significant limitations on [the defendant's] liberty, the stigma of being classified as [a sexually violent predator], and subjection to unwanted treatment. [Citation.]" (Id. at p. 210.) The circumstance that a commitment is civil rather than criminal scarcely mitigates the severity of the restraint upon the defendant's liberty. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 223-227 [152 Cal.Rptr. 425, 590 P.2d 1].) "[T]he California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction." (In re Gary W. (1971) 5 Cal.3d 296, 307 [96 Cal.Rptr. 1, 486 P.2d 1201] [holding that the right to trial by jury is a requirement of due process and equal protection in a proceeding to extend detention by the Youth Authority for treatment].) Thus, the first factor weighs heavily in favor of providing all reasonable procedures to prevent the erroneous deprivation of liberty interests.[15]
Second, we consider the risk, in the absence of a right to testify, of an erroneous finding that the defendant is a sexually violent predator and the probable value, in reducing this risk, of allowing him or her to testify over the objection of counsel. In evaluating this factor, the Court of Appeal looked to the analysis in Otto, supra, 26 Cal.4th 200. Otto addressed section 6600, subdivision (a)(3), which authorizes the admission of documentary evidenceincluding preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Healthto establish the details surrounding the commission of predicate offenses. The defendant in Otto contended that reliance upon hearsay evidence *864 in such reports violated his due process right to be convicted only upon reliable evidence. In addressing whether the challenged procedure enhanced the risk of an erroneous deprivation of the defendant's liberty interests, the court in Otto agreed that "the victim hearsay statements must contain special indicia of reliability to satisfy due process," because hearsay "permeates not only the substantial sexual conduct component of the prior crime determination, but also the psychological experts' `conclusion that [Otto] was and remained a pedophile ... likely to reoffend.' [Citation.] Thus, if these facts are unreliable, a significant portion of the foundation of the resulting [sexually violent predator] finding is suspect." (Otto, supra, 26 Cal.4th at pp. 210-211.) We concluded in Otto that "the victims' hearsay statements possess sufficient indicia of reliability to satisfy due process." (Id. at p. 211.) We added: "Implicit in the above discussion are other factors (in addition to the reliability of the victims' hearsay statements) that diminish the risk of an erroneous deprivation of rights as a result of reliance on the hearsay statements, and the probable value of additional or substitute procedural safeguards. Otto had the opportunity to present the opinions of two psychological experts, and cross-examine any prosecution witness who testified. Moreover, the trial court retained discretion under Evidence Code section 352 to exclude unreliable hearsay, which acted as a further safeguard against any due process violation." (Id. at p. 214.)
Otto's focus upon the reliability of the hearsay evidence admitted in that case led the Court of Appeal in the present case to evaluate the reliability of defendant's proffered testimony. The appellate court concluded that "the reliability of defendant's testimony is highly questionable. Not only was there strong incentive for him to fabricate but, in addition, defendant's own attorney advised defendant against testifying, thus indicating that his testimony would not be beneficial to defendant's defense. Defendant further lacked credibility as a witness. His proffered testimony was not believable, i.e., that his victims consented to the sexual acts and Atascadero staff members were flirting with him. Defendant's testimony had little if any probable value as an additional safeguard against the erroneous deprivation of his private interests affected by SVP proceedings."
(9) Otto, supra, 26 Cal.4th 200, concerned the admission of a category of evidencehearsaythat generally is considered unreliable. (See Chambers v. Mississippi (1973) 410 U.S. 284, 298 [35 L.Ed.2d 297, 93 S.Ct. 1038] ["The hearsay rule ... is ... grounded in the notion that untrustworthy evidence should not be presented to the triers of fact."].) Because hearsay evidence tends to be unreliable, as a general matter its admission may contribute to an erroneous result unless indicia of reliability are established. In contrast, trial testimony from a witness sworn to tell the truth and subject *865 to cross-examination is not considered, as a general proposition, to be unreliable. Although, as explained below, we agree with the Court of Appeal that defendant's testimony would not have assisted him in preserving his liberty interests in this case, here we seek to establish a rule of general application in proceedings under the SVPA. "[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." (Mathews v. Eldridge (1976) 424 U.S. 319, 344 [47 L.Ed.2d 18, 96 S.Ct. 893].) Therefore, we consider generally whether allowing a defendant in a proceeding under the SVPA to testify over the objection of his or her counsel may aid the defendant in preventing the erroneous deprivation of liberty interests, rather than whether the right would aid the particular defendant before us.
Absent the objection of defendant's counsel, defendant would have been permitted to testify to the extent his testimony was admissible and sufficiently relevant. (See Guardianship of Waite (1939) 14 Cal.2d 727, 729-730 [97 P.2d 238] [in a conservatorship proceeding, it was error to allow only expert testimony, and to preclude the individual who was the subject of the conservatorship proceeding from testifying]; Caldwell v. Caldwell (1962) 204 Cal.App.2d 819, 821 [22 Cal.Rptr. 854] [in a marital dissolution proceeding, it was error to preclude a parent from testifying concerning the need for increased child support].) In addition, as has been recognized in cases in which a sexually violent predator has asserted the privilege against self-incrimination, the defendant's participation in the proceedings, through pretrial interviews and testimony at trial, generally enhances the reliability of the outcome.[16] Moreover, as observed in Otto, supra, 26 Cal.4th 200, if critical *866 information, such as the details surrounding the commission of the predicate offenses, is questionable, "a significant portion of the foundation of the resulting [sexually violent predator] finding is suspect." (Otto, supra, 26 Cal.4th at pp. 210-211.) Because the testimony of a defendant typically will concern his or her conduct, this testimony may relate to information that is critical to the experts' testimony. Attorneys are not infallible in appraising their clients and in assessing the impression a client's testimony may have on a jury, or in evaluating the credibility of other witnesses. In some cases, the defendant's testimony may raise a reasonable doubt concerning the facts underlying the experts' opinions. Accordingly, in every case there exists a risk that allowing counsel to preclude the defendant from testifying will lead to an erroneous deprivation of rights. Guaranteeing the defendant a right to testify, even over counsel's objection, will mitigate this risk. The potential consequence of the defendant's testimony being harmful to his or her case does not justify a rule that would bar a defendant from testifying absent the concurrence of his or her counsel. For these reasons, we conclude the second factor weighs in favor of allowing the defendant to testify over the objection of counsel.
Third, we consider "the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Otto, supra, 26 Cal.4th at p. 210.) The government has a strong interest in protecting the public from sexually violent predators, and in providing treatment to these individuals. (People v. Vasquez (2001) 25 Cal.4th 1225, 1232 [108 Cal.Rptr.2d 610, 25 P.3d 1090]; Hubbart, supra, 19 Cal.4th at pp. 1143-1144.) Because the defendant's participation in the proceedings through his or her testimony at trial generally enhances the reliability of the outcome, the recognition of a right to testify over the objection of counsel may serve the government's interest in securing an accurate factual determination concerning the defendant's status as a sexually violent predator. If, contrary to defense counsel's expectation, the defendant's testimony is credible and beneficial to the defendant, the prosecution may elect to present additional witnessis to rebut that testimony, and this may add to the government's burden. That possibility, however, presents a consequence no different from the situation faced by the *867 prosecution when the defendant's counsel has elected to have his or her client testify, and it affords no legitimate reason to preclude the defendant from testifying.[17]
The fiscal and administrative burdens associated with a right to testify over counsel's objection are de minimis. As noted above, the defendant generally has a right to testify in such proceedings, subject to the rules of evidence and procedure. Therefore, recognizing a right of the defendant to testify against the advice of counsel will lengthen the proceedings only in that subset of cases in which the defendant's counsel determines not to call the defendant to testify and the defendant decides to reject counsel's advice and insists upon his or her right to testify. The added expense of receiving the defendant's testimony in those relatively few cases is of course no reason to deny the defendant a right to testify. (See Lassiter v. Department of Social Services (1981) 452 U.S. 18, 28 [68 L.Ed.2d 640, 101 S.Ct. 2153] [government's pecuniary interest in not appointing counsel for parents in parental rights termination proceedings "is legitimate, [but] it is hardly significant enough to overcome private interests as important as those here, particularly in light of the concession" that the costs would be de minimis compared to the costs of appointed counsel in criminal matters].)
(10) The state contends it "has a strong interest in not allowing the defendant to sabotage the proceedings for purposes of his own amusement or otherwise commit perjury and thereby degrade the integrity of the process as a whole. (See Harris v. New York [(1971)] 401 U.S. [222,] 225 [28 L.Ed.2d 1, 91 S.Ct. 643] [although every criminal defendant has the privilege to testify in his own defense, `that privilege cannot be construed to include the right to commit perjury'].)" As we have noted, a right to testify over the objection of *868 counsel does not authorize a witness to commit perjury. (See fn. 14, ante.) In addition, a right to testify does not entitle a defendant "to lash out at the SVPA process to a captive audience of jurors," as the state fears will occur. As in all cases, the trial court retains authority to manage the proceedings and to prohibit abusive conduct by the parties. (Code Civ. Proc., § 128.) The possibility that a defendant in a sexually violent predator proceeding may attempt to disrupt the proceedings or may testify falsely does not justify denying all defendants in such proceedings a right to testify over the objection of counsel.
Because the number of cases in which (1) counsel advises the defendant not to testify, (2) the defendant nonetheless elects to testify, and (3) the defendant's testimony hinders rather than assists the prosecution's overall case will be small, and because the added burden on the prosecution of responding to a credible defense most certainly is not a legitimate reason to preclude the defendant from testifying, we conclude that the third factor does not weigh against allowing the defendant to testify against the advice of counsel.
(11) Finally, we consider "the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official. [Citation.]" (Otto, supra, 26 Cal.4th at p. 210.) Considering the question of a defendant's right to self-representation in proceedings under the SVPA, the appellate court in Fraser, supra, 138 Cal.App.4th 1430, stated: "[t]he SVPA contains built-in procedural safeguards to protect the dignitary interest, which include the commencement of the proceedings by a petition supported by the concurring opinions of two psychologists (§ 6604.1, subd. (b)); the right to have access to relevant medical and psychological reports and records (§ 6603, subd. (a)); the right to retain experts to perform an examination (§ 6603, subd. (a)); the right to a probable cause hearing (§ 6602, subd. (a)); the right to a jury trial (§ 6604.1, subd. (b)); and the right to be present at the hearing (§ 6605, subd. (c)). [¶] The SVPA also provides for the right to counsel at section 6603, subdivision (a). Accordingly, self-representation is not necessary for a defendant to be informed about the SVPA proceeding or to preserve the ability to tell his or her side of the story, since these rights can be protected by counsel." (Id. at pp. 1448-1449.)
We agree with the court in Fraser, supra, 138 Cal.App.4th 1430, that the SVPA scheme informs the defendant of the nature, grounds, and consequences of the proceeding. But in a case in which the defendant's counsel declines to agree to allow the defendant testify, mandatory representation by counsel (which generally is beneficial in assisting a defendant in telling his or her story) may impair the defendant's ability to present his or her side. *869 Although it is true, as the Court of Appeal noted, that a defendant generally can communicate his or her version to and through the experts and counsel and through other witnesses, these means all involve a filtering process before the story reaches the finder of fact. In a case in which the experts do not believe the defendant and in which counsel concludes the defendant's testimony will have a negative impact on the outcome, the defendant's story may not reach the fact finder.[18]
(12) Because a defendant in a proceeding under the SVPA has no right to represent himself or herself and no privilege against self-incrimination, denial of a right to testify over the objection of counsel might relegate the defendant to the role of a mere spectator, with no power to attempt to affect the outcome. The defendant might be both forced to testify as to matters the prosecution seeks to establish, and prevented from testifying as to matters the defendant seeks to establish, or might be ignored. The circumstance that the defendant may fare better by remaining silent at trial does not negate the dignitary interest in being heard. The government has no interest in assuming a paternal role to prevent a defendant from pursuing a strategically misguided path in a proceeding under the SVPA. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.' [Citation.]" (Mathews v. Eldridge, supra, 424 U.S. at p. 333.) Because denial of a right to testify over the objection of counsel would impair the defendant's ability to be heard, we conclude that the fourth factor weighs in favor of allowing the defendant to testify against the advice of counsel.
(13) In summary, (1) the private interests at stake in an SVPA proceeding are significant; (2) there is a risk counsel may misjudge the effect the defendant's testimony will have upon the finder of fact, and allowing the defendant to testify over the objection of counsel will mitigate the risk of an erroneous deprivation of the defendant's liberty interests that might result from counsel's misjudgment; (3) as a general matter, the government's interest in protecting its citizens and treating sexually violent predators pursuant to an efficient procedure is not significantly burdened by allowing such testimonyand, in any event, this burden would not justify deprivation of the defendant's right to testify; and (4) the defendant's dignitary interest in *870 presenting his or her side of the story is protected by allowing the defendant to testify despite counsel's judgment that such testimony will be detrimental. Therefore, we conclude that the balancing test set forth above establishes that the defendant in a sexually violent predator proceeding has a right under the due process clauses of the federal and state Constitutions to testify, in accordance with the rules of evidence and procedure, over the objection of counsel.
(14) In opposing this conclusion, the People rely upon the principle that counsel has the authority to control strategic decisions in litigation. We agree that counsel generally has such authority, but in light of our conclusion that allowing counsel to preclude the defendant from testifying in an SVPA proceeding violates his or her due process rights, counsel's authority must yield to the defendant's choice in this context. (See Robles, supra, 2 Cal.3d at p. 215 [trial counsel normally may decide whether a defendant in a criminal proceeding should testify, but when "a defendant insists that he wants to testify, he cannot be deprived of that opportunity"].)
V.
Having decided it was error to preclude defendant from testifying, we next consider whether the judgment extending defendant's commitment must be reversed. Defendant contends the denial of his right to testify is "structural" error, requiring automatic reversal. Respondent urges application of harmless error analysis, and claims the error was harmless beyond a reasonable doubt.
(15) The United States Supreme Court "has recognized that most constitutional errors can be harmless. [Citations.]" (Arizona v. Fulminante (1991) 499 U.S. 279, 306 [113 L.Ed.2d 302, 111 S.Ct. 1246] (Fulminante).) "The common thread connecting [cases in which the high court has applied the harmless error standard] is that each involved `trial error'error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Id. at pp. 307-308.) Among the examples Fulminante cited of cases involving trial error subject to harmless error analysis were Crane v. Kentucky (1986) 476 U.S. 683, 691 [90 L.Ed.2d 636, 106 S.Ct. 2142] (citing the constitutional rights to present a complete defense and to an opportunity to be heard, the high court held that exclusion of evidence concerning the credibility of the defendant's confession was error, and that the error should be subject to harmless error analysis) and Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [89 L.Ed.2d 674, 106 S.Ct. 1431] (trial court ruling that prohibited the defendant from inquiring into the possibility that a witness was biased as a result of the state's dismissal of a charge against the witness *871 violated the defendant's rights under the confrontation clause; although the erroneous ruling involved the exclusion rather than the admission of evidence, "the reviewing court should be able to decide whether the not-fully-impeached evidence might have affected the reliability of the factfinding process at trial"; accordingly, the error was reviewable under the harmless error standard).
The court in Fulminante contrasted these examples of trial error with structural errors such as denial of the right to representation by counsel, or to trial before a judge who is not impartial. "These are structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards. The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial. Since our decision in Chapman, [supra, 386 U.S. 18,] other cases have added to the category of constitutional errors which are not subject to harmless error the following: unlawful exclusion of members of the defendant's race from a grand jury [citation]; the right to self-representation at trial [citation]; and the right to public trial [citation]. Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Fulminante, supra, 499 U.S. at pp. 309-310.)
The denial of defendant's right to testify did not affect any aspect of his trial other than his ability to present personal testimony; it was "error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented...." (Fulminante, supra, 499 U.S. at pp. 307-308.) For these reasons, the error was trial error rather than structural error. (See People v. Johnson (1998) 62 Cal.App.4th 608, 634-636 [72 Cal.Rptr.2d 805] [the court rejected the argument that improper denial of a defendant's right to testify is structural error, and applied the Chapman standard]; People v. Hayes (1991) 229 Cal.App.3d 1226, 1234, fn. 11 [280 Cal.Rptr. 578] [the court stated in dicta that any error in excluding the defendant from the courtroom and thereby preventing him from testifying was subject to harmless error analysis under Chapman]; Martinez v. Ylst (9th Cir. 1991) 951 F.2d 1153, 1157 (Martinez) [an erroneous ruling that certain prior offenses could be introduced to impeach the defendant led to defendant's decision not to testify; the court concluded: "we must reverse unless the state can demonstrate that the error was harmless beyond a reasonable doubt"]; see also People v. Jablonski (2006) 37 Cal.4th 774, 816-817 [38 Cal.Rptr.3d 98, 126 P.3d 938] [the defendant claimed the erroneous admission of his confession prevented him from testifying; the court rejected his assertion the error was reversible per se].) Therefore, we evaluate whether the error committed in the present case was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18, 24 *872 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"]; People v. Hurtado (2002) 28 Cal.4th 1179, 1194 [124 Cal.Rptr.2d 186, 52 P.3d 116] ["Because the Chapman test ... is used for the review of federal constitutional error in civil commitment cases in California generally, that test necessarily governs review under the SVPA."].)
(16) Defendant asserts "it is sheer speculation to say that [his] testimony would have made no difference. The jury was never able to assess his credibility." We agree that issues of credibility are for the jury to resolve. For this reason, "it is only the most extraordinary of trials in which a denial of the defendant's right to testify can be said to be harmless beyond a reasonable doubt. [Citation.]" (Martinez, supra, 951 F.2d 1153, 1157.) Nonetheless, if the facts to which a defendant offered to testify would not have affected the verdict, the exclusion of his or her testimony was harmless. Therefore, we consider the facts defendant sought to establish.[19]
First, defendant proposed to address the issue of the victims' consent to the predicate offenses and to the uncharged conduct. Defendant pleaded guilty to the predicate offenses, and therefore was precluded from contending that the victims consented. Moreover, the proceeding in which defendant originally was adjudicated a sexually violent predator necessarily established that the two convictions were "sexually violent offenses" within the meaning of section 6600. Therefore, testimony that Sandra C. and Lisa L. consented was irrelevant.
Even if defendant could have convinced any juror that whatever transpired in the incidents involving Rhonda A., Tambria R., and Melanie H. might have been consensual, this feat would have made no difference in the outcome.[20]*873 The purpose of the trial was not to determine whether defendant committed the uncharged conduct. The sole issue the jury was called upon to decide was whether, as of the date of the trial, defendant had a mental disorder that made it likely he would engage in sexually violent criminal behavior. (Former § 6600, subd. (a)(1).) Therefore, we consider whether any doubt concerning these three uncharged incidents could have affected the jury's finding that defendant had a mental disorder in November 2005 that made it likely he would engage in sexually violent criminal behavior.
The evidence in support of the verdict consisted of the testimony of three expertsDrs. Owens, Sreenivasan, and Rowland. All three concluded that defendant suffers from various mental disorders that render him incapable of controlling his violent sexual urges. Owens and Sreenivasan based their conclusions upon defendant's conduct over a period of approximately 24 years, beginning with his juvenile record and continuing through his commitments to prison, jail, and Atascadero. The three uncharged incidents in the latter half of 1989 were merely a small part of the extensive data upon which the experts relied. Defendant did not propose to dispute the balance of his lengthy criminal history, nor did he suggest he would deny engaging in the behavior documented during his confinement in various institutions. Moreover, the uncharged conduct was similar to subsequent conduct established in connection with the predicate offenses, and this uncharged conduct was distant in time and therefore less probative of defendant's current inclination to engage in sexually violent behavior. (See Hubbart, supra, 19 Cal.4th at p. 1145 ["prior crimes play a limited role in the [sexually violent predator] determination"; a currently diagnosed mental disorder is necessary to adjudicate an individual a sexually violent predator].) Finally, Rowland's testimony was based upon defendant's conduct at Atascadero, and the expert's conclusions did not depend upon the uncharged conduct. In these circumstances, no reasonable juror could have concluded that the proffered testimony would have altered the experts' opinions concerning defendant's current status, and no reasonable juror could have rejected the experts' opinions concerning defendant's current status based upon any doubt with respect to the nature of the uncharged conduct that had occurred 16 years earlier. Therefore, the jury's verdict would not have been affected by defendant's testimony that Rhonda A., Tambria R., and Melanie H. consented to his conduct.
Second, defendant sought to testify that he had been willing to take medication "except for some further and subsequent understanding regarding the side effects." He did not offer to testify that he was taking medication, *874 and Dr. Rowland's testimony established that defendant had not taken medication following his transfer a year earlier to the county jail in conjunction with the proceeding to extend his commitment. Rowland's testimony also established that medication could assist defendant in organizing his thinking sufficiently to enable him to complete a hall pass and travel to a selected destination within the hospital, but that the medication required a trial period to evaluate its efficacy, and that neither defendant's several months of taking his first medication nor his subsequent "off and on" acceptance of medication constituted an adequate trial. Finally, both Rowland and Sreenivasan testified that defendant had not completed phase two of Atascadero's treatment program for sexual offenders (the phase in which he would learn about his distorted thought process) and thus was not yet prepared to begin changing the patterns of behavior that resulted from his mental distortions. Even if defendant had testified and promised to take any medication that might help him control his behavior, no reasonable juror could have concluded that defendant's promise established, contrary to the verdict the jury reached absent such evidence, that defendant no longer was a sexually violent predator.
Finally, defendant proposed to testify that female staff in prison and at Atascadero flirted with him. Even in the unlikely event a juror were to believe that female staff who complained of defendant's inappropriate sexual behavior were flirting with defendant, no reasonable juror could have reached a different verdict based upon such belief. At both institutions, defendant consistently was informed that his behavior was inappropriate; the alleged flirting could not have led him to believe it was appropriate to stalk staff, expose his penis, or touch female staff members or write them sexually explicit notes. Therefore, defendant's intended testimony would not have diminished the probative value of the experts' opinion that defendant was unable to control his sexual urges, or of the other evidence introduced by the prosecution. No reasonable juror could have concluded, based upon defendant's testimony that staff members flirted with him, that defendant was capable of controlling his behavior.
(17) In sum, the proffered testimony that the uncharged conduct in 1989 was consensual, that defendant was willing to take his medication, and that staff members flirted with him could not, in the circumstances of this case, have had any impact upon the jury's conclusion that defendant is a sexually violent predator. Therefore, the error in prohibiting defendant from testifying over the objection of his counsel was harmless beyond a reasonable doubt.[21]
*875 VI.
The judgment of the Court of Appeal is affirmed.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
NOTES
[1] All further statutory references are to this code unless otherwise specified.
[2] The parties have not identified and this court has not located an opinion in this state or any other state addressing this precise issue. Although a Washington state court held that a sexually violent predator has a right to testify over the objection of counsel, its holding was based upon Washington's statutory scheme governing the confinement of sexually violent predators, which provides that defendants in such proceedings have all of the constitutional rights available to defendants in criminal actions. (Detention of Haga (1997) 87 Wn.App. 937 [943 P.2d 395, 396-397], disapproved on other grounds in State v. Robinson (1999) 138 Wn.2d 753 [982 P.2d 590, 599].)
[3] Defendant did not testify at the first trial on the petition to extend his commitment.
[4] The SVPA was amended in various respects by Proposition 83, The Sexual Predator Punishment and Control Act: Jessica's Law (hereinafter, Proposition 83), which was approved by the voters at the General Election in November 2006. Among the changes made by this enactment was an amendment to section 6604 providing a commitment for an indeterminate term rather than for two years.
[5] The court admonished the jury that the information obtained by an expert from documents prepared by others was admissible to explain the basis of the expert's opinions, but was not evidence of the truth of the information. The documents upon which the experts relied were not admitted into evidence.
[6] Owen testified that, although the incident did not involve sexual misconduct, it reflected defendant's use of force, violence, and a weapon, as well as his disregard for others. Owen viewed this incident as evidence tending to establish that defendant is a psychopath, and testified that a psychopath who suffers from paraphilia is likely to reoffend.
[7] Defendant's reference to "inappropriate behavior" apparently concerned his conduct in Atascadero, and perhaps his conduct in prison. The phrase "inappropriate behavior" was used throughout the proceeding to refer to defendant's conduct at these two institutions. In addition, the prosecutor responded to this proffer of testimony by confirming that Dr. Rowland "could testify to each and every incident." Defendant disputed the value of Dr. Rowland's testimony, but did not suggest that his own testimony would concern "inappropriate behavior" other than the incidents Dr. Rowland might address.
[8] Proposition 83 amended the definition of a sexually violent predator to include individuals who have been convicted of a sexually violent offense against one or more victims. (§ 6600, subd. (a)(1).)
[9] Proposition 83 amended section 6604 to provide that "the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health...." (§ 6604, italics added.)
[10] Proposition 83 retained these provisions, and added requirements concerning the content and dissemination of the annual report on the defendant's mental condition: "The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community. The Department of Mental Health shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person." (§ 6605, subd. (a).)
[11] Proposition 83 replaced subdivision (b)'s provisions concerning notice of the defendant's right to petition for conditional release and the court's duty to set a show cause hearing, with provisions that require the State Department of Mental Health to authorize the defendant "to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge" "[i]f the Department of Mental Health determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community." (§ 6605, subd. (b).) Upon receipt of a petition, the court "shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (Ibid.)
[12] Proposition 83 amended section 6605, subdivision (e), to provide that a commitment will be for an indeterminate period.
[13] The current version of section 6608 provides that a person committed under the SVPA is not prohibited from petitioning for "conditional release or an unconditional discharge" (italics added), and requires that the person petitioning for such relief serve a copy of the petition upon the State Department of Mental Health.
[14] Defendant does not distinguish between his rights under the federal and state Constitutions. "Although the state and federal Constitutions differ somewhat in determining when due process rights are triggered, once it has been concluded that a due process right exists we balance similar factors under both approaches to decide what process is due." (In re Malinda S., supra, 51 Cal.3d at p. 383, fn. omitted; see also Hubbart, supra, 19 Cal.4th at p. 1152, fn. 19 ["While we recognize our power and authority to construe the state Constitution independently [citation], we find no pressing need to do so here."].)
[15] To the extent Proposition 83 has increased the burden upon liberty interests by requiring only one predicate offense and imposing an indeterminate term of commitment, it has increased the weight of the first factor.
[16] In Allen v. Illinois, supra, 478 U.S. 364, the high court rejected a claim that the defendant in a civil proceeding to commit the defendant as a sexually dangerous person has a privilege against self-incrimination based upon the due process clause. In the course of discussing the impact such a privilege would have upon the reliability of those proceedings, the court stated that "the State takes the quite plausible view that denying the evaluating psychiatrist the opportunity to question persons alleged to be sexually dangerous would decrease the reliability of a finding of sexual dangerousness." (Allen, at pp. 374-375, italics omitted.) Similarly, the court in Leonard, supra, 78 Cal.App.4th 776, which considered the claim of a defendant in a sexually violent predator proceeding that he could not be forced to speak to a psychiatrist or to take the stand at trial, observed that "the inmate's participation enhances the reliability of the outcome." (Id. at p. 793.)
The People assert defendant will testify falsely, and therefore his testimony will not enhance the reliability of the outcome. Of course, a right to testify does not authorize a witness to commit perjury, and counsel must not cooperate in a client's perjury. (LaChance v. Erickson (1998) 522 U.S. 262, 266 [139 L.Ed.2d 695, 118 S.Ct. 753] ["a criminal defendant's right to testify does not include the right to commit perjury"]; Nix v. Whiteside (1986) 475 U.S. 157, 173 [89 L.Ed.2d 123, 106 S.Ct. 988] ["a lawyer who would ... cooperate [with planned perjury] would be at risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment"].) Defendant's counsel did not suggest, however, that defendant would testify falsely. The circumstance that defendant's perception of reality is at variance with the perception of his victims and of the staff at the prison and Atascadero does not establish that defendant was being untruthful. Rather, based upon the testimony of Dr. Rowland, it appears that defendant's perception that numerous women flirted with him may be bona fide, and may be evidence of erotomania. The possibility that a defendant in an SVPA proceeding may testify untruthfully does not justify conferring upon counsel the authority, solely for strategic reasons, to preclude his or her client from testifying.
[17] In Otto, supra, 26 Cal.4th 200, we recognized that "[r]equiring the government to adduce live testimony from the victims could potentially impede [the purpose of protecting the public]. The SVP proceeding occurs at the end of the defendant's sentence, which may be years after the events in question. As one Court of Appeal has observed, if the People can `obtain civil commitment of sexually violent predators only in cases where the conviction record was extensive, and included victim testimony ... as to the details of the sexually violent offense,' in those cases where `the defendant pled guilty before the preliminary hearing, or the victims' testimony was not sufficient to establish the details of the offense as required by the SVP Act, the state would never be able to meet its burden.' [Citation.]" (Id. at pp. 214-215.) Because we held in Otto that the circumstances of the predicate offenses may be established by hearsay, it is unnecessary for the prosecution to call witnesses to establish the nature of the predicate offenses.
Depending upon the particular facts of the case and the defendant's testimony, the prosecution may find it necessary to present witnesses concerning the defendant's subsequent conduct while confined in prison or in a mental institution, but the presentation of more recent evidence concerning the defendant's continuing inability to control his or her conduct should pose less of a burden than the presentation of evidence concerning the predicate offenses. Moreover, as explained below, this burden should arise in only a relatively small percentage of the cases.
[18] The Court of Appeal concluded that "defendant had ample opportunity to tell his version in the underlying criminal proceedings and during his psychological examinations, as well as through his attorney, cross-examination of witnesses, and presenting his own witnesses." Defendant pleaded guilty to the charges in the underlying proceeding, and therefore did not present his story concerning the details surrounding the offenses. Although defendant could tell his story to the psychologists, this forum did not ensure that his story would reach the trier of fact. And because defendant's attorney believed defendant's story would be detrimental to the effort to avoid further confinement, counsel presumably did not attempt to present that story through cross-examination and the presentation of witnesses.
[19] To preserve a contention that evidence should have been admitted, a party's offer of proof must make clear the substance of the proffered testimony. (See People v. Whitt (1990) 51 Cal.3d 620, 649 [274 Cal.Rptr. 252, 798 P.2d 849] ["We do not read Chapman ... as placing an impossible `burden' upon the People, such that a defendant who withholds the nature of excluded evidence at trial is guaranteed reversal on appeal."].) We acknowledge that when a defendant's counsel seeks to prevent the defendant from testifying, an appellate court reasonably might view counsel's summary of the proffered evidence with suspicion. In the present case, however, counsel described with adequate detail the facts defendant sought to establish through his testimony, and defendant did not hesitate to argue personally in favor of his right to testify and to clarify the facts to which he would testify. Under these circumstances, it is reasonable to accept counsel's and defendant's descriptions of the proffered testimony.
[20] We note that the circumstances surrounding the uncharged conduct weigh heavily against defendant's claim of consent. His claim that Melanie H., 17 years of age, while on an errand to buy groceries for her grandmother, consented to accompany defendant behind a store and engage in sexual relations on the concrete steps of a loading areaand thereafter promptly reported the incident to the policewas not worthy of belief by any standard. The allegations of Rhonda A., whose vehicle defendant commandeered, and Tambria R., who fled her own apartment and hysterically reported defendant's conduct to a neighbor, also exhibit indicia of truthdefendant's alleged conduct is similar to the predicate offenses and occurred close in time to the predicate offenses; the victims apparently did not know one another; the victims promptly reported the conduct to the police, and third parties witnessed the victims' escape.
[21] It also follows, of course, that there is no reasonable probability that defendant would have achieved a more favorable result but for the erroneous denial of his right to testify. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572143/ | 2 So.3d 383 (2008)
CITY OF MIAMI SPRINGS and Miami-Dade County, Appellants,
v.
Carlos SANCHEZ, Appellee.
No. 1D08-0134.
District Court of Appeal of Florida, First District.
December 31, 2008.
Rehearing Denied February 16, 2009.
*384 R.A. Cuevas, Jr. and Douglas W. Rice of the Miami-Dade County Attorney's Office, Miami, for Appellants.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
PER CURIAM.
The employer/carrier (E/C) raise four issues on appeal. However, issues one and two are redundant, as are issues three and four. Accordingly, they have been consolidated into two issues. For the reasons explained below, we affirm as to the first issue, and reverse as to the second.
The first issue concerns the E/C's contention that the JCC overlooked evidence that Claimant was eligible for both social security disability and retirement benefits when he reached age 62, and consequently, the E/C is entitled to cease paying permanent total disability (PTD) supplemental benefits at that time. The transcript of the final hearing shows the E/C twice expressly agreed that the only evidence the JCC needed to consider in making his findings were the facts as stipulated by the parties. Thus, they cannot argue on appeal that the JCC erred in overlooking any other evidence. See Muina v. Canning, 717 So.2d 550, 553 (Fla. 1st DCA 1998) (holding that, under the "invited error" rule, a party cannot successfully complain about error for which it is responsible).
The second issue concerns the JCC's ruling that, because the E/C failed to establish Claimant's eligibility for social security retirement benefits when he reached age 65, Claimant was entitled to continued payment of PTD supplemental benefits after reaching that age. The JCC concluded the E/C's payment of such benefits after Claimant reached 65 did not constitute an overpayment of benefits. However, we have held that, as a matter of law, "where a claimant is injured and reaches PTD prior to age 62, the claimant is not entitled to supplemental benefits after age 65." See Wilkins v. Broward Cty. Sch. Bd., 754 So.2d 50, 52 (Fla. 1st DCA 2000).
*385 Here, the parties stipulated Claimant was injured and reached PTD status prior to age 62. Thus, under Wilkins, he was not entitled to PTD supplemental benefits after age 65. Accordingly, the JCC erred in finding Claimant was entitled to continued payment of these benefits after age 65. The E/C is entitled to recoup any payment of supplemental benefits after Claimant's 65th birthday. See § 440.15(12), Fla. Stat. (2007); Brown v. L.P. Sanitation, 689 So.2d 332, 333 (Fla. 1st DCA 1997) (superseded by statute on other grounds) (holding the enactment of section 440.15(12) was procedural, and thus retroactive).
AFFIRMED in part, REVERSED in part, and remanded for proceedings consistent with this opinion.
BROWNING, C.J., WEBSTER, and LEWIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584916/ | 187 P.3d 593 (2008)
WILDERMAN
v.
STATE.
No. 26970.
Intermediate Court of Appeals of Hawai`i.
January 31, 2008.
Memorandum opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577862/ | 322 S.W.2d 340 (1959)
C. L. PAIT et al., Appellants,
v.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, et al., Appellees.
No. 13358.
Court of Civil Appeals of Texas, Houston.
February 19, 1959.
Rehearing Denied March 23, 1959.
*341 Frederick W. Robinson, Houston, for appellants.
Robert C. Eckhardt, Houston, James P. Wolf, Corpus Christi, and Ryan, Eckhardt & Adams, Houston, and Sewall Myer, Houston, of counsel, for appellees.
BELL, Chief Justice.
This is essentially a controversy between Local No. 74 of the defendant International and International involving the question of the authority, under the given circumstances, of International to form a District Union occupying the territory of Locals 74, 577 and 132. The trial court sustained a plea in abatement setting up that plaintiffs could not maintain this suit because they had not exhausted inter-organization *342 remedies provided in the International constitution.
The plaintiffs, who are appellants here, are all members of Local No. 74. Plaintiff C. L. Pait is vice president and a member of the Executive Board of said Local. Plaintiff J. W. Langham is recording secretary and a member of the Executive Board. Plaintiffs Alfred H. Wendelken, Sidney Fowler and J. E. McKnight are members of the Executive Board. The remaining plaintiffs are rank and file members of Local 74.
The defendants, who are appellees here, are the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, District Lodge No. 60, W. A. Calvin, president of International, Joe P. McCollum, vice president of International, Orval C. Logue, business manager of District Lodge No. 60, John T. Kirtley, president of Local No. 74, and serving as dispatcher for District No. 60, and Leeland F. Head, business manager and financial secretary of Lodge No. 74 and alleged to be serving as a quasi-official of District No. 60.
In the petition it is alleged that on May 9, 1958, W. A. Calvin, International president, in conjunction with the Executive Council of International, which Council consists of the president and 16 International vice-presidents, resolved to place subordinate Lodges Nos. 74, 132 and 577 under International supervision, abrogating local self-government, and to form District Lodge No. 60. One week later W. A. Calvin ordered each local to make a loan of $2,000 to the District; ordered all field dues to be paid to the District, and since May 15 said field dues have been paid to the District instead of the Locals.
About June 2, Orval C. Logue, business manager for the District Lodge, removed the books and records of Local 74 Without the sanction of the officers and members of Local 74. The next week the field dues, receipt books, the work order books and the steward report books were likewise removed. After this the members of Local No. 74 were not longer dispatched to their jobs by the Local but by the dispatcher for District 60. In consequence of this the job selection system of the Local was scuttled. It is alleged that though many members of Local 74 were unemployed District No. 60 is allocating jobs within the territorial limits of Local 74 to members of Local 132, which is at Galveston, and Local 577, which is at Corpus Christi. They allege No. 132 has a large number of members because it is under International trusteeship and International took into the Local many inexperienced and unskilled members in order to take in large initiation fees.
Plaintiffs allege that on or about May 5, 1958, John T. Kirtley, president of Local 74, and Leeland F. Head, business manager and financial secretary of Local 74, and an unnamed representative of Local 74, went to International headquarters as delegates of Local 74. While there, Kirtley and Head, without the knowledge or concurrence of plaintiffs and those similarly situated, refused to seat the other delegate and entered into a conspiracy with Calvin, Logue, McCollum and others unknown to plaintiffs to place Locals 74, 132 and 577 under International supervision and to create District Lodge No. 60, wholly contrary to the best interests and welfare of the subordinate lodges. Logue and Kirtley became the instruments in subjugating the Locals to International and District 60, completely eradicating any trace of local autonomy.
Article V of the International constitution, they say, purports to give the International president authority to create District Loges and consolidate subordinate lodges, which is the net effect of what defendants have done. However, they say that the constitution provides if such action is taken the members of the Local shall be given notice of the charges against them and notice of a hearing and an opportunity to be heard. They deny any such notice or an opportunity to be heard. They do *343 allege, however, that Kirtley and Head met with the International president and the Executive Council on or about May 5, 1958, with regard to the consolidation and supervision, but allege this did not amount to a hearing because Head and Kirtley were in collusion with the persons seeking consolidation and supervision of Local No. 74. Plaintiffs assert their property has been confiscated and they are now compelled to pay monies to the defendants. They say they have been denied due process of law in not being given a hearing.
Plaintiffs allege that Article VIII of the International constitution, which gives the International president, in conjunction with the Executive Council, authority to form District Lodges for mutual protection and to provide harmany between different lodges and shops, is invalid because it is arbitrary and capricious and violates due process because it affords the subordinate lodges and their members no right to be heard in opposition. Further it does not provide for election of officers by members, but the officers are appointed by International.
There are general allegations that monies of their Local Lodge have been confiscated and all field dues are appropriated by the District. In addition, plaintiffs complain that their jobs must now be obtained through the District and they have no bona fide representative in District No. 60.
Plaintiffs affirmatively allege there is no disharmeny justifying placing Local 74 under International supervision and there is no need for the protection of a district lodge.
There is an assertion that the action of the defendants is in furtherance of a conspiracy and is designed for the personal aggrandizement of defendants.
Plaintiffs allege they will suffer irreparable injury and hardship in the following respects:
1. Defendant will use money and properties of Subordinate Lodge 74 for their own purposes rather than for the benefit of the subordinate lodge.
2. The assets of the subordinate lodge will be depleted and may be sold, mortgaged, encumbered, disposed of, destroyed or placed beyond the jurisdiction of the court.
3. The field dues, which rightfully belong to Subordinate Lodge No. 74, will continue to be taken and used by defendants for their own purposes.
4. The employment opportunities of the members of the Local Lodge will be severely curtailed by the influx of workers from the other subordinate lodges under District 60, and the members of Local No. 74 will be subjected to unjust discrimination in job assignment.
5. The members of the Local will be deprived of the right to hold meetings, elect their officers and manage and conduct their local offairs.
Plaintiffs allege they have no adequate legal remedy. Too, they allege the absence of adequate remedy within the structure of International as an appeal to the Executive Council of International would be futile because it is presided over by W. A. Calvin, International president who ordered the creation of District No. 60, and further the Executive Council is the same body that acted in conjunction with the president in ordering the creation of District No. 60.
By trial amendment plaintiffs allege that on or about July 2, 1958, Leeland F. Head, business manager for Subordinate Lodge 74, went to the headquarters of International for the purpose of petitioning International, through its president, that District 60 be disbanded, and W. A. Calvin, the president, refused to entertain any petition from the duly elected representative and business manager of Subordinate Lodge 74, and refused to make any changes in the action that had been taken by him and the Executive Council.
*344 The plaintiffs made the whole of the contitution of International a part of its pleadings.
Plaintiffs prayed for the following injunctive relief against defendants:
1. That defendants be restrained from disbursing, or becoming obligated to disburse, any of the monies which have been appropriated or collected from Subordinate Lodge 74 or its members by District Lodge No. 60.
2. Restraining defendants from appropriating or collecting any further monies or property from Subordinate Lodge No. 74, or its members, except regular monthly dues and death and disability insurance payments in the amounts paid prior to May 5, 1958, or less.
3. Restraining defendants from selling, mortgaging, encumbering, disposing of, destroying or placing any or all of the property of Subordinate Lodge No. 74 beyond the jurisdiction of the court.
4. Restraining defendants from incurring any debts, obligations or expenditures for, against or on behalf of Subordinate Lodge No. 74.
5. Restrained from altering, disposing of or destroying the books, records, accounts or files of District No. 60, or those of Subordinate Lodge No. 74 in possession of the District Lodge, or, removing them from the office of the District Lodge, or, if they are located elsewhere, from removing them from the jurisdiction of the court.
6. Restrained from retaining possession of the books, records, accounts or files of Subordinate Lodge No. 74 which were removed from the office.
7. Restrained from dispatching any persons whatsoever to jobs within the territorial jurisdiction of Subordinate Lodge No. 74, or interfering with said Lodge's dispatching its members to jobs within its territorial jurisdiction.
8. Restrained from interfering with the local affairs of Subordinate Lodge No. 74 by prohibiting or preventing meetings or election of officers.
9. Restrained from representing themselves to be officers or local representatives of Subordinate Lodge No. 74.
10. Restrained from taking punitive action, filing charges or discriminating against plaintiffs or other members of Subordinate Lodge No. 74, 132 or 577 for joining in this cause or for cooperating with plaintiffs in same.
The defendants filed an answer containing a plea to the jurisdiction, a plea in abatement, numerous special exceptions going to the substance and form of the petition, and detailed pleading explaining the action. The position taken by defendants in the answer, apart from the plea in abatement, was that the action of the president and Executive Council was a bona fide excrcise of constitutional authority to create District Lodges in areas where two or more subordinate lodges are in existence and in industries where shop interests so require for the mutual protection of the subordinate lodges, and to provide harmony between the lodges and shops.
The plea in abatement asserted the suit could not be maintained until such time as plaintiffs had exhausted their interorganization remedy by appeal first to the Executive Council, which had judicial power over union affairs when the International was not in assembly by convention, and then to the International Convention.
The trial court sustained the plea in abatement. While the order of the court recites the parties wished to present in limine their plea to the jurisdiction, plea in abatement and special exceptions, the order actually only disposed of the plea in abatement, it actually stating the Court "is of the opinion that the Plaintiffs' suit for a temporary injunction against Defendants was prematurely brought and that Plaintiffs' suit should be abated until such time as plaintiffs have exhausted their remedies with the structure of their own organization. *345 * * * It is, therefore, ordered * * * that Plaintiffs' suit be and the same is hereby abated and dismissed * *."
These are the parts of the constitution we deem material to the question before us.
Article I, Sec. 4, provides that executive and judicial authority is vested in the Executive Council when the Brotherhood is not in session.
Article III, Sec. 2 provides the Executive Council shall consist of the International president and the 16 International vicepresidents.
Article III, Sec. 3, provides the Executive Council shall have power to charter District and Subordinate Lodges, to establish and regulate all constitutional forms of the International Brotherhood, and to handle and administer all business and financial affairs of the International Brotherhood.
Article III, Sec. 4, provides the Executive Council shall have supervision over the International Brotherhood when the Brotherhood is not in convention. The meetings of the Council shall be annual, but special meetings may be called. The Council shall have power to pass on any subject, proposition or grievance, and hear and determine all appeals and rulings of District and Subordinate Lodges. All decisions of the Executive Council shall be final.
Article III, Sec. 5, provides the Council shall hear and determine all grievances referred to it and shall recommend remedies for and adjust the same.
Article VIII, Sec. 1, provides:
"In localities where two or more Subordinate Lodges are in existence and in industries where shop interests so require, District Lodges may be formed at the direction of the International President and Executive Council for their mutual protection and to provide harmony between different Lodges and shops. The International President and Executive Council shall determine what Lodges are eligible for affiliation with the District. The By-Laws of all District Lodges shall be approved by the International President before becoming effective."
Article V, Sec. 5, provides resort shall not be had to the courts until the remedies provided by the constitution of the International shall have been exhausted.
We have before us the very narrow question of whether under the allegations in Plaintiffs' Petition the trial court erred in sustaining defendants' plea in abatement.
The plea in abatement was determined on a basis of the pleading alone. No evidence was heard. We must therefore construe the pleading as on demurrer, accepting the allegations made to be true and indulging every reasonable intendment. Atkinson v. Thompson, Tex.Civ.App., 311 S.W.2d 250, n. r. e. Though there be pure conclusions of fact, they suffice in the absence of special exception. Atkinson v. Thompson, supra.
While we realize defendants filed special exceptions, they were not acted on. We, therefore, are not reviewing the court's action on special exceptions. We cannot, however, entirely escape noticing the sufficiency of the pleading, but must notice it to the extent that we determine whether in the light of what was plead the court erred in sustaining the plea in abatement.
We have concluded that the effect of Plaintiffs' Petition is to allege that while under Article VIII of the constitution the International president and Executive Council have authority to create District Lodges, they can do so only if facts exist showing that shop interests require it for the mutual protection of existing Subordinate Lodges and to provide harmony between the different Lodges and shops. They the allege that there was no need in fact for a District Lodge and there was no disharmony between Locals 74, 132 and 577, but that the action of the defendants *346 was not in good faith but was arbitrary and capricious and was taken not for the mutual protection of the Subordinate Lodges or to provide harmony but for their own personal aggrandizement.
They also allege invalidity of Article VIII because it is arbitrary and capricious and also because it violates due process by failure to provide notice and hearing for the affected Subordinate Lodges. We do not think the Article invalid, as we will later discuss.
Plaintiffs thus contend District Lodge 60 is not legally created and it has interfered with the rights of plaintiffs by requiring Subordinate Lodge 74 to make a $2,000 loan; by directing that hereafter all field dues be paid to District Lodge 60 that formerly were paid to Subordinate Lodge 74; by illegally taking possession of its books; and by taking over the function of dispatching persons to jobs within the jurisdiction of 74 and that members of Subordinates 132 and 577 are now dispatched to jobs along with members of No. 74 within the territory of No. 74, thus cutting down job opportunities for members of No. 74.
We think that while under provisions in the constitution the International president and the Executive Council have authority to create District Lodges where two or more Subordinate Lodges are in existence, they can do so only if shop interests require and it is necessary for the mutual protection of the Subordinates and to provide harmony between them.
The law undoubtedly is that the constitution constitutes a contract between the International and its Subordinate Lodges and its members, and is binding on the Subordinate and its members. It is likewise binding on the International. International Printing Pressmen and Assistants' Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729, and authorities there cited; 5 Tex.Jur., Sec. 6, and authorities there cited.
The contract here is that though there be Subordinate Lodges with defined jurisdictional areas, these jurisdictional areas may be disturbed by the International president and Executive Council by the formation of District Lodges, if shop interests are such that a District Lodge is necessary to furnish mutual protection to the Subordinate Lodges and to provide harmony between them. We do not think, however, that the constitution commits to the president and Executive Council an unbridled discretion to create District Lodges in territories already occupied by Subordinate Lodges.
Courts may not interfere in the internal administration of Union affairs unless the action complained of is not taken in good faith, is arbitrary and capricious and involves property rights or civil rights. International Longshoremen's Association v. Graham, Tex.Civ.App., 175 S.W.2d 255, no writ history; Brotherhood of Railroad Trainmen v. Luckie, Tex.Civ.App., 286 S.W.2d 712, n. r. e.; Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 126 S.W.2d 74, ref. We are not unaware that in these cases, with the exception of the Luckie case, the court refused to intervene, either because there had been no exhaustion of remedy within the organization or because there was no allegation of bad faith, fraud or arbitrary action. However, in each the court recognized that if there were allegations of bad faith, fraud, arbitrary and capricious action, and such were sustained by the evidence, a case would be presented for judicial interference. In the Luckie case, there being an exhaustion of inter-organization remedies, the court did intervene because the action of the Brotherhoods was alleged to be illegal, arbitrary, capricious and unjustly discriminatory.
Appellees, who were defendants below, seem to contend, however, that the cases relied on by appellants are cases where the International or its officers were *347 acting in disciplinary matters and were in violation of a provision of the constitution. Appellees contend that they but exercised an authority given them by the constitution which required the exercise of judgment and therefore the courts will not intervene because they were not acting illegally. We do not know as a fact that they were, but appellants have alleged they acted illegally because they did not exercise an honest judgment but acted in bad faith, arbitrarily, capriciously and for their own personal aggrandizement. While an authority may be conferred, it must be exercised in good faith. The action must have some reasonable basis. We think the rule is correctly stated in International Longshoremen's Association v. Graham, supra. There the court had before it the question of whether, under the circumstances, the International had legally exercised its right to create a new local in place of an existing local. The court held, as do we, that ordinarily courts have no power to supervise or regulate the internal affairs of a Union. The court then said [175 S.W.2d 257]:
"Assuming that the constitution and bylaws do not contravene the law of the land, and there is no contention that they do in this case, the courts' powers are limited in a controversy of this nature to the questions of determining whether or not such constitutions and bylaws were substantially complied with and whether or not the officials involved acted in good faith in taking the action complained of. It is not for the courts to determine as an original proposition that some other action would have been better. The courts can only determine whether the officials charged, under the facts and circumstances shown, had reasonable cause in the exercise of an honest judgment to take the action complained of. Many authorities we think support this proposition. Fraser v. Buck, Tex.Civ.App., 234 S.W. 679; Harris v. Missouri Pac. Ry. Co., D.C., 1 F. Supp. 946; Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S. Ct. 5, 74 L. Ed. 131; Watson v. Jones, 13 Wall. 679, 20 L. Ed. 666; Sherard v. Walton, D.C., 206 F. 562."
In Nilan v. Colleran, 283 N.Y. 84, 27 N.E.2d 511, the Court of Appeals of New York had before it a case where the International Union had created a new local union with territorial jurisdiction in part the same as an existing local. The court held the constitution authorized the creation of a new local without the consent of the old local. It recognized, however, the right of the courts to examine the exercise of the authority to determine if there was some reasonable basis for the action. See also Harris v. Missouri Pacific R. Co., D.C., 1 F. Supp. 946; O'Keefe v. Local 463 of United Ass'n of Plumbers and Gasfitters of United States and Canada, 277 N.Y. 300, 14 N.E.2d 77, 117 A.L.R. 817.
On trial a court is, in a case like this where the Union is exercising an authority given by its constitution, limited to determining whether the authority was exercised in good faith in the exercise of honest judgment or whether it was exercised arbitrarily or capriciously. There may be evidence showing facts from which the conclusion can reasonably be drawn that the authority was exercised in good faith and if so the action of International must be sustained though there be some evidence to the contrary.
Plaintiffs contend Article VIII is invalid because it makes no provision for notice and hearing to the affected Subordinate Lodges. Defendants contend that cases requiring provisions for notice and hearing apply only to those cases where disciplinary action is taken either against a member or a Subordinate Lodge. All cases cited to us where the matter of due process has been discussed have been cases involving disciplinary action.
We do not, however, see why in a case of this kind the Subordinate Lodge *348 is not entitled to notice and hearing. If a District is created in a jurisdiction occupied by Subordinate Lodges the rights of the members of the Subordinate Lodges are vitally affected. As alleged here the opportunities at jobs of the Subordinate No. 74 are greatly lessened, and the Subordinate Lodge must help support the District. The right of the members to work is a valuable property right. When opportunity to exercise the right is lessened the right is interfered with. We do not mean to say the International may not legitimately act so as to lessen the value of the right. We merely say it is of such a nature as to require, in a case of this kind, notice and the right to be heard. The very essence of due process is the right to be heard.
However, we do not feel the absence of a provision for notice and hearing invalidates the provision of the constitution. The requirement will be supplied by implication. United Brotherhood of Carpenters, etc. v. Carpenters Local Union No. 14, Tex.Civ.App., 178 S.W.2d 558.
Appellants apparently received some type of notice because it is alleged that Subordinate Lodge President Kirtley, Business Manager Head, and an unnamed third person went to International headquarters about May 5 to discuss this matter. However, it is alleged that this in fact constituted no hearing because they refused to seat the third delegate and Kirtley and Head entered into the conspiracy to create the District Lodge without the consent of the Subordinate Lodge. We do not mean that consent of the members of the Subordinate Lodge need be obtained. In fact, it need not be. However, it is entitled to an opportunity to fully present its views with a view to convincing International of the inadvisability of creating a District Lodge.
It may be said that in all of the foregoing we may have in fact been discussing whether a cause of action has been alleged, when the court below did not pass on exceptions. Such is probably the case, but we do not know how to avoid it in connection with determining whether the plea in abatement was correctly sustained. If those allegations are true, then appellants have a right to complain. Then the question arises as to whether the plaintiffs have exhausted their inter-organization remedies, or, if they have not, whether they have pleaded facts excusing them from doing so.
It is well settled that the remedies provided by the International constitution for the settling of grievances must first be exhausted before resort may be had to the courts. Screwmen's Benevolent Association v. Benson, 76 Tex. 552, 13 S.W. 379; Grand International Brotherhood of Locomotive Engineers v. Marshall, Tex. Civ.App., 119 S.W.2d 908, writ ref.; Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 126 S.W.2d 74, writ ref.; 5 Tex.Jur., Sec. 22.
Here the constitution provides remedies. Article III, Sec. 4, provides the Executive Council shall have power to pass on any grievance. However, appellants in their petition allege that appeal to the Executive Council would be a futile thing because the Council in the first instance participated in the determination to create District Lodge No. 60. Then by way of trial amendment they allege that in July Leeland Head, business manager, went to International headquarters for the purpose of petitioning International through its president that District Lodge No. 60 be disbanded and Mr. Calvin, the International president, refused to entertain any petition with reference to changing the action he and the Executive Council had taken.
It is to the noted that the record does not affirmatively show that this trial amendment was permitted to be filed, but it was dictated and signed and filed by plaintiffs and was signed by the judge. However, it not appearing affirmatively that the trial amendment was not filed without permission (the judge having *349 signed it), it will be presumed it was filed with permission. Davis v. Krupp, Tex. Civ.App., 75 S.W.2d 309, error dism.
The constitution also provides the action of the Executive Council shall be final. There are some specific instances in which appeal to the International Convention is allowed. We do not read those provisions as applying to the situation here involved.
We think there need be no exhaustion of remedy where appeal would be meaningless. Here we think there are sufficient allegations to excuse appeal to the Executive Council. In the first place, there is the allegation that it was the act of the International president and the Executive Council which created the District Lodge. Too, the Executive Council meets only annually though it may have special meetings. However, the only provision we find for calling such special meetings authorizes them to be called by the International president. International Constitution, Article III, Sec. 9. In the trial amendment it is alleged that the plaintiffs through Leeland Head sought to obtain review of the action, but Mr. Calvin refused to entertain any petition. Willis v. Davis, Tex.Civ.App., 233 S.W. 1035; Hargrove v. Brotherhood of Locomotive Engineers, D.C., 116 F. Supp. 3; Washington Local Lodge, etc. v. International Brotherhood, 33 Wash.2d 1, 203 P.2d 1019.
Appellees in this connection cite particularly Grand International Brotherhood of Locomotive Engineers v. Marshall, Tex. Civ.App., 119 S.W.2d 908, writ ref., contending it holds that the mere fact that the same officials would act on the motion for rehearing and that the investigating officer would reinvestigate the matter was not sufficient to show the parties could not get a fair hearing so as to excuse awaiting action on the petition for rehearing before resorting to the courts. The case does hold this. However, in that case there was no contention that the action complained of was arbitrary. Here the very basis of the suit is the alleged arbitrary action of the defendants.
It is to be borne in mind that we have nowhere been discussing any facts that are established by evidence. We merely have before us the allegations by plaintiffs. For all we know, the evidence may show a mere good faith exercise of authority by the International president and the Executive Council. The appellants are, however, under their allegations, entitled to an opportunity to introduce evidence.
We have read each case cited by each party to this case and have done independent research of our own. To discuss the inapplicability of those not cited in this opinion would unduly lengthen an already long opinion. It suffices to say we do not cite them, either because they would merely be cumulative or are factually distinguishable.
The judgment of the trial court is reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3073155/ | Order entered June 25, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01653-CV
THOMAS ALLEN POWELL D/B/A ARCHITECTURE UNLIMITED AND J. KEITH
WEBB, Appellants
V.
PENHOLLOW, INC., JOHN O. PENHOLLOW, AND YVONNE L. PENHOLLOW,
Appellees
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-03464-2011
ORDER
We GRANT appellants’ June 22, 2014 agreed motion to extend time to file reply brief
and ORDER the brief be filed no later than July 10, 2014.
/s/ ELIZABETH LANG-MIERS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1572194/ | 499 S.W.2d 612 (1973)
William Wayne DECKER, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 73-8.
Supreme Court of Arkansas.
October 1, 1973.
*613 William C. McArthur, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., and Richard Mattison, Asst. Atty. Gen., Little Rock, for appellee.
HARRIS, Chief Justice.
William Wayne Decker, appellant herein, was convicted in the Pulaski County Circuit Court of robbery allegedly occurring on January 21, 1970. The jury, under the Habitual Criminal Act, fixed his punishment at twenty-one years confinement in the Arkansas Department of Correction. Two days later, Decker was convicted in the same court of the crime of grand larceny and his punishment was fixed by the jury at thirty years confinement. No appeal was taken from the judgment in either case. Attorney J. H. Cottrell represented Decker in both cases through appointment by the court. Thereafter, Decker filed a petition for a Writ of Habeas Corpus in the Pulaski County Circuit Court, and that court, treating the petition as a Criminal Procedure Rule I Petition, appointed new counsel to represent Decker. On hearing, the trial judge denied any relief, and from the judgment so entered, Decker appealed to this court. Three points were asserted for reversal as follows:
I.
The alleged confession of appellant was improperly admitted into evidence.
II.
The appellant was denied adequate representation of counsel at trial insofar as a key witness was not called.
III.
Appellant was denied his constitutional right to appeal his case.
The original cases were tried by an assigned judge, and following the Rule I hearing and before judgment was entered, the regularly presiding judge of the Pulaski County Circuit Court caused the record of the two trials to be transcribed for his use and information in determining the Rule I Petition. These transcripts were filed with this court along with the record of the Rule I hearing. On April 16, 1973, this court entered an order which inter alia provides as follows:
"Inasmuch as the complete record is now available, it is the order of this court that this appeal (from the denial of relief under Criminal Procedure Rule I) be treated as an appeal from the original convictions, and the clerk of the court is directed to notify counsel for appellant that he may present and brief any additional points wherein it is felt that the *614 trial court committed reversible error. The clerk shall likewise notify the Attorney General to reply to appellant's brief, said briefs to be submitted in compliance with Rule Eleven of this court."
These briefs have now been filed and the case is ready for disposition. The following additional points for reversal have been raised.
IV.
Defendant's requested instruction re alibi was improperly refused.
V.
Defendant's motion for dismissal of grand larceny charge (No. 72070) on grounds of double jeopardy was improperly denied.
VI.
Defendant's motion for a directed verdict was improperly denied. (No. 72070).
VII.
Defendant's objection to reference of the robbery in the trial for grand larceny was improperly overruled.
VIII.
Defendant's confession was improperly admitted in rebuttal. (No. 72070).
IX.
Defendant's confession was inadmissible and improperly admitted because he was not properly advised of his constitutional rights.
Two other points are raised but they are repetitious of the first two points asserted in the Rule I hearing.
We proceed to a discussion of the contentions for reversal.
I.
This allegation refers only to the trial of Decker on the charge of grand larceny as the confession was not used in the robbery case. The record reveals that appellant was arrested on July 16, 1971 by a North Little Rock policeman, subsequently brought to the Little Rock Police Department, and questioned by City Detectives Larry Dill and Bill Johnson. Decker testified that he had been wounded before his arrest[1] and was suffering from gunshot wounds through his foot, side, and arm, and that he had been taken to Memorial Hospital in North Little Rock where he was treated, taken the next day to Medical Center where the gunshot wounds were cleansed and he was given a prescription to kill the pain. He said that he was beaten and "slapped around" by the officers before signing a waiver[2]; that he was beaten with a pistol by Dill, and finally signed the rights waiver about 1:30 in the morning; subsequently he stated that it was about 10:00 P.M. Decker also said that he asked for an attorney but the request was denied. As for the statement made, appellant said that he signed his name on a blank sheet and initialed four blank pages, being told that the officers were getting a specimen of his signature. Decker's statement is somewhat conflicting and accordingly confusing. Detective Dill testified that Decker was brought to the Little Rock Police Department and advised of his rights about 5:15 P.M.; that appellant stated he understood, and signed the waiver in the presence of the witness and Detectives Jones and Johnson. Dill stated that Decker was not beaten, threatened, nor mistreated in any manner; that the latter was entirely normal and aware of *615 what he was doing when he signed the waiver. The witness said that when Decker would make a statement, the information given would be checked out and that he was questioned, off and on,[3] until approximately 1:45 A.M., at which time he made a complete statement which was reduced to writing by Detective Jones. The witness then read the written statement to Decker who signed it at the bottom of the third page and initialed it at the top and bottom of the first and second pages.
The court conducted a hearing in chambers on the question of whether the statement had been voluntarily given, and after hearing the evidence, ruled that it was admissible. In Mullins v. State, 240 Ark. 608, 401 S.W.2d 9, this court, in passing on the same contention now raised by Decker, stated:
"All of appellant's contentions as to the confession, including the advisement of his right to counsel, were examined by the trial court in its hearing in chambers. The conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965. The court made a finding adverse to appellant and admitted appellant's confession in evidence. We have concluded that there is substantial evidence in the record to support the trial court's determination and said determination will not be disturbed here on appeal."
We hold that there was substantial evidence to support this finding.
II.
Decker's defense was based upon an alibi, i. e., he claimed to have been in Jackson, Mississippi at the home of a sister at the time the alleged crime occurred. However, when both the robbery and grand larceny cases were called, counsel for appellant announced that he was ready; no request was made for a continuance nor was there any contention that there was an important witness for the defense who could not be present. At the trial on the charge of robbery, Donald Decker, brother of appellant, testified that "around the 17th" (January, 1970), Decker, together with his wife and child, mother and father, went to Jackson, Mississippi to visit Decker's sister and stayed five or six days.
At the trial on the charge of grand larceny, Effie Decker, mother of appellant, testified that she and her husband, appellant and his wife and baby, and David Bryant, all went to Jackson to visit her daughter and appellant's sister, Charlene Graham, on January 17 and returned after staying there five days; that appellant was there the entire time, the family traveling in appellant's automobile. David James Bryant, a cousin of appellant, also testified to those facts. The alleged error is based on the fact that the sister, Charlene Graham, who had in the meanwhile moved to California, was not present at either the robbery or grand larceny trials. In the Rule I hearing Mrs. Graham did testify, stating that the relatives heretofore mentioned came to her home on the 16th or 17th and remained there either five or six days. She said that appellant stayed there the entire period of time. The witness had since moved back from California to Little Rock.
We find no merit in this contention for several reasons. In the first place, no effort was made to obtain the witness and Decker himself testified that he really didn't think it was necessary for her to be present since he had two other witnesses to testify to the same facts. This apparently was a decision made by the appellant himself rather than by counsel. At any rate, no motion for continuance was made and Decker accordingly has waived any right to object. Not only that, but since the mother and other relatives did testify to the alibi, the evidence of the sister would only have been cumulative.
*616 III.
As earlier stated, this appeal is being treated as an appeal from the original convictions.
IV.
This point relates to the alibi defense. In the robbery case, the trial court was requested to give an instruction offered by the defendant on the defense of alibi, which was refused; however, no error was committed for the jury was given an instruction (the court giving its own instruction), specifically mentioning the defense of alibi, and telling the jury that such a defense is as proper and legitimate if proved as any other and all the evidence bearing upon this point, along with all the evidence, should be carefully considered by the jury and "if the jury have a reasonable doubt as to whether the defendant was there when the crime was committed they should give the defendant the benefit of the doubt and find him not guilty." This was a correct instruction and appellant can have no legitimate complaint that his own instruction was not given.
In the grand larceny case, no instruction was requested on this phase. We, of course, have held many times that where an accused desires an instruction on a particular issue not covered by the instructions given, he should request a correct instruction thereon, and will not be heard to complain if he fails to do so. Lowmack v. State, 178 Ark. 928, 12 S.W.2d 909.
V.
It is next asserted that the trial court committed error by failing to grant appellant's motion for dismissal of the grand larceny charge on grounds of former jeopardy. To discuss this point, it is necessary that the background of the case be given. Alfred Williams, employed by Caldwell Oil Company in Little Rock, operated a service station. About 1:00 A.M. on January 21, Lawrence Hobbs, a regular customer, came into the station. About thirty or forty minutes later, two men came in looking for a set of jumper cables. While all were present, a truck driver came in to get change. After he left, the two men supposedly looking for jumper cables, pulled a knife and a gun and robbed the station, placing Hobbs and Williams in the rest room. After being placed in the rest room, they were again threatened, but each victim assured the robbers that they did not know the latter, stating, "I never seen you before." The two heard a car start up. Hobbs testified:
"I heard something say, `Ugh', like my car. You have to double clutch it to put it in low gear. So, evidently, he didn't know how to drive my car. I said, `Al, they got my car.' And I was fixing to go out the door and Al pushed me back and we was peeping up under the crack in the door and we didn't see no feet walking back and forth. So, he eased the door open and come on out. He was fixing to dial the police but the telephone wire was chopped loose. He took him a dime and went out on the outside to pay the phone and called the police."
It is argued that all of the essential issues were litigated in the first trial for robbery, and that the grand larceny trial relitigated the same issue. Appellant chiefly relies upon the case of Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798, where this was the question at issue. Turner had been tried for murder, it being alleged that he killed a man while robbing him. The jury returned an acquittal and Turner was then charged with robbery. He contended that a trial on this charge would constitute double jeopardy, but we disagreed. See Turner v. State, 248 Ark. 367, 452 S.W.2d 317. A second appeal was taken from a trial court order denying the motion to dismiss the indictment for robbery, this time appellant presenting the complete transcript of the trial record in the murder charge. We held that our decision on the prior appeal *617 was the law of the case. See Turner v. State, 251 Ark. 499, 473 S.W.2d 904. In reversing, the United States Supreme Court said:
"In the present case, petitioner was not charged with robbery at the first trial, but the State has stipulated that the robbery and murder arose out of `the same set of facts, circumstances, and the same occasion.' The crucial question, therefore, is what issues a general verdict of acquittal at the murder trial resolved. The jury was instructed that it must find petitioner guilty of first degree murder if it found that he had killed the decedent Yates either with premeditation or unintentionally during the course of a robbery. The jury's verdict thus necessarily means that it found petitioner not guilty of the killing. * * * Had the jury found petitioner present at the crime scene, it would have been obligated to return a verdict of guilty of murder even if it believed that he had not actually pulled the trigger. The only logical conclusion is that the jury found him not present at the scene of the murder and robbery, a finding that negates the possibility of a constitutionally valid conviction for the robbery of Yates."
In the case now before us, the circumstances are entirely different. The robbery of the service station and the stealing of the automobile were two separate crimes, and while to a degree related, certainly were not the same offense. The crime of robbery was over before the automobile was stolen. The proof offered in the robbery charge would not sustain the charge of stealing the automobile, and we accordingly find no merit in this alleged error.
VI.
It is then asserted that the evidence was insufficient to sustain the grand larceny conviction, the argument apparently being based on the fact that no one testified that he actually saw appellant and his companion take the car. Of course, circumstantial evidence is sufficient if the circumstances are such that no other reasonable hypothesis can be reached. Here, Hobbs had driven his car to the station. After the robbery, he was made to go into the rest room. His testimony quoted in the preceding point establishes that, because of a deficiency in the clutch, he recognized the sound of the car as it started off immediately after the men had warned the two victims to remain in the restroom. The car was gone when he returned. These circumstances certainly presented a fact question for the jury, but in addition, Decker gave a written statement in which he said this car was used in the getaway.
VII.
It is next contended that references to the robbery were improperly admitted in the trial for grand larceny and that such testimony had a prejudicial effect. We do not agree. A logical explanation of the circumstances of the taking of the car could not have been given without testimony first being presented about the robbery; the jury would never have known why the two men were in the rest room together and afraid to come out unless the jury had also known that the two men were there by force and threats of what would happen if they did come out. Only one brief paragraph is allotted to this argument.
VIII.
It is then asserted that defendant's confession was improperly admitted in rebuttal, and that the State should have offered its entire case when putting on its evidence. The statutes dealing with the manner of proceeding in a criminal case after the oath is given the jury are Ark. Stat.Ann. §§ 43-2110 to 43-2114 (Repl. 1964). The first mentioned section provides that the prosecuting attorney shall *618 make his opening statement; the next section provides that defendant or his counsel may then make a brief statement for the defense; the next section authorizes the state to offer evidence in support of its case; next, the defendant offers evidence in support of his defense, and § 43-2114 provides:
"The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case."
In Lacy v. State, 240 Ark. 84, 398 S.W.2d 508, it was contended that the court erred in permitting the prosecuting witness to testify on rebuttal relative to a jacket allegedly worn by the appellant. This court quoted the contention and stated its answer to that contention as follows:
"`. . . the alleged victim, testified that her attacker had on a cream colored sweater and tight pants; she made no reference whatsoever about a coat or jacket. After the appellant and his witnesses had taken the stand and testified that on the night of November 12th, that appellant had worn a blue jacket, the trial court, over the objections and exception of appellant, permitted the prosecuting witness to testify on rebuttal to the effect that appellant was wearing a coat or a jacket.'
"Our statute (Ark.Stat.Ann. § 43-2114 [1947]) says:
`The parties may then respectively offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.'
"This statute permits the Court, `for good reason, in furtherance of justice,' to allow the State to reopen its case and offer new evidence. Even if the recalling of the prosecutrix to testify about the jacket which the defendant wore could be considered as new evidence, still the Court had a right to allow such to be offered; and the Court did not abuse judicial discretion in such ruling."
See also Walker v. State, 100 Ark. 180, 139 S.W. 1139, where we said:
"Error of the court is assigned in permitting the state to introduce testimony not properly in rebuttal after defendant had rested his case. The statute (Kirby's Digest, § 2378)[4] authorizes the presentation of testimony in chief after the defendant has closed his case, when that appears to be necessary `in furtherance of justice,' and of that the trial court must be the judge. It rests within the sound discretion of trial courts to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed by this court unless an abuse is shown."
We hold the contention to be without merit.
IX.
It is next argued that the confession was taken in the robbery case but was improperly used in the trial for grand larceny, the brief on behalf of Decker stating, "There is no evidence he was advised he was a suspect for grand larceny." The record reflects that Decker signed two "Rights Waivers" on July 16, one setting out that he had been advised that he was a suspect in an armed robbery and the other admitting that he had been advised that he was a suspect in a burglary and grand larceny case. It is not entirely clear whether the last mentioned waiver had reference to this particular instance of grand larceny, though it does appear that this is the case. Certainly Decker knew that he was suspected of stealing the automobile at the service station since he included details in the written statement he signed. We find no prejudicial error.
*619 The last two contentions deal with points raised in the Rule I hearing and have already been covered in this opinion.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
NOTES
[1] See Decker v. State, 251 Ark. 28, 471 S.W. 2d 343.
[2] This referred to the "Miranda form", setting out constitutional rights, Decker acknowledging by signature that he had been explained these rights and told that any statemen could be used against him.
[3] The officer testified that actual interrogation consumed three or four hours.
[4] This statute reads identically with § 43-2114. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572204/ | 499 S.W.2d 427 (1973)
George MENOS, Appellant,
v.
Michael W. HODGES et al., Respondents.
No. 56722.
Supreme Court of Missouri, Division No. 2.
September 10, 1973.
Motion for Rehearing or to Transfer Denied October 8, 1973.
*428 Heege & Heege, George F. Heege, III, Clayton, for appellant.
Raymond A. Bruntrager, Arthur Litz, St. Louis, Paskal & Edwards, Richard H. Edwards, Clayton, for respondents.
Motion for Rehearing or to Transfer to Court en Banc Denied October 8, 1973.
STOCKARD, Commissioner.
Prior to January 1, 1972, plaintiff appealed from an adverse judgment entered in his action in which, among other relief, he sought damages in an amount then vesting appellate jurisdiction in this court.
Respondents have filed a motion to dismiss this appeal because of the failure of appellant's brief to comply fully with Rule 83.05, V.A.M.R. The brief is deficient, but in the lenient exercise of our discretion the motion is overruled.
Plaintiff's petition is in four counts, but there is no point in appellant's brief directed to Count IV and for that reason its substance will not be set forth.
Count I. Appellant alleged that he and Michael W. Hodges were "co-partners and joint venturers" engaged in the business of operating a series of nursing homes, and that while he was attempting to acquire the Manchester Nursing Home in St. Louis County for the partnership, Hodges purchased it and caused title to be vested in him and his wife. Appellant further alleged that Emmanuel Cassimatis had knowledge of the partnership between appellant and Hodges, but he "joined in a conspiracy" with Hodges to deprive appellant, as partner and joint venturer, from possession and enjoyment of the property and the right to participate in the profits. The prayer was that upon the contribution by appellant of his share, the court decree that the property of Manchester Nursing Home, Inc. be held in trust for the use and benefit of the partnership, and that the property be transferred to the partnership and joint venture.
Count II. After incorporating by reference the allegations of Count I, appellant *429 alleged that Hodges acquired the Manchester Nursing Home property for $153,000, and that if Hodges "had performed his duty as required by law," appellant "could have acquired said property for a price not higher" than $153,000, but as a result of the "unlawful and fraudulent acts" of Hodges, appellant "has been unable to acquire said property and that equivalent property would cost at least" $250,000. The prayer was for $150,000 actual damages and $50,000 punitive damages.
Count III. After incorporating by reference the allegations of Counts I and II, appellant alleged that J. W. Wood Realty Company, a real estate broker, and Weldon S. Snowden, a salesman-employee of the Realty Company, together with Hodges and his wife and Emmanuel Cassimatis conspired with each other to prevent appellant from acquiring the Manchester Nursing Home in that they received an offer from appellant in the amount of $150,000 to purchase it, but they refused and failed to submit the offer to the owners, but Hodges submitted "a greater offer" through J. W. Wood Realty Co. and Weldon S. Snowden to the owners, and by this conspiracy appellant was defrauded of his interest therein as a partner and joint venturer to his damage in the amount of $150,000.
Trial was had before the court without a jury. At the close of the evidence for plaintiff-appellant the court sustained a motion as to each defendant for a "directed verdict," which we shall consider as the entry of a judgment in favor of each defendant.
Appellant assigns as error in his point II that the trial court erred in refusing to admit into evidence the depositions of Mr. and Mrs. Huber, the sellers of the Manchester Nursing Home.
In this case tried before the court without a jury we determine the cause de novo, weigh the competent evidence introduced upon the factual issues, and reach our own conclusions based on the evidence. Ordinarily we defer to the finding of the trial court where there is conflicting oral testimony, but in this case no evidence was presented by the respondents. In making such de novo review this court will not consider any inadmissible evidence heard by the trial court over objection, but we will consider, when presented by an offer of proof, excluded admissible evidence.
"Prejudicial error" or "reversible error" in the admission or rejection of evidence is not an issue on an appeal in a case tried before the court. The issue is whether the evidence should have been admitted and considered, or rejected and not considered, and when that issue is determined the next issue is what the judgment of this court should be, based upon a consideration of the competent and admissible evidence. Martin v. Norton, 497 S.W.2d 164 (Mo.1973). Although there is a serious question as to its admissibility, in reaching our conclusion on the merits of this case we have taken into consideration the evidence contained in the depositions.
In his first point appellant asserts that the trial court erred in entering judgment for respondents at the close of appellant's case because (a) appellant "adduced sufficient proof to establish a prima facie case which entitled plaintiff to recover under Count I," and (b) he "adduced sufficient proof to establish a prima facie case which entitled plaintiff to recover under Count III." In appellant's third and remaining point he contends that the trial court erred in entering judgment for Michael Hodges on Count II because he "made a prima facie case and was entitled to recover actual and punitive damages."
Neither of these points presents any issue for appellate review. In each point appellant contends that he made a prima facie case, but in this case, tried before the court without a jury, that is not an issue. We would be justified in affirming the judgment on that basis. However, in the interest of justice, and again in the lenient *430 exercise of our discretion, and for the further reason that the basic factual issue is easily ascertainable, we shall review the evidence and rule the case on its merits. We shall not, however, set forth the evidence in detail. Instead, we shall set forth the facts as we have determined them to be from our de novo review.
In 1961, after some preliminary discussions between themselves, appellant and Michael Hodges purchased the Whiteway Nursing Home at Farmington, Missouri, and caused the title to be placed in a corporation. Hodges received 50% of the corporate shares of stock; appellant received 25% and Mike Fandos received 25%. This business venture was profitable, and the profits were paid to the three persons based on the percentage of their ownership of stock.
Later that year the same three persons arranged for the purchase of a nursing home at Troy, Missouri. A separate corporation was formed, to which title to the nursing home was transferred, and each received one-third of the capital stock, and also one-third of the profits.
In 1953 appellant and Hodges acquired a third nursing home, this one located at Bowling Green, Missouri. A separate corporation was formed to which title was transferred. However, Fandos had no interest in this nursing home or the corporation, and apparently Hodges advanced all the purchase money. The corporate stock was issued to appellant and to Hodges and his wife. Later, the precise time not being shown, a Mr. Knight purchased one-third of the capital stock, which was subsequently sold to a Mrs. Newman.
Another corporation was formed by the name of Sunset Retirement Homes, but it was referred to by appellant as a "management" corporation or a "shell," and he indicated that its purpose was to protect the name, and that the various nursing homes, above referred to, operated under that name as a fictitious name.
Appellant and Hodges agreed to consider the acquisition of a nursing home in the St. Louis area, and a real estate broker by the name of Cecelia Beyer was instructed to look for a suitable nursing home to acquire. Several places were investigated, including the Shamrock Nursing Home. However, Hodges was not interested in the nursing home. It is not entirely clear what the final outcome was as to this home, but appellant did submit an offer to purchase it on behalf of himself. According to appellant the offer to purchase as an individual was made with the approval of Hodges.
This is the background of the business relations of appellant and Hodges pertaining to the acquisition of nursing homes prior to the transaction involving the Manchester Nursing Home, which transaction constitutes the basis for appellant's suit.
On May 24, 1965 appellant saw an advertisement in a newspaper for the sale of the Manchester Nursing Home located in St. Louis County. He called Mrs. Beyer and asked her to contact the agents of the sellers, and according to appellant he attempted to call Hodges but could not reach him. By reason of arrangements made by Mrs. Beyer, appellant and Mrs. Beyer met Weldon Snowden, the agent for the sellers, and inspected the physical properties of the Manchester Nursing Home. Mr. Snowden indicated that the property might be purchased for $150,000. According to appellant, he told Mr. Snowden that he would be willing to pay as much as $165,000. Appellant then submitted an offer to purchase the nursing home for $150,000. The terms of the offer called for a cash payment of $20,000 and the sellers to take a note and deed of trust for $130,000, all being contingent on appellant obtaining "suitable financing." The offer provided that upon acceptance the deed was to be made to "George Menos or his assign." There is some question whether this offer was ever submitted to the Sellers by Mr. Snowden, but Mrs. Beyer testified that the *431 offer was refused. Later that day Hodges had what may be termed a "heated" conversation with appellant over the telephone. Appellant testified that "He started off wanting to know why I committed him to a contract, why I did this without his permission; and I told him this had been done many times before when I couldn't reach him. When I thought something was pretty good I went ahead; and after discussion in that regard he said why did I commit him to a contract. I said I didn't commit him, he could come in [for] anything he wanted; if he didn't want to come in, he didn't have to." The following day Hodges submitted an offer in his name alone to purchase the Manchester property for $153,000, which was eventually accepted. The offer called for a down payment of $25,000, and Hodges obtained some of that money from Mr. Cassamatis.
In the early part of July 1965, appellant submitted a second offer through Mrs. Beyer for the purchase of the Manchester property in the amount of $165,000. He did not discuss this offer with Hodges. The offer provided that if accepted the deed was to be made to "George Menos and/or his assigns." It is not entirely clear, but apparently at the time Mr. Snowden told Mrs. Beyer to forward to him this second offer of appellant the offer of Hodges had been accepted.
Appellant and Hodges had no written agreement of partnership or joint venture, and no partnership tax returns were ever filed. Also, although appellant testified that in his opinion there was an "ethical agreement" between him and Hodges, he admitted that there was no written or oral agreement that either was not to purchase other nursing homes for themselves as individuals.
The trial court was not requested to and did not enter findings of fact and conclusions of law. Therefore, we do not know the precise basis on which it rendered its judgment. It could have been that it did not believe some of the evidence, or that even though the court believed all of appellant's evidence it concluded that appellant was not entitled to the relief requested. However, regardless of the reason for the judgment of the trial court, based upon our de novo review of all the evidence, we conclude as follows:
(a). Appellant and Hodges entered into an arrangement whereby by mutual agreement, the terms varying as to each acquisition, they would acquire nursing homes, each home to be owned and operated by a corporation and the profits, if any, to be distributed between appellant, Hodges, and any other person having an interest therein, according to the ownership of stock in the corporation.
(b). Each nursing home was to be acquired on an individual basis, the respective ownership and participation of appellant and Hodges to be determined at the time of the acquisition.
(c). Each person, appellant and Hodges, was free to enter or not to enter into the arrangement for the new acquisition of a nursing home.
(d). There was no agreement that either could not individually acquire an interest in a nursing home without the other having an interest therein.
We are not called upon to determine whether the acquisition of the Manchester Nursing Home by Hodges violated any "ethical agreement," as that term was used by appellant. We do conclude that his acquisition of the Manchester properties under the circumstances did not violate any partnership agreement with appellant, and did not create any legal liability on the part of Hodges. Since Hodges was free to acquire the Manchester property, if he so desired, the acts of J. W. Wood Realty Company, Emmanuel Cassimatis, and Weldon Snowden in assisting Hodges could not have created any cause of action in favor of appellant against them based on conspiracy.
*432 We conclude as the result of our de novo review of the evidence, that based on the facts of this case as we find them, the trial court correctly entered judgment for respondents.
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
HENLEY, P. J., and FINCH and MORGAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572215/ | 499 S.W.2d 485 (1973)
STATE of Missouri, (Plaintiff) Respondent,
v.
Catherine COOKSEY, (Defendant) Appellant.
No. 56229.
Supreme Court of Missouri, Division No. 2.
September 10, 1973.
Motion for Rehearing or to Transfer Denied October 8, 1973.
*486 John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Murray Stone, St. Louis, for appellant.
Motion for Rehearing or to Transfer to Court en Banc Denied October 8, 1973.
HENLEY, Judge.
Catherine Cooksey (hereinafter defendant), charged with assault with intent to kill with malice aforethought (§ 559.180[1]), was found guilty by a jury of the offense of assault with intent to kill without malice (§ 559.190), and sentenced to imprisonment for a term of three years. The notice of appeal was filed before January 1, 1972. We affirm.[2]
The jury reasonably could find from the evidence that at about 1:30 a. m. on September 6, 1969, on the sidewalk on the north side of Natural Bridge Road near its intersection with Euclid Avenue in the City of St. Louis, defendant, with intent to kill, shot Marvin Chambers in the back with a .38 caliber revolver.
The shooting was the last in a series of incidents or occurrences which began a few hours before on the night of September 5. Defendant owned and operated a cocktail lounge known as "December John's Bar" and lived nearby at the Northwestern Hotel. Marvin Chambers also lived at that hotel. They had been friends for two years and had dated some. At about 10:30 *487 p. m. on September 5, he went to her room to talk to her about $50 she owed him and this resulted in an argument. He left her room within a few minutes and they next met two or three hours later on Natural Bridge between the hotel and her bar. Their argument over the $50 was resumed and resulted in a fight in which he struck her several times with his fists and knocked her down. Two or three passers-by stopped the fight by pulling him off her and she got up and went to her bar. There she picked up a loaded shotgun and immediately left to walk back toward the hotel. It was on this trip back that she not only shot Chambers with a pistol but somehow Isidore Brown, an innocent bystander, was shot in the leg with her shotgun.
Marvin Chambers testified that immediately before she shot him, he was looking back over his shoulder and saw her about ten feet behind him step out from a wall with a shotgun in her hand; that she fired the shotgun, but it missed him and he did not see where the shot struck; that she immediately threw the shotgun down, drew a pistol from her waist, and shot him in the back before he could turn to grab her; that he grabbed her arms before she could fire again and they struggled and fell to the ground; that a policeman in the neighborhood arrived while he and defendant were wrestling over the pistol and the officer disarmed her; that the time period between the shotgun blast and the pistol shot was approximately two or three seconds.
Isidore Brown testified that as he stepped out of a tavern (not defendant's) onto the sidewalk on Natural Bridge at about 1:20 a. m. on September 6, 1969, he was shot in the leg by a shotgun; that he did not see the shotgun fired and at no time saw it in the hands of anyone; that he jumped behind a parked car and looked in the direction from which the shot had been fired and saw a woman shoot a man in the back with a pistol; that it was a matter of three or four seconds between his being hit with fire from a shotgun and the man being shot by the woman; that after being shot in the back, the man grabbed the woman's arms and they struggled and fell to the ground; that he did not know either the woman or the man at the time, but later learned they were defendant and Marvin Chambers.
Defendant testified that before the shooting Chambers attacked and beat her with his fists, knocked her down, and kicked her when she was enroute to her cocktail lounge; that she was bloody and her hair and clothes were in disarray; that she went in her bar, got her shotgun for protection, and was walking back to her hotel to clean up and change clothes when Chambers attacked her again; that he hit her and caused her to drop the shotgun, and it fired when it fell to the walk; that he knocked her down, jumped on her and continued to beat her; that he knocked her down several times; that as she was getting up from about the third knock-down someone put a a pistol in her hand; that she pulled the trigger and shot Chambers, but she "wasn't trying to kill him"; that after her arrest she saw a man later identified as Isidore Brown standing in the street on one leg beside a car and his other leg "was mangling and bloody."
Two criminal charges were filed against defendant as a result of the occurrence in which Brown and Chambers were shot. One is this case, circuit court No. 2401-R, for the shooting of Chambers with a pistol. The other is circuit court No. 2402-R, for the shooting of Brown with a shotgun. The Brown case was tried first and resulted in an acquittal.
Defendant filed a pre-trial motion to dismiss the charge or, in the alternative, to limit the evidence in this case to that involving the shooting of Chambers with a pistol and to exclude all evidence of the shooting of Brown with a shotgun. As grounds for her motion, defendant alleged this charge arises out of the same incident as the shooting of Brown for which she was acquitted, therefore: (1) to try this case would be to put the defendant in jeopardy for a second time, * * * contrary *488 to the 5th and 14th Amendments of the Constitution of the United States * * *"; (2) "the State is collaterally estopped from bringing [this] * * * cause to trial; and, (3) that, "[i]n the alternative, the State is estopped from introducing certain evidence involving a Shot Gun, because said evidence was the basis for the trial in Cause No. 2402-R * * *." The motion was overruled.
The first point briefed by defendant is that "[t]he court erred in allowing the state to introduce evidence relative to the use of a shotgun and the wounds which a witness, Isidore Brown, received from said shotgun," because she was acquitted of the charge of assault upon Brown, and the doctrine of collateral estoppel as enunciated in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) operates to render inadmissible evidence of the prior shooting.
Ashe v. Swenson, supra, does not speak to the question of the admissibility of evidence; it speaks only to the question of double jeopardy. In Ashe, the Supreme Court of the United States gave the doctrine of collateral estoppel constitutional status as a part of the Fifth Amendment's guarantee against double jeopardy. Other cases cited by defendant on this point are not applicable for the same reason Ashe is not applicable.
Defendant's point that the court erred in admitting evidence of the other offense is not preserved for review for the very basic reason that she made no objection to the evidence when it was offered. Not only did she not object, she actively joined in the presentation of this evidence to the jury by producing most of it herself by her cross-examination of the state's witnesses and by her own testimony. In these circumstances, she may not be heard to charge prejudicial error in the admission of evidence of the shotgun shooting of Brown. State v. Brookshire, 353 S.W.2d 681, 688 [17] (Mo.1962); State v. Franklin, 448 S.W.2d 583 (Mo.1970). Furthermore, the facts of the shooting of Chambers and Brown are so interrelated and inextricably interwoven that it would be all but impossible to tell the story of one without some evidence of the other creeping in.
Defendant's next point is that the court erred in failing to give an instruction on common assault, because, she says, her testimony that when she fired the pistol she "wasn't trying to kill [Chambers]" precludes a finding of intent to kill and requires the giving of a common assault instruction.
In State v. Bevineau, 460 S.W.2d 683 (Mo.1970), defendant was charged with and convicted of assault with intent to kill with malice aforethought. Defendant testified that he fired a shot at the officer hoping to daze him, but was not trying to kill him. Defendant contended that the court erred in failing to give an instruction on assault without malice and common assault. The court said (460 S.W.2d at 688): "Our cases hold that in criminal cases involving personal violence, where intention, motive and reason of the defendant are essential elements of the crime, the defendant may testify directly thereto. State v. Chamineak, Mo.Sup., 343 S.W.2d 153, 160-161 [12]; State v. Fletcher, Mo.Sup., 190 S.W. 317, 321; State v. Palmer, 88 Mo. 568, 572. However, denial of intention to kill does not necessarily require an instruction for a lesser degree of the offense charged when `the statements of defendant * * *, incumbered with the physical facts and conduct of defendant, * * * [are] unreasonable and inconsistent with the experience of mankind * * *.' State v. Nelson, 118 Mo. 124, 23 S.W. 1088. See State v. Musick, 101 Mo. 260, 14 S.W. 212, 214-215; State v. Turlington, 102 Mo. 642, 15 S.W. 141, 146."
Here, defendant shot at Chambers with a shotgun and missed, and she admits that when someone handed her the pistol she fired it immediately as she was getting out and up from under Chambers who, according to her testimony, was still beating *489 her with his fists. In the circumstances of this case, her denial of an intent to kill Chambers is so inconsistent with and contrary to her actions and common experience that no instruction on common assault was required.
The last two points briefed by defendant are considered together. They relate to the giving and refusal of instructions on the right of self-defense. Defendant's principal contention in these points is that instruction 5, given by the court, was prejudicially erroneous in that it does not refer to, and therefore denied her, "the right to act on appearances." Instruction 5 is as follows:
"The Court instructs the jury that the right to defend one's self from danger is a right to which a person may have recourse under certain circumstances and conditions, in order to prevent an apprehended injury to himself by another. Therefore, if you find and believe from the evidence in this case at the time mentioned in the evidence defendant Catherine Cooksey made an assault on Marvin Chambers, with a pistol, if you find she did so and at said time she had reasonable cause to believe and did believe that Marvin Chambers was about to do her great personal injury, and if you further find and believe from the evidence that the defendant had reasonable cause to believe and did believe that it was necessary for her to so assault Marvin Chambers, in order to protect herself from such danger, and that she had reasonable cause to believe and did believe that it was necessary to use such means to protect herself, then she ought to be acquitted on the ground of self-defense. Whether the defendant had reasonable grounds to believe that such danger existed, and whether she made an assault on Marvin Chambers, in the honest belief that it was necessary for the protection of her person, are questions which you must determine from all the evidence in the case. Although defendant may have readily believed herself to be in danger, yet she cannot be acquitted on the ground of self-defense unless it further appears from the evidence that she had reasonable cause for such belief. On the other hand, even if no real danger existed, yet if defendant had reasonable cause to believe and did believe that it existed, she would be justified in acting upon such belief. If you believe from the evidence that defendant Catherine Cooksey made an assault on Marvin Chambers unnecessarily, if you find she did so assault Marvin Chambers when she did not have reasonable ground to believe that Marvin Chambers was then about to cause her great personal injury, then there is no self-defense in the case and you cannot acquit the defendant on that ground."
Defendant asserts that the first sentence of this instruction does in fact inform the jury that she had a right to act on appearances, but she argues that this is the only place in the instruction where the jury was so informed and that this sentence does not rectify the error she claims. Actually, in legal effect, these two sentences in the instruction also inform the jury that she had a right to act on appearances: "Although defendant may have readily believed herself to be in danger, yet she cannot be acquitted on the ground of self-defense unless it appears from the evidence that she had reasonable cause for such belief. On the other hand, even if no real danger existed, yet if defendant had reasonable cause to believe and did believe that it existed she would be justified in acting upon such belief * * *." Referring to the last abovequoted sentence in a similar instruction which was under attack on the same ground, the court said in State v. Traylor, 339 Mo. 943, 98 S.W.2d 628, at loc. cit. 631 (1936): "True, it [the instruction] does not use the term `appearances' * * *, but it [the sentence] * * * is substantially equivalent to the stock phrase usually employed in that connection * * *." See also: State v. Minnis, 486 S.W.2d 280, 283-4 [1, 2] (Mo.1972), and cases there cited. The instruction is not erroneous; "* * * it does not in terms take away or deny to the [defendant] the right to act *490 on appearances." State v. Demaree, 362 S.W.2d 500, 503 (Mo.1962).
In State v. Demaree, supra, a murder case, the court said (loc. cit. 502), that "* * * a defendant * * * is entitled in self-defense to act on appearances, and, if the evidence justifies it, he is also entitled, if he requests it, to an instruction embodying that right in some form in a modifying instruction * * *." The following words (loc. cit. 503) expressing the conclusion of the court in Demaree, supra, are particularly appropriate in this case: "Here the court's instructions apply to every phase of the evidence, and there was no appearance of any supposed danger, other than that on which the instructions are based."
Defendant, in her proffered instruction A on self-defense (for the refusal of which she claims error), did not hypothesize any evidence establishing any appearance which would justify a belief that grave bodily harm was immediately impending, nor was there any such evidence other than the physical assault about which she testified and which is the basis for the self-defense instruction given by the court. Under the evidence in this case there was no circumstance or appearance of immediate danger which required an instruction embodying specifically, "the right to act on appearances" in a modifying instruction. The court did not err in refusing instruction A. State v. Demaree, supra; State v. Minnis, supra.
Defendant also contends that instruction 5 places the burden on her to prove self-defense beyond a reasonable doubt, whereas her instruction A would have directed the jury to give her the benefit of any reasonable doubt. The court gave an instruction which covered the presumption of innocence, reasonable doubt of guilt, and the burden which rests on the state to prove guilt beyond a reasonable doubt. The court was not required to give a self-defense instruction which combined with it a burden of proof or reasonable doubt instruction. State v. Dill, 282 S.W.2d 456, 460-461[4] (Mo.1955); State v. Tellis, 310 S.W.2d 862, 864-865 [3, 4] (Mo. 1958).
We hold that the self-defense instruction given does not shift the burden of proof and place the burden on defendant to prove her claim of self-defense. This instruction is to be considered with the other instructions on presumption of innocence, reasonable doubt, and burden of proof; and, when so considered, it includes the state's burden of "disproving" the asserted claim of self-defense.
The judgment is affirmed.
DONNELLY, C. J., MORGAN, J., and MOSS, Special Judge, concur.
FINCH, J., not a member of Division when cause was submitted.
NOTES
[1] Section references are to RSMo 1969 and V.A.M.S.
[2] This opinion is written on recent reassignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577154/ | 790 S.W.2d 671 (1988)
Thomas E. LADNER, Appellant,
v.
The STATE of Texas, Appellee.
Billy Ray HORTON, Appellant,
v.
The STATE of Texas, Appellee.
James M. HYDEN, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 12-88-00193-CR to 12-88-00195-CR.
Court of Appeals of Texas, Tyler.
August 31, 1988.
*672 John H. Seale, Seale, Stover, Coffield & Gatlin, Jasper, for Ladner.
Jeff Haas, Tyler, for Horton.
Paul Buchanan, Beaumont, for Hyden.
Jack Skeen, Jr., Dist. Atty., Tyler, for appellee.
COLLEY, Justice.
This is an appeal by Thomas E. Ladner, Billy Ray Horton, and James M. Hyden (hereinafter referred to collectively as "appellants") from the trial court's order denying habeas corpus relief sought by appellants on double jeopardy grounds. We reverse and grant the relief sought.
On January 5, 1988, appellants were separately indicted by a Sabine County Grand Jury for violations of the civil rights of Loyal Garner, Jr., under the provisions of Tex.Penal Code Ann. § 39.021(a)(1) and (2) (Vernon Supp.1988) (hereinafter referred to as "section 39.021"). That section reads as follows:
(a) A jailer or guard employed at a municipal or county jail, by the Texas Department of Corrections, or by a correctional facility authorized by Article 5115d, Revised Statutes, or Article 6166g-2, Revised Statutes, or a peace officer commits an offense if he:
(1) intentionally subjects a person in custody to bodily injury knowing his conduct is unlawful;
(2) willfully denies or impedes a person in custody in the exercise or enjoyment of any right, privilege, or immunity knowing his conduct is unlawful.
The indictments in the Sabine cases were identical and read in pertinent part as follows:
[T]hat [appellant], on or about the 25th day of December, A.D. 1987, and before the presentment of this indictment, in said County and State, did then and there as a peace officer, to-wit: Deputy Sheriff[1] of Sabine County, Texas, intentionally subject Loyal Garner, Jr., a person in custody, to bodily injury, to-wit: by hitting Loyal Garner, Jr. on his head and body with a slapstick and fists and causing Loyal Garner, Jr. to fall and strike his head against a wall and door; knowing his conduct was unlawful, and the death of Loyal Garner, Jr. occurred therefrom; ....[2]
A consolidated trial of the indictments was had before a jury in Sabine County. On July 15, 1988, the jury returned its verdict acquitting appellants on both counts of the indictments.
Meanwhile on March 3, 1988, appellants were separately indicted in Smith County *673 for the murder of Loyal Garner, Jr., who died in Smith County.[3]
On July 16, 1988, each appellant filed an application for writ of habeas corpus in the Smith County District Court seeking dismissal of the murder indictment against him on the ground that his prosecution for murder was barred by the Double Jeopardy Clause of the Fifth Amendment and Tex. Const. art. I § 14. The trial court denied relief, and appellants seek that relief in this court on appeal.
Omitting the formal portions, the Smith County murder indictments against the appellants read as follows, to-wit:
[T]hat on or about the 25th day of December, 1987, and anterior to the presentment of this Indictment, in the County and State aforesaid, [appellant] did then and there, intentionally and knowingly, cause the death of an individual, LOYAL GARNER, JR., by striking him about the head with a slapjack, and by striking him about the head with a night stick, and by striking him about the head with an object to the Grand Jury unknown;
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do further present in and to said Court that on or about the 25th day of December, 1987, and anterior to the presentment of this Indictment, in the County and State aforesaid, [appellant] did then and there, intending to cause serious bodily injury to an individual, to-wit: LOYAL GARNER, JR., intentionally and knowingly commit an act clearly dangerous to human life, to-wit: by striking the said LOYAL GARNER, JR., about the head with a slapjack, and by striking the said LOYAL GARNER, JR., about the head with a nightstick, and by striking the said LOYAL GARNER, JR., about the head with an object to the Grand Jury unknown, and thereby causing the death of LOYAL GARNER, JR.; ...
The first paragraph of each Smith County indictment charges an offense under Tex.Penal Code Ann. § 19.02(a)(1) (Vernon 1974). The second paragraph charges an offense under section 19.02(a)(2). The pertinent parts of section 19.02 read as follows, to wit:
§ 19.02 Murder
(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; ....
We now examine the constitutional law of double jeopardy as declared by the United States Supreme Court. In Illinois v. Vitale, 447 U.S. 410, 415, 416, 100 S.Ct. 2260, 2264, 2265, 65 L.Ed.2d 228 (1980), the Court stated: "The sole question before us is whether the offense of failing to reduce speed to avoid an accident is the `same offense' for double jeopardy purposes as the manslaughter charges brought against Vitale." The Court noted that the rule developed for that analysis is provided by Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), and may be stated as follows (quoting from Blockburger and Brown):
[T]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision [statute] requires proof of a fact which the other does not. 432 U.S. at 166, 97 S.Ct. at 2225.
Vitale, 447 U.S. at 416, 100 S.Ct. at 2265.
In Vitale, after observing that the Illinois Supreme Court failed to expressly state that proof of the manslaughter offense necessarily includes proof of a failure *674 to reduce speed to avoid an accident or collision, the Court declined to hold that jeopardy barred the second prosecution (manslaughter), and stated that "[t]he mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution." Id. at 419, 100 S.Ct. at 2266.
On the other hand, the Vitale court stated that "[i]f, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the `same' under Blockburger and Vitale's trial on the latter charge would constitute double jeopardy under Brown v. Ohio." Id. at 419, 420, 100 S.Ct. at 2266, 2267. The clear implication of Vitale is that upon trial of the manslaughter offense, if the State does in fact rely on the failure to reduce speed to establish the manslaughter offense, then any conviction therefor would be void under the jeopardy rule.
Here, the first question before this court is whether the alleged civil rights offense is the "same offense" as the murder charges brought against appellants. Vitale, 447 U.S. at 415-416, 100 S.Ct. at 2264-65. To determine that question, we must apply the Blockburger test.
In applying the test we must look at and compare the proof necessary to prove the statutory elements of murder under section 19.02(a)(1) and section 19.02(a)(2) with the elements of violation of civil rights under section 39.021(a)(1) rather than the evidence actually produced at the trial of the civil rights prosecution. However, Vitale also directs that we must analyze the penal statutes by focusing on the respective indictments. Vitale, 447 U.S. at 411-413, 100 S.Ct. at 2262-63.
In this case, the first count of the indictments against appellants in the civil rights case alleged that each appellant was a peace officer who intentionally subjected Garner, a prisoner in jail, to bodily injury by striking him "on his head and body with a slapstick and fists and [caused Garner] to fall and strike his head against a wall and door; knowing his conduct was unlawful, and the death of [Garner] occurred therefrom;...."
The first paragraph of the murder indictments charges that the appellants "intentionally and knowingly" caused the death of Garner. That requirement is not present in the civil rights indictments. The second paragraph of the murder indictments charges that the appellants, "intending to cause serious bodily injury" (emphasis added) to Garner, struck him with a "slapjack" and a "nightstick" "thereby causing" his death. That requirement is not present in the civil rights indictments.
The first count in the civil rights indictments required the State to prove that the appellants were peace officers, and that Garner was "a person in custody" at the time of the injuries. These requirements of proof are not present in the murder indictments. The first count in the civil rights indictments also requires proof that the blows struck by appellants to Garner's head and body caused Garner "to fall and strike his head against a wall and door." Such proof is not required by the murder indictments. The civil rights indictments require proof that the appellants knew their conduct was unlawful at the time the blows were struck against Garner. That proof is not required by the murder indictments.
Thus, we conclude, under Blockburger, Vitale, and May v. State, 726 S.W.2d 573 (Tex.Cr.App.1987), that murder as alleged in the Smith County indictments is not "the same offense" as the violations of civil rights alleged in the first count of the Sabine County indictments.
Appellants also contend that their prosecution for the murder of Garner is barred by the application of the doctrine of collateral estoppel which the Court in Ashe v. Swenson, 397 U.S. 436, 442-446, 90 S.Ct. 1189, 1193-95, 25 L.Ed.2d 469 (1970), declared to be embodied in the Fifth Amendment guaranty of double jeopardy.
In Ashe, the Court defined "collateral estoppel" in the following language:
*675 It means simply that when a [sic] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
Id. at 443, 90 S.Ct. at 1194. The Court also stated "that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Id. at 444, 90 S.Ct. at 1194. The Court explained that:
Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240 [92 L.Ed. 180 (1948)]. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.
Id. at 444, 90 S.Ct. at 1194.
The Ashe Court cited with approval a quotation from Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39, reading in part:
If a later court is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant did not contest, the possible multiplicity of prosecutions is staggering.
Ashe, 397 U.S. at 444 n. 9, 90 S.Ct. at 1194, n. 9.
The record before the trial court and this court consists of transcripts in each case, containing, inter alia, each appellant's application for the writ, copies of the Sabine County and Smith County indictments, the Court's charge,[4] the jury verdict, and a statement of facts of the habeas corpus hearing conducted in Smith County on July 16, 1988.
The record reveals that the alleged beating of Garner in the Sabine County Jail constitutes the basis for the murder prosecutions. The State concedes that a "majority" of the witnesses who testified in the Sabine County cases will be called by the State to give testimony concerning "the same events, occurrences, circumstances" that such witnesses testified to in the Sabine County prosecutions. It is also undisputed that the court signed judgments of acquittal in the Sabine County cases.
Paul Buchanan, counsel for appellant Hyden, testified there was no dispute at the trial of the Sabine County cases that each appellant was a peace officer and Garner a person in custody at the time of the alleged commission of the civil rights offense, stating "[t]he primary issue being the hitting of [Garner] with a slapstick and especially the fact that his death was caused therefrom." Buchanan also testified that there was "no issue as to the fact that [Garner] had died but there was a significant issue as to the cause of death." On cross-examination Buchanan candidly admitted he could not testify as to "what the basis of the jury's verdict [was]." He further testified that the allegations that Ladner struck the blows "knowing his conduct was unlawful" was disputed. Buchanan also testified without dispute that each appellant testified in his own behalf in the Sabine County prosecutions, and that each admitted that he was a peace officer on the date of the alleged offense.
John Hannah, who acted as special prosecutor of the Sabine County indictments, testified at the habeas corpus hearing. Hannah stated that no "serious issue" was presented to the Sabine County jury as to whether appellants were "peace officers." Hannah, when asked whether he and defense *676 counsel "agreed [that Garner] ... was in fact a prisoner," stated that although that issue was submitted to the jury, "I don't think that the defense attempted to make that an issue."
Taking a reasonable and realistic view of the record before us, we conclude that the State in prosecution of the murder indictments must necessarily prove by the same witnesses who testified during the Sabine County prosecutions, that Ladner intentionally struck Garner thereby causing Garner's death. In addition, we deem it reasonable to conclude that each appellant will testify in his own defense in the murder prosecutions in Smith County. Furthermore, based on the record made at the habeas hearing, we are persuaded that upon trial of the civil rights action it was undisputed that appellants were peace officers and that the deceased was a prisoner at the time of the alleged attack on him. Eliminating these issues from our consideration, we are left with the following disputed fact issues[5] before the jury:
[I]f you find from the evidence beyond a reasonable doubt that on or about the 25th day of December, 1987, in Sabine County, Texas, the defendant, Thomas Ladner ... intentionally subjected [Garner]... to bodily injury, to-wit: By striking him on the head with a slapstick, knowing his conduct was unlawful, and that the death of [Garner] occurred therefrom, and that the use of force was not justified by the instructions heretofore given in this charge, then you will find the defendant [Ladner] ... guilty of the charge of violations of civil rights of [Garner] ..., as alleged in Count One of the Indictment.
The instructions referred to in the above-quoted paragraph of the charge relate to the justification defense provided by Tex. Penal Code Ann. § 9.53 (Vernon Supp.1988) (hereinafter referred to as "section 9.53")[6] and read as follows:
You are instructed that our law provides that a peace officer, jailer, or guard employed at a municipal or county jail, is justified in using force against a person in custody when and to the degree the peace officer, jailer, guard or correctional officer reasonably believes the force is necessary to maintain the security of the penal institution, the safety or security of other persons in custody, or employed by the penal institution, or his own safety or security.
Now, if you find from the evidence, or have a reasonable doubt thereof, that Thomas Ladner, as a peace officer or guard employed at a municipal or county jail, used such force against Loyal Garner, Jr. while he was in custody when and to the degree the peace officer, Thomas Ladner, reasonably believed that force was necessary to maintain the security of the penal institution, the safety or security of other persons in custody or employed by the penal institution, or his own safety or security, you will say not guilty by your verdict.
Thus under the record, the jury's acquittal is obviously grounded on one or more of the following disputed fact issues: whether (1) Ladner intentionally struck Garner, (2) knowing his conduct was unlawful, (3) Garner died as a result of the injuries; and (4) whether Ladner's conduct was justified under section 9.53. Each of these issues, other than the issue of whether Ladner knew his conduct in striking Garner, if he did, was unlawful, must be established or disproved by the State beyond a reasonable doubt in order to convict the appellants of murder as alleged in the Smith County indictments.
The question of whether Ladner acted "knowing his conduct was unlawful" is pivotal *677 because that issue was submitted to the Sabine County jury as an essential element of the civil rights offense. And it is the only disputed fact issue submitted in those cases that is not an essential element of murder as alleged in the Smith County indictments.
The jury was not given the statutory definition[7] of "unlawful," so we must assume that the jury in its deliberations utilized the meaning commonly ascribed to the word, viz., "not lawful: contrary to or prohibited by law: not authorized or justified by law: ... disobeying or disregarding the law...." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2502 (1976). The definition of the word is essentially the same in BLACK'S LAW DICTIONARY 1377 (5th ed. 1979); however, BLACK adds that the word unlawful, "[w]hile necessarily not implying the element of criminality, ... is broad enough to include it." (Emphasis ours.) Consequently, a realistic examination of the record, however meager and incomplete, employing as we must, reason and common sense, persuades us that reasonable lay jurors could not have predicated their acquittal in the civil rights prosecutions solely on the disputed factual issue of whether Ladner struck the blows against Garner "knowing his conduct was unlawful," given the profusion of instructions set forth in the charge respecting the justification defense.[8]
With that analysis, three disputed issues remain for consideration. They are: (1) Did Ladner intentionally strike the alleged blows against Garner; (2) Did those blows result in the death of Garner; and if so, (3) Was Ladner's conduct justified under section 9.53. It is obvious that the State must necessarily relitigate[9] all of these issues in order to convict appellants of murder under either paragraph set forth in the Smith County indictments. The doctrine of collateral estoppel prohibits the State from so doing, and that ingredient of double jeopardy protection prohibits prosecution of the Smith County indictments against the appellants. Ashe v. Swenson, 397 U.S. at 443-446, 90 S.Ct. at 1194-95.
Our opinion sufficiently answers the State's arguments in this case other than its arguments that (1) the legislature has authority, and is not precluded by the Fifth and Fourteenth Amendments from "[splitting] a single transaction into separate crimes ... [and providing] multiple punishments;" (2) section 39.021(c) authorizes dual prosecutions for the same conduct, and that jeopardy's protection under the Fifth and Fourteenth Amendments does not affect such legislative authority; and (3) appellants are estopped to claim jeopardy's protection because they "instigated or procured the first proceeding with the intent to preclude the full consequences of [their] criminal conduct."
*678 We reject the State's arguments one and two because it is clear that while the legislature may be free to create and define offenses as it chooses, the prosecutors and the courts are not free to prosecute and convict an accused contrary to jeopardy's first guarantee.[10]Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225; Ashe v. Swenson, 397 U.S. at 445-446, 90 S.Ct. at 1195. It must be understood that this case is not one "[w]here consecutive sentences are imposed at a single criminal trial [and in which] the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." (Citations omitted.) Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225. (Emphasis ours.)
The State's argument three is untenable for the reason that the record does not support it. There is no fraud or collusion shown between appellants and their accusers as contemplated by Benard v. State, 481 S.W.2d 427, 430 (Tex.Cr.App. 1972), and illustrated by the holding in Richardson v. State, 109 Tex.Crim.R. 403, 5 S.W.2d 141 (1928).
For the reasons stated, the judgment in trial court cause numbers 1-88-152, 1-88-153, and 1-88-154 on the docket of the 241st Judicial District Court of Smith County, Texas, are reversed and the indictments in those cases are dismissed, and it is so ORDERED.
NOTES
[1] Both Horton and Hyden were alleged to be deputy sheriffs of Sabine County, Texas, and Ladner was alleged to be Chief of Police of the city of Hemphill, Texas.
[2] A second count was alleged in each indictment, but that count is not pertinent here.
[3] See Tex.Code Crim.Proc.Ann. art. 13.07 (Vernon 1977), reading:
If a person receives an injury in one county and dies in another by reason of such injury, the offender may be prosecuted in the county where the injury was received or where the death occurred, or in the county where the dead body is found.
[4] Under the charge, the criminal responsibility of Hyden and Horton was predicated on Ladner's conduct pursuant to Tex.Penal Code Ann. § 7.02(a)(3) (Vernon 1974).
[5] As submitted by the court's charge respecting the first count of the civil rights indictment.
[6] Section 9.53 reads:
A peace officer, jailer, or guard employed at a municipal or county jail, or a guard or correctional officer employed by the Texas Department of Corrections is justified in using force against a person in custody when and to the degree the peace officer, jailer, guard, or correctional officer reasonably believes the force is necessary to maintain the security of the penal institution, the safety or security of other persons in custody or employed by the penal institution, or his own safety or security.
[7] Tex.Penal Code Ann. § 1.07(36) (Vernon 1974) provides:
"Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.
[8] It is noteworthy that section 39.021 was first enacted by the 66th Legislature in 1979. (Act of June 13, 1979, ch. 618, § 1, 1979 Tex.Gen.Laws 1383). Subsection (a)(1) then read in part:
A peace officer ... commits an offense if he: intentionally subjects a person in his custody to bodily injury knowing his conduct is unlawful. (Emphasis ours.)
Although the section was later amended twice, in 1983, and again in 1987, no substantial change was made to the language under consideration. On the other hand, section 9.53 was first enacted in 1987. (Act of June 17, 1987, ch. 512, § 1, 1987 Tex.Gen.Laws 2124.) It appears that the legislature, in the absence of a justification defense specifically applicable to the conduct proscribed by the 1979 version of section 39.021(a)(1), intended to criminalize assaultive conduct of a peace officer, jailer or guard in penal institutions towards a prisoner only when the officer's conduct was not justified under the facts and circumstances surrounding the conduct. Thus the term "knowing his conduct is unlawful" was inserted in the definition of the offense in 1979 in order to provide a justification defense not then separately provided. The enactment of section 9.53 appears to render the term vestigial and unnecessary.
[9] Precisely, the State in order to discharge its burden of proof must prove the first two elements beyond a reasonable doubt, and disprove the justification defense beyond a reasonable doubt. See Tex.Penal Code Ann. §§ 2.01 and 2.03(a)(d) (Vernon 1974).
[10] Which protects against a second prosecution for the same offense after acquittal. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572346/ | 499 S.W.2d 303 (1973)
Zackary E. DAVIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 45911.
Court of Criminal Appeals of Texas.
May 23, 1973.
On Motion for Rehearing September 25, 1973.
Rehearing Denied October 17, 1973.
*304 James A. Bannerot, Austin, for appellant.
Robert O. Smith, Dist. Atty., Michael J. McCormick, and Stephen H. Capelle, Asst. Dist. Attys., Jim D. Vollers, State's Atty. and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal is taken from a robbery by assault conviction where the punishment was assessed at fifty years.
The victim of the alleged robbery was unable to make a positive identification of the appellant as one of his two assailants, and the conviction rests largely upon appellant's extrajudicial confession which he contends was not taken in accordance with Article 38.22, Vernon's Ann.C.C.P.
Before reaching appellant's contention, we observe that we are unable to find that the trial judge determined the voluntariness of the alleged confession prior to its admission into evidence before the jury which is both constitutionally and statutorily required. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Lopez v. State, 384 S.W.2d 345 (Tex.Cr. App.1964); Article 38.22, supra.
Prior to trial the trial judge did conduct a hearing on appellant's motion to suppress his confession. After the State's evidence as to the confession was offered, the appellant took the stand and contended he was not properly warned and that he gave the statement because one officer had told him shortly after his arrest in Cameron that he (the officer) knew some cornfields and wouldn't hesitate to stop if the appellant didn't cooperate; that he was later told by the officers that if he didn't get his business straight he would be a good farmer before he got out of the penitentiary, etc.
At the conclusion of the hearing, the trial judge stated: "Motion will be overruled. That is all."
At the trial, over objection, the written confession was introduced before the jury. The issue of voluntariness was submitted to the jury.
There are no findings of the trial judge in the record. It is not clear if the trial judge decided voluntariness one way or the other, or, if he did, what standard was relied upon. Cf. Boles v. Stevenson, 379 U. S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964). There does not appear to be any clear-cut and reliable determination in the first instance of the voluntariness of the written statement.
In Jackson v. Denno, supra, the United States Supreme Court wrote:
"It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L.Ed.2d 975. Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination *305 on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra."
As a constitutional matter, Jackson v. Denno, supra, requires that the trial judge's conclusion as to voluntariness must, at least, appear from the record with unmistakable clarity. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).
In Sims v. Georgia, supra, the Court said:
"A constitutional rule was laid down in that case (Jackson v. Denno) that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. ..." (Emphasis supplied.)
See also Treadway v. State, 437 S.W.2d 572 (Tex.Cr.App.1969); Dixon v. State, 383 S.W.2d 928 (Tex.Cr.App.1964); Harris v. State, 384 S.W.2d 349 (Tex.Cr.App. 1964); McIlwain v. State, 402 S.W.2d 916 (Tex.Cr.App.1966); Lopez v. State, supra.
Further, Article 38.22 § 2, Vernon's Ann.C.C.P., provides as follows:
"2. In all cases where a question is raised as to the voluntariness of a confession or statement, the court must make an independent finding in the absence of the jury as to whether the confession or statement was made under voluntary conditions. If the confession or statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its findings, which order shall be filed among the papers of the cause. Such order shall not be exhibited to the jury nor the finding thereof made known to the jury in any manner. Upon the finding by the judge as a matter of law and fact that the confession or statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the confession or statement was voluntarily made, the jury shall not consider such statement or confession for any purpose nor any evidence obtained as a result thereof. In any case where a motion to suppress the statement or confession has been filed and evidence has been submitted to the court on this issue, the court within its discretion may reconsider such evidence in his finding that the statement or confession was voluntarily made and the same evidence submitted to the court at the hearing on the motion to suppress shall be made a part of the record the same as if it were being presented at the time of trial. However, the state or the defendant shall be entitled to present any new evidence on the issue of the voluntariness of the statement of confession prior to the court's final ruling and order stating its findings."
It is clear from the statute that the trial court "must enter an order stating its findings, which order shall be filed among the papers of the cause."
From all of the foregoing, this record reveals a failure to comply with both constitutional and statutory requirements. See Figueroa v. State, 473 S.W.2d 202 (Tex. Cr.App.1971).
The dissent in urging the appeal be abated relies in part upon Escalante v. State, 394 S.W.2d 518 (Tex.Cr.App.1965). Escalante was decided prior to the enactment of Article 38.22, supra, and did not involve an abatement of an appeal. There, the trial judge forwarded in a supplemental transcript his findings as to the voluntariness of the confession.
*306 If we are to abate every appeal where the trial court does not comply either with federal constitutional requirements or the provisions of a state statute, then why should trial judges ever make findings of fact or conclusions of law with regard to voluntariness of a confession? They can ignore both sets of requirements and do it only when the appeal is abated.
For the reasons stated, the judgment is reversed and the cause remanded.
DOUGLAS, Judge (dissenting).
The majority reverses this conviction on a ground not raised at the trial court or on appeal. A Jackson v. Denno-type hearing, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, was held outside the presence of the jury on the voluntariness of the confession. After an extended hearing the court stated, "Motion overruled. That is all." The majority opinion notes there are no findings of the trial judge in the record or, if he did make findings, what standard was relied upon. Under the provisions of Article 38.22, V.A.C.C.P., findings should have been made.
However, since this was not complained of or called to the trial court's attention, we should not reverse and remand the case for a new trial but should send it back for findings.
In Hullum v. State, Tex.Cr.App., 415 S. W.2d 192, there was a claim of denial of due process. This Court wrote:
"A federal claim of denial of due process of law having been presented, we have decided that a hearing should be held in the trial court while the appeal is pending and that the federal claim of denial of due process be determined prior to the final disposition of said appeal. Such procedure is consistent with the 1965 Code and Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L. Ed.2d 408."
There the Court suspended for further consideration the appellant's motion for rehearing and directed that evidence be adduced and that the trial court's findings be forwarded to the Court within ninety days.
In Escalante v. State, Tex.Cr.App., 394 S.W.2d 518, after the record was forwarded to this Court, the trial judge made a clear-cut determination of the voluntariness of the confession including a resolution of disputed facts upon which the voluntariness issue may depend. The Court further wrote, "... all doubt is removed by the finding of the trial judge at the trial, reduced to writing and forwarded to this Court in a supplemental transcript." There the consideration of the supplemental transcript was challenged as not being a part of the record on appeal but prepared and signed long after the time for filing the statement of facts and bills of exception had expired. The Court wrote:
"After much deliberation, we have concluded that in view of recent decisions of the Supreme Court of the United States, such as Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, the belatedly entered findings of the trial judge certified while the appeal is pending should be considered where a federal claim is asserted."
On April 25th of this year, Causes Nos. 46,682 and 46,683, John Russell Kincaid v. State of Texas, a question was raised as to whether the pleas of guilty were voluntarily made. After the records were filed with the Clerk, the Court ordered a hearing to be held and for evidence to be introduced and
"At the conclusion of the hearing, a transcription of the court reporter's notes shall be prepared as soon as possible. The hearing judge shall prepare findings of fact and conclusions of law. The transcription of the court reporter's notes and the hearing judge's findings of fact and conclusions of law shall be filed with the District Clerk of Bexar County. The District Clerk shall immediately prepare a supplemental transcript and submit *307 it to the hearing judge for approval. After the approval of the supplemental transcript, the same shall immediately be forwarded to the Clerk of this Court."
In the present case, the appeal should be abated so that the trial court can enter findings of fact and conclusions of law concerning the voluntariness of the confession upon the evidence admitted before him during the trial of the cause. If the trial court concludes that the confession was not voluntarily made, he may order a new trial. If he concludes that the confession was voluntarily made, he is to make findings of fact and conclusions of law and give the appellant's counsel an opportunity to make any objections and then a supplemental transcript with findings of fact and conclusions of law should be immediately forwarded to the Clerk of this Court.
Because the matter has not been raised in the trial court and has not been raised on appeal, the trial court should have the opportunity on the basis of the authorities above cited to make such findings.
For the above reasons, I dissent from the reversal of this cause on matters not heretofore raised.
MORRISON, J., joins in this dissent.
OPINION ON STATE'S MOTION FOR REHEARING
ODOM, Judge.
A supplemental transcript which contains the written findings of the trial judge as to the voluntariness of appellant's confession has been filed in this cause. Cf. Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431. The written findings state that the trial court found:
"That after the Defendant's arrest he was carried before a magistrate, who informed the defendant of the accusation against him and of any affidavit filed therewith, of the defendant's right to retain counsel, of defendant's right to request appointment of counsel if indigent and unable to afford counsel, of defendant's right to remain silent, of defendant's right to have an attorney present during any interview with peace officers or attorneys representing the state, of defendant's right to terminate the interview at any time, of defendant's right to have an examining trial, and that he was not required to make a statement and that any statement made by him could be used against him; that defendant did then knowingly waive his right to an attorney; and that the defendant did then freely and voluntarily, without being induced by any compulsion, threats, promises, or persuasion, make and sign a confession in writing; and the trial court further found beyond a reasonable doubt that the confession of the defendant was freely and voluntarily made without any compulsion or persuasion and that it was admissible."
Therefore, both constitutional and statutory requirements have been met. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L. Ed.2d 908; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; Article 38.22, V.A.C.C.P.
Now we reach the contentions raised by appellant herein. First, he contends that the trial court erred in admitting into evidence his written confession as it did not comply with the requirements of Article 38.22, V.A.C.C.P. Specifically, he contends that the statement was given on the second day after he was arrested and that he had given one statement the day before; therefore, he should have been again taken before a magistrate for the warning required under Article 38.22, supra, before giving the second statement.
The record reveals that appellant was arrested on August 21, 1971, and was taken before a magistrate on that same day, at approximately 1:15 P.M., where he was given the warning pursuant to Article 15.17, V.A.C.C.P. In addition to the magistrate's warning, Sgt. Simpson, of the Austin *308 Police Department, warned appellant prior to any questioning, and repeated the warning to him several times. Officer Simpson testified that appellant gave a written statement on August 22, 1971, between 9 A.M. and 12 noon. He further testified that on the morning of August 23, 1971, it came to his attention that appellant was probably involved in some other offenses which had not been discussed prior to that time. He stated that he went to the county jail and took the appellant back to the city jail, at which time he again gave the appellant a warning. Thereafter, the appellant gave the written statement which he complains about herein.
The appellant, at the hearing on the motion to suppress, testified that he had finished high school and had attended college and that he could read and write the English language. In his brief, he does not contend that the statement was coerced from him, or that it was the product of threats or promises. His only contention appears to be that the provisions of Article 38.22, supra, were not complied with.
As heretofore stated, appellant contends that because he was not again taken before a magistrate prior to the giving of the second statement, such second statement should not have been introduced into evidence at the trial and that the motion to suppress such statement should have been granted. Such contention is without merit. A warning by either a magistrate or the person taking the statement is sufficient to satisfy the requirements of Article 38.22, supra. See, e. g., Dunlap v. State, 462 S.W.2d 591.
Finally, appellant contends that the incourt identification should have been suppressed.
We do not reach this contention because the record shows that the state relied upon appellant's confession to connect him with the crime. The victim of the robbery testified that he could not identify the appellant as one of the robbers and his testimony merely shows that the substantive crime of robbery had been perpetrated upon him. No error has been shown.
There being no reversible error, the state's motion for rehearing is granted; the judgment reversing the conviction is set aside, and the judgment is affirmed.
ONION, Presiding Judge (dissenting).
Following the reversal of this cause for the trial court's failure to make findings as to the admissibility and voluntariness of the confession and over eighteen months after the hearing on the motion to suppress, the trial court for the first time made such findings. The same are found in a supplemental transcript forwarded to the court.
Putting aside any question of whether such belated findings satisfy federal constitutional requirements, it is observed that the belated findings do not satisfy the mandatory requirements of Article 38.22, Vernon's Ann.C.C.P.
If trial judges may choose to comply with the mandatory requirements of the statute only after reversal on original submission, then why should trial judges ever make findings of fact or conclusions of law with regard to the voluntariness of a confession until the time of a reversal?
Clearly the practice upon which the majority places its stamp of approval not only violates the mandatory provisions of the statute and legislative will but has undesirable results. It is disruptive of sound judicial administration to the extent that finality of the judgment of this court in the first instance is never assured. If, after an initial opinion, the trial judge does what the law required he should have done in the first place, then this court must reconsider the matter and write still another opinion. The practice is destructive of judicial economy at the appellate level at a time when that economy is most important.
Believing the cause was properly disposed of on original submission, I dissent.
ROBERTS, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917745/ | 272 So.2d 901 (1972)
In re Susie GREEN
v.
FIRST NATIONAL BANK OF TUSKALOOSA d/b/a First Charge Service.
Ex parte FIRST NATIONAL BANK OF TUSKALOOSA d/b/a First Charge Service.
6 Div. 892.
Supreme Court of Alabama.
September 7, 1972.
Rehearing Denied September 29, 1972.
*902 Turner & Turner, and Richard A. Thompson, Tuscaloosa, for petitioner.
Maxwell Peters, Tuscaloosa, for respondent.
COLEMAN, Justice.
Plaintiff sued defendant on open account. The case was tried by a jury and verdict and judgment thereon were for plaintiff. On appeal, for the failure of the trial court to give to the jury the general affirmative charge without hypothesis for defendant, the Court of Civil Appeals, 49 Ala.App., 272 So.2d 895 reversed and rendered judgment for defendant. The plaintiff contends that the holding of the Court of Civil Appeals is error.
Plaintiff sued on an account arising out of the use of charge cards issued by plaintiff to defendant and her husband. The Court of Civil Appeals concluded that the evidence failed to show that defendant was liable on the account. The Court of Civil Appeals made the following findings, among others:
". . . . Appellant was issued a card in the name of Mrs. Stephen Green, Jr. Appellant's husband was issued a card in his name. The two cards had the same account number imprinted on them . . . ."
". . . . The record reveals that appellant was issued a charge card in the name of Mrs. Stephen Green, Jr., and that the first few billing statements were in the name of Mr. and Mrs. Stephen Green, Jr. . . . ."
"During the 22 months that appellant and her husband used the `First Charge Service,' there was a total of $897.76 charged to said account, $453.59 being charged by appellant and $444.17 charged by her husband." (Emphasis Supplied)
"The only piece of evidence that could possibly be construed as indicating either that appellant had a joint account, or that she had impliedly consented to be solely responsible for her purchases, was *903 the charge card in the name of Mrs. Stephen Green, Jr.
"The effect this piece of evidence had on the determination of the issue in this case appears to us to have been completely dissipated by the fact that there was only one account number . . . ." etc.
The findings of the Court of Civil Appeals thus set out in their opinion present a case where a credit card has been issued to the defendant in her own name, and she has used the credit card to purchase merchandise on the credit extended or made available to her by use of the card. These findings tend to indicate, as the Court of Civil Appeals concedes, that appellant had a joint account or consented to be responsible for the purchases she herself made. We are not persuaded that these findings do not constitute at least a scintilla of evidence tending to support an inference that defendant is liable on the account sued on in the instant case.
As the Court of Civil Appeals points out, there is other evidence tending to support a contrary inference, but it is for the jury to decide which inference shall prevail.
". . . . In civil cases the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint. (Citations Omitted)" International Brotherhood of Teamsters, etc. v. Hatas, 287 Ala. 344, 357, 252 So.2d 7, 18.
We are of opinion that the Court of Civil Appeals erred in holding defendant entitled to the affirmative charge.
This court has said:
"Under Tit. 7, § 810, an appellate court cannot render a judgment in a civil suit where there is a jury, unless there is a verdict by the jury on which to base the rendering of the judgment. A holding by the appellate court that either party was entitled to the affirmative charge does not justify the rendition of a judgment for the party so entitled on appeal. This is because the trial court could not render a judgment for the party entitled except on a verdict of a jury.. . . ." Lyle v. Winston County, 274 Ala. 581, 584, 150 So.2d 706, 709.
See also: Wilkes v. Stacy Williams Co., 235 Ala. 343, 179 So. 245; Hendricks v. State, 252 Ala. 305, 41 So.2d 423; Alabama Electric Cooperative v. Free, 252 Ala. 166, 40 So.2d 635; and Goodwin v. Household Finance Corporation of Montgomery, 45 Ala.App. 442, 231 So.2d 766.
The Court of Civil Appeals erred in rendering judgment instead of remanding the cause to the trial court.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX, McCALL and SOMERVILLE, JJ., concur.
ON REHEARING
On rehearing, counsel for plaintiff requests clarification of the opinion. It is not clear to counsel whether the opinion of this court now requires the Court of Civil Appeals to remand the cause to the trial court. We did not intend to place that requirement on the Court of Civil Appeals.
We held that the Court of Civil Appeals erred in reversing the trial court for refusing to give the affirmative charge for defendant.
We held also, that the Court of Civil Appeals erred in rendering judgment for defendant instead of remanding the cause to the trial court. Our latter holding, however, applies only to the judgment of the Court of Civil Appeals on original deliverance and does not apply to the judgment which the Court of Civil Appeals will render after the cause has been remanded by this court to the Court of Civil Appeals.
*904 The judgment of the Court of Civil Appeals is reversed and the cause is remanded to the Court of Civil Appeals for further consideration in accord with this opinion.
Opinion extended.
Application for rehearing overruled.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH, MADDOX, McCALL and SOMERVILLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917771/ | 272 So.2d 841 (1973)
HUMBLE OIL & REFINING COMPANY, Appellant,
v.
George L. LAWS and Mossie E. Laws, Husband and Wife, et al., Appellees.
No. R-75.
District Court of Appeal of Florida, First District.
February 6, 1973.
G. Thomas Smith and Thomas A. Clark, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and R. Brownlee Eggart, Pensacola, for appellant.
Thomas N. Tucker, Pensacola, for appellees.
RAWLS, Judge.
Humble Oil & Refining Company appeals a final judgment cancelling an oil, gas and mineral lease it acquired from Thomas O. Fillingim and Hazel E. Fillingim, his wife. The subject final judgment also ordered the Fillingims to convey the land involved, pursuant to a contract of sale, to appellees. Humble is not concerned with the dispute between the Fillingims and the Laws,[1] but insists that its oil, gas and mineral lease should not have been cancelled.
The principle point on appeal is: Was possession by appellees of the land in dispute such as to put Humble on notice of an unrecorded contract of sale of said land *842 between the Fillingims, as sellers, and the Laws, as purchasers?
Facts most favorable to appellees are: In early 1970 the Fillingims and the Laws negotiated for the rental, sale and purchase of a certain tract of land. Mrs. Fillingim and Mrs. Laws were the primary negotiators. Mrs. Fillingim, a licensed real estate broker, drafted an agreement which was signed by both couples. The agreement described the land by proper legal description, set out rental terms and further provided:
"The parties of the first part [the Fillingims] agree to sell to the parties of the second part [the Laws] the same described land containing 189 acres more or less for $61,425 at 7% per annum.
"The down payment of $10,000 is agreed by both parties to be October 15, 1970. The first note is to be paid December 1, 1971 of $5,000 or more, including principal and interest and to continue thereafter until paid, without penalty.
"The parties of the first part agree to transfer by Deed the same rights of title, oil and mineral rights as the abstract states and describes. The parties of the second part agree to pay all the 1970 real estate taxes."
At the time of the execution of the above instrument, the Laws gave the Fillingims a check for $1,000 marked "land rent and option to buy." When Mr. Fillingim accepted the check, he shook hands with Mr. Law and stated: "As far as we're concerned, the property's yours. You can do whatever you want with it".
The Laws went into immediate possession of the land, limed and fertilized a part of it, planted 75 acres in soybeans and had 6 acres in permanent pasture. Oats and wheat were planted in the fall. An old shack on the property was rewired for electricity and was occupied by Mr. Laws from 30 to 45 days while he worked the land. They also cleared an area under a big magnolia tree for a future home site, seeded it with grass, and planted roses and azaleas. Extensive farm equipment owned by them was continuously on the property.
Some time prior to July 9, 1970, an agent for Humble left his calling card at the Fillingim's residence. Mrs. Fillingim called the agent who discussed with her his company's desire to lease the oil, gas and mineral rights on the subject land. Mrs. Fillingim advised that she didn't think they owned any mineral rights. Subsequently, the agent examined an abstract of the land and agreed to pay the Fillingims $3,350 (and other consideration dependent on certain contingencies) for an oil, gas and mineral lease. Mrs. Fillingim told the agent the property was "rented". An oil, gas and mineral lease between the Fillingims and Humble was executed and recorded.
Humble vigorously contends that its only possible notice of the Laws' interest in the subject land was their cultivation of same and the owner-seller's statement to its agent that the land was rented for one year. Further argument by Humble is that cultivation of the land without a continuous residence thereupon is not sufficient to put a lessee on notice of an unrecorded option or contract for sale, citing as its authority a Texas case.[2] It might well be that Texas law recognizes Humble's position, but it does not "hold water" in Florida. Actual possession is constructive notice to all the world of whatever rights the occupants have in the land. Such possession when open, visible, and exclusive, will put upon inquiry those acquiring any title to or a lien upon the land so occupied to ascertain the nature of the rights the occupants really have in the premises.[3] Humble, a prospective purchaser, having knowledge of the possession of the realty by the *843 Laws, as lessees, was required to inquire as to the full terms and conditions of their lease, including their right to purchase.[4] As related in the above facts, the exclusive possession by the Laws was more than adequate to put any person upon inquiry as to their interest in the lands occupied by them. This Humble did not do. Its agent did not visit the property or make any inquiry other than as reflected by the court-house records.
The judgment appealed is affirmed.
CARROLL, DONALD K., Acting Chief Judge, and WIGGINTON, J., concur.
NOTES
[1] Thomas O. Fillingim and Hazel E. Fillingim, husband and wife, and Humble Oil & Refining Company v. George L. Laws and Mossie E. Laws, husband and wife, Case No. R-73 (1 Fla.App., filed Mar. 31, 1972), pending.
[2] Jackson v. De Guerin, 124 Tex. 424, 77 S.W.2d 1041 (1935).
[3] Marion Mortgage Co. v. Grennan, 106 Fla. 913, 143 So. 761, 87 A.L.R. 1492 (1932); Florida Land Holding Corporation v. McMillen, 135 Fla. 431, 186 So. 188 (1938); Blackburn v. Venice Inlet Co., 38 So.2d 43 (Fla. 1949).
[4] Denco, Inc. v. Belk, 97 So.2d 261, 265 (Fla. 1957). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917773/ | 272 So.2d 586 (1973)
Roger Dale SLATTON
v.
STATE.
6 Div. 381.
Court of Criminal Appeals of Alabama.
January 23, 1973.
Michael S. Sheier, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
L. S. MOORE, Supernumerary Circuit Judge.
The indictment charged the appellant with the offense of robbery. The victim of the robbery was Crestol Shipp, a woman. The trial resulted in a jury verdict finding *587 the appellant guilty of robbery as charged in the indictment and fixed his punishment at 15 years imprisonment in the penitentiary. The trial court entered Judgment in accordance with said verdict. This appeal is from that Judgment.
On the day the case was set for trial, the appellant entered a plea of former jeopardy. Said plea was heard before the trial Judge, without a jury and before the trial on its merits, evidence taken and said plea and said evidence were submitted to the Court for Judgment thereon without objection that it was not submitted to a jury and without any request or demand that it be submitted to a jury.
The evidence in connection with said plea shows that an indictment had been returned by the Grand Jury into the Circuit Court of Jefferson County, Alabama, on July 16, 1971, which is as follows:
"THE STATE OF CIRCUIT COURT OF
ALABAMA TENTH JUDICIAL CIRCUIT
JEFFERSON COUNTY July Session 1971
The grand jury of said county charge that, before the finding of this indictment, ROGER DALE SLATTON feloniously took Thirty-Five Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the personal property of Crestol Shipp, from his person and against his will by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.
Earl C. Morgan, District Attorney,
Tenth Judicial Circuit of Alabama."
(Italics added).
The case made by that indictment was designated in said court as Case No. 23507. The trial sheet (or bench notes) of that case introduced into evidence on the issue raised by the plea of former jeopardy contains the following court orders, along with other orders, to-wit:
"8-18-71. Passed to Nov. 29th, 1971 for trial. Jasper, Judge.
Nov. 29, 1971 R.
Nov. 30, 1971. Jury struck but not put under oath and indictment not read to the jury so selected and not sworn and defendant not called on to plead to indictment and he did not do socase passed to 12-17-71 arraignment docket. Gibson, Judge.
Dec. 17, 1971, passed to 1-31-72 for trial, Jasper, Judge.
Jan. 31, 1972. Def. Co. Jail (#24461-R Reindictment)"
The indictment upon which the appellant was tried was admitted into evidence and is as follows:
"THE STATE OF CIRCUIT COURT OF TENTH
ALABAMA JUDICIAL CIRCUIT
JEFFERSON COUNTY December Session 1971
The grand jury of said county charge that, before the finding of this indictment, ROGER DALE SLATTON, whose name is otherwise unknown to the Grand Jury, feloniously took Thirty-Five Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the personal property of Crestol Shipp, from her person and against her will by violence to her person, against the peace and dignity of the State of Alabama.
Earl C. Morgan, District Attorney,
Tenth Judicial Circuit of Alabama."
This later indictment was returned by the Grand Jury on Dec. 10, 1971 and filed by the Circuit Clerk on said date.
A transcript of the proceeding on Nov. 30, 1971, in Case No. 23507 was admitted into evidence on the hearing of said plea. That transcript shows that a Jury venire was brought into the court room and the indictment was read to the jury venire by the court and the jurors on the venire were *588 qualified by the court; that counsel for the State and the Defendant also asked the jurors questions during the qualification of the jurors; that during this procedure the court stated:
"Ladies and gentlemen, it has been called to my attention that the person, Crestol Shipp, has been referred to as `him' and `his' in this indictment, and, in truth and fact, is a female person, rather than a male person.
All right, proceed."
After the jurors were qualified and the jury struck and selected, that transcript also shows the following:
"THE COURT: Ladies and gentlemen, I am not going to administer the oath to you as yet in this case.
There is a matter that has come up that I have to settle before we go forward.
That last door on my right, that open door where Mr. Morgan is, is our jury room, so you may retire back there.
There is a matter I have to get settled before we go back.
(Thereupon, the jury left the courtroom at 2:50 p. m., and, out of the presence and hearing of the jury, the following proceedings were had and done:)
THE COURT: For the record, now that the jury is out:
Gentlemen, the defense was informed during the course of selecting a jury that the person named in the indictment is the person from whom the property was taken, that is, Crestol Shipp, who is a woman and not a man, and this indictment alleges, `from his person and against his will, by violence to his person or by putting him in such fear,' and, of course, I haveI didn't swear the jury.
After the selection of the jury, I was careful not to have the jury sworn and not to have a plea taken to the indictment, because, in that way, jeopardy would attach.
At the moment, I don't know if there is a fatal variance, or not. I feel it would probably be a fatal variance if we proceeded. I put the jury back in the jury room so that we can check into it."
That transcript at this point includes statements by the Judge and counsel for the state and the defendant and concludes with the following:
"THE COURT: What I am going to do is to pass this case over and suggest it go back before the grand jury for proper indictment. I understand the State, before I did that, wanted to offer to amend. Even if you had an agreement to amend, we would have to go right through it over again, and you would have to go through the same thing.
My thought is to let it go over at this point, but if you want to see if there is a possibility for amendment, we will do so.
MR. BATCHELER: Well, we will offer the amendment, to changing `him' to `her' and `his' to `hers'.
MR. MUNDY: We will not agree to such an amendment.
THE COURT: I am just going to discharge the jury and pass the case, and then you can take it back before the next grand jury and draw a proper indictment, or whatever further proceedings come up next.
So, let's line the jury up at the rail.
(Thereupon, the jury was brought back into the courtroom at 3:37 p. m., at which time, in the presence and hearing of the jury, the following proceedings were had and done:)
THE COURT: Ladies and gentlemen, the Court has gone into this matter. There is involved in this indictment what the Court rules to beif we went on for trial, would be a fatal variance. I am *589 going to dismiss this jury and let it go over to the next grand jury, so that the proper indictment can be drawn.
So, at this time, you are discharged to go back to the general assembly room on the fifth floor."
The trial court overruled the appellant's plea of former jeopardy.
The appellant complains that the trial court erred in overruling and denying his plea of former jeopardy.
In the case of Lyles v. State, 41 Ala.App. 1, 122 So.2d 724, the rule as to when former jeopardy attaches is stated in this manner:
"Former jeopardy for the same offense begins when the jury has been empaneled and sworn in a court of competent jurisdiction to try the defendant for the offense charged, and a sufficient indictment for the offense is read to the jury and pleaded to by the defendant.
Murray v. State, 210 Ala. 603, 98 So. 871, 872."
The following cases state the rule in substantially the same manner. Artrip v. State, 41 Ala.App. 492, 136 So.2d 574; Morris v. State, 47 Ala.App. 132, 251 So.2d 629.
In the case before us the indictment had not been read to the jury selectedbut not swornto try the defendant and the defendant had not entered a plea before the jury and the jury was not charged with the trial of the defendant. An unsworn jury is but a congeries of persons, not an adjunct of the court. Hence, jeopardy had not begun. The plea of former jeopardy was properly overruled.
The appellant also complains that the trial court erred in passing upon said plea without submitting the same to a jury. Under the evidence in this case, if said plea had been submitted to the jury, the general affirmative charge against said plea would have been in order. The results would have been the same.
In Mikell v. State, 242 Ala. 298, 5 So.2d 825, the Court states:
"Ordinarily an issue of former jeopardy, either of acquittal or conviction, should be tried separately and in advance of the issue of `not guilty'. But to have a reversal of a judgment of conviction, there must not only appear error, but such error as is prejudicial to the substantial rights of the party."
No such error appears in this case. The undisputed evidence reveals that former jeopardy did not exist.
Furthermore, the defendant made no request or demand for a jury trial of the issue raised by said plea and made no objection to the issue being tried by the court without a jury. Therefore, his complaint comes too late when it is first made on this appeal. See Singleton v. State, 288 Ala. 519, 262 So.2d 768.
The defendant could have waived the entire plea. State v. Nelson, 7 Ala. 610. There is no sound reason which says he could not waive a jury in the trial of the issue made by said plea. He did waive a jury for the trial of the issue made by the plea by submitting the same to the trial judge for judgment thereon without a jury and without request or demand for a jury and without objection to such procedure. Singleton, supra.
We have searched the record and find no error therein.
The foregoing opinion was prepared by Hon. L. S. MOORE, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
It is ordered and adjudged by the Court that this case be and is affirmed.
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917775/ | 272 So.2d 905 (1973)
Roosevelt TAYLOR, alias
v.
STATE.
3 Div. 182.
Court of Criminal Appeals of Alabama.
January 23, 1973.
*906 Wayne P. Turner, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
SIMMONS, Supernumerary Circuit Judge.
This is an appeal from a judgment of manslaughter in the first degree, which was embraced in an indictment for murder in the first degree. The jury fixed appellant's punishment at ten years in the penitentiary. Due to the fact that appellant was indigent, he was represented both on trial and on this appeal by court-appointed counsel.
State's witness Jimmy Lee Tucker testified that he was present when the defendant allegedly killed the deceased, Carl Lee Thompson, by cutting or stabbing him with a butcher knife. The defendant did not take the witness stand nor did he offer any evidence. He rested when the State rested.
It appears from the evidence of Tucker that a group of people had assembled at the Jazz Box on Holt Street in the City of Montgomery on the night of September 11, 1971, to engage in social contacts and frivolities in harmony with the name of the resort.
If we undertook to list the details leading up to a display of knives on this occasion outside the Jazz Box building and in possession of the persons milling around, some of them belligerent, we would burden this opinion without shedding much light on the issues raised by defendant's plea of not guilty. Suffice it to say the fracas in which the defendant was involved invited the display of such deadly weapons.
According to the evidence of the witness Tucker, appellant, an active participant in the fracas, had a butcher knife in his hands. He used the knife to inflict a deadly wound on the person of Carl Lee Thompson. There is nothing in this witness's evidence which tends to support a plea of self defense embraced in the plea of not guilty.
A toxicologist employed by the State Department of Toxicology, whose qualifications were admitted by defendant, testified that there were nineteen wounds and cuts on the body of the deceased. He further testified that a wound "located on the left side of the face below the ear revealed that they had penetrated and severed the left posterior corroted [sic] artery in this area." Further, he testified that in his opinion the death was "due to shock and hemorrhage associated with the cuts to the body and the principal one being the one that cut the major artery here on the side of the head."
The State introduced and the trial court admitted, over defendant's objection, two photographs of Thompson's body. The photographs were not gruesome. They tended to illustrate the location of the alleged knife wounds on the body, front and back, and were admissible for that they supported the toxicologist's testimony regarding the wounds or some of them. Middleton v. State, 47 Ala.App. 130, 251 So.2d 627. Likewise, the photographs of the dwelling house, although quite indistinct, were admissible. These pictures *907 tended to shed light on the dwelling where deceased was slain. Middleton, supra.
Appellant here contends that the witness Tucker was an accomplice and that his testimony was inadmissible for that reason. Tit. 15, § 307, Code of Alabama, 1940, Recompiled 1958. The evidence in this record fails to implicate the witness or to show that he was in any manner aided, abetted, or participated in an assault on the deceased. The witness was present but did not do anything which could label him an accomplice. The mere presence of Tucker at the scene of the homicide, without more, is insufficient to show him to have been an accomplice. Snowden v. State, 27 Ala. App. 14, 165 So. 410; Davis v. State, 257 Ala. 447, 59 So.2d 592. There was no error on the part of the trial court in refusing defendant's written charges D-1 and D-2, which directed a verdict for defendant.
Inasmuch as the jury convicted defendant of manslaughter in the first degree, the court's error, if any, in refusing defendant's written charges directing an acquittal of murder, assault with intent to murder and assault and battery was without injury to the defendant. Supreme Court Rule 45.
Defendant's written charges D-21 and D-22 relating to self defense were properly refused. Defendant did not testify; neither did he offer any evidence. He rested when the State rested. There was no evidence according to our view of the record that the defendant was acting in self defense when he struck the fatal blow.
Written charge D-23 for defendant was properly refused. It was adequately covered by the court's oral charge. Tit. 7, § 273, Code, supra. Charge D-24, although defective, was covered by the defendant's written charge D-25 which the court gave as well as by the oral charge. D-25 correctly says that the presumption of innocence is to be regarded as a matter of evidence. Neither the refused charge nor the court's oral charge contained such evidentiary statement. Guenther v. State, 282 Ala. 620, 213 So.2d 679. Refused charge D-29 instructing the jury that they cannot convict if any individual juror is not convinced beyond a reasonable doubt of defendant's guilt was covered by given charge D-12. Tit. 7, § 273, Code, supra. The reporter will set out charges D-21, D-22, D-23, D-24, D-25, D-26, D-27 (also covered by the court's oral charge), and D-29.[*]
The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
We find no error in the record prejudicial to defendant and justifying a reversal of the judgment. Hence, the judgment in this cause is affirmed.
Affirmed.
All the Judges concur.
APPENDIX
D-21The Court charges the jury that if the defendant was attempting to stop one of the decedent's assailants and, at that time, was attacked by the decedent and honestly believed that he was in imminent peril or liable to receive great bodily harm from the deceased, then I charge you that the defendant had a legal right to act and protect himself from such apparent peril or harm and the defendant cannot be guilty of murder or manslaughter even though he may have killed the decedent.
Refused, Emmet, Judge
D-22The Court charges the jury that, the defendant having invoked the doctrine *908 of self defense, the burden is upon the State to convince you beyond all reasonable doubt from the testimony that the defendant himself provoked the difficulty.
Refused, Emmet, Judge
D-23The Court charges the jury that if, after considering all the evidence in this case, you have a reasonable doubt as to whether the defendant killed the decedent, then you should acquit the defendant.
Refused, Emmet, Judge
D-24The Court charges the jury that the innocence of the defendant is presumed until his guilt is established by the evidence and all the material aspects of the case beyond a reasonable doubt.
Refused, Emmet, Judge
D-25The Court charges the jury that the defendant is presumed to be innocent and this presumption is to be regarded as a matter of evidence by the jury to the benefit of which the accused is entitled, and, as a matter of evidence, this presumption of innocence attends the defendant until his guilt is, by the evidence, proven beyond a reasonable doubt.
Given, Emmet, Judge
D-26The Court charges the jury that at no time under the pleadings in this case does the burden of proof shift from the State of Alabama to satisfy the jury from all the evidence beyond a reasonable doubt that the Defendant is guilty, and if, upon all the evidence, the jury have a reasonable doubt of the defendant's guilt, they must acquit him.
Refused, Emmet, Judge
D-27The Court charges the jury that if, upon considering the evidence, you have reasonable doubt about the guilt of the defendant, arising out of any part of the evidence, you must find the defendant not guilty.
Refused, Emmet, Judge
D-29The Court charges the jury that if any individual juror is not convinced of the defendant's guilt beyond reasonable doubt, you cannot convict the defendant.
Refused, Emmet, Judge
NOTES
[*] See Appendix. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/509339/ | 852 F.2d 1019
Bankr. L. Rep. P 72,410In the Matter of PARK TERRACE TOWNHOUSES, Debtor-Appellant,v.Bruce W. WILDS, Appellee.
No. 87-2379.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 21, 1988.Decided July 26, 1988.
1
C. David Peebles, Peebles, Thompson, Rogers & Skekloff, Fort Wayne, Ind., for debtor-appellant.
2
James R. Grossman, Grossman & Boeglin, Fort Wayne, Ind., for appellee.
3
Before CUMMINGS and WOOD, Jr., Circuit Judges, and WILL, Senior District Judge.*
4
WILL, Senior District Judge.
5
This is an appeal from the district court's order affirming the bankruptcy court's decision to award administrative expenses to the appellee for his maintenance and improvement of property owned by the debtor-appellant. The appellee took possession of the property and performed services pursuant to an agreement under which he would eventually purchase the property. This agreement was not completed because the debtor later sold the property to a third party and that sale was approved by the bankruptcy court. For the reasons stated below, the district court's order is affirmed.
Background
6
In March 1983, Park Terrace Townhouses ("PTT"), an Indiana apartment complex, debtor-appellant, filed a voluntary petition for relief under Chapter 11. On October 19, 1983, the bankruptcy court authorized the sale of PTT's property (the townhouses) for cash or on terms agreeable to its three mortgagees.
7
On December 13, 1983, Bruce W. Wilds, appellee, and John K. Meiners, representing PTT, executed a written purchase agreement for the sale of PTT's property. Under the contract, Wilds agreed to pay the debtor-in-possession $50,000, assume the balance of the first mortgage (held by First Federal Savings and Loan of New Castle), pay the balance of the second mortgage (held by Indiana Bank and Trust Company of Fort Wayne) and pay $75,000 for a full and complete release of the third mortgage (held by Pacific Service Company).
8
The contract also included the following provisions:
9
2(d)(ii). In the event the above conditions cannot be met by March 1, 1984, then the Seller shall file in the Bankruptcy Court such applications, complaints, or other proceedings that may be required to effect a sale to Purchaser upon terms herein set forth. If Seller is unable to effect such sale through the Bankruptcy Court by September 1, 1984, then this agreement shall be null and void and of no further force and effect.
10
8. Seller shall deliver to purchaser full and complete possession and management of Park Terrace following the execution of this agreement. Purchaser shall assume the role of property manager as the same is being conducted by the present manager thereof. Purchaser shall receive no salary for the performance of said managerial responsibilities. Seller agrees to use its best efforts to effect a closing date at the earliest possible time for the purpose of relieving [sic] purchaser of this responsibility pursuant to the terms of this purchase contract.
11
On appeal from the bankruptcy court's orders, the district court made the following undisputed findings of fact:
12
Wilds took possession of the townhouses on December 13, 1983, and personally assumed the roles of property manager and maintenance supervisor. During Wilds' management, he instituted a marketing program which increased occupancy from 58% to 73% and monthly income from approximately $24,500 to $32,700. Wilds removed the debtor's resident manager and took over the functions of that position by hiring, training, and supervising a staff to perform all required leasing, bookkeeping, maintenance, and related activities. In addition to the maintenance necessary to prevent damage from the severe winter weather, Wilds upgraded and remodeled the rental units.
13
On January 31, 1984, the debtor entered into another purchase agreement with James H. Calkins. Wilds did not learn of this agreement until February 24, 1984. On February 27, 1984, and March 9, 1984, Calkins and Wilds, respectively, filed applications for approval of sale of Park Terrace Townhouses. The debtor-in-possession filed an application for instructions regarding the two purchase agreements on March 19, 1984. The court heard evidence on the pending applications on March 27, 1984. Following this hearing, [on March 29, 1984] the Bankruptcy Court approved the sale of Park Terrace Townhouses to Calkins. Calkins immediately assumed possession of the complex.
14
District Court Order, July 29, 1987, at 3-4.
15
On April 5, 1984, pursuant to 11 U.S.C. Sec. 503(b)(1)(A),1 Wilds filed an application for administrative expenses regarding his services rendered as property manager and maintenance supervisor from December 13, 1983 to March 29, 1984. The Bankruptcy Court awarded Wilds $21,750 for 870 hours at the rate of $25 per hour.2
16
The district court originally referred appeal of the bankruptcy court's orders to a magistrate. We held that the district court did not have authority to refer the appeal to a magistrate and we vacated the magistrate's order and remanded the appeal to the district court. In The Matter Of: Park Terrace Townhouses, No. 87-1245 (April 10, 1987). See In the Matter of Elcona Homes Corp., 810 F.2d 136, 138-40 (7th Cir.1987). The district court subsequently affirmed the bankruptcy court's orders. PTT appeals the district court's order. We affirm.3
Standard of Review
17
PTT appeals the award, although not the amount awarded, arguing that: (1) the bankruptcy code allows an award of administrative expenses only if Wilds' services are rendered with prior court approval, which they were not; and (2) Wilds did not possess an Indiana real estate broker's license, which is required to collect fees for his services. PTT essentially contends that the district court's conclusions of law were erroneous. There are no issues of fact.4 Accordingly, our review is de novo. In re Ellsworth, 722 F.2d 1448, 1450 (9th Cir.1984).
Analysis
18
PTT argues that Wilds acted as a "professional person," see In re Interstate Restaurant Systems, Inc., 61 B.R. 945, 949 (S.D.Fla.1986), and, as such, may not receive administrative fees for his services because the bankruptcy court did not give prior approval.
19
(a) Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee's duties under this title.
20
11 U.S.C. Sec. 327(a) (emphasis added). PTT also contends that, because Wilds did not seek prior court approval, his services were in the nature of volunteer work, for which he should not receive compensation in any event.
21
PTT ignores the fact that both the bankruptcy and district courts relied on section 327(b) rather than section 327(a), and the unique facts of this case. The bankruptcy court based its award on 11 U.S.C. Secs. 503(b)(1)(A), see note 1 supra, and 327(b), which states:
22
(b) If the trustee is authorized to operate the business of the debtor under section 721, 1202, or 1108 of this title, and if the debtor has regularly employed attorneys, accountants, or other professional persons on salary, the trustee may retain or replace such professional persons if necessary in the operation of such business.
23
The bankruptcy court found that PTT regularly employed professional persons to assume the responsibilities in question assumed by Wilds.5 Accordingly, under section 327(b), PTT could retain or replace such persons if necessary in its ordinary course of business and without prior court approval. In Re Johns-Manville Corp., 60 B.R. 612, 618-19 (Bankr.S.D.N.Y.1986). See also United States ex rel. Kraft v. Aetna Casualty & Surety Co., 43 B.R. 119, 121 (M.D.Tenn.1984) (court approval was necessary where business did not regularly employ appraiser); In Re Cummins, 8 B.R. 701, 702 (Bankr.C.D.Cal.1981) (real estate broker could not receive award under section 327(b) because he was not retained on salary, but rather worked for a commission, and did not seek prior court approval).
24
The fact that Wilds was employed in PTT's ordinary course of business was admitted by PTT in its application for instructions filed with the bankruptcy court:
25
4. That since said date [October 19, 1983], and pursuant to the terms of said agreement [the contract entered into on December 13, 1983], Bruce W. Wilds has been in possession of Park Terrace Townhouses, and has managed same, which said management and possession have been in the ordinary course of business of the Debtor in Possession, and at the request of and with the approval of the Debtor in Possession.
26
Application Of Debtor In Possession For Instructions, February 26, 1986, Record at 4.
27
PTT additionally argues that the phrase "on salary" in section 327(b) makes that section inapplicable here--Wilds did not receive a salary. Wilds was not "on salary" because it was intended that he (and the other interested parties) would ultimately benefit from his services. He was managing the property he expected to buy, pursuant to a written and executed agreement. PTT prevented the sale to Wilds by selling the property to a third party. By denying him compensation, the estate and subsequent purchaser would reap the benefits of his services, which included an increase in rental income and structural improvements to the apartments. Wilds performed services which were ongoing, previously performed on a regular basis by salaried employees and, which we conclude, are compensable under section 327(b), notwithstanding the fact that he was not on salary.
28
The district court also reviewed the underlying written agreement, between PTT and Wilds, and its context, and concluded that awarding administrative expenses is not inconsistent with their intent. Air Line Stewards, Etc. v. American Airlines, Inc., 763 F.2d 875, 877 (7th Cir.1985) ("The primary object in construing a contract is to give effect to the intention of the parties.") (citation omitted), cert. denied 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986). Wilds performed his services without a salary as a condition of the purchase agreement. Although the contract provided for no compensation, Wilds was clearly not acting as a volunteer, as suggested by PTT. In re WHET, 33 B.R. 443, 448 (Bankr.D.Mass.1983). "The impetus for his offer of services was to induce the debtor to enter into the purchase agreement." District Court Order, at 10.
29
PTT argues that paragraph 8 of its contract with Wilds ("[p]urchaser shall receive no salary for the performance of said managerial responsibilities."), cited above, precludes an award based on Sec. 327(b). The bankruptcy court, however, made the following observation.
30
It is clear to the court from the evidence and testimony at trial that Wilds had every reason to believe when he entered Park Terrace under the terms of the Purchase Agreement that he was to be the purchaser. It is not through any lack of effort on Wilds' part that he was not the ultimate purchaser. For the court to enforce a single line of the purchase agreement, in consideration of all the facts, would be a grave injustice.
31
Bankruptcy Court Order, May 7, 1985, at 7. We agree.
32
PTT can not prevent Wilds from receiving compensation based on a contract with which it did not comply. Wilds was prepared to perform and had been performing, with PTT's knowledge and consent, even after PTT sold the property to Calkins. In contrast, PTT sold the property to a third party without filing any proceedings in the bankruptcy court to effect the sale with Wilds. In addition, the contract states that it is null and void in the event that the sale between the parties is not completed. Accordingly, the contract clause in question does not preclude an award to Wilds.
33
PTT claims that, notwithstanding its agreement with Wilds, it did not act fraudulently or improperly by subsequently negotiating with other persons for the sale of the apartment complex. Our decision is not based on characterizing PTT's actions. See note 4 supra. However, by selling the property to Calkins, PTT changed the nature of Wilds' service and, in that respect, PTT's actions are critical. Construing the contract in this context, an award of fees is not only equitable but also authorized under section 327(b), as the district court held. Finding that the bankruptcy court's award of administrative expenses, affirmed by the district court, is authorized by section 327(b), we also conclude that the award was not an abuse of discretion.
Indiana Real Estate Licensing Act
34
Under Indiana law, real estate brokers must have a license in order to receive compensation for their brokerage services. PTT argues that Wilds was required to possess a license, which he did not possess, and, accordingly, an award of fees is precluded. We find that Wilds was not required to possess a license and, even if he was, the bankruptcy code, as federal law, prevails over the Indiana Code under the supremacy clause.
35
The relevant sections of the Indiana Code provide:
36
(a) Except as provided in subsection (b), no person shall, for consideration, sell, buy, trade, exchange, option, lease, rent, manage, list, or appraise real estate or negotiate or offer to perform any of those acts in Indiana, without a license.
37
(b) This article does not apply to:
38
(8) Acts performed by a person in relation to real estate owned by that person unless that person is licensed under this article, in which case the article does not apply to him;
39
(9) Acts performed by a regular, full-time salaried employee of a person in relation to real estate owned or leased by that person unless the employee is licensed under this article, in which case the article does not apply to him; ...
40
Ind.Code Sec. 25-34.1-3-2. Under Ind.Code Sec. 25-34.1-6-2, compensation for acts regulated by the above provision may not be given or awarded if the broker violated the code.
41
Wilds was not the owner of the property when he assumed managerial and maintenance responsibilities, but he was acting with the understanding that he was a prospective owner. In addition, his services were previously assumed by full-time salaried employees of PTT. Thus, although Wilds' actions are not literally exempted from the regulation, the unique circumstances of this case are consistent with the exceptions delineated in the Indiana Code. Moreover, Wilds performed his services with the knowledge of all interested parties and his services benefitted them.
42
In addition, the district court found that the purpose of Indiana's real estate law is to protect persons from the acts of "incompetent or unscrupulous" brokers, Schreibman v. L.I. Combs & Son, Inc., 337 F.2d 410, 412 (7th Cir.1964), and that this purpose would not be served in this case by denying Wilds compensation. He acted in good faith.
43
Wilds clearly fell within the spirit, if not the exact letter, of the exceptions to the application of the statute. Any failure to fit precisely within these exceptions was due to the unique circumstances of this case, and not to any shortcoming by Wilds. The dangers the statute seeks to prevent simply did not arise in this case. Consequently, it does not apply.
44
District Court Order, at 12.
45
We agree. Wilds was managing property he reasonably believed he was purchasing pursuant to a written contract. In addition, the interested parties were aware of his activities and such activities were previously performed by full-time salaried employees on a regular basis.
46
PTT contends that the district court ignored the Indiana Code and, accordingly, PTT asks this court to certify to the Supreme Court of Indiana the following questions:
47
1. Must a person who manages, for a consideration but not on a salaried basis, an apartment project owned by another, which apartment project contains more than 12 apartment units be licensed under Title 25, Article 34.1, Chapter 3, of the Indiana Code?
48
2. If so, and if that person is not so licensed, can that person be lawfully compensated in any manner for such management services?
49
We need not seek such certification. The Indiana Code does not apply to the unique circumstances of this case. In any event, if it does, the bankruptcy code prevails under the supremacy clause. U.S. Const. art. VI, cl. 2.
Conclusion
50
The district court's order affirming the bankruptcy court's decision to award the appellee $21,750 for administrative expenses he incurred in maintaining and supervising the debtor-appellant's property is
51
AFFIRMED.
*
The Honorable Hubert L. Will, Senior Judge of the United States District Court for the Northern District of Illinois, Eastern Division, is sitting by designation
1
Section 503(b)(1)(A) provides in relevant part:
After notice and hearing, there shall be allowed administrative expenses, ... including--the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.
2
PTT filed a motion before the bankruptcy court to alter or amend the award. In a written opinion, dated January 21, 1986, the bankruptcy court (Judge Rodibaugh) denied PTT's motion
3
The appellee has appended a copy of the Magistrate's vacated opinion to his appellate brief. The debtor-appellant objects to our review of this opinion. Our decision has been reached without any review of the Magistrate's vacated opinion
4
Although the parties dispute the nature of PTT's ongoing negotiations with other prospective purchasers of the property following the execution of its contract with Wilds, i.e., whether continuing negotiations was a breach of its contract with Wilds or possibly fraudulent, the district court's opinion was rendered without regard to a finding of fact on this issue. On this issue, however, PTT claims that the district court ignored the following facts: (1) the mortgagees did not accept Wilds as a buyer; (2) the management agreement between Wilds and PTT was an effort to demonstrate to the mortgagees that Wilds was a capable manager and that they should reconsider him; and (3) the mortgagees remained opposed to Wilds and Pacific Service Corporation rejected Wilds' offer which was $50,000 greater than Calkins'
PTT's contention is incorrect. The district court relied on facts, agreed to by both parties, which included the following: (1) Wilds and PTT executed a purchase agreement; (2) pursuant to the contract, Wilds took possession of the property and assumed the positions of manager and maintenance supervisor; (3) PTT thereafter signed a purchase agreement with Calkins; and (4) following the bankruptcy court's decision to approve the sale to Calkins, Wilds ceased working on the property.
Even if the district court's finding that Wilds was not aware of Calkins' contract until February 24, 1984 is a disputed (and material) finding of fact, we conclude that the district court's conclusion is not clearly erroneous, In re Dill, 731 F.2d 629, 631 (9th Cir.1984), in light of the undisputed facts that thereafter both Wilds and Calkins filed applications before the bankruptcy court for approval of the sale of the property to them. Accordingly, our review only concerns questions of law.
5
PTT had employed Carol Hodges as property manager and her husband as maintenance supervisor prior to Wilds' assumption of those duties. Although PTT claims that the Mr. and Mrs. Hodges received fees which were much less than those awarded to Wilds for essentially the same work, PTT has not, as noted above, appealed the amount awarded | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1572179/ | 499 S.W.2d 412 (1973)
STATE of Missouri, Respondent,
v.
Cletus Edward WHITEAKER, Appellant.
No. 56702.
Supreme Court of Missouri, Division No. 1.
September 10, 1973.
Motion for Rehearing or to Transfer Denied October 8, 1973.
*413 John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Kranitz & Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
Motion for Rehearing or to Transfer to Court en Banc Denied October 8, 1973.
BARDGETT, Presiding Judge.
Cletus Edward Whiteaker was found guilty of murder in the second degree by a jury which assessed punishment at 10 years imprisonment. The court entered judgment and sentence accordingly and defendant appealed prior to January 1, 1972. This court has jurisdiction. Art. V, Sec. 3, Const. of Mo. 1945 as amended, V.A.M. S.
At about 5:30 p. m. on Friday, March 20, 1970, Betty Jean Whiteaker, defendant's estranged wife, was shot and killed in Gallatin, Mo. Defendant was charged with first degree murder and, as stated, was convicted of second degree murder. Defendant testified but as a result of amnesia had no memory for the event. Appellant has briefed nineteen points on this appeal. The facts necessary to the resolution of some of defendant's points will be *414 stated in the resolution of the particular point.
Defendant and deceased were married in 1961 and in January 1970 the deceased left defendant and filed suit for divorce March 6, 1970. In the latter part of 1969 decedent and one Curtis Kohler became intimate. Defendant tried to get deceased to return home but she refused even to talk to him.
The .38 caliber revolver used to shoot the deceased was owned by Curtis Kohler. Kohler had left the gun in the car of Jack Wales in December, 1969. Wales gave the gun to one Rodney Buntin in December, 1969 or early January, 1970. Buntin owned the Uptown Grill in Cameron, Mo., and he put the gun in the storeroom of his grill, along with a shirt and a pair of trousers, at a time when the deceased, Betty Whiteaker, was employed at Buntin's Grill and she could have seen the gun. The defendant patronized Buntin's Grill during this same time. The door to the storeroom was unlocked. Buntin testified he noticed the gun and clothes were missing from the storeroom sometime in early January, 1970. He did not know who removed them.
On March 20, 1970, the day of the shooting, Betty Whiteaker had spent most of her time with Marjorie Taylor, with whom Betty had been living for several weeks. At about 11:00 a. m. on that date decedent and Marjorie were in Buntin's tavern in Cameron while defendant was working there. Nothing untoward took place. At about 5:20 p. m. decedent and Marjorie arrived at the Submarine Tavern in Gallatin and sat on stools at the bar. Shortly thereafter Kohler came in and sat next to decedent. Defendant then came into the tavern and either sat or stood next to Kohler and ordered a beer. Defendant attempted to talk with decedent but she told Marjorie Taylor she wanted to leave. The last thing defendant remembers is starting to drink his beer until at a point in time when he was out in the street with a number of men around him, which was after the shooting.
Marjorie Taylor and decedent left the Submarine and defendant went with them. They walked to Taylor's car and Taylor got into the driver's seat. Decedent began getting into the passenger seat on the right side of the car. Decedent began to close the door but defendant prevented her from doing so and a struggle ensued. Decedent's purse was on the front seat between Taylor and her and Marjorie Taylor thought the purse might have been large enough to hold the pistol, but wasn't certain of this. The right front door was fully open. As the decedent and defendant struggled a shot went off breaking the glass in the right front door window outward. Taylor testified defendant then pulled decedent out of the car; that decedent was "wrestling" defendant down the street but that decedent's movements could have been a twitching, a convulsing or struggling. Both defendant and decedent were upright and, for the most part, face to face. A second shot went off and decedent dropped to the street. Defendant then said, "If I can't have you" and fired a third shot at decedent's head from a distance of about two feet.
Another witness, Mrs. Vernitta Sailor, was in her apartment when she heard loud talking and thought she heard a shot. She went to the window and saw defendant and decedent struggling and trying to break defendant's hold on her. Mrs. Taylor was screaming. While defendant and decedent were struggling, the defendant shot at the decedent. The decedent fell onto the street and defendant paused and then shot her again. The witness saw a gun in defendant's hand and smoke from the gun when the second and third shots were fired. Defendant then ran to a car. Another man (Curtis Kohler) was walking fast down the street. He looked at the deceased and ran to the defendant's car. Then the witness heard a fourth shot and saw the gunsmoke but didn't know who fired it.
Curtis Kohler testified that he left the Submarine a short time after defendant, *415 decedent and Taylor and saw decedent lying in the street. He saw defendant running, so Kohler ran after him and caught defendant when defendant got into the car. Defendant pulled a gun up in his right hand and said, "Goddam you, Curt, get out of here or you will get it, too." Defendant fired but Kohler was not struck. Kohler took the gun from defendant and defendant said, "Go ahead. It don't make no difference now anyway."
Defendant testified that he drank about seven beers between about 9:00 a. m. and the time he went into the Submarine Tavern; that he had never seen the murder weapon; that he never owned a gun, and that he had not been looking for decedent that day. During that day defendant and four others had made the rounds of several taverns in various neighboring towns as was usual for him and other construction workers to do on off days. The four men who accompanied defendant testified they observed no weapon on defendant's person all day. There was testimony that defendant's reputation was that of a peaceful, nonviolent person.
Sheriff Appley of Daviess County testified he came to the scene and saw decedent's body lying on a drain grate in the street. There was blood around the body. There was no pulse and he considered her dead. He took the pistol from Kohler. It contained two unexpended bullets and four empty shells. The gun was a .38 caliber Smith and Wesson with a four to four and one-half inch barrel and was eight inches long overall. In his opinion the gun was too large to have been wholly inserted into decedent's purse due to the other items that were in the purse.
A complete autopsy was not performed. The body was examined by Dr. H. W. Bailey who testified he observed two wounds in the right side of the head; there were powder burns surrounding one wound; one of the bullets went into the cerebrum and this caused the death; there was an exit hole on the left side of the face and another hole on the left side where a bullet was removed from the skull.
Mr. Steve Helton, a mortician in Gallatin, Missouri, examined the body, together with Virgil Strong, the coroner, and removed a lead slug from the head of the deceased.
Lt. Miller of the State Highway Patrol testified the slug was most probably fired from the .38 caliber pistol.
Appellant's first point is that the jury panel was not summoned and certified in accordance with Sections 494.250 and 494.280, RSMo 1969, V.A.M.S., and, therefore, was not lawfully constituted and certified and the trial court erred in overruling the challenge of defendant to the array.
It appears that certain technical procedural requirements of the stated statutes were, perhaps, not fully complied with in summoning the January 1971 Term petit jurors. No prejudice to defendant is shown and defendant withdrew his challenge to the array and waived any objections to the jury panel. Thereafter defendant attempted to withdraw his withdrawal and waiver but the court refused to permit him to do so. The court did not abuse its discretion. The point is overruled.
Defendant's second point asserts the trial court erred in overruling defendant's motion for discovery and inspection of the .38 caliber revolver and all bullets and slugs recovered after the firing of the revolver on the occasion in question.
Defendant's point three is that he was denied the right to have the revolver, cartridges and cartridge casings preserved and protected by the state for the purpose of discovering alleged material evidence, such as fingerprints and cosmetic residue.
Defendant asserts that it was the theory of the defense that the deceased had the revolver in her purse, in her pocket or on the floor of Taylor's automobile; that when defendant tried to get deceased to *416 leave the car and talk to him, she grasped the gun with her left hand while trying to close the door with her right hand; that the gun went off as a reflex action to deceased pulling the door with her right hand; that the bullet entered her skull through the left maxilla and exited at the right parietal continuing through the front right auto door window; that this shot was not necessarily fatal and that the second shot during the struggle on the street might have inflicted an undiscovered mortal wound, which, according to defendant's theory, would constitute an accidental homicide.
The Trooper took the gun, cartridges and the lead slug that were removed from the deceased's head to headquarters in Jefferson City and turned them over to Lt. Miller of the Highway Patrol laboratory on March 23, 1970. A fingerprint test was not requested and none was done. Lt. Miller's notes indicated that ballistics, blood and makeup comparison tests were requested. The evidence does not show who made the request. There were no blood or makeup comparison tests done. A ballistics test was performed.
In view of the extensive handling of the revolver and shells, the question of whether or not a fingerprint or cosmetic test could have been productive, if done, is purely speculative. The motion for discovery and inspection was filed June 10, 1970, almost three months after the homicide. The granting or refusing to grant the motion was, in these circumstances, discretionary with the trial court. There is no showing that the denial of the motion rendered defendant's trial fundamentally unfair. The trial court did not abuse its discretion in overruling the said motion. State v. Aubuchon, 381 S.W.2d 807 (Mo. 1964). Point II is overruled.
There is no evidence whatever that the state deliberately suppressed any evidence nor that it intentionally spoiled evidence. State v. Thompson, 396 S.W.2d 697 (Mo. 1965) is not in point. Point III is overruled.
Defendant's Point IV is that the trial court erred in overruling defendant's motion to require the exhumation of the deceased's body in order that an autopsy to determine the cause of death could be done.
On June 10, 1970, defendant filed a motion to require exhumation of the deceased's body for a pathological examination by Dr. Angelo Lapi, a pathologist, for the purpose of determining the cause of death; the points of entry and exit of any bullets and the angle through the body that each bullet traveled. This motion was overruled October 1, 1970.
Defendant contends the cause of death remains a mystery and the court erred in refusing to order the body exhumed. Dr. Lapi testified for defendant during the trial in January, 1971. In answer to a hypothetical question put by defense counsel in which the bullet wounds to the head of the deceased were hypothesized the doctor stated he could not determine the cause of death. He stated an autopsy would be necessary to determine the cause of death. Defense counsel made an offer of proof that an autopsy could still be done at trial time and it would reveal the entrance and exit wounds and the cause of death, and again moved the court to order the body exhumed. The court sustained the state's objection to the offer of proof and overruled the motion to exhume the body.
A review of the record reveals there was substantial evidence that there were two entrance bullet wounds on the right side of the head, one below the cheekbone and the second closer to the top of the head, on the right side of the forehead, and one exit wound in the left side of the head. There was another hole in the left side of the head through which a bullet had been removed. Dr. Bailey testified that one of the bullets went through the cerebrum of the brain and this caused the death.
*417 The question of the defendant's right to have a body exhumed for a postmortem examination in a criminal case does not appear to have been previously ruled upon in this state. Cases from other states cited by defendant involve factual situations in which the guilt or innocence of the defendant could not be established without exhuming the body. This is not the situation in this case. Here, there was eyewitness testimony to the entire matter and substantial evidence that the death was caused by the shots fired from the .38 caliber revolver and that the defendant is the one who fired those shots.
The rule stated at 22 Am.Jur.2d, p. 568, Section 19, as follows, is sound: "The right of relatives of a deceased person to have his corpse remain undisturbed after burial must yield to the public interests, and in a prosecution for homicide, the exhumation of the victim's remains may be ordered on the application of the state or of the defendant where it appears to be absolutely essential to the administration of justice. Thus, where the question of the guilt or innocence of the accused cannot be determined except by exhumation and autopsy of the body of the deceased, the court may and should order the disinterment even against the will of his relatives, and even though there is no statute specifically authorizing such proceedings. However, whether exhumation will be allowed is a discretionary matter for the court.
"An application by the defendant in a criminal prosecution for an exhumation and autopsy should be made before the trial, and a denial of such application after the trial is not error, especially where no valid reason for the delay is given."
There were two eyewitnesses to the events of this homicide, each of whom saw a portion of the occurrence. There is no direct evidence that the deceased had the revolver in her possession at any time. There is no evidence that the shot that went through the car door window struck the deceased at all. The evidence is to the contrary. Mrs. Taylor and Mrs. Sailor both saw the deceased and defendant struggling after the first shot was fired. As to the second shot, Mrs. Sailor actually saw the gun in defendant's hand and saw the gun discharged in the direction of the deceased; both ladies saw the deceased fall to the pavement immediately after that second shot was fired and saw the deceased lay motionless on the ground; Mrs. Taylor then heard the defendant say "If I can't have you . . ." and then both witnesses saw the defendant point the gun at the deceased's head and fire a third shot.
The revolver was taken from defendant by Kohler immediately after defendant said to Kohler "Goddam you, Curt, get out of here or you will get it, too." Kohler then gave the weapon to Sheriff Appley. The Sheriff took no precaution to preserve fingerprints in handling the gun and later that day turned the revolver and the two loaded and four spent cartridges over to Trooper Jefferson of the State Highway Patrol.
The factual situation in the instant case does not demonstrate that exhuming the body was absolutely necessary to the fair administration of justice. It was a matter for the trial court's discretion and that court did not abuse the discretion vested in it. The point is overruled.
Appellant's fifth point is the court erred in refusing defendant's offer of proof to the effect that Dr. Lapi would testify that an autopsy was needed to determine the cause of death and that it was still feasible at trial time to do an autopsy.
This court has considered the offer of proof in considering Point IV. The point is overruled.
Defendant's Point VI is that the court erred in refusing to permit defendant to adduce evidence on the availability of qualified pathologists, after permitting the state to introduce such evidence over defendant's objection.
*418 This was a collateral matter and no offer of proof was made and, therefore, the court did not know what the testimony would be. The point is overruled.
Point VII is that the state failed to establish the corpus delicti in that the element of cause of death was left to speculation and the criminal agency of defendant was not established by evidence.
In State v. Bass, 251 Mo. 107, 157 S.W. 782, 787 (1913), cited by defendant, the court held the corpus delicti consisted of establishing by evidence that, first, the deceased died from the effects of the wound and, second, that the wound was unlawfully inflicted by the defendant.
The evidence here was sufficient from which the jury could find that the deceased died from gunshot wounds unlawfully inflicted by defendant. The point is overruled.
Point VIII is that the physical evidence failed to establish the guilt of defendant of any offense beyond a reasonable doubt. The court holds that the evidence was sufficient to permit the jury to find defendant guilty beyond a reasonable doubt. This point is overruled.
Defendant's Point IX asserts the court erred in sustaining the state's objection to the admission into evidence of defendant's statement to Sheriff Appley and in sustaining the state's objection to the use of certain model cars in connection with a plot of the scene.
The substance of defendant's statement to Sheriff Appley was that he was having trouble with his wife; that the "big fellow" in the tavern had been taking her out; that defendant asked deceased to talk to him and he thinks she came out of the tavern; that he didn't know his wife was in the tavern when he went in; that he knows nothing about the shooting and that he was agreeable to taking a breathalyzer test.
Practically all of the above was testified to by defendant, Sheriff Appley and other witnesses during the trial. The point does not warrant an exploration of the law relating to the admissibility of a defendant's statement in defendant's behalf. It simply was not prejudicial and has no merit in this case. The same is true concerning the use of the model automobiles. The point is overruled.
Defendant's Point X is that the court erred in admitting Exhibit 3 (a colored photo of the right side of deceased's face showing a hole in her cheek and blood around her ear); Exhibit 4 (a colored photo of the top right side of deceased's head and right cheek showing a hole in the top right side of deceased's head, a hole in the right cheek and a small amount of blood) and Exhibit 5 (a colored photo of the left side of her face showing a hole in her left cheek, an incision in the right side of her neck and a small amount of blood). All photos were 4" × 4" in size.
Defendant contends these exhibits were inflammatory.
Defendant examined and cross-examined witnesses extensively concerning the nature and location of wounds and cause of death. The photos, while not pretty, are not gory. They were admissible to show the nature and location of the wounds. The point is overruled.
Point XI is that the court erred in permitting the state to cross-examine defendant beyond the scope of direct examination.
Defendant denied possession of the gun immediately prior to the shooting and stated he had no recollection of the event at all. The state asked defendant a series of questions relating to whether or not he could have shot his wife. Defendant objected several times on the grounds that the cross-examination called for speculation, that it was beyond the scope of the direct and that the questions were repetitions. *419 The court finally sustained the objection on the grounds that the questions were repetitious.
Section 546.260, RSMo 1969, V.A.M.S., authorizes cross-examination of a defendant in a criminal case to any matter referred to in direct examination. The shooting of the deceased was referred to in the direct examination and was central to the entire case. The cross-examination did not violate the statute. The point is overruled.
Point XII is that "the conduct of the prosecuting attorney in his questioning and remarks was so prejudicial as to bias and prejudice the jury beyond the power of the trial court to cure by sustaining objections or by reprimand."
The various instances recited in appellant's brief of alleged misconduct on the part of the prosecutor need not be set forth here. It appears that the prosecutor did disregard the court's ruling on several occasions and he should not have done so. The defendant does not appear to be complaining of any error on the trial court's part, as eight of defendant's nine objections were sustained and defendant did not request a mistrial. This matter was presented to the trial court in defendant's motion for new trial and overruled. The trial court was in a better position to assess the impact of the prosecutor's conduct and did not abuse its discretion in refusing to grant a new trial. The point is overruled.
Point XIII is that the trial court erred in permitting the prosecutor, over objection, to comment improperly on the fact that defendant testified in his own behalf, and to draw therefrom an inference of guilt.
In closing argument defense counsel told the jury that his client was not required to testify but that defendant did not avail himself of the Fifth Amendment and did testify; that defendant answered all questions to the best of his ability and demonstrated that he was a calm, affable, straightforward, honest man.
The prosecutor, in rebuttal argument, commented adversely on defendant's position that he had amnesia by arguing that since defendant had originally denied knowledge of the shooting to the police officer, the defendant was "stuck with that statement and couldn't switch it." Defendant's objection was overruled. Defendant contends that the prosecutor was not entitled to comment on the fact that defendant did testify anymore than he could comment on defendant's failure to testify.
The argument was retaliatory to defense argument and the subject of defendant's credibility was a proper subject of comment.
The defendant objected to the subsequent portion of the state's argument, the objection was sustained, and the jury was instructed to disregard it. No further relief was sought.
The point is overruled.
Point XIV is that the court erred in giving Instruction No. 6, which covered murder in the first degree, second degree murder and manslaughter.
Defendant was convicted of murder in the second degree. Defendant's first complaint concerning Instruction No. 6 is to the manslaughter portion of it and is that the word "feloniously" was not used in defining manslaughter but was used in the two murder definitions. It is contended that this could lead the jury to believe that manslaughter was not a felony and would, therefore, dissuade the jury from convicting of manslaughter because it would think it was acquitting defendant of a felony. Defendant agrees that the failure to use "feloniously" in a manslaughter *420 instruction is not error. There is no merit to defendant's contention.
Defendant's second complaint concerning the manslaughter portion of Instruction No. 6 is that the only finding it required was the defendant did "shoot and kill [deceased]," whereas the murder portions of the instruction required a finding that the defendant "did make an assault upon [deceased] with a certain loaded pistol and did * * * discharge and shoot said pistol at and upon the body of the said. . . . ." Defendant claims the difference in phraseology diminished the quantum of evidence necessary to convict of manslaughter and confused the jury.
The manslaughter instruction required the jury to find that defendant "did wilfully, unlawfully, and intentionally shoot and kill etc." This phraseology is simple, clear and unconfused. The point has no merit.
Defendant's third complaint against the manslaughter instruction as part of Point XIV, and defendant's points XV and XVI are basically the same in that defendant asserts the trial court erred in failing to instruct on excusable or accidental homicide.
The evidence has been set forth, supra, and will not be repeated here. There was no evidence to support the submission of excusable or accidental homicide. The points are overruled.
Defendant's seventeenth point is that because of the errors alleged in Points 2, 3, 4, 7, 11, 12 and 13 defendant was deprived of a fair trial and equal protection of the law in violation of Article 1, Sections 2, 10 and 18(a), Const. of Mo. and the United States Constitution, Amendment 14.
The points referred to, supra, have been overruled. Point 17 is also overruled.
Defendant's eighteenth point is that the trial court abused its discretion in (a) refusing to grant defendant credit for the time served in jail awaiting trial, and (b) refusing to permit defendant to prosecute this appeal as a poor person.
Defendant asserts that he served 348 days in jail awaiting trial. The trial court denied defendant credit for jail time while awaiting trial against the ten year sentence. At the time this was done the question of whether pre-trial jail time would be credited against the sentence was discretionary with the trial judge, and the court did not abuse its discretion in this case. Section 546.615, RSMo 1969, V.A.M.S. This section, however, was amended in 1971 so as to require that pre-trial jail time be credited against the sentence and the state has requested the court to consider the applicability of section 546.615, as amended, in view of the court's holding in State v. Reiley, 476 S.W.2d 473 (Mo.1972).
In State v. Reiley, supra, the court held that section 195.200, subd. (1), by which the maximum punishment for the offense of possession of five grams or less of hashish was reduced from twenty years imprisonment to a jail term of not more than one year and/or a fine, was applicable to Reiley because Reiley's conviction was still pending on appeal, and, therefore, not final, at the time section 195.200 became effective and that section 1.160(2), RSMo 1969, V.A.M.S., required that the reduced or lesser maximum penalty be applied to the case.
The instant case presents a situation similar to State v. Reiley in that not only does section 546.615, RSMo, as amended, effective in September, 1971, have the effect of lessening the punishment by reducing the amount of time to be served after conviction by that amount of time spent in jail awaiting trial on the charge, but that statute is also part of the "existing laws" which must govern this case because here, as in Reiley, the case was still pending on the effective date of section 546.615, as amended. Section 1.160(1), RSMo 1969, V.A.M.S., requires all pending "proceedings *421 shall be conducted according to existing laws" (emphasis added). Consequently section 546.615, as amended, is applicable to this case.
This court holds that section 546.615, as amended 1971, is applicable to those cases wherein the judgment has not become final prior to September 28, 1971, the effective date of section 546.615, as amended. The defendant is entitled to credit for jail time awaiting trial in this case against his ten year sentence. The court does not definitely know exactly how many days defendant spent in jail prior to conviction, however, the officer required by law to deliver defendant to the Department of Corrections will furnish this information to the Department of Corrections in compliance with section 546.615(3), as amended, and the Department of Corrections will then allow the jail time credit against the sentence.
The second contention made in Point XVIII is that the trial court erred in refusing to permit defendant to prosecute this appeal in forma pauperis. This question is largely discretionary with the trial court, which discretion was not abused in this case.
Defendant's nineteenth and last point is that the trial court erred in overruling the motions of defendant (a) for acquittal as developed in points seven and eight of this appeal; (b) for judgment of acquittal; and (c) for new trial; for all the reasons stated in said motions on this appeal.
This point merely cumulates other points previously overruled on this appeal and is, therefore, also overruled.
As modified, with respect to credit for pre-conviction jail time, the judgment is affirmed.
SEILER, J., concurs.
HOLMAN, J., concurs on meritsdubitante on question of allowance of jail time. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572379/ | 499 S.W.2d 160 (1973)
Jackie Vance LOWERY, Appellant,
v.
The STATE of Texas, Appellee.
No. 45613.
Court of Criminal Appeals of Texas.
September 25, 1973.
*161 Emmett Colvin, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
Appeal is taken from a conviction for murder. Punishment was assessed by the jury at death.
Morris J. Patterson, an employee of a vending machine company, was shot and killed during an armed robbery in Dallas on the afternoon of October 26, 1970.
Floyd Johnson and Barney Slakey were counting coins in the vending company office when the robbery occurred. Both made positive in-court identifications of appellant as the one of two robbers who drew a long-barrelled revolver and ordered them to lie on the floor at the rear of the office. The other robber brandished a sawed-off shotgun.
While they were on the floor, another employee entered the front door. They heard one of the robbers speak, then a pistol shot, and the employee, Patterson, fell to the floor beside Slakey. Patterson was shot in the back, and the bullet, a .357 magnum, passed completely through his body. He died thirty minutes later. Neither of the two witnesses actually saw the shooting occur.
On October 28, 1970, the Dallas Police received a tip from an unidentified informer that appellant was involved in the robbery and murder. The witness Slakey was then asked to view a photographic display, at which he identified a picture of appellant as that of one of the robbers. Based *162 on the tip and the photographic identification, an affidavit was filed and a warrant issued for appellant's arrest.
Officers, acting pursuant to an arrest warrant, apprehended appellant in an apartment in Dallas on October 29, 1970.
Appellant challenges the legality of the arrest, contending that the affidavit upon which the arrest warrant was issued was based upon hearsay and did not comply with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L. Ed.2d 723 (1964).[1]
He urges that he was harmed by the illegal arrest through the admission of a .357 magnum pistol seized incident to his arrest. The pistol was discovered in plain view on the floor beside appellant when the officers entered the apartment living room. If the arrest was unlawful, then the pistol would not have been admissible.
The affidavit in issue first alleges that appellant committed the offenses of robbery and murder, the source of which allegation was "reliable information from an informant." Clearly, the allegation is hearsay. The Supreme Court has held that the same standards set forth in Aguilar exist for hearsay affidavits supporting arrest warrants as exist for those given in support of search warrants. Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), reversing Barnes v. State, Tex.Cr. App., 390 S.W.2d 266.
The affidavit is in the record before us. Dusek v. State, Tex.Cr.App., 467 S.W.2d 270. The pertinent portion of the affidavit reads: "Affiant has reliable information from an informant that Jackie Vance Lowery did commit the offense of armed robbery and murder of Morris J. Patterson on the 26th day of October, 1970 at approximately 5:40 P.M. Mr. Barney Slakey has positively identified a picture of Jackie Vance Lowery at 9:05 P.M. on the 28th day of October, 1970 as the person who committed the offense of armed robbery and murder of Morris J. Patterson. The offense occurred at 1119 Wayne Street at the City Cigarette Service Office."
The affidavit contains neither underlying facts upon which the informer concluded the appellant was involved nor any circumstances from which the affiant concluded the informer was credible and his information reliable. Thus, with respect to the first sentence, neither of the two prongs of Aguilar has been satisfied. Spinelli v. United States, 393 U.S. 410, 89 S. *163 Ct. 584, 21 L.Ed.2d 637 (1969); cf. Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744; Powers v. State, Tex.Cr.App., 456 S.W.2d 97.
A hearsay affidavit, otherwise insufficient under Aguilar, may be buttressed with corroborating facts obtained in surveillance or information obtained from other sources, Spinelli v. United States, supra; Polanco v. State, Tex.Cr.App., 475 S.W.2d 763. The facts recited for corroboration purposes must, however, be based upon personal knowledge of or observations by the affiant. Ruiz v. State, Tex. Cr.App., 457 S.W.2d 894 (concurring opinion).
The corroborating facts recited in the affidavit before us are: "Barney Slakey has positively identified a picture of Jackie Vance Lowery as the person who committed the offense of armed robbery and murder of Morris J. Patterson." The affidavit does not provide the necessary information that the identification was made in the affiant's presence, if indeed it was, nor that Slakey was a person known to affiant as an eyewitness to the robbery-murder who could therefore identify the offender. Without qualifying the corroborating facts as the personal knowledge of the affiant, the additional facts are corroborative of nothing, see Spinelli v. United States, supra (concurring opinion of Mr. Justice White), and the affidavit is still deficient.
It is possible that the second sentence, which recites that Slakey identified appellant as the offender, could itself provide probable cause for a warrant to issue. We immediately note, however, that this statement, too, is hearsay.
So again we look for underlying facts upon which this named informer concluded appellant was the offender. We find there are none. From testimony of several State's witnesses, including the informer and the affiant, we know that Slakey was an eyewitness to the robbery and present when the fatal shooting occurred. This vital fact, known to the affiant, was not included in the affidavit.
The difficulty we have with this affidavit is the same as that of the Supreme Court in Aguilar.
"The affidavit here not only `contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an `affirmative allegation' that the affiant's unidentified source `spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that the narcotics were in petitioner's possession." 378 U.S. 108 at 113-114, 84 S.Ct. 1509 at 1513.
Although this part of the affidavit recites identification by a named individual, the same element of personal knowledge by him or qualification of his capacity to identify the offender is not present. While the evidence reflects these facts were known to the officers, the affidavit is devoid of such information. The inferences from the facts which lead to the complaint "(must) be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). The purpose of the complaint, then, is to enable the appropriate magistrate to determine whether the "probable cause" required to support a warrant exists. Giordenello v. United States, 357 U. S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509 (1958).
The magistrate could not have found probable cause in this case absent a showing that Barney Slakey was an eyewitness. The affidavit fails to reflect this vital fact.
We must conclude that the affidavit provided the magistrate with no basis for an independent determination of probable *164 cause, and the warrant that issued therefrom was illegal.
Having found the affidavit invalid and having concluded a lawful arrest could not have been made with the arrest warrant, we look for a basis upon which the arresting officers could have effected a warrantless arrest.[2]
Officer Hallam testified that he and Officer Potts were among approximately twenty officers who participated in appellant's arrest. Both Hallam and Potts knew of the informer's tip that appellant was the offender, the informer having conveyed the tip directly to Potts. Of course without more information, this tip alone did not constitute probable cause, Whiteley v. Warden supra; Cole v. State, supra; however, both also knew that Barney Slakey was an eyewitness to the robbery, present during the shooting, and that Slakey had identified appellant in a photographic display as the robber-murderer.
The total information available to them at the time of the arrest would clearly have warranted "a man of reasonable caution in the belief" that appellant had committed the offense. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Almendarez v. State, Tex.Cr.App., 460 S. W.2d 921. Within the limits of the Fourth Amendment, the law of the State determines the validity of a warrantless arrest, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), and in determining if the officers in the instant case could effect a lawful arrest without warrant, we look to the statutes of this State.
Chapter Fourteen, Vernon's Ann. C.C.P., provides the authority for most lawful warrantless arrests in Texas.[3] An arrest may be made with probable cause when the authorities, be it peace officers or magistrates, have reasonable belief that an offense is being committed in their presence. Articles 14.01, 14.02, V.A.C.C. P.; Daniels v. State, Tex.Cr.App., 476 S. W.2d 12. The record in the instant case reveals no evidence that the arresting officers believed appellant was committing an offense in their presence when they converged upon the Sherwood Forest Apartments. The sole reason for the arrest was their probable cause to believe that appellant had already committed (and completed) an offense. When officers enter the premises to effect a warrantless arrest under Article 14.01, V.A.C.C.P., they must have adequate cause to suspect an offense before they enter, and justification cannot be developed afterwards. Delaporte v. State, Tex.Cr.App., 471 S.W.2d 856.
When officers discover a person in a suspicious place and under circumstances which reasonably show an offense has been or is about to be committed, then they may make a lawful warrantless arrest under Article 14.03, V.A.C.C.P.; Brown v. State, Tex.Cr.App., 481 S.W.2d 106. Again, the facts of this case are indicative of nothing that would characterize the Sherwood Forest Apartments as a suspicious place. There is no evidence of how the officers knew appellant was at that location, nor is there evidence concerning the circumstances of his presence there. If the officers knew of unusual conditions under which appellant was in the apartment, they did not disclose these facts at trial and there is no way to conclude the officers arrested appellant in a suspicious *165 place or under suspicious circumstances apart from their well founded belief that he had committed a serious crime.
Article 14.04, V.A.C.C.P., affords the remaining possible basis for a warrantless arrest; this Article would apply when officers received information from a credible person that a felony has been committed and that the offender is about to escape so that there is no time to procure a warrant. This Court has upheld warrantless arrests under Article 14.04, V.A.C.C.P., when officers had probable cause for an arrest and a belief that the offender was about to escape. Thornton v. State, Tex.Cr.App., 451 S.W.2d 898. This Court has also held that Article 14.04, V.A.C.C.P., does not apply if officers, having probable cause, do not believe at the time of the arrest that the offender is about to escape. Vinson v. State, 138 Tex.Cr.R. 557, 137 S.W.2d 1048; Rippy v. State, 122 Tex.Cr.R. 101, 53 S.W.2d 619.
In the instant case, there is no evidence that the officers believed the appellant was about to escape. Indeed, their commendable efforts in obtaining a warrant make evident that they had no such belief and could not have justified a warrantless arrest under Article 14.04, V.A.C.C.P.
Our analysis of the facts leads us to conclude that a lawful warrantless arrest could not have been made.
Appellant's arrest was illegal, and the admission of the pistol seized incident to that arrest was therefore improper. We cannot say that the error in admitting the alleged murder weapon was harmless beyond a reasonable doubt, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Appellant has also challenged the admissibility of other evidence seized urging that the search of the apartment immediately after his arrest exceeded the scope of a lawful search incident to an arrest as defined in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). A sawed-off shotgun similar to one wielded by one of the robbers and five bags of coins similar to those taken in the robbery, were discovered inside an overnight bag and a musical instrument case in an upstairs bedroom. (Appellant was arrested on the first floor of the apartment).
The State urges that the warrantless search of the entire apartment was proper because the officers obtained a freely given consent for the search from a woman, Joyce Strawn, who was present in the apartment at the time of the arrest. Appellant contends that Joyce Strawn could not have authorized the search because she did not have the capacity to consent to a search.
Third persons can consent to searches when they exercise control over and have authority to use the premises being searched. The Supreme Court discussed the issue of capacity briefly in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).
In Frazier, petitioner shared the use of a duffel bag with his cousin. When the cousin, Rawls, consented to police search and seizure of the cousin's clothes in the bag, the consent was effective also to authorize seizure of petitioner's clothes therein.
"Since Rawls was a joint user of the bag, he clearly had authority to consent to its search .... Petitioner, in allowing Rawls to use the bag and in leaving it in (Rawls') house, must be taken to have assumed the risk that Rawls would allow someone else to look inside." 394 U.S. 731 at 740, 89 S.Ct. 1420 at 1425.
This Court, in Sorensen v. State, Tex.Cr. App., 478 S.W.2d 532, recognized that the Fourth Amendment's protection "depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation *166 of freedom from governmental intrusion." 478 S.W.2d at 533, quoting from Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). That one person's consent may authorize seizure of evidence against another person is concomitant to the reduction in privacy one expects when (use of) an area is shared with another. See Frazier v. Cupp, supra.
It is a question of fact whether the consenting party has the right to use and occupy a particular area to justify his permitting officers to search that area. Joyce Strawn would have had the capacity to consent to the instant search only if she had the right to use and occupy the apartment.
The question of Strawn's capacity to consent was first raised during a hearing out of the presence of the jury following appellant's objection at trial to introduction of the fruits of the search. The only evidence bearing upon her use and occupation of the apartment was the testimony of one of the officers who conducted the search, Officer Rose, that he concluded she was living there because he observed some of "her" clothing and other unidentified items in the apartment, presumably in the downstairs area. None of these items or clothes were described or introduced into evidence. No witness related having asked her identity, whether she lived in the apartment, how long she had been there, or what her relationship was to the appellant. There is likewise no evidence of any statement by her about her relationship to the appellant or the apartment. The problem of identifying Strawn's capacity was complicated by the fact that she did not testify at this stage of the trial. Neither did appellant testify, and the only evidence pertinent to this issue came in testimony of the officers.[4] This evidence may be summarized by stating three facts:
(1) Joyce Strawn was in the apartment.
(2) Women's clothing and "other items" were in the apartment.
(3) Strawn told the officers they could search the apartment.
In Sorensen v. State, supra, capacity to consent was an issue, and the evidence clearly supported the legality of the search. The defendant's mother testified that she consented to the search of her home in which her twenty year old son also resided. From her testimony about her activities in the home and her access to all parts thereof, it was clear she had rights to use and occupy the entire home and therefore the capacity to permit a search to include the room used by her son.
In Powers v. State, Tex.Cr.App., 459 S. W.2d 847, this Court held the evidence sufficient to establish the capacity of a woman to consent to the search of an apartment. The evidence came in testimony of one of the officers who conducted the search who testified that it was the woman's apartment, that her clothes were there, and that she changed clothes in the apartment.
The instant case is in contrast to these and numerous cases in other jurisdictions in which the evidence contained sufficient facts to prove the consenting party had the right to use and occupy the premises and thus capacity to consent to a search thereof.[5]
There remains another question concerning the search, for even if Strawn had the authority to consent, the search that resulted *167 therefrom would be legal only if the consent was voluntary.
Appellant urges that the State has not met its burden in showing that consent was voluntarily given.
The United States Supreme Court, in the recent case of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973),[6] said "that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied."
The circumstances of appellant's arrest and the ensuing search of the apartment were described by several officers who testified that about twenty officers went to the apartment to effect appellant's arrest. Two officers, one with pistol drawn, the other with a shotgun, knocked on the door. They identified themselves as police, announced they had an arrest warrant for appellant, and they were immediately admitted into the apartment by Joyce Strawn, who was then 17 years old. The officers at once spotted appellant sitting on the floor in the living room. They moved to him, placed him in handcuffs, and took into their possession the .357 magnum revolver that was on the floor beside appellant.
Officer Rose testified that Joyce Strawn consented to a search of the apartment. Rose gave no testimony about how consent was obtained, how it was requested, or what, if any, conversation took place between the officers and Strawn.
Detective Hallam testified that he entered the apartment carrying a shotgun just as appellant was being handcuffed. There were at least four other officers inside before him. He said he heard the girl tell Officer Rose, "She had no objection to him going through the apartment." He gave no testimony concerning how the consent was obtained nor what conversation preceded it.
Deputy Wiseman testified that he and two other officers entered through the backdoor and immediately went upstairs in the apartment because they thought they heard persons in the apartment other than the appellant and Strawn. They found no one and then commenced a search of the apartment. In one of three upstairs bedrooms, they found the sawed-off shotgun in a musical instrument case under a bed, and in the closet they found an overnight bag that contained the bags of coins.[7]
The scene described by State's witnesses is that at least five and possibly more officers were in the room with pistols and shotguns in their hands. Appellant was under arrest and handcuffed, and the 17 year old girl then told Officer Rose "that she had no objection to him going through the apartment."
The Supreme Court, in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 *168 L.Ed.2d 797 (1968), cautioned that submission to authority would not suffice. Here, as in Bumper, the officers were armed and looking for someone other than the person who consented to their entry. This Court and others have been critical of consent given in the face of numbers of armed officers. The display of weapons is a coercive factor that sharply reduces the likelihood of freely given consent. See Weed v. United States, 340 F.2d 827 (10th Cir. 1965); Paprskar v. State, 484 S.W.2d 731.
The totality of circumstances in the instant case leads us to conclude that the court and jury's[8] finding that consent was freely and voluntarily given by one in a position to give it is not supported by the evidence.
For the errors discussed, the judgment is reversed and the cause is remanded.
Opinion approved by the Court.
NOTES
[1] Although neither appellant nor the State have briefed this point, the record reflects a question was raised at trial as to whether the disputed affidavit was filed in the Justice Court to obtain an arrest warrant, or whether it was filed to support a murder case that was filed against appellant in that court on the same morning. This Court has held that affidavits filed for purposes of prosecution need not allege probable cause with that specificity necessary for issuance of an arrest warrant. Chapa v. State, Tex.Cr.App., 420 S.W.2d 943; Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113. Affidavits filed for issuance of arrest warrants must provide the magistrate with "sufficient information to support an independent judgment that probable cause exists for the warrant." (Whiteley v. Warden, Wyoming Penitentiary, 401 U.S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306, 311 (1971); see Cole v. State, Tex.Cr.App., 484 S.W.2d 779 at n. 2. The trial court held that the affidavit was not filed to support the warrant and that it was therefore sufficient. An examination of the record, however, reveals that Officer Hallam stated twice during his testimony that he filed the affidavit for the specific purpose of obtaining an arrest warrant. After obtaining the warrant, officers proceeded to an apartment house where appellant was arrested. The trial court's conclusion that the warrant flowed from filing of a case is not supported by the evidence.
In McClung's Texas Criminal Practice (1971), p. 13, it is stated: "To justify issuance of a warrant upon a complaint or affidavit, the magistrate must require the constitutional safeguards of probable cause to be incorporated in the complaint or affidavit or, at least, if the accusatory pleading is not to contain such underlying facts, an additional affidavit should be signed and filed with the accusatory affidavit, the former stating the underlying facts and circumstances and forming the basis of the issuance of the arrest warrant."
[2] See Whiteley v. Warden, supra; United States v. Kennedy, 457 F.2d 63 (10th Cir. 1972); United States ex rel. Gockley v. Myers, 450 F.2d 232 (3rd Cir. 1971).
[3] Other statutory authority for warrantless arrests such as for violation of the Texas Motor Vehicle, Laws, Article 6701d, Sec. 153, Vernon's Ann.Civ.St., and to prevent the consequences of theft, Article 18.22, V.A. C.C.P., is clearly inapplicable here and will not be discussed.
[4] Joyce Strawn did testify later in the trial as a witness for the defense. At that time, she denied living in the apartment, denied having clothing in the apartment, and denied having consented to the police search.
[5] United States v. Wilson, 447 F.2d 1 (9th Cir. 1971); White v. United States, 444 F.2d 724 (10th Cir. 1971); United States v. Wixom, 441 F.2d 623 (7th Cir. 1971); United States v. Thompson, 421 F.2d 373 (5th Cir. 1970); Spencer v. People, 163 Colo. 182, 429 P.2d 266; People v. Smith, 108 Ill.App.2d 172, 246 N.E.2d 689; see 31 A.L.R.2d 1078.
[6] In Schneckloth v. Bustamonte, supra, as in the instant case, the party alleged to have given the consent was not advised that he had a right to refuse to consent. The United States Supreme Court said, "Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. See Cole v. State, Tex.Cr.App., 484 S.W.2d 779; DeVoyle v. State, Tex.Cr.App., 471 S.W.2d 77.
[7] The situation described by Deputy Wiseman is distinguishable from the search and seizure discussed in Simpson v. State, Tex.Cr.App., 486 S.W.2d 807. In Simpson, heroin was found on the second floor of the apartment after the defendant's arrest downstairs. Officers went upstairs in pursuit of a man who had fled when they entered the apartment. This Court held that seizure of the heroin, which was in plain view, was lawful and that the officers acted properly in following the man upstairs as a protective measure to ensure their safety.
In the instant case, even if the officers properly went upstairs as a protective measure, their exploration into an overnight bag and a musical instrument case was unnecessary for that purpose, and the search and seizure cannot be justified under Simpson.
[8] The court instructed the jury relative to waiver of search warrant by a person in control of the premises consenting to the search. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917782/ | 1 Mich. App. 190 (1965)
135 N.W.2d 579
PEOPLE
v.
WURTZ.
Docket No. 231.
Michigan Court of Appeals.
Decided June 21, 1965.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, *192 Prosecuting Attorney, and Thaddeus F. Hamera, Assistant Prosecuting Attorney, for the people.
Karl G. Heidemann, for defendant.
McGREGOR, J.
In his brief on appeal, defendant described the circumstances of his arraignment as follows:
"Erwin Wurtz, a young man of approximately 26 years of age, was brought before Macomb county Circuit Judge Howard R. Carroll on October 2, 1957, for arraignment, on the charge of robbery armed. * * * He was not represented by counsel at the arraignment. The information charged Wurtz with having robbed Reichardt Tassie Tavern, * * * on September 28, 1957, at approximately 2:00 a.m. along with William Allen and Doris Morris. It is alleged that immediately after the three left the establishment, Mr. Reichardt notified authorities and shortly thereafter they were stopped by a Macomb county sheriff's patrol car. It is further alleged that Allen, the only one of the defendants with a gun, started firing and as a result was killed by the sheriff's deputies, and Doris Morris and Erwin Wurtz were arrested and lodged in the Macomb county jail."
Wurtz was convicted of armed robbery and sentenced to life imprisonment upon his plea of guilty made at the arraignment.
On December 19, 1962, defendant initiated an attack on his conviction, with the assistance of an attorney, by filing a motion to set aside the conviction and vacate sentence and for a new trial. The defendant contended that his waiver of counsel at arraignment was invalid on three grounds: (1) because he lacked an apprehension of the true nature of the charge, (2) because he was not informed of the range of allowable punishment for the crime *193 charged, and (3) because his mental condition was such that he was unable to make a valid decision.
After consideration of the defendant's prison medical record, the testimony of two psychiatrists, and other evidence presented by the defendant, the trial court entered an order, November 8, 1963, denying the motion for a new trial. This appeal is from that order.
To facilitate a full and intelligible discussion of this case, the proceedings on arraignment are set forth in full as follows:
"Mr. McKenzie: If the court please, this is the case of the people against Erwin Wurtz, criminal file number 6705. The defendant was duly bound over to this court to be arraigned on the information charging him with the offense of robbery armed, in violation of CL 1948, § 750.529 (Stat Ann 1954 Rev § 28.797). Defendant has failed to furnish $15,000 bond and has been committed. He stands in his own proper person before the court and has been furnished with a copy of the people's information, which information reads as follows:
Thereupon Mr. McKenzie read the information.
"The Court: Mr. Wurtz, the information that has just been read to you contains the charge of which you are accused.
"The Defendant: Yes, sir.
"The Court: At this time the law presumes you to be innocent and you stand before me as an innocent person. Now, you have a right to plead guilty to this; you have a right to plead not guilty to it; you have a right to not plead at all in which case we will enter a plea of not guilty; you have a right to a trial by a jury of 12 people; you have a right to have a trial by a judge, if you don't want a jury; you have a right to have an attorney represent you, an attorney of your own choosing; or if you are unable to provide a lawyer yourself and can satisfy the court that you are unable to, then the *194 court will appoint an attorney to represent you. You have a right to have an attorney advise you and answer any questions you want to about this before you plead. So, do you understand what I have told you?
"The Defendant: Yes, Your Honor.
"The Court: You are charged with robbery armed, that you and at least one other person did on the 28th of September, 1957, by using a gun take certain property from Nicholas Reichardt in Harrison township, Macomb county. Now, to this information charging you with robbery armed, how do you want to plead?
"The Defendant: To the charge of armed robbery, I plead guilty; to the statement that I was carrying a weapon this was not so. I was not armed.
"The Court: In Michigan, if two or more persons are together and one of them carries a gun and commits an armed robbery and if the persons with him, knowing that he has the gun, aid him in committing that armed robbery, then they are all treated alike. They are all charged as what we call the principals, accessories.
"The Defendant: I plead guilty.
"The Court: Mr. Wurtz, has anyone promised you any leniency or told you that the judge would go easier on you if you pleaded guilty than he would if you had a trial and were found guilty?
"The Defendant: No, Your Honor.
"The Court: No one has anyone made any promises to you?
"The Defendant: No, Your Honor.
"The Court: Has anyone told you that they would talk to the judge and that if you pleaded guilty they would ask him to go easier on you?
"The Defendant: Not in that sense.
"The Court: Well, has any person in any sense, in any way at all, led you to believe that the court would be easier on you if you pleaded guilty than if you were tried by a jury and found guilty?
"The Defendant: No, Your Honor.
*195 "The Court: Has anybody threatened you in any way?
"The Defendant: No, Your Honor.
"The Court: Has anybody mistreated you in any way?
"The Defendant: No, Your Honor.
"The Court: I want to say this further, Mr. Wurtz, if you want to talk to me alone in just the presence of the court officer here, I will talk to you alone.
"The Defendant: If you wish to, Your Honor.
"The Court: If you wish me to I will, you have that right. I will be glad to discuss the matter alone with you if you would like to do that.
"The Defendant: I would.
"The Court: You would like to?
"The Defendant: Yes, Your Honor.
"The Court: All right. (It is now 18 minutes after 9) (Defendant stepped into the judge's chambers.) 9:24 o'clock a.m. (Court continued.)
"The Court: I have been talking with the defendant in the office in private with only the court officer present. No regular deputy sheriff or prosecutor were present, and after talking to the defendant it appears to the court that his plea is free and voluntary; that there have been no threats of any kind; no promises of any kind. I am, of course, convinced that he understands the nature of the offense. So the plea of guilty will be accepted. Defendant also stated very freely that he has not been mistreated in any way by any person, sheriff's deputy, sheriff, police officer, or anyone else. That is true, Mr. Wurtz?
"The Defendant: Yes, Your Honor.
"The Court: You have been treated very well by everyone?
"The Defendant: Yes.
"The Court: Plea will be accepted and will be committed without bond. Sentence will be set for Thursday, October 10, at 9:00 in the morning, 9:00 a.m."
*196 The record on arraignment does not show the conversation which took place between the defendant and the trial judge in chambers. At the February 4, 1963 hearing, on the motion for a new trial, the judge indicated his recollection of this conversation:
"The Court: Well, when I talked to him alone my memory is this he took this attitude `No, I don't want a trial. I don't want an attorney. I broke the law. I want to be punished'. Now he took that attitude; that was in general his attitude".
In Michigan, any person charged with a felony has the right to legal counsel before being required to plead at arraignment, by virtue of GCR 1963, 785.3. Its predecessor, Court Rule No 35A (1945), guaranteed this same right at the time of the Wurtz arraignment. The first issue this court must resolve is whether the trial judge complied with the provisions of this rule. The relevant provisions are as follows:
"Criminal Procedure Arraignment and Sentencing.
In every prosecution wherein the accused is charged with a felony the trial court shall conform to the following practice:
Sec. 1. Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.
Sec. 2. Imposing sentence. If the accused pleads guilty, after such plea and before sentence the court *197 shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted."[*]
The record shows that the trial judge fairly and completely explained to the defendant his right to counsel. However, it is immediately apparent from the trial record that the defendant was not told of the possible length of prison term that could be imposed for the crime of armed robbery. The difficult question presented here is whether the trial judge properly informed the defendant of the consequences of his plea, as was required by Court Rule No 35A, § 2 (1945).
The application of this court rule is discussed in People v. Bumpus (1959), 355 Mich 374, 379:
"Both our statutes and our court rules, quoted above, require that upon a plea of guilty to an information, the judge shall satisfy himself that the plea was made freely, with knowledge of its consequences, and without undue influence or promise of leniency. The form and manner of this examination by the judge has not been prescribed but is left to the discretion of the judge, to be exercised by him in the manner best suited to the parties and the offense."
See, also, People v. Reed (1965), 1 Mich App 60.
The trial judges in Michigan are not bound to the recitation of any standardized formula to give fair *198 treatment to a defendant making a plea of guilty. The record on arraignment shows that the defendant was aware of the fact that he would be punished by imprisonment as a consequence of his plea of guilty:
"The Court: Well, has any person in any sense, in any way at all, led you to believe that the court would be easier on you if you pleaded guilty than if you were tried by a jury and found guilty?
"The Defendant: No, Your Honor."
The nature of the charge was explained to defendant at the beginning of the proceedings. This Court concludes that the trial judge substantially satisfied the requirements of Court Rule No 35A (1945).
Since the arraignment proceeding was conducted in conformance with the court rule in effect at that time, the problem of constitutional due process now presents itself. The basic problem in this case has two aspects: the first is whether the defendant intelligently and understandingly waived his right to counsel, and second, whether his plea of guilty was voluntarily, intentionally, and understandingly made. The instant case is distinguishable from the following cases, in each of which the lower court record failed to show that the defendant was advised of his right to counsel: White v. Maryland (1963), 373 US 59 (83 S Ct 1050, 10 L ed 2d 193); Carnley v. Cochran (1962), 369 US 506 (82 S Ct 884, 8 L ed 2d 70); Pennsylvania, ex rel. Herman, v. Claudy (1956), 350 US 116 (76 S Ct 223, 100 L ed 126); Uveges v. Pennsylvania (1948), 335 US 437 (69 S Ct 184, 93 L ed 127).
Defendant places much reliance upon Von Moltke v. Gillies (1948), 332 US 708, 724 (68 S Ct 316, 323, 92 L ed 309, 321) in which Justice Black, speaking for himself and three of his colleagues, stated:
*199 "The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid, such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered."
This opinion does not set forth a doctrine of constitutional law binding in every respect upon the States through the 14th Amendment, for two reasons: first, it does not express a majority viewpoint, and second, the matter adjudicated was a criminal prosecution in a Federal court.
Defendant also directs the attention of this Court to People v. Whitsitt (1962), 366 Mich 609, 614, which quotes at some length the opinion of Justice Black in Von Moltke v. Gillies, supra. The sparse record in Whitsitt contrasts significantly with the careful explanation and examination made by the trial judge at the arraignment of Erwin Wurtz. The failure of the trial judge in Whitsitt to inform defendant of his right to counsel before requiring him to plead, not only distinguishes it from the instant case but also indicates that People v. Whitsitt does not necessarily adopt every clause quoted from Von Moltke v. Gillies, supra, as a rule of Federal or State constitutional law.
"Generally in criminal cases, the defendant's surprise as to the severity of sentence imposed after a plea of guilty, standing alone, is not such manifest *200 injustice as to require vacation of the judgment and permission to withdraw a plea of guilty." United States v. Parrino (CCA 2, 1954), 212 F2d 919, 921, cert den 348 US 840 (75 S Ct 46, 99 L ed 663).
This Court concludes that defendant suffered no violation of due process from the manner in which the arraignment was conducted, and that the trial judge made a "penetrating and comprehensive examination of all the circumstances" under which Wurtz entered his plea. Von Moltke v. Gillies, supra.
Lastly, defendant also attacks the validity of his waiver of counsel and his plea of guilty by alleging that he was not mentally competent at the time of his arraignment. At the hearing on the motion for a new trial, counsel for the defendant produced a witness, expert in psychiatry, Dr. Ira M. Altschuler, who examined the defendant on one occasion for over an hour, on January 5, 1963. Based upon this examination and the fact that the defendant attempted suicide a few months after his conviction, this witness expressed the opinion that, at the time of his arraignment, the defendant was in a state of depression and highly suggestible, and that he was apathetic and indifferent to any defense of himself.
On the other hand, the prosecuting attorney presented another psychiatrist, Dr. John C. Pollard, who was associated with the psychiatric staff of the State prison of southern Michigan between July and December, 1958. Dr. Pollard testified that he had several contacts with the defendant on both an individual and group basis. This witness stated that he could not, with reasonable medical certainty, state what the mental condition of the defendant was at the time of the commission of the crime because he was of the opinion that the degree of accuracy *201 which an evaluation can have is related to the period of time that has elapsed between an incident and the evaluation. At its best, the psychiatric testimony, taken as a whole, is inconclusive as to the state of mind of the defendant at his arraignment.
This court concludes that no reversible error was committed in the denial of defendant's motion for a new trial because defendant has failed to show that his waiver of counsel and plea of guilty, voluntary, informed, and intentional on the face of the record, were the result of fear, fraud, ignorance, duress, compulsion, or unfairness. People v. Zaleski (1965), 375 Mich 71.
The judgment of the trial court is affirmed.
T.G. KAVANAGH, P.J., and QUINN, J., concurred.
NOTES
[*] Court Rule No 35A (1945) was added June, 1947. 318 Mich xxxix. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917890/ | 272 So.2d 469 (1972)
Sharon WHITE, Plaintiff-Respondent,
v.
Frank WHITE, Defendant-Relator.
No. 4134.
Court of Appeal of Louisiana, Third Circuit.
December 26, 1972.
*470 Holt, Wagner & Lee by Richard E. Lee, Pineville, for defendant-relator.
Brittain, Carver & Williams by John G. Williams, Natchitoches, for plaintiff-respondent.
Before FRUGE, MILLER and DOMENGEAUX, JJ.
MILLER, Judge.
The trial court overruled defendant Frank M. White's declinatory exception to venue. We granted defendant's application for writs on finding that the interlocutory judgment may cause irreparable injury. LSA-C.C.P. Art. 2083. The February 1, 1972 award of alimony in the Ninth Judicial District Court is not subject to review by the Tenth Judicial District Court.
The parties were judicially divorced in the Ninth Judicial District on February 1, 1972. Sharon White was granted custody of their five children, and husband was ordered to pay child support of $250 per month. There was no appeal from that judgment.
Plaintiff resides with her children in Natchitoches Parish. On October 24, 1972 she filed a rule in the Tenth Judicial District Court seeking to increase the child support to $400 per month.
Defendant's exception to venue was overruled on November 14, 1972 for "... the reasons given in the case of Lucas v. Lucas, 195 So.2d 771 ..." (La.App. 3 Cir. 1967), Tr. 21.
ISSUES
1) Has relator established irreparable injury? We find that he has.
2) Was the exception properly overruled? We find that it was not.
Husband established that the trial court judgment may cause irreparable injury. If the trial court were to increase the award for child support, husband could not suspend execution of the judgment by appeal. LSA-C.C.P. Art. 3943. The possibility that husband might be required to pay increased alimony payments by a court without jurisdiction "... may cause irreparable injury" as that term is used in LSA-C.C.P. Art. 2083.
Once a trial court's jurisdiction has attached, it continues exclusively for the purpose of modifying its own alimony judgment. Caldwell v. Gilbert, 253 So.2d 639 at 642 (La.App. 3 Cir. 1971). See also *471 cases cited in Caldwell at 253 So.2d 641 and 642.
We distinguished Lucas v. Lucas, 195 So.2d 771 (La.App. 3 Cir. 1967) in the Caldwell case, 253 So.2d 639 at 643.
The exception of improper venue filed by relator Frank M. White is sustained. All costs of these proceedings in the trial court and on appeal are taxed to plaintiff respondent.
Reversed and rendered.
DOMENGEAUX, Judge (dissenting).
I agree that the Caldwell case applies to this fact situation, but still adhere to the proposition that a writ should not have been granted in the first place, in that there was no showing of irreparable injury and there was an adequate remedy by appeal in the event of an adverse judgment. For the latter reasons, I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584877/ | 187 P.3d 269 (2008)
163 Wash.2d 1039
DAVIS
v.
WEST ONE AUTOMOTIVE GROUP.
No. 80701-9.
Supreme Court of Washington, Department II.
June 4, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572260/ | 437 F.Supp. 836 (1977)
Donald V. DONOHUE, Plaintiff,
v.
The UNITED STATES of America, Defendant.
Civ. A. No. 6-71349.
United States District Court, E. D. Michigan, S. D.
August 26, 1977.
*837 Alan C. Harnisch, Kemp, Klein & Endelman & Ralls, P. C., Norman D. Orr, Southfield, Mich., for plaintiff.
Robert E. Richardson, Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant.
OPINION
FEIKENS, District Judge.
On November 4, 1974, plaintiff Donald V. Donohue was indicted by a federal grand jury in the Eastern District of Michigan for violations of 18 U.S.C. §§ 1010 and 2(b). Specifically, the indictment charged in three counts that Donohue had wilfully and knowingly filed false statements with the Department of Housing and Urban Development on two applications for FHA mortgage insurance. Donohue was, at that time, a mortgage banker licensed to participate *838 in the federal mortgage insurance programs administered through the Veteran's Administration and the Federal Housing Authority, a subsidiary agency of HUD, and a substantial amount of his business was insured through these programs. 12 U.S.C. § 1717(b)(1). From October, 1961 until May, 1974, plaintiff was employed by the Advance Mortgage Corporation of Detroit, Michigan. He subsequently moved to Phoenix, Arizona, and at the time of the indictment was employed by the Graham Mortgage Company of Phoenix as a branch manager. Upon arraignment, Donohue entered a plea of not guilty.
On November 13, 1974, the Acting Director of the HUD Regional Office in Phoenix notified Donohue that in light of his indictment and "pending completion of the aforesaid action and such legal proceedings as may ensue, you are suspended from participation in the H.U.D./F.H.A. programs." As a result of this notice and, allegedly, some further and more direct pressure by local HUD officials, plaintiff was discharged by the Graham Mortgage Company. On November 18, 1974, Donohue was informed by the Detroit Regional Office of HUD that his indictment had resulted in an "Unsatisfactory Risk Determination" which required that office to reject any of his future applications for FHA mortgage insurance. On December 30, 1974, Donohue was informed by the Washington Office of HUD, through the Acting Assistant Secretary, that he was temporarily suspended from all participation in HUD programs pending resolution of the indictment.
In response, Donohue notified HUD officials in the Phoenix and Washington offices that he desired an immediate hearing on his license suspensions. On November 18, 1974, he wrote a letter to the Acting Director of the Phoenix office, stating:
I am most anxious to clear myself of any irregularities the government believes I was a part of or party to. I, therefore, request a hearing and meeting with you at your earliest possible convenience.
Donohue subsequently flew to Phoenix where, at an informal meeting with HUD officials, he was told that nothing could be done with regard to his suspension until the criminal proceedings had run their course. On January 7, 1975, plaintiff wrote to the Acting Assistant Secretary of HUD at HUD's Washington office, acknowledging receipt of the notice of suspension and stating:
Since I am presently unemployed and find it impossible to obtain employment under the circumstances, I therefore am requesting an immediate hearing with your office.
A hearing was scheduled by the Washington office for March 4, 1975, but prior to this date, plaintiff was informed by HUD's General Counsel that the hearing would not result in his reinstatement, since he was still under indictment. On this basis, Donohue elected to postpone the hearing until after the criminal charges against him had been resolved.
On May 5, 1975, plaintiff's indictment was voluntarily dismissed by the United States Attorney for the Eastern District of Michigan. The dismissal was based on certain evidence, supplied to the government by Donohue himself, showing that his signatures to the HUD documents for which he was indicted were forged. Donohue notified HUD of the dismissal on May 12, 1975. His suspension by the Washington office was rescinded on August 15, 1975; the Phoenix office rescinded its suspension on September 12, 1975; and the Detroit office rescinded its Unsatisfactory Risk Determination on October 10, 1975.
On June 28, 1976, plaintiff, still unemployed, filed this action against the federal government, seeking damages of $200,000 for the alleged deprivation of his constitutional rights. His original complaint, naming only the United States, claimed in three counts that his license to participate in the HUD/FHA mortgage insurance programs was a property and liberty interest protected by the due process clause of the Fifth Amendment, and that his license suspension without hearing was a violation of his due process rights which caused him to lose his present employment and any meaningful *839 opportunity for future employment as a mortgage banker.
Plaintiff further alleged that his procedural rights, as specified by HUD's own administrative regulations governing license suspensions, had been violated by his suspension without hearing. In particular, the complaint alleged that plaintiff's suspension by the Phoenix Regional Office of HUD was totally unauthorized under 24 C.F.R. § 24.12, which grants powers of suspension only to Assistant Secretaries of HUD. Furthermore, the Phoenix office never accorded plaintiff his right to a full hearing with counsel, guaranteed both by 24 C.F.R. §§ 24.10, 24.15,[1] and the Phoenix notice of suspension, itself. The Detroit Regional Office is alleged to have violated 24 C.F.R. § 200.200, which sets forth the grounds upon which an Unsatisfactory Risk Determination can be made:
§ 200.200 Basis of action.
Any Field Office Director may reject an application for mortgage insurance on the grounds of unsound credit or unsatisfactory past experience. Applications will be rejected where past experience with the proposed borrower, builder, or other participant in the mortgage transaction indicates that his previous conduct or method of doing business has been such that his participation in the transaction would make it unacceptable from the underwriting standpoint of an insurer. The Unsatisfactory Risk Determination action is usually temporary in nature and may be followed in aggravated cases by the application of section 512 procedures as set forth in § 200.190 et seq. (Emphasis added).
Plaintiff alleged that underwriting considerations were never considered by the Detroit office in his case.
Against the Washington office, plaintiff alleged a failure to provide him a meaningful opportunity for a hearing, as required by 24 C.F.R. § 24.15, and a failure to consider all relevant evidence in issuing the suspension, as required by 24 C.F.R. § 24.11:
§ 24.11 Suspension.
Suspension is a drastic action taken when there is suspicion of fraud or other criminal conduct in Government business or contractual dealings and, as such, shall not be based upon an unsupported accusation. A contractor or grantee is suspended pending investigation and appropriate action by the Department of Justice. In assessing whether adequate evidence exists for invoking a suspension, consideration shall be given to the amount of credible evidence which is available, to the existence or absence of corroboration as to important allegations, as well as to the inferences which may be properly drawn from the existence or absence of affirmative facts. This assessment shall include an examination of basic documents, such as contracts, inspection reports, and correspondence. A suspension may be modified whenever it is determined to be in the interest of the Government to do so. (Emphasis added). *840 To the extent that these HUD regulations could be read to authorize his suspension merely upon indictment and without hearing, plaintiff further alleged the unconstitutionality of the regulations under the Fifth Amendment.
In response to the initial complaint, the United States moved for dismissal or summary judgment in the alternative, under Rules 12 and 56 of the Federal Rules of Civil Procedure, contending that the Federal Torts Claims Act, 28 U.S.C. § 1346, et seq., was the exclusive remedy for plaintiff's alleged constitutional deprivations, and that plaintiff's claim was barred under the F.T.C.A. for failure to exhaust administrative remedies, 28 U.S.C. § 2675(b), and in all other respects by sovereign immunity. After a hearing on defendant's motion, held on November 3, 1976, the court deferred ruling and granted plaintiff leave to follow one or more of the following alternatives:
1) to show the court why the United States should not be dismissed from the suit as a party defendant;
2) to move the court to add additional parties or otherwise amend the complaint;
3) to have the complaint dismissed without prejudice.
Subsequently, plaintiff filed administrative tort claims with all three HUD offices, which were, in due course, denied. Plaintiff also moved to amend his complaint to add the Secretary of HUD and the Department of HUD as party defendants to the initial three counts and to add three alternative new counts against the United States under the Federal Tort Claims Act. The government filed briefs in opposition to the amendment of the complaint and in further support of its original motion to dismiss, contending that plaintiff's constitutional claims against HUD, the Secretary of HUD, and the United States were all barred by sovereign immunity and that plaintiff's tort claims against the United States were barred by the "discretionary function" and "due care" exclusions to the F.T.C.A. contained in 28 U.S.C. § 2680(a).[2] After a further hearing on May 4, 1977, the court granted plaintiff's motion to amend and took all other issues under advisement, pending the submission of further documentary exhibits and post-hearing briefs, which have since been filed.
Defendants' motion for dismissal or summary judgment as to plaintiff's federal tort claims is denied. Plaintiff's allegations of injury to his business reputation and earning ability, caused by HUD's alleged failure to follow their own procedural regulations in the suspension of his HUD mortgage insurance license states a valid cause of action against the United States under 28 U.S.C. § 1346(b) of the F.T.C.A., which provides:
(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Plaintiff has now exhausted his administrative remedies with regard to all three claims, as required by 28 U.S.C. § 2675(a).
*841 Defendants' arguments for dismissal of these claims are based primarily on 28 U.S.C. § 2680(a), which exempts the United States from liability under the F.T.C.A. for any actions of its officials or employees taken with "due care" or pursuant to a "discretionary function." But defendants have made no showing to the court as yet that either of these exemptions apply. In support of its defense of "due care," the government has submitted only a copy of plaintiff's indictment and an internal HUD administrative handbook (Compliance Handbook, February, 1973), which is said to authorize suspension without hearing upon indictment. This evidence is insufficient to establish due care for purposes of § 2780(a). In light of HUD regulations 24 C.F.R. §§ 24.11 and 24.15, which appear to require a hearing in all circumstances, and in light of the direct and urgent requests for a hearing in this particular case, there remains some doubt as to whether HUD officials exercised due care in suspending plaintiff merely on the basis of his indictment.
Even more doubt remains as to defendants' claim to the "discretionary function" exemption of 28 U.S.C. § 2680(a). This exemption has been uniformly construed to apply only in cases where government officials were acting at a policy making level or were exercising options of a policy nature, and not in cases where government officials were operating under mandatory statutes or regulations, which they had a legal duty to observe and implement, as plaintiff alleges here. Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Downs v. United States, 522 F.2d 990, 996-997 (6th Cir. 1975); Griffin v. United States, 500 F.2d 1059, 1066 (3rd Cir. 1974). Defendants have offered no evidence as yet to show, for example, that the Acting Director of the HUD Phoenix Regional Office had the discretionary authority to suspend plaintiff under 24 C.F.R. § 24.12 or to show that the Acting Secretary of HUD at the Washington Office had the discretionary authority to ignore the apparently mandatory hearing requirements of 24 C.F.R. § 24.15. In short, important issues of fact as to both the "due care" and "discretionary function" exemptions of 28 U.S.C. § 2680(a) remain unresolved and must await a fuller examination at trial. Plaintiff's federal tort claims are not subject to dismissal or summary judgment at this time.
Defendants' motion for dismissal or summary judgment as to plaintiff's claims against HUD and the Secretary of HUD for deprivation of his constitutional rights must be granted. As a jurisdictional basis for these claims, plaintiff has pleaded 28 U.S.C. § 1331 and 12 U.S.C. § 1702. Title 28 U.S.C. § 1331 is a general grant of jurisdiction over cases involving federal questions:
§ 1331. Federal question; amount in controversy; costs
(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.
Though it contemplates actions against the federal government, § 1331 is not, itself, a waiver of sovereign immunity against such actions, Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir. 1967); St. Louis Univ. v. Blue Cross Hospital Serv., Inc., 393 F.Supp. 367, 370 (E.D.Mo.1975); Crowley v. United States, 388 F.Supp. 981, 987 (E.D. Wis.1975), and in the absence of such a waiver, federal executive departments, such as HUD, are not subject to suit. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 96 L.Ed. 534 (1952); Fort Worth National Corp. v. Federal Savings & Loan Ins. Corp., 469 F.2d 47, 54 (5th Cir. 1972).
Title 12, U.S.C., § 1702 is relied upon by plaintiff as a waiver of sovereign *842 immunity over HUD and the Secretary of HUD in this case. Section 1702 grants to the Secretary of HUD a number of enabling powers, including the authority to "sue and be sued in any court of competent jurisdiction, State or Federal." This provision was construed in F.H.A. v. Burr, 390 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724 (1940) as a broad waiver of sovereign immunity, subjecting the Secretary of HUD to all forms of civil process to which an individual citizen is subject. Section 1702, however, is not a waiver of sovereign immunity for all civil suits against HUD and the Secretary of HUD. In particular, this provision, under 28 U.S.C. § 2679(a), is not a waiver of sovereign immunity as to those civil claims for damages against the Secretary which are cognizable under the Federal Tort Claims Act:
§ 2679. Exclusiveness of remedy
(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.
As stated in Edelman v. Federal Housing Administration, 382 F.2d 594, 596 (2d Cir. 1967):
Although the Commissioner (the FHA) is authorized by 12 U.S.C. Section 1702 to sue and be sued, the exclusivity provision of the Federal Tort Claims Act, 28 U.S.C. Section 2679, provides:
"The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive."
Thus, to the extent that appellant's claim is cognizable under 28 U.S.C. Section 1346(b), he must proceed under the FTCA. Section 1346(b) vests exclusive jurisdiction in the United States District Courts for all tort claims against the United States. The language relevant to this suit is "claims * * * for money damages * * * for injury or loss of property * * * caused by the * * wrongful act or omission of any employee of the Government." Thus for appellant to recover on any claim sounding in tort, he must proceed under this Act.
United States v. Gregory Park, Section II, Inc., 373 F.Supp. 317, 352 (D.N.J.1974); Federal National Mortgage Assoc. v. Gregory, 426 F.Supp. 282, 285 (E.D.Wis.1977); Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252 (2d Cir. 1975). The legislative history of § 2679 supports this authority:
This section will place torts of "suable" agencies of the United States upon precisely the same footing as torts of "nonsuable" agencies. In both cases, the suits would be against the United States, subject to the limitations and safeguards of the bill; and in both cases the exceptions of the bill would apply either by way of preventing recovery at all or by way of leaving recovery to some other act, as, for example the Suits in Admiralty Act. It is intended that neither corporate status nor "sue and be sued' clauses shall, alone, be the basis for suits for money recovery sounding in tort. S.Rep.1400, 79th Cong., 2d Sess., at 33.
(Quoted in Safeway Portland E. F. C. U. v. Federal Deposit Ins. Corp., 506 F.2d 1213, 1215 (9th Cir. 1974).
As already discussed, plaintiff's claims are cognizable under the F.T.C.A. Accordingly, they are otherwise barred by sovereign immunity and the exclusivity provisions of 28 U.S.C. § 2679.
Defendants' motion for dismissal or summary judgment as to plaintiff's original constitutional claims against the United States must also be granted. Title 12 U.S.C. § 1702 is only a waiver of sovereign immunity to the extent of allowing the Secretary of HUD to sue and be sued in her own name. It is not a waiver of sovereign immunity for suits against the United States eo nomine. United States v. Gregory Park, Section II, Inc., supra at 351. *843 Plaintiff argues that sovereign immunity is inapplicable to civil actions against the federal government raising bona fide constitutional claims, citing Larson v. Domestic and Foreign Commerce Co., 337 U.S. 682, 703-704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1961); Garrett v. Hamtramck, 503 F.2d 1236, 1247 (6th Cir. 1974). This argument, so far as the court can determine, is simply not the law. Justice Brandeis, speaking for a unanimous Supreme Court in Lynch v. United States, 292 U.S. 571, 580-581, 54 S.Ct. 840, 844, 78 L.Ed. 1434 (1933), stated that all civil damage claims against the federal government, constitutional or otherwise, are subject to the defense of sovereign immunity:
[C]onsent to sue the United States is a privilege accorded, not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration. De Groot v. United States, 5 Wall. [(72 U.S.)] 419, 432 [18 L.Ed. 700]. Compare Darrington v. State Bank of Alabama, 13 How. [(54 U.S.)] 12, 17 [14 L.Ed. 30]; Beers v. Arkansas, 20 How. [(61 U.S.)] 527-529 [15 L.Ed. 991]; Gordon v. United States, 7 Wall. [(74 U.S.)] 188, 195 [19 L.Ed. 35]; Memphis & C. Railroad Co. v. Tennessee, 101 U.S. 337 [25 L.Ed. 960]; South & N.A. Railroad Co. v. Alabama, 101 U.S. 832 [25 L.Ed. 973]; In re Ayers, 123 U.S. 443, 505 [8 S.Ct. 164, 31 L.Ed. 216]; Hans v. Louisiana, 134 U.S. 1, 17 [10 S.Ct. 504, 33 L.Ed. 842]; Baltzer v. North Carolina, 161 U.S. 240 [16 S.Ct. 500, 40 L.Ed. 684]; Baltzer & Taaks v. North Carolina, 161 U.S. 246 [16 S.Ct. 502, 40 L.Ed. 687]. The sovereign's immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress, De Groot v. United States, 5 Wall. [(74 U.S.)] 419, 431 [18 L.Ed. 700]; United States v. Babcock, 250 U.S. 328, 331 [39 S.Ct. 464, 63 L.Ed. 1011], and to those arising from some violation of rights conferred upon the citizen by the Constitution, Schillinger v. United States, 155 U.S. 163, 166, 168 [15 S.Ct. 85, 39 L.Ed. 108]. The character of the cause of action the fact that it is in contract as distinguished from tort may be important in determining (as under the Tucker Act) whether consent to sue was given. Otherwise it is of no significance. For immunity from suit is an attribute of sovereignty which may not be bartered away. (Emphasis added). (Footnote omitted).
Accordingly, defendants' motion for dismissal or summary judgment as to plaintiff's constitutional claims against the United States, HUD, and the Secretary of HUD is granted. In all other respects, defendants' motion is denied.
NOTES
[1] § 24.15 Notice of suspension.
(a) The contractor or grantee concerned shall be furnished by registered or certified mail, return receipt requested, a written notice of the suspension by the appropriate Assistant Secretary within 10 days after the effective date. The notice shall state as follows:
* * * * * *
(5) The suspended party is entitled to request an opportunity to be heard and represented by counsel in accordance with § 24.10 of this part. § 24.10 Procedural requirements relating to the imposition of debarment.
* * * * * *
(3) Determination. Hearings shall be conducted by a Hearing Officer of the Department who shall be responsible for the fair and expeditious conduct of proceedings. The program office shall be represented by the General Counsel or his designee. A record shall be made of the proceeding and shall be made available to the parties upon request. After the contractor or grantee against whom action is proposed has been afforded an opportunity to be heard, the Hearing Officer shall make an initial written determination on the evidence presented. The Hearing Officer's determination shall be final unless reversed or modified within 30 days by the appropriate Assistant Secretary. Each determination shall become a part of the record. Notice of the final determination shall be given in writing, signed by the Assistant Secretary, and transmitted by registered or certified mail, return receipt requested. The determination shall be conclusive.
[2] § 2680. Exceptions
The provisions of this chapter and section 1346(b) of this title shall not apply to
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise, or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917807/ | 272 So. 2d 739 (1972)
Winnie Love SONES, Plaintiff-Appellant,
v.
MUTUAL OF OMAHA INSURANCE COMPANY et al., Defendants-Appellees.
No. 11877.
Court of Appeal of Louisiana, Second Circuit.
June 27, 1972.
On Rehearing January 9, 1973.
Writ Refused February 19, 1973.
*740 Jones, Blackwell, Chambliss, Hobbs & Henry, by Jasper E. Jones, West Monroe, for plaintiff-appellant.
Theus, Grisham, Davis & Leigh, by J. C. Theus, Monroe, for defendants-appellees.
Before AYRES, HEARD and HALL, JJ.
HALL, Judge.
Wiley T. Sones, an insurance salesman, died as a result of injuries sustained by him in an automobile accident. His surviving spouse and sole dependent filed this suit for workmen's compensation benefits against his alleged employers, Mutual of Omaha Insurance Company and United Benefit Life Insurance Company, and their workmen's compensation insurer, Employers Commercial Union Insurance Company of America.
The district court found Sones was an independent insurance agent for Mutual of Omaha and United Benefit and that he was not an employee of the companies within the meaning of the workmen's compensation statute, LSA-R.S. 23:1021 et seq. The demands of plaintiff were rejected and she perfected this appeal.
The primary issue presented by the appeal is whether Sones was an employee of the defendant companies within the meaning and coverage of the workmen's compensation act. If Sones was an employee covered by the act, then a secondary issue is presented as to whether the accident occurred in the course of his employment. We resolve both issues favorably to the plaintiff, reverse the judgment of the district court, and award workmen's compensation benefits to the widow.
For more than twenty-five years prior to his death at seventy-eight years of age, Sones worked regularly and exclusively as an insurance agent for defendant Mutual of Omaha and its wholly owned subsidiary United Benefit, working out of the Monroe office operated by Claude Gilliland, defendant's Monroe Division Manager.
Sones did not have a written contract with defendants but the other agents in the Monroe Division Office had written contracts reflecting the terms and conditions of their arrangement with defendants. It was stipulated that Sones rendered his services to defendants on the same terms and conditions as are reflected in the contracts between defendants and the other agents.
The contracts provide that the agent is appointed to procure applications for *741 health and accident insurance for Mutual of Omaha and life insurance for United Benefit, and to collect premiums thereon, in the Division Manager's territory consisting of twelve parishes. The contracts require the agent to submit all applications and cash for first premiums, with the company having the right to reject any application and with the agent having no authority to incur any liability on behalf of the company. The contracts provide for the agent to receive certain percentage commissions on first and renewal premiums as full compensation for all expenses and services of the agent. The five per cent commission on renewal premiums is variously described as a collection service fee and as being in consideration of the agent's faithful performance of the contract and keeping the business written in force. The right of the agent to receive renewal commissions is made contingent on the continuance of the contract between the company and the agent. In the Mutual of Omaha contract the renewal commission is also contingent upon the agent having twenty-five active policies in force and production by the agent of a minimum of twelve paid for and issued policies each month. In the United Benefit contract, the renewal commission is contingent upon the agent writing at least $50,000 of new insurance during any calendar year.
The agreements may be terminated by either party without further liability on the part of either. The contracts provide that they shall not be construed to create the relation of employer and employee between the company and the agent and that the agent shall be free to exercise his own judgment as to the persons from whom he will solicit and the time and place, manner and amount of solicitation.
The evidence discloses that the Division Manager furnished an office for the several agents working under him. Specific desk space and drawers were assigned to and used by Sones and the other agents. Sones, along with the other agents, reported to work at the Monroe Division Office almost every morning before going out to solicit business. The matters attended to by the agents at the office included turning in policy applications and premiums collected, going over policy applications with the Division Manager or other employees to be certain they were properly prepared, receiving instructions from the Division Manager concerning any new underwriting rules or types of policies, receiving any communications mailed or phoned in by policyholders or prospects, receiving claim drafts or newly issued policies that the agent might want to personally deliver to the policyholders, maintaining the agent's record books of sales, commissions, prospects, etc., picking up the agent's monthly check for renewal and collection service fee commissions, receiving information as to past due and unpaid premiums, and receiving blank policy applications, brochures, etc. On some occasions, Sones would go hunting or take a personal trip out of town and not report to the office. It was not necessary for him to obtain permission to do this, but he often advised the Division Manager of his plans. The evidence is clear, however, that he reported to work most mornings.
After concluding their morning duties at the office, the agents proceeded into the twelve-parish area to make solicitations using their own automobiles furnished by the agents with no reimbursement by the companies for automobile expense. The evidence discloses that the Division Manager exercised little or no direct control over the agents' solicitation activities. Occasionally, he accompanied an agent to assist the agent in selling or in handling a complaint. From time to time, he furnished the agents with the names of prospects who called into the office.
It is to be noted that the Division Manager was himself compensated by the companies on a commission basis out of which he paid the expenses of the office and the agents' commissions.
The evidence discloses that during 1969, Sones was paid a total of approximately *742 $4,900 in commission of which $1,200 was commission on new sales and $3,700 represented renewal commission. In 1970, to the time of his death in October, Sones had received approximately $5,500 in commission of which $1,300 represented commission on new sales and $4,200 represented commission on renewal premiums.
The evidence further reflects that Sones and the other agents were not carried on the payrolls of the companies or their Division Manager and that no federal or state taxes were withheld from the commissions paid to the agents. The agents were not provided with any fringe benefits such as hospitalization or retirement. While the workmen's compensation insurance policy carried by the defendant companies provides coverage to all employees of the companies, only the clerical employees and not the agents were considered for purposes of computing the premium paid to the compensation insurer.
Defendants urge and the trial court so held that plaintiff was an "independent agent" or "non-servant agent". In support of their position, defendants emphasize that little or no control was exercised over plaintiff in the method or manner of his solicitation activities; he was not required to work any certain hours; that he was free to solicit anywhere within the entire territory of the district manager; he was not carried on defendants' payrolls and did not receive any fringe benefits such as retirement and hospitalization; he was individually licensed by the state as an insurance agent; he furnished his own automobile and paid his own expenses; he was paid on a commission basis; and his agreement with defendants (stipulated to be the same as the written agreements with other agents) provided he was not to be considered an employee and stipulated against control of his sales activities.
On the other hand, plaintiff urges that Sones was an employee of defendants for purposes of workmen's compensation. Factors indicating an employer-employee relationship emphasized by plaintiff are: the total economic relationship between the parties; Sones' employment could be terminated by either party at any time without any further liability on either party; Sones rendered his services exclusively for defendants for a long number of years and did not offer his services to others; minimum sales and performance standards were established in order for Sones to receive the major part of his compensation which was based on renewal commissions; an office was furnished by defendants for Sones' use; and Sones did, in fact, report for work at the office almost every morning. Plaintiff cites Buettner v. Polar Bar Ice Cream Co., 17 So. 2d 486 (La.App.Orl. Cir. 1944); O'Connor v. American Mutual Liability Ins. Co., 87 So. 2d 16 (La.App. Orl.Cir. 1956); Samson v. Borden Company, 92 So. 2d 152 (La.App. 1st Cir. 1957); Gresham v. Speights, 133 So. 2d 846 (La. App. 2d Cir. 1961), as cases in which commission salesmen were held to be employees covered by the workmen's compensation act.
No general test can be set forth as determinative of the issue involved in this case. Each case must be decided on its own particular facts, taking into consideration the total economic relationship between the parties and the various factors weighing either in favor of or against an employer-employee relationship. On balance, readily conceding that this case presents a close question for decision, we find that the indicia weigh in favor of an employer-employee relationship for purposes of workmen's compensation.
The Louisiana Workmen's Compensation Act does not define employee. It does, however, define an independent contractor (who is excluded from coverage of the Act except where he performs substantial manual labor) as "any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his *743 work only, and not as to the means by which such result is accomplished,...". LSA-R.S. 23:1021. In Gresham v. Speights, supra, this court approved the definition pronounced in Shelton v. Barber Brothers Company, 94 So. 2d 489 (La.App. 1st Cir. 1951) of the distinction between an employee and an independent contractor as follows:
"As contrasted to an employee, an independent contractor is one independent in business who contracts to perform a specified piece of work for another for a specified price, without being subject in the performance of the contract to the control and direction of his employer except as to the result contracted for; which contract is not subject to termination or discontinuance at the will of either party without a corresponding liability for its breach."
Under the statutory definition, as explained in Shelton and Gresham, Sones cannot be considered an independent contractor. He did not contract for a specified piece of work or result for a specified price or recompense. He was not one independent in business in that he had a continuing, exclusive relationship with the defendants. His employment was subject to termination at the will of either party without a corresponding liability on the part of either.
While defendants use the term "independent agent", their argument, basically, is that Sones was an independent contractor as distinguished from an employee. Having found that Sones' employment does not come within the definition of independent contractor, the presumption is that he was an employee. R.S. 23:1044 provides:
"A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter. * * *"
The cases cited by plaintiff support her position that the decedent was an employee covered by the workmen's compensation act. Gresham v. Speights, supra, is closely in point. Plaintiff there was a commission used car salesman. He had no fixed hours of employment, he was not directed by his employer in every detail in his efforts to sell used cars, he could come and go as he pleased. In determining that plaintiff was an employee and not an independent contractor, this court emphasized as significant factors that plaintiff was subject to such control as the employer might wish to exercise, his employment could be terminated at will by either party, and he was not required to perform any specified work at a specified price with exclusive respect as to the result thereof. The court further held:
". . . Additionally, the jurisprudence of our State abundantly establishes the proposition that commission salesmen are regarded as employees and not independent contractors or enterprisers. Somewhat recent pronouncements on this point are found in O'Connor v. American Mutual Liability Ins. Co., La.App. Orleans, 1956, 87 So. 2d 16, and Samson v. Borden Company, La.App. First Circuit, 1957, 92 So. 2d 152.* * *"
The Buettner, O'Connor and Samson cases all involved determinations of whether certain salesmen were employees or were independent merchants retailing products purchased from the companies whose products they sold. Although these cases did not involve an employee versus independent contractor or agent determination, the indicia taken into account determining the status of the salesmen as employees were substantially the same. All of these cases involve the same basic inquiryconsidering the total relationship of the parties, is the status of the salesman that of an employee or that of an independent enterpriser?
Our decision that Sones was an employee within the provisions of the workmen's compensation statute is based on a consideration of the total relationship between *744 him and the defendant companies. Admittedly, actual control or even the right to control his physical activities was minimal. On the other hand, economic control was substantial. We attach particular importance to the facts that his services were rendered to the companies on a continuing, exclusive basis and that the nature of his servicesselling insurance was an integral part of the companies' regular and basic business which necessarily must be accomplished through persons regularly doing this work. We do not choose to label this approach to the problem, but it probably comes close to the "relative nature-of-the-work test" described in Larsen's Workmen's Compensation Law, Sections 43, 50, et seq.
Defendants place considerable emphasis on the provisions of the written agreements with the agents (stipulated to be applicable to Sones) expressly negating an employer-employee relationship. While this is one factor to be considered in determining the status of the person performing services, it is not of itself conclusive.
For purposes of determining the applicability of the workmen's compensation statute, the court must inquire into the true nature and character of the relationship based on the actual facts regardless of how the parties may have characterized themselves. Murphy v. Tremont Lumber Co., 22 So. 2d 79 (La.App. 2d Cir. 1945). See: Malone, Louisiana Workmen's Compensation Law and Practice, Section 81.
Defendants further contend that Sones was a "non-servant agent", citing Ocmond v. Eserman, 259 So. 2d 600 (La.App. 4th Cir. 1972) and Blanchard v. Ogima, 253 La. 34, 215 So. 2d 902 (1968). Both of these cases involved vicarious tort liability of alleged employers for the physical acts of their alleged employees. In Blanchard, the court held a free-lance "bird dog" used car salesman was not an employee but was a non-servant agent of his principal. In Ocmond, the court reached the same conclusion as to a Stanley Home Products salesman or dealer. While a consideration of whether a master-servant relationship exists for purposes of vicarious tort liability involves consideration of the same indicia involved in determining the status of a claimant under the workmen's compensation act, the ultimate criteria and result need not be the same, in view of the purpose of and liberal construction given to the compensation statute. These cases are also distinguishable from the instant case on their factsdegree of control or right to control, relative nature of the work, total economic relationship, and other indicia.
Having concluded that Sones was an employee of defendants within the coverage of the workmen's compensation statute, we next consider the issue of whether the accident occurred during the course of his employment.
On the morning of the accident, Sones dressed in his suit and tie as was his custom on a working day. He told his wife he was going to work and left for the office about 8:15 a.m. While there he picked up a commission check that was due him. He subsequently left the office in his automobile. The accident occurred at an intersection about two blocks from the office. Every indication is that Sones left the office for the purpose of going out to solicit business for his employer in his usual and customary manner. There is no evidence to the contrary. We hold the accident arose out of and in the course of the decedent's employment. See: DeMaggio v. United Mills Corporation, 252 So. 2d 530 (La.App. 4th Cir. 1971); Green v. Heard Motor Co., 224 La. 1078, 71 So. 2d 849 (1954); Barnett v. Walther Bros. Co., 59 So. 2d 487 (La.App.Orl.1952); Johnson v. Wallace Industrial Constructors, 224 So. 2d 31 (La.App. 1st Cir. 1969).
Plaintiff prayed for penalties and reasonable attorney's fees. Defendants' refusal to pay benefits and to defend this *745 suit involving a very close question of law was reasonable and was not arbitrary or capricious. Plaintiff's demands for penalties and attorney's fees are rejected.
The record establishes that Sones earned an average weekly wage of $103.56, entitling his widow to death benefits of 32½% of that amount, or $33.66 per week. LSA-R.S. 23:1231, 1232. Plaintiff is also entitled to recover medical expenses stipulated to be $1,962.30. LSA-R.S. 23:1203. Burial expenses were stipulated to be $1,900, of which plaintiff is entitled to judgment for the statutory maximum of $1,000. LSA-R.S. 23:1210.
For the reasons assigned, the judgment of the district court is reversed and it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Winnie Love Sones, and against defendants, Mutual of Omaha Insurance Company, United Benefit Life Insurance Company and Employers Commercial Union Insurance Company of America, in solido, for workmen's compensation death benefits in the amount of $33.66 per week commencing October 23, 1970, and continuing for a period of 500 weeks, with interest at the rate of 7% per annum on each weekly installment from its due date until paid; and in the amounts of $1,962.30 for medical expenses and $1,000 for burial expenses, together with interest at the rate of 7% per annum on said amounts from date of judicial demand until paid; and for all costs of this proceeding, including the cost of appeal. The demands of plaintiff for penalties and attorney's fees are rejected.
Reversed and rendered.
ON REHEARING
Before AYRES, BOLIN, PRICE, HEARD and HALL, J J.
AYRES, Judge.
On the earnest insistence of defendants' late eminent counsel, the court granted a rehearing to afford us another opportunity to review the record and to reconsider our original opinion.
In defendants' motion for a rehearing, it is contended the court erred:
1. In holding that the relationship of employer-employee or master and servant existed between Wiley T. Sones and Mutual of Omaha Insurance Company and United Benefit Life Insurance Company of America; and
2. In holding that the accident sustained by Sones arose out of and in the course and scope of his employment with defendants.
In this case, as is the custom in this court with respect to all rehearings, this case was reargued before and submitted to the court en banc for a decision.
We have reviewed and reconsidered the entire record, including counsel's oral arguments and written briefs, particularly with reference to the points stressed and enumerated above. We are convinced, upon our reconsideration of the record, that our original opinion accurately detailed the pertinent facts and applied the appropriate law. No further expansion of the opinion on either law or facts is deemed necessary.
Accordingly, for the reasons herein and as initially assigned, our original decree is reinstated and made the final judgment of this court.
Judgment reinstated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917810/ | 272 So. 2d 895 (1971)
Susie GREEN
v.
FIRST NATIONAL BANK OF TUSKALOOSA, d/b/a First Charge Service.
6 Div. 93.
Court of Civil Appeals of Alabama.
June 23, 1971.
Rehearing Denied July 28, 1971.
*896 Maxwell Peters, Tuscaloosa, for appellant.
James A. Turner, Tuscaloosa, for appellee.
BRADLEY, Judge.
Susie Green, appellant, was sued on an open account by the First National Bank of Tuskaloosa, d/b/a First Charge Service, appellee, first in the Tuscaloosa County Court and then in the Circuit Court. The account was for $371.00 resulting from the use of a charge card issued by appellee. The case was tried before a jury in the Circuit Court and there was a verdict for appellee in the amount claimed. Motion for new trial was overruled and notice of appeal to this court was filed.
In 1967 appellee instituted a local charge account service for its customers. This service was called "First Charge Service," and was honored by about 400 Tuscaloosa merchants. Appellee, in instituting this service, issued charge cards to each person who had an account with the appellee. The appellant and her husband had a joint checking and joint savings account with the First National Bank of Tuskaloosa. The charge cards issued to appellant and her husband were not requested; they were mailed to them by the appellee without any application therefor.
The names imprinted on the cards were Stephen Green, Jr. and Mrs. Stephen Green, Jr.
The bank ledger sheets on which the various charges were recorded were in the names of "Stephen Green or Susie Green." This ledger sheet was kept solely by the appellee, and appellant at no time had knowledge of the way her name appeared on this ledger sheet.
*897 In the beginning the account, as evidenced by the billing statement, was in the name of "Mr. and Mrs. Stephen Green, Jr." The account was also represented by one number40-119even though two cards had been issued.
In July 1967, without any request from appellant or her husband, the name on the billing statement was changed by appellee to read, "Stephen or Susie Green, Jr." The number remained the same, and the bank ledger sheet remained the same.
Then in July 1968 the billing statement was again changed to read, "Mr. Stephen Green, Jr." The account number and bank ledger sheet remained unchanged. The billing statement was sent in the name of "Mr. Stephen Green, Jr." until the account was closed by appellee.
The record reflects that the various changes made in the billing statements were neither requested by the appellant nor her husband, and it does not appear that appellee communicated its reason for making these changes to appellant.
During the 22 months that appellant and her husband used the "First Charge Service," there was a total of $897.76 charged to said account, $453.59 being charged by appellant and $444.17 charged by her husband.
At the husband's death in 1969 the balance of the account was $371.00, which included a finance charge of one and one-half percent per month on the unpaid balance.
The charges made to this account by the appellant and her husband consisted of those items that a family of moderate means would purchase, such as food, clothing, auto repairs, gasoline and oil for the automobile, household goods and appliances, etc.
After the death of appellant's husband, appellee filed suit against appellant for the entire balance of the account$371.00 which included the monthly finance charge.
Appellant made twelve assignments of error, but did not, in brief, insist on assignments eight through eleven, which we consider to have been waived. Supreme Court Rule 9.
Assignment of error one asserts that the trial court erred in overruling the motion for a new trial. One of the grounds of the motion for new trial was that the evidence failed to sustain the verdict of the jury.
This assignment of error requires us to examine the evidence to determine the nature of the charge account between appellee, the issuer of the charge card, and the appellant, the recipient of an unsolicited charge card. In other words, we are called on to decide what agreement or contract, if any, existed between appellee and appellant.
This same issue is raised by assignments of error three and four, wherein appellant says that the trial court erred in refusing to give the general affirmative charge with and without hypothesis.
The facts in this case are undisputed. Appellee issued, without being solicited, charge cards to its customers. Appellant and her husband had a joint checking account with First National Bank of Tuskaloosa prior to the issuance of the charge cards. Appellant was issued a card in the name of Mrs. Stephen Green, Jr. Appellant's husband was issued a card in his name. The two cards had the same account number imprinted on them. Appellee initially mailed billing statements to Mr. and Mrs. Stephen Green, Jr., addressed to the residence of appellant and her husband. Thereafter, appellee twice changed the name on these billing statements, once to Susie or Stephen Green, Jr., later to Mr. Stephen Green, Jr., which remained unchanged until his death. Appellant neither requested these changes, nor was she informed of the reason for them. Neither did appellant agree, either orally or in writing, to pay for purchases made by her deceased husband, or by herself for *898 herself or her family. The record reflects that the purchases made with the charge card by appellant were for necessaries customarily used by a family.
Appellee says that appellant owes it the balance of the account in the amount of $371.00, apparently on the theory of a joint account, and regardless of whether the charges were made by the appellant or her husband.
Appellee apparently, by its brief, wants us to conclude that inasmuch as appellant purchased $453.59 worth of goods on the account and the balance is only $371.00, she still owes for the purchases she made. Of course this reasoning excludes any consideration of the husband's purchases, or the payments made on the account for the purchases of both over the life of the account. And, there was no evidence in the record that the $371.00 was for her purchases alone.
Appellee's contentions in brief as to the theory of the case are not borne out by the record, where it is clear that the case was presented to the jury on the basis of a joint account.
Appellant contends, however, that the account was her husband's and that she was merely given a card authorizing her to make purchases on her husband's credit; and this contention is certainly borne out by the testimony of appellee's only witness to the effect that the appellee considered the account to be the husband's, that it looked to him for payment, and that the wife was merely permitted to use the account by charging to the husband's credit.
Credit cards have existed as commercial instruments for many years, but the issuance of "Bank Credit Cards" did not commence until late 1966 when member banks of the Midwest Bank Card system began to use them.
There are very few decided cases in this country on the subject, but there are numerous articles that have been written about bank credit cards. One of them will be found in The Banking Law Journal, Vol. 85, pp. 941-977, Nov. 1968. It is therein pointed out that the usual basis of a bank credit card plan is a tripartite arrangement involving: (1) an agreement between the issuing bank (appellee here), and the cardholder (appellant here); (2) an agreement between the issuer and the merchant-seller; and (3) a sales agreement between the cardholder and the merchant-seller.
The case at bar presents an interest only in the first agreement, i. e., the issuercardholder agreement.
Bank credit cards have been issued on a solicited and unsolicited basis. In the case at bar the charge cards were issued to the appellant and her husband on an unsolicited basis.
This state of the facts requires us to determine what type of agreement or contract existed between appellee and appellant.
In 17 Am.Jur.2d, Contracts, Sec. 298, page 716, there is found the statement:
"Two or more parties to a contract may bind themselves jointly, severally, or jointly and severally. The intention of the contracting parties, as revealed by the language of their contract and the subject matter to which it relates, determines whether a contract is joint or several; * * *"
In the case at bar there was no contractual language either in a separate agreement or imprinted on the charge card which would be available for use in attempting to discern the intention of the parties. Therefore, we must look at the facts contained in the record to ascertain said intention. The record reveals that appellant was issued a charge card in the name of Mrs. Stephen Green, Jr., and that the first few billing statements were in the name of Mr. and Mrs. Stephen Green, Jr., and for the last year of the account's existence, it was in the name of Mr. Stephen Green, Jr. In addition to this evidence, *899 there was testimony from appellee's only witness that the bank intended the account to be the husband's unless some other arrangement had been made. The testimony does not reveal any other arrangement was made by appellant or her husband.
We would point out also that it is the law in Alabama that a husband is under a common-law liability for necessary comforts and supplies furnished the wife, notwithstanding that the wife may, by statute, enter into contracts and be sued thereon. Anderson v. W. T. Grant Co., 45 Ala. App. 105, 226 So. 2d 166, and Ponder v. D. W. Morris & Bros., 152 Ala. 531, 44 So. 651.
The evidence introduced on behalf of appellee showed that the bulk of the items purchased by appellant was in the category of necessities.
Appellee's evidence is also silent on the question of whether or not appellant had agreed to be responsible for the necessaries purchased for her family.
In the case of Loveman, Joseph & Loeb, Inc. v. Rogers, 39 Ala.App. 162, 96 So. 2d 691, we have a factual situation somewhat analogous to that at bar. A charge account was opened with Loveman, Joseph & Loeb, Inc. by Mrs. Margaret Rogers in the name of Mr. and Mrs. H. C. Rogers. This Mrs. Rogers made purchases from appellant and charged them to the named account. Margaret Rogers received a divorce from H. C. Rogers, and he later married Mrs. Marguirite Rogers. The second Mrs. Rogers used this charge account, and a question subsequently arose as to who was liable for the purchases of the second Mrs. Rogers, who was also now divorced from Mr. Rogersshe or her former husband, H. C. Rogers? The material facts upon which the court relied, showed that the second Mrs. Rogers did not open the account and made no express promise to pay for any part of the unpaid balance of the account; all of the purchases involved in the suit were made either by the second Mrs. Rogers, or with her authority, while the parties were married; and the bills were sent out in the name of Mr. and Mrs. H. C. Rogers.
The material facts in the case at bar bearing on the relationship between appellee and appellant are very similar to the material facts in Rogers, supra, leading us to the conclusion that there was no evidence indicating that the account held with appellee by appellant and her husband was a joint one.
The only piece of evidence that could possibly be construed as indicating either that appellant had a joint account, or that she had impliedly consented to be solely responsible for her purchases, was the charge card in the name of Mrs. Stephen Green, Jr.
The effect this piece of evidence had on the determination of the issue in this case appears to us to have been completely dissipated by the fact that there was only one account number, the billing statement being initially in the name of Mr. and Mrs. Stephen Green, Jr., but at the last, in Stephen Green, Jr.'s name only; plus the testimony of the bank's only witness to the effect that the account was intended to be the husband's with the wife-appellant being permitted to charge on it.
We think this observation especially pertinent when we compare the account in Rogers, supra, where it was styled Mr. and Mrs. H. C. Rogers, with the account in the present case being styled Mr. and Mrs. Stephen Green, Jr.; and consider the court's conclusion in Rogers, supra, to the effect that the account was the husband's only, with the wife not being responsible for the charges. The court, in the cited case, also neutralized any conclusion that the use of the term Mr. and Mrs. would mean that a joint account existed in the present case.
The Supreme Court in Chichester v. First Nat. Bank of Birmingham, 242 Ala. 227, 5 So. 2d 772, quotes, with approval, the *900 following from Harris v. State, 215 Ala. 56, 109 So. 291:
"When the party holding the burden of proof wholly fails to adduce evidence to support the cause of action or defense, or where the testimony of one's own witnesses, without conflict, makes out the case of the opposing side, the court may direct the verdict by affirmative instruction without hypothesis on request in writing. In such case there is nothing to argue. The party may not assail the credibility of his own witnesses in argument."
Also see Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90.
It is our conclusion that the evidence in this case fails to show that appellant's account at appellee's bank was a joint one with her deceased husband.
We are therefore of the opinion that the trial court erred in refusing to give to the jury the general affirmative charge without hypothesis as requested in writing by the appellant.
We will now consider the other assignments of error made by appellant.
Assignments of error two and twelve will not be discussed for the reason that our conclusion in regards to the refusal of the trial court to give the general affirmative charge without hypothesis obviates any worthwhile purpose in so doing.
Assignment of error five is based on the refusal of the trial court to give the following charge to the jury:
"I charge the jury that under the laws of Alabama a wife is not liable for the debts of her husband."
The court, in its oral charge, read to the jury Title 34, Section 65, Code of Alabama 1940, as Recompiled 1958, which appellant, in brief, admits is the basis of this written requested charge.
The appellate courts of this State have repeatedly held that the trial court will not be put in error for refusing to give at the request of a party, charges where the principle of law sought to be stated is given to the jury in the court's oral charge or in other given written charges. Title 7, Section 723, Code of Alabama 1940, as Recompiled 1958; Cullman-Jefferson Counties Gas Dist. v. Reeves, 281 Ala. 67, 199 So. 2d 78; Atlantic Coast Line R. Co. v. Griffith, 40 Ala.App. 364, 113 So. 2d 788.
Assignment of error six charges the husband with being liable for necessaries, and that the wife is not liable unless she personally contracted to pay them; assignment of error seven charges that there is a presumption that the wife acts as his agent when she buys necessaries.
We consider that the trial court properly refused these two requested charges.
These two requested charges were not hypothesized on the evidence, but merely set out statements of legal principles without instructions as to the effect on the issues in the case. McLaughlin v. Tolbert, 273 Ala. 307, 139 So. 2d 610; and Atlantic Coast Line R. Co. v. Griffith, supra.
Also, the charge in assignment seven was properly refused for the reason that Alabama does not presume that the wife is the agent of her husband merely because she buys necessaries. Goldfield v. Brewbaker Motors, Inc., 36 Ala.App. 152, 54 So. 2d 797.
For the failure of the trial court to give to the jury the general affirmative charge without hypothesis as requested in writing by the appellant, this case is reversed and rendered.
Reversed and rendered.
ON REHEARING
In its application for rehearing, appellee contends that: (1) the sales receipts signed by appellant in making purchases *901 with her charge card were negotiable instruments and that she is liable for those purchases even though they were for necessaries; and (2) where a wife executes a negotiable instrument, it then becomes a question of fact for the jury whether she is liable on the instrument, regardless of the fact that it may have been executed for the purchase of necessaries.
We would point out that appellee's complaint was in the Code form for a suit on an account (Title 7, Section 223, Form 10, Code of Alabama 1940, as Recompiled 1958); the case was tried before a jury on the basis of a suit on an account, and was reviewed by this court on appeal on that same theory.
Yet, on rehearing, appellee now characterizes the case as premised on a negotiable instruments theory.
New questions or new theories for deciding a controversy cannot be presented or raised for the first time on rehearing.
The Supreme Court in Kirkland v. Kirkland, 281 Ala. 42, 198 So. 2d 771, said:
"We cannot sanction the practice of bringing up new questions for the first time in application for rehearing. Robinson v. Allison, 97 Ala. 596, 604, 12 So. 382, 604 (sic).
"An application for rehearing on ground not argued or suggested until after our judgment was rendered cannot be now considered. Goodgame v. Dawson, 242 Ala. 499, 504, 7 So. 2d 77; Rudolph v. Rudolph, 251 Ala. 317, 319, 36 So. 2d 902; Austin v. Pepperman, 278 Ala. 551, 572, 179 So. 2d 299."
This court is thereby precluded from considering the questions raised in the application for rehearing.
We would say again, however, that this case was not tried and decided on the basis of a negotiable instrument, but went to the jury on the basis that there was a joint account with appellee, appellant and her husband, for which she was to be held liable.
There was never any effort to characterize the sales slip or charge ticket signed by appellant as a negotiable instrument. Moreover, had the controversy been tried and decided on the basis of a negotiable instrument rather than an account authorized by Section 223, supra, the appellant could have been held liable only for those charges made by her.
Section 3-401 of the Uniform Commercial Code (Title 7-A, § 3-401, Code of Alabama 1940, as Recompiled 1958), provides:
"No person is liable on any instrument unless his signature appears thereon."
Therefore, the question would have been one of law rather than fact. Hence, no jury question would have been involved.
Opinion extended.
Application for rehearing overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572267/ | 437 F.Supp. 38 (1977)
Aaron R. SUITS, Plaintiff,
v.
Kenneth LYNCH, personally and in his official capacity, Defendant.
Civ. No. 76-219-C3.
United States District Court, D. Kansas.
June 30, 1977.
*39 Aaron R. Suits, pro se.
Curt T. Schneider, Atty. Gen., Roger M. Theis, Asst. Atty. Gen., State of Kansas, Topeka, Kan., for defendant.
MEMORANDUM AND ORDER
WESLEY E. BROWN, Chief Judge.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by an inmate of the Kansas State Penitentiary, Lansing, Kansas, presently incarcerated for state convictions of aggravated rape and sodomy, and aggravated robbery. He seeks a money judgment against a correctional officer of the Penitentiary for an alleged violation of his constitutional rights. We previously granted plaintiff leave to proceed in this action in forma pauperis. 28 U.S.C. § 1915. The matter now is before the Court for consideration of defendant's motion for summary judgment. A pre-trial order has been prepared, the parties have submitted affidavits of their witnesses, and the Court has listened to oral recitation of the parties' respective positions.
The facts are not in substantial dispute. On October 22, 1976, officers of the Kansas State Penitentiary conducted a search of inmates' cells for the purpose of removing metal-tipped pens and pencils, which had been used recently for self-mutilation by certain inmates. The plaintiff, Suits, was removed from his cell during the search conducted there and certain pens were confiscated. Suits demanded a receipt for the property taken, as provided, he claims, by administrative regulation. The receipt was refused him, and he thereafter refused to *40 re-enter his cell, preferring to challenge this decision. The defendant, Lynch, then a senior officer of the facility in which Suits was housed, responded by ordering Suits into his cell and threatening the use of force should he resist. Suits again refused. At the time, approximately five other nearby cells were open for inspection, a situation which required care on the part of the officers to maintain order in the cell block. In response to Suits' refusal, several officers, including Lynch, attempted to force him into the cell, Suits physically resisting the entire time. During the ensuing scuffle, the officers managed to force Suits to the floor, break his hold on the bars of his cell, and "slide" him into the cell.
The basis for plaintiff's cause of action is his contention that Lynch used excessive force, amounting to cruel and unusual punishment, in obtaining his compliance. He accuses Lynch of the following bad acts: (1) pulling his left arm to guide him into the cell; (2) ordering him thrown to the floor; (3) pulling and twisting his "bad leg" in an attempt to position him before the door of the cell; (4) grabbing him about the neck and pulling his hair; (5) kicking at his hands to free them from the bars of the cell; (6) pulling him into the cell; and (7) kicking or punching at him one last time after he had been replaced in the cell. He lists the injuries suffered as swelling of his twisted leg, bruises on his shoulders, feet, hands and throat, loss of hair, and a sore back. Lynch claims that neither he nor the other officers physically abused Suits, but that only so much force as then appeared necessary was used. This issue is therefore in dispute, but for purposes of determining summary judgment the averments of the plaintiff shall be assumed true. Gragg v. Travelers Ins. Co., 459 F.2d 418 (10th Cir. 1972). The question we are asked to resolve is whether, under the circumstances now known, the conduct of the defendant was so insubstantial that under no interpretation of the facts, and as a matter of law, could it be said he violated plaintiff's right to be free of cruel and unusual punishment.
As we indicated in our opinion of November 2, 1976, in this case, prison personnel must be free to deal firmly with outbreaks and uncontrolled situations as they arise to maintain order, discipline, and preserve the security of inmates as well as of officers, and to quell potential large-scale violence. See Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). However, the courts also realize that infliction of punishment may be cruel and unusual when, although applied in pursuit of legitimate penal objectives, it goes far beyond what is necessary to achieve those objectives. Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970). The test is whether the prisoner has been administered corporal punishment of such base, inhumane, and barbaric proportions, both in relation to present-day concepts of human dignity and the objective or provocation of the punishment, as to shock and offend the court's sensibilities. Bethea v. Crouse, supra, at 509. In this respect, the protection of the Eighth Amendment, applicable to the states through the Fourteenth Amendment's due process clause, is nowhere nearly so extensive as that afforded by the common law tort action for battery. Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973); Bolden v. Mandel, 385 F.Supp. 761 (D.Md.1974). Fisher v. Turner, 335 F.Supp. 577 (D.Utah 1972); Foster v. Jacob, 297 F.Supp. 299 (C.D.Cal.1969). To quote from Judge Friendly's opinion in Johnson v. Glick, supra, at 1033:
Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.
In the case at bar, the plaintiff clearly provoked the reaction of Lynch by refusing to obey a lawful order to return to his cell. Indeed, he aggravated the situation by actively resisting efforts to place him in the cell. This came at a time when *41 other nearby cells were open, and there existed a dangerous possibility of confrontation between prison officials and inmates. The officers therefore were fully justified in taking swift and forceful action to replace plaintiff in his cell, regardless of plaintiff's personal reasons for refusing to go voluntarily. Considering further the extent of injury allegedly suffered by the plaintiff, we find nothing "shocking" about the incident. At best, bruises and swellings are minor ailments which could result from any altercation, and therefore are not themselves indicative of a constitutional violation. The record further reflects that plaintiff has been received at the prison hospital on a regular basis since the October incident, thereby disproving his claim of denial of medical treatment.
Even assuming that the defendant took the opportunity to arbitrarily pummel the plaintiff or take a few "cheap shots" at him while he was pinned by other officers or otherwise helplessly sprawled upon the floor, we find nothing in this incident which appears "base, inhumane, or barbaric." At best, under the conditions, if plaintiff suffered a battery, it is not an infringement of his rights.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment be and the same is hereby Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572283/ | 437 F.Supp. 495 (1977)
Gilbert R. HOROWITZ, Plaintiff,
v.
Irving ANKER, the Board of Education of the City School District of the City of New York, Frank C. Arricale II, and Anthony J. Polemeni, Defendants.
No. 73 C 1747.
United States District Court, E. D. New York.
September 7, 1977.
*496 Goldberg & Comer, New York City, for plaintiff by Joan Goldberg, New York City.
W. Bernard Richland, Corp. Counsel, City of New York, New York City, for defendants by Lorna Bade Goodman, Eileen F. Shapiro, New York City.
NEAHER, District Judge.
In this action under the Civil Rights Act, 42 U.S.C. § 1983,[1] plaintiff, a school psychologist employed by the Board of Education of the City School District of New York (the "Board of Education" or the "Board"), claims he was transferred from one bureau to another in the Board of Education in retaliation for having spoken out against what he believed were questionable actions of superiors. His suit was aimed chiefly at defendants Irving Anker, now Chancellor of the Board of Education, and Dr. Anthony Polemeni, Director of the Office of Educational Evaluation ("OEE"),[2] whom he charged with violating his constitutional right of free speech by ordering him to report for a psychiatric examination and by transferring him from his long-time post in OEE to the Board's Bureau of Child Guidance ("BCG").
Plaintiff sought compensatory and punitive damages and an injunction transferring him back to his former position. The liability and damage issues were tried to a jury,[3] which returned a verdict in favor of plaintiff against both defendants for compensatory damages in the amount of $25,000 and punitive damages against Anker in the amount of $20,000 and against Polemeni in the amount of $5,000.[4]
Defendants now move for judgment notwithstanding the verdict, Rule 50(b), F.R. Civ.P., or in the alternative for a new trial, Rule 59, F.R.Civ.P., contending that the evidence against Anker and Polemeni was legally insufficient to sustain the verdict and that it was based on highly prejudicial evidence of claimed wrongdoing with which they had no connection. For the reasons which follow, defendants' motion for judgment n. o. v. is granted.[5]
*497 Plaintiff's case concentrated on allegations of improprieties within the Board of Education concerning the practices and procedures of his bureau, OEE, in awarding contracts to outside companies for research evaluation programs and the annual citywide reading test. Indeed, plaintiff claims to have proven at trial the existence of "illegal, wasteful, improper and unprofessional practices and procedures at OEE" dating back to 1971.[6] Defendants maintained that plaintiff's transfer was necessary because he was a disruptive and ineffective member of the staff, "consistently at odds with his superiors" and in the end, an unsatisfactory employee who had attempted to usurp his superior's authority.[7]
A careful review of the entire record and the court's own familiarity with the sequence of events impel the conclusion that everyone, including counsel, the court and the jury, lost sight of the real issues in the case amidst the barrage of charges of wrongdoing within the Board of Education. But the Board of Education was not on trial. The fundamental issues concern solely the right of a governmental employee to speak out publicly on matters of public concern in the exercise of his first amendment rights, the right of the Board of Education as an employer to maintain order and discipline, and the authority of the employee's immediate superior to manage his department.
Plaintiff's claim is based on asserted instances of retaliatory conduct by the individual defendants because he spoke out on specific issues over a period of time between 1971 and 1973. A review of the evidence in the light most favorable to plaintiff is therefore necessary to ascertain exactly what statements were made by plaintiff and what acts were performed by each of the defendants and their causal relationship, if any, to his transfer from OEE.
The Relevant Facts Before the Jury
On June 1, 1967 plaintiff began employment with the central Board of Education at its Brooklyn headquarters when he was appointed to the position of school psychologist in the Bureau of Educational Research for a probationary term of three years.[8] The appointment was made at the request of Dr. Samuel McClelland, then Acting Director of the Bureau, which in late 1973 became OEE and will hereinafter also be referred to as "OEE". Plaintiff was the only school psychologist in OEE, which then employed a professional staff of approximately 20 individuals, mainly in licenses of research and research assistant.
The primary functions of OEE, which reports directly to the Chancellor, were (1) *498 the central evaluation of educational programs involving over $100,000,000 in federal and State aid; (2) city-wide testing and test development; (3) administering the annual achievement tests; (4) independent audits; and (5) approving all research on the City schools.[9] Plaintiff was engaged primarily in research and statistical work, writing critiques of proposed programs, designing and evaluating programs and developing psychometric techniques and tools. On June 1, 1970, having rendered satisfactory service during his probationary term, plaintiff's appointment as school psychologist was made permanent and he obtained tenure in that license.[10]
The performance of pedagogical employees of the Board of Education is rated at the end of each school year by their supervisors. From the commencement of his employment until and including June 1973, plaintiff's performance was rated satisfactory. In June 1974 plaintiff was rated unsatisfactory by Polemeni. The rating was upheld on appeal. What happened during that school year, September 1973 to June 1974, is the nub of this lawsuit.
As part of this general review, as previously noted, n. 8 supra, it appears that former employers of plaintiff had criticized his performance and his ability to get along with his fellow employees and superiors. Also well documented and not seriously contradicted, apart from his assertion that he was treated differently than other Board employees, are plaintiff's chronic difficulties with lateness, absences and conforming to regular hours of employment due to medical and other reasons.
Before we turn to the 1973-1974 incidents which really gave rise to this action, it is necessary to mention briefly prior events which formed the bulk of plaintiff's proof at trial. The evidence was obviously offered to show that Anker and others were aware of plaintiff's successful challenge to questionable practices of the Board's bureaucracy and thus had a motive to retaliate against him whenever an opportunity arose.
The first of these occurrences took place in the spring of 1971, after McClelland sent plaintiff several letters demanding explanations for plaintiff's absences or lateness. In one response to McClelland plaintiff intimated knowledge of improper behavior within OEE in respect of bidding procedures.[11] McClelland sought Anker's approval to arrange for the transfer of plaintiff to the Bureau of Child Guidance ("BCG"), representing that plaintiff wanted to work with children and no longer found his work at OEE congenial or appropriate. Plaintiff, in a letter to Anker, resisted, stating he wished to remain in OEE, that any transfer would be involuntary, and requested a meeting. There is no evidence as to what action Anker took, if any, with respect to the letters or that he even personally received them. In any event plaintiff received no response, no meeting with Anker was held and no transfer took place.
The upshot of the matter was on the basis of information supplied by plaintiff, then Chancellor Harvey Scribner requested the City Department of Investigation to look into the situation and plaintiff's transfer to BCG was rescinded. Commissioner Robert K. Ruskin later wrote Chancellor Scribner suggesting new procedures be adopted for letting evaluation contracts. Plaintiff acknowledged at trial that the recommended *499 procedures were ultimately implemented. McClelland was removed as director of OEE and subsequently retired.
From the foregoing the jury could have found that the early attempt to transfer plaintiff was an act in retaliation or to prevent plaintiff from speaking out about improper letting of contracts in OEE. But the sole aggressor apparent from the evidence was plaintiff's supervisor McClelland who was not named as a defendant. Despite plaintiff's promises at trial to link the act to Anker, the sole wisps of any involvement are the communications concerning the "voluntary" transfer. But neither of these communications makes reference to plaintiff's allegations and both are directed to the Deputy Chancellor in a titular manner. Moreover, when plaintiff's position was later abolished, it was done over Chancellor Scribner's signature, with no indication of any participation by Anker.
The next event occurred in late 1972. Following McClelland's resignation, Chancellor Scribner had appointed Dr. David A. Abramson as Acting Director of OEE early in 1972, with the specific charge of reorganizing the bureau. In the fall of 1972, Abramson recommended that research designs for evaluation projects, which were being contracted to outside agencies, be performed in-house, that is, by OEE personnel. This recommendation was followed. He also recommended that the evaluations themselves be done in-house as more economical based upon a cost estimate prepared by OEE, but this recommendation was not followed by a Bid Review Committee, which had been established by Chancellor Scribner to pass upon and award contracts. Anker was not a member of the Bid Review Committee but sometimes met with it.
In accordance with its usual practice, the Board of Education held a public meeting on December 20, 1972 to pass upon, inter alia, the award of four OEE evaluation projects to outside firms. Plaintiff appeared as a private citizen at that meeting and gave a statement, which is set forth in full in the margin.[12] Essentially, plaintiff told the Board that if OEE performed evaluations instead of awarding outside contracts, *500 the city could save a quarter of a million dollars. A Board member asked in what connection OEE had made the estimate. Deputy Chancellor Anker responded that the Bid Review Committee and he were awaiting a report from Dr. Abramson, to be forwarded to the Chancellor, regarding evaluations which could be done by OEE and those which required employment of additional consultants. The same Board member commented that he saw no reason why evaluations could not be done in-house in the future, with better quality, and that he would like OEE to make that determination. However, the Board did adopt the items without opposition.
Plaintiff's statement was a classic exercise of first amendment rights a public statement on a matter of public concern as a citizen. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). No retaliation would have been constitutionally permissible. No evidence thus far, however, points to any proximate reprisal by these defendants because of plaintiff's remarks. Polemeni had not yet been appointed Director of OEE and only later was apprised of plaintiff's speech. The most that can be said is that Anker was aware and Polemeni became aware that plaintiff publicly spoke on the matter of in-house evaluation of contracts and believed OEE evaluations would be more economical. This is not to say that retaliation must be immediate in time to be actionable. But the more remote the constitutionally protected conduct from the claimed abridgement, the more unequivocal must be the proof on the issue of causation or motivation.
The prelude to the incidents really leading to this controversy began in March 1973 when Chancellor Scribner appointed Polemeni as Acting Director of OEE. Polemeni soon made it clear to his staff that he would not be told what to do by any staff member.[13] In May, Polemeni received a complaint signed by 16 staff members, including plaintiff, expressing concern over seeming downgrading of assignments. As an example of downgrading, as perceived by plaintiff, on May 4, 1973 Polemeni changed the Math Skills project, which originally was to have been supervised by an OEE staff member, Fred Smith, assisted by outside consultants and to require 250 man days for completion, to a joint assignment between Smith and plaintiff, without outside consultants and with a much shorter deadline. Though this decision may have made heavier demands on the staff, it was clearly consonant with the in-house policy plaintiff advocated and Anker had said was under consideration at the 1972 Board meeting.
In June 1973 plaintiff received several reprimands from Polemeni over lateness in turning in monthly service reports and for spending over 50% of his working time on the Reading Study. Nonetheless, plaintiff's application for summer employment was granted by Polemeni, the ordinary employment term coinciding with the September-June school year.[14]
Near the end of the summer Polemeni complained that plaintiff had failed to complete assignments and that one report which had been submitted was unacceptable and had to be reassigned. Plaintiff's response, contained in a memorandum to Polemeni of August 22, 1973, was that he had not received the assignments, but he would give them priority now that he was apprised of their importance.[15]
*501 Plaintiff's testimony, which we must accept, was that he never received notice of some of the assignments because notices were placed on other desks or never sent, and that the unsatisfactory project design was due to the typist's failure to type plaintiff's entire draft, although he admitted not proofreading the design before submitting it. The evidence is uncontroverted that, for whatever reason, plaintiff had completed no summer critique assignments midway through the summer term.
At the beginning of the 1973-74 school year there occurred the speaking out which plaintiff claims led to immediate retaliation by defendants. On September 10 Dr. Richard Turner, who had headed the OEE evaluation processing unit, was appointed Assistant to the Director. Polemeni announced the appointment at a staff meeting attended by Turner. Plaintiff was also present and criticized the appointment by standing up and reading aloud a letter he had written to the NAACP deploring the appointment of someone whose "undistinguished career" was notable in two respects, referring to Turner's responsibility for two research projects with conclusions adverse to racial integration. Polemeni testified that plaintiff's action created a tension in the room so great "you could cut it with a knife" and completely disrupted the meeting.
The next day plaintiff received a memorandum from Polemeni directing him to change his office from Room 712 to Room 743. Plaintiff's room change was one of nine rearrangements among the professional staff which Polemeni made in his September reorganization. Plaintiff refused to move, telling Polemeni he considered the order retaliatory, to which Polemeni replied that it might be, stating "I'm not saying it is. But even if it were I can get away with it."[16] There followed a series of memoranda sent daily by Polemeni to plaintiff from September 14, 1973 to November 21, 1973 ordering him to move. Plaintiff paid no attention and, after conferring with his colleagues, considered his refusal to move a minor infraction to which little consequence would be attached.
The evidence is uncontradicted that, among other incidents, plaintiff also refused to confer with Polemeni unless another staff member was present, would not deliver Polemeni's messages to other staff members, refused to give the office any reason why he was absent contrary to office policy, and harassed Polemeni by such statements as that another staff member said Polemeni was incompetent or that Polemeni would soon be gone.
On its face the room assignment incident is a petty conflict. Standing alone, a superior's direction to a subordinate to move his office, even if made after the subordinate's exercise of a constitutional right, hardly rises to the level of a constitutional violation. See, e. g., East Hartford Education Association v. Board of Education, 562 F.2d 838, p. 856 (2 Cir.), decided en banc August 19, 1977. Plaintiff's own appraisal of the lack of seriousness of his refusal is consonant with that view.
The matter, however, did not end there. On September 21, 1973 Polemeni wrote to Anker requesting a medical examination of plaintiff under New York Education Law § 2568. Six reasons supporting the request were enumerated as set forth in the margin.[17] Anker authorized the examination, although plaintiff wrote him objecting to it.
*502 Plaintiff reported for the medical examination sometime in October 1973. It was conducted by two Board physicians who gave him a short physical examination, apparently cursory, followed by a longer interview. They recommended examination by a psychiatrist. Plaintiff was ordered to report to a panel psychiatrist for examination on October 26, 1973 by letter signed by Dr. Leibowitz, the School Medical Director. Plaintiff wrote Leibowitz on October 25, 1973, with a copy to Anker, that he would not appear, explaining his desire to consult with his attorney. He also declined to appear for a second appointment with the psychiatrist, scheduled for November 12, 1973.
Meanwhile on October 12, 1973, Polemeni sent a memorandum to Anker as a follow-up to a monthly report, identifying plaintiff as the individual who was having a negative effect on his professional staff, and informing Anker he intended to file charges of insubordination. He reported an incident of that day in which plaintiff attended a meeting of the Reading Study Committee in Polemeni's office to which he had not been invited. When asked to leave because he was not a member of the Committee plaintiff refused and remained throughout the meeting. This incident was repeated at a second meeting held October 26, 1973. When plaintiff refused to leave, the meeting was adjourned.
Plaintiff testified that he worked on the Reading Study and that the other members had indicated he should remain. Whatever plaintiff may have believed his status to have been, it is clear that in the eyes of his superior, Polemeni, plaintiff was not and had not been on the Committee, and had been previously reprimanded for spending working time on the study.
In a second memorandum to Anker dated October 29, 1973, Polemeni, apparently referring to plaintiff's refusal to undergo the psychiatric examination, straightforwardly made clear his intention to remove plaintiff from OEE. Polemeni stated that if plaintiff "be found unfit for duty" he assumed plaintiff would be removed and that if plaintiff "be found fit for duty" he would file charges of insubordination. He requested Anker's cooperation in resolving the matter.
On November 2, 1973 plaintiff instituted a grievance proceeding to have removed from his file the request for a medical examination because the reasons given were inaccurate.[18] Polemeni agreed to confer and then after the meeting sent plaintiff a list of questions asking specification of the grievance. When plaintiff sought to meet with Polemeni to clarify whether the grievance had been denied, a prerequisite for Step 2, Polemeni refused to talk with him and sent for a security guard to have plaintiff removed from the office. Plaintiff quietly left with the guard.
Polemeni's third communication to Anker was a confidential memorandum dated November 12, 1973, requesting advice on possible suspension of plaintiff. In strong terms he wrote of the "disruptive, demoralizing influence" plaintiff had on the staff of OEE, stating that "I understand I cannot request suspension on the basis of allegation. At the same time, I do not feel that the [OEE] can progress normally as long as Mr. Horowitz remains on duty." Polemeni then listed 16 charges against plaintiff, set forth in full in the margin.[19] These included *503 plaintiff's refusals to leave Polemeni's office and conferences to which he had not been invited, inability to be located in his office and unprofessional conduct, which Polemeni testified referred to the speech regarding Turner's appointment.
On November 20, 1973 plaintiff received a temporary administrative transfer from OEE to BCG, effective November 21, 1973. This transfer did not go into effect. By commencing this lawsuit on November 27, 1973, plaintiff obtained a temporary restraining order against the transfer and the psychiatric examination. After expiration of the temporary restraining order, on December 10, 1973, plaintiff received another temporary transfer to BCG for an indefinite period. The operative notices of transfer were signed by Frank C. Arricale II, Executive Director of Personnel.
Plaintiff reported to BCG in January 1974 and remained there under the temporary transfer until September 1975, at which time he was formally transferred to the BCG. He testified that when he first reported, he was not given any assignment and later was given a clerical task, not commensurate with his abilities, although his salary was not diminished.
Polemeni's last professional contact with plaintiff was to rate his performance for the 1973-1974 school year as unsatisfactory. Plaintiff appealed but the rating was upheld on appeal by the Chancellor's Committee and, at their recommendation, by Chancellor Anker.[20]
Discussion
To warrant a grant of judgment notwithstanding a jury's verdict, the evidence must be "such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict". Brady v. Southern Railway Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943); Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 742 (2 Cir. 1975). Furthermore, the court must view the evidence in the light most favorable to the party opposing the motion and give him the benefit of all inferences fairly supported, even though contrary inferences might reasonably be drawn. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Simblest v. Maynard, 427 F.2d 1, 4 (2 Cir. 1970). And unfavorable evidence, to be considered, must be uncontradicted and unimpeached. Bigelow v. Agway, Inc., 506 F.2d 551, 554 (2 Cir. 1974).
Having these principles in mind, the court is satisfied that the evidence before the jury was wholly insufficient to support a verdict against either defendant.
Preliminarily, it should be noted that plaintiff has suffered no loss of employment, salary or tenure as a result of the defendants' actions. Four years after his transfer to BCG he still remains employed by the central Board of Education in his license of school psychologist in a department *504 staffed by similarly licensed school psychologists. Having in mind the balance that must be struck between the interests of plaintiff "as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs", Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the evidence ought to be clear and convincing that plaintiff's conduct was protected by the First Amendment and that his transfer under the circumstances was in fact punishment for exercising his rights and not for the purpose of preserving the orderly administration of OEE.
Essential to plaintiff's case was proof that the statements he claims resulted in his transfer were such as to be fairly within his right as a school employee to comment on matters of public interest in the operation of the school system. Pickering v. Board of Education, supra, at 568-570, 88 S.Ct. 1731. Although the evidence ranged over statements and activities of plaintiff dating back to 1971, the record is clear that the only statements which could have played a part in his transfer were contained in his criticism of Dr. Turner's appointment as Assistant Director of OEE on September 10, 1973.
That statement, made in the non-public form of a staff meeting, directly criticized his immediate supervisor's administrative decision and was directed against the professional worth of a co-worker, both persons with whom he had intimate contact in the course of his daily work. The remarks ineluctably called into question Polemeni's authority over his staff and had the potential for disruptive impact on the operations of OEE. To be sure, plaintiff's criticism was influenced by his belief that Turner held negative views on racial integration in the schools. But whether plaintiff's belief was correctand there is substantial dispute of the accuracy of his statementthe main import and intention of the speech was not to champion integration, but to challenge directly the wisdom of Polemeni's appointment and the reputation of a fellow employee.
Viewed in context, the Turner criticism was not protected comment, nor would the events which followed it support plaintiff's claim of harassment and retaliation for speaking out. Polemeni's order the next day changing room assignments was directed to eight other staff members besides plaintiff. The order, moreover, coincided with the beginning of the first full school year following Polemeni's appointment as director and was intended to carry out a decision to reorganize OEE.
Whatever may have been plaintiff's state of mind, his repeated refusals to comply with Polemeni's order and his other antics could only be viewed as either plain insubordination or an indication that he might have problems requiring medical attention. Under the circumstances, Polemeni's recommendation of a medical examination for plaintiff comported with his supervisory authority and responsibility under the New York Education Law, § 2568. That two Board physicians, after seeing plaintiff, recommended a psychiatric examination adds further support to the propriety of Polemeni's decision. Plaintiff's refusal to undergo such examination left Polemeni with no alternative but to separate him from the OEE in order to maintain discipline, preserve harmony among the staff and promote concentration on the work to be done. See Pickering v. Board of Education, supra, n. 3 at 570, 88 S.Ct. 1731.
The evidence of retaliatory action by Chancellor Anker is even more lacking in substance. At the outset, it must be noted that liability of a defendant for deprivation of civil rights under § 1983 is predicated only upon a sufficient showing of that defendant's personal responsibility for the claimed constitutionally impermissible conduct. It is not founded on his official position. The doctrine of respondeat superior does not apply. Williams v. Vincent, 508 F.2d 541, 546 (2 Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1033-34 (2 Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973); Morpurgo v. Board of *505 Higher Education in the City of New York, 423 F.Supp. 704, 713 (S.D.N.Y.1976).
Apart from Anker's official acts as Chancellor in approving subordinates' requests which were facially supported by reasons, plaintiff is left only with Anker's presence during plaintiff's speech at the 1972 Board meeting, n. 12 supra, as proof of any intent to retaliate when Anker approved the request for plaintiff's transfer to BCG nearly a year later. This is so because Polemeni's later remark to plaintiff that neither he nor the Chancellor "bought the public citizen bit on Board time" was not binding on Anker and, in any event, was not a threat to retaliate in the future for something said in the past. Moreover, it must be noted that in the sense that plaintiff's speech at the Board meeting was directed against the practice of using outside contractors for evaluations, Anker was in agreement. The solution finally adopted by Anker ended contract awards to outside firms and substituted the use of consultants to assist OEE performance, a proposal which Anker said at that meeting was under advisement.
In sum, plaintiff failed to show any causative nexus between his exercise of legitimate First Amendment rights and his transfer from his position in OEE. On the contrary, the evidence established without contradiction that plaintiff spent over 50% of his working time in spring 1973 on a project to which he had not been assigned, reported in August 1973 that he had failed to complete assignments, not only because he had not received notice but because he was working on his own project, the development of a reading test, openly criticized his superior's appointment of an assistant, refused to move his office when directed, refused to leave meetings of the Reading Study Committee to which he had not been invited, and was unaccountably late or absent on a number of occasions.
The conclusion is inescapable that the jury's verdict in plaintiff's favor was contrary to the evidence and placed him in a better position than he would have been solely because he claimed to have exercised constitutionally protected conduct. But as the Supreme Court recently noted, a school employee "ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision . . . on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision." See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 286, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977).
Accordingly, defendant's motion for judgment notwithstanding the verdict is granted, the verdict herein is set aside and the Clerk is directed to enter judgment in favor of defendants dismissing all claims in the complaint upon the merits without costs. Settle form of judgment on notice.
SO ORDERED.
NOTES
[1] Jurisdiction exists under 28 U.S.C. § 1343.
[2] The Board of Education was dismissed on consent before trial because it is not a "person" within the meaning of the Civil Rights Act. Monell v. Dept. of Social Services of the City of New York, 532 F.2d 259, 262-64 (2 Cir. 1976). Frank C. Arricale II was dismissed as a defendant on consent at the close of trial.
[3] on the equitable issue tried to the court in June 1976 the jury's findings, of course, were merely advisory.
[4] The trial transcript does not indicate against which defendant the $20,000 and $5,000 punitive damages were awarded. It is the court's recollection that the jury awarded damages as indicated in the text. The court may correct the record so that it be made to conform to the truth. Rule 10(e), F.R.A.P. See Transcript, pp. 1452-53 (hereinafter "Tr.___").
In addition the jury first awarded compensatory damages of $10,000 plus legal costs, and when informed by the court that attorney's fees could not be awarded, recomputed the damage figure to the $25,000 amount. Tr. 1456-57, 1462.
[5] For more than 3½ years the court has lived with this lawsuit which throughout has been characterized by repeated efforts to have the court interfere in the administration of the Board of Education, countered by bureaucratic decisions affecting plaintiff's employment status and by acrimonious charges on both sides. The parties have appeared before the court on numerous occasions, following plaintiff's failure to receive his paycheck in September 1975, his permanent transfer to the BCG, alleged harassment of plaintiff at the BCG including failure to notify him of certain vacancies, refusal to assign him work commensurate with his position, and refusal to pay him because of his delay in turning in timesheets, treatment allegedly not accorded to others.
The long delay in disposition is the result of a confluence of several factors: the withdrawal of plaintiff's original counsel, the lapse of considerable time before plaintiff was able to retain new counsel, personnel changes in the Office of Corporation Counsel, the court reporter's refusal to transcribe the record of the November 1975 jury trial before being paid by the City, his subsequent transfer to Washington, D.C. and failure to complete transcription before March 31, 1977.
[6] Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Judgment Notwithstanding the Verdict, filed May 9, 1977, p. 1.
[7] Defendants' Memorandum of Law in Support of Motion for Judgment N.O.V., filed April 5, 1977, p. 3.
[8] DX-Q. Prior evaluations of plaintiff by former supervisors noted the following:
"had . . . controversy with the principal or other school authorities or with teachers" (DX-I, J);
"failed to show integrity, self-command, courtesy, regard for democratic ideals or respect for the lawful authority" (DX-I, J);
"capacity for winning and holding the respect of adults (co-workers, parents, etc.) . . . not quite satisfactory" (DX-J);
"his whole conduct was immature; with implications of threats etc." (DX-J);
"relation to colleagues . . . somewhat inadequate" (DX-K);
"relation to supervisors . . . somewhat inadequate . . . success in general treatment, follow ups, etc. . . . somewhat inadequate" (DX-K, M);
"failed to show industry, integrity, self command, courtesy, or respect for lawful authority" (DX-L) (see also DX-TT).
[9] See Affidavit of Dr. Anthony J. Polemeni filed December 4, 1973, ¶ 2.
[10] It is disputed whether an employee of the central Board is tenured in his Bureau or simply in the central Board by license.
[11] In his memorandum to McClelland of March 2, 1971, plaintiff stated, "I am, as well, gathering information at the present time which will lay the basis for actions which are available to me based upon numerous violations of what is considered standard operating procedure in administration." DX-W. Tr. 313. At trial plaintiff testified he learned in 1971 that contracts between OEE and outside firms for amounts greater than $5,000 were to be let by competitive bidding but, as a general rule, were not. Instead, McClelland awarded such contracts without competitive bidding to companies which had not submitted the lowest bid and to firms which employed or were headed by former employees of the Board of Education.
[12] As transcribed, it is as follows:
"I'm Gil Horowitz, representing myself as a New York City taxpayer tonight, although, I am a member of our staff in the Bureau of Research.
"Members of the Board, Dr. Scribner, although I have met with several members of the Board and Dr. Scribner on previous occasions, this is the first time I have had the pleasure of meeting everybody at once. Hello.
"In regard to Item 9(a, b, c and d), let me say that these items are only the cap on the iceberg. These are part of a series of some thirty projects, which are to be let for outside contracts, according to my understanding, which will cost the city approximately one quarter of a million dollars for the aforementioned package more than should be expended as indicated by a recent analysis by the Bureau of Educational Research. This analysis by the Bureau of Educational Research presumes that only qualified research personnel would be used in the execution of evaluations.
"In actuality, if history is a guide, there is little reason to believe that only qualified research personnel would in fact be used by the outside agencies. Only today, I was informed by a key administrator of the College Bound Program, that their summer program was evaluated primarily by college students employed by an outside agency at $2.85 an hour, whose task it was to evaluate teacher performance. Obviously, the college students were not qualified for this research task.
"My information is, that were we to use the outside agencies, we would be overspending, without qualified personnel, again if history is a guide, roughly one quarter of a million dollars for the upcoming more than twenty projects not included in (a, b, c and d). For the upcoming College Bound Program, for example, it is estimated that we would be spending some $70,000 for the coming year. In my opinion, much more than our analysis indicates and in my opinion much more than we should be spending. This together with some twenty-odd other programs, would lose us one quarter of a million dollars for every loss to the children of the city.
"My advice is simple. Regardless, of what we do with 9(a, b, c and d), we should re-examine the upcoming package of the twenty odd programs in order to not lose the one quarter million dollars. The B.E.R. estimated that it could do the job for roughly $250,000; less than the figures that the outside agencies would be employing, less than qualified research personnel for. Thank you." PX-18.
[13] See Memorandum from Frederick Smith, DX-DDD.
[14] Plaintiff had not received summer employment during 1971 and 1972.
[15] Plaintiff wrote that, since the priority need of the assignments had been more clearly expressed, as soon as he received a verified list of assignments and materials, he would expedite them. He further explained that he had been engaged as part of his summer work in developing a reading test, stating:
"In further explanation, other activities have engaged my time somewhat, including the development of a research proposal involving criterion referenced reading tests which could conceivably save the City of New York millions of dollars over a very few years. Should you wish to discuss this aspect of my summer work with me, I will certainly be happy to inform you of what progress I have made in this regard." DX-OO.
[16] Tr. 348.
[17] The reasons given by Polemeni for the examination were:
"1. Refusal to comply with directives (after many requests on the part of the Acting Director).
2. Refusal to confer with Acting Director at request of Acting Director.
3. Inadequate performance of duties.
4. Delinquent performance of duties.
5. Arrogates unto himself authority of the Acting Director.
6. Unprofessional conduct. (At a staff conference on September 10, 1973, in full presence of the professional staff, made unwarranted, unprofessional, and unsubstantiated charges against another staff member)." PX-19.
[18] The grievance was initiated pursuant to the contract between the United Federation of Teachers, Social Workers and Psychologists Chapter, and the Board.
[19] The charges in full were:
"1. Refused to comply with my directives.
2. Refused to confer with me.
3. Inadequately performed his duties.
4. Performed his duties in a delinquent manner.
5. Arrogated to himself the authority of the Acting Director.
6. Conducted himself in an unprofessional manner.
7. Refused to leave a conference to which he had not been invited and caused the meeting to be adjourned.
8. Refused to leave my office, and had to be ejected by the security guard.
9. Could not, on many occasions, be located within the precincts of the Office of Educational Evaluation during working hours.
10. Refused to accept written memos from me (said `I do not store garbage').
11. Refused to accept mail addressed to `Mr.' Horowitz. Struck out `Mr.' and substituted `Professor'.
12. Told the office Payroll Clerk that he did not care if his absence was considered insubordination because the `entire Bureau will be subpoenaed to appear in court.'
13. Told my secretary, when she attempted to hand him a memorandum from me, to `Have Mr. Polemeni have Mr. Anker deliver it to me personally'.
14. Lost data that he had collected for an evaluation report and then, in a written memo to me, intimated that the data had been stolen. (The evaluation report of a funded program has still not been submitted).
15. Refused to accept a memo from my secretary because he was addressed as `Mr.' and I was titled `Dr.'. Said he would accept the memo if my secretary would re-type it calling me `Mr.' and him `Professor'.
16. Made what he called, `intemperate responses' to the Acting Director of the Bureau of Educational Research. Then explained these `intemperate responses' by stating, `unusual psychological pressures combined which caused me to appear unworthy of your trust'." DX-FFF.
[20] The appeal was taken pursuant to § 105-a of the By-laws of the Board of Education. Plaintiff introduced evidence that the rating was not timely given as required by the Bylaws, but did not show any prejudice therefrom. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572287/ | 722 N.W.2d 492 (2006)
In re the ESTATE OF Francis E. BARG, a/k/a Francis Edward Barg.
No. A05-2346.
Court of Appeals of Minnesota.
October 17, 2006.
*493 Janice S. Kolb, Mille Lacs County Attorney, Dawn R. Nyhus, Assistant County Attorney, Milaca, MN, for appellant Mille Lacs County.
Thomas J. Meinz, Princeton, MN, for respondent personal representative.
Mike Hatch, Attorney General, Robin Vue-Benson, Assistant Attorney General, St. Paul, MN, for amicus curiae Minnesota Department of Human Services.
Considered and decided by LANSING, Presiding Judge; KLAPHAKE, Judge; and PARKER, Judge.[*]
OPINION
LANSING, Judge.
In this appeal from an order for partial recovery of medical benefits paid to Dolores Barg, the estate of Francis Barg challenges the district court's interpretation of Minnesota's estate-recovery statute, Minn.Stat. § 256B.15 (2004). Because we conclude that the determination of the deceased recipient's interest in transferred joint-tenancy property must be based on principles of real-property law as modified by specific provisions of the estate-recovery statute, we reverse and remand for recalculation of Mille Lacs County's allowable claim against the estate.
FACTS
Dolores and Francis Barg married in 1948. In 1962 and 1967 they acquired title to real property that they held in joint *494 tenancy. In 2001 Dolores Barg's health declined, and she eventually required out-of-home nursing care. To pay for her medical care, she applied for long-term Medicaid benefits. After participating in an asset assessment, Dolores Barg transferred her interest in the jointly held property to Francis Barg. At the time of the transfer, the assessed value of the property was $120,800.
Dolores Barg died in 2004. Between 2001 and 2004, Dolores Barg received a total of $108,413.53 in medical-assistance benefits through the Medicaid program. Five months after Delores Barg's death, Francis Barg died, and his will was admitted to probate. Mille Lacs County filed a claim against the estate to recover the medical-assistance payments made to Dolores Barg. The estate's personal representative allowed $63,880 as a claim against the estate, but disallowed $44,533.53. The county thereafter filed a claim-allowance petition.
At the hearing on the petition, the county contended that it was entitled to full recovery of its claim because the value of the real property exceeded the value of the claim and, as marital property, Dolores Barg was entitled to an undivided interest in its full value. The estate contended that the court should, instead, apply a probate-law analysis that would limit Dolores Barg's interest in the property to a life estate, with a value of $63,880.
Applying probate-law principles, the district court determined that Dolores Barg had a life-estate interest in the property and that the county could not recover the additional $44,533.53. The county appeals from this determination, and the Minnesota Department of Human Services has filed an amicus brief in support of the county's position.
ISSUE
Did the district court err by applying, for purposes of Minnesota's estate-recovery statute, a probate-law analysis to calculate a medical-assistance recipient's interest in transferred joint-tenancy property that is part of the surviving spouse's estate?
ANALYSIS
In the district court, Mille Lacs County and Francis Barg's estate jointly submitted a stipulation of facts; on appeal, both acknowledge that the claim against the estate is governed by federal and state statutes. Application of a statute to undisputed facts involves a question of law. O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). We review questions of law de novo. Morton Bldgs., Inc. v. Comm'r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).
Medicaid is a cooperative program between states and the federal government in which the federal government provides financial assistance to participating states. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn.2002). Participating states design their own Medicaid plans and set guidelines for eligibility and participation, but these plans must comply with federal law. Id. at 11.
Under Medicaid, a person who is unable to pay the cost of long-term medical care may qualify for medical-assistance benefits. See Women of State of Minn. by Doe v. Gomez, 542 N.W.2d 17, 21 (Minn.1995) (stating that Medicaid provides benefits for "medically needy"). If the person has income or assets that exceed the limits for eligibility, the person will not qualify for benefits until the available resources that exceed the eligibility level are expended. In re Estate of Atkinson v. Minn. Dep't of Human Servs., 564 N.W.2d 209, 211 (Minn.1997). Because the "spend down" *495 requirement has the potential to impose substantial hardship on the spouse of a medical-assistance recipient, Medicaid includes provisions to avoid spousal impoverishment. Id. These anti-impoverishment measures preclude certain assets from being considered for eligibility purposes. Id. Specifically, in determining eligibility for Medicaid benefits, the value of an individual's home is not considered so long as a spouse or dependent child maintains the home as a primary residence. Minn.Stat. § 256B.056, subd. 2 (2004).
Because the spousal anti-impoverishment measures provide an exemption for a primary residence, this property is typically an asset that is subject to estate-recovery procedures. In re Estate of Gullberg, 652 N.W.2d 709, 714 (Minn.App.2002). To reach these assets, Congress amended the Medicaid Act to expand the government's ability to recover from the estates of medical-assistance recipients and to require states to seek this recovery. See id. at 712. Although the Medicaid Act does not generally permit the government to recover medical assistance correctly paid on behalf of an individual, the government may seek recovery if one of three exceptions applies. 42 U.S.C. § 1396p(b)(1) (2000). The exception relevant to the Bargs' circumstances applies to individuals who were older than fifty-five when they received medical assistance. Id. § 1396p(b)(1)(B). Under this exception, the government may recover "from the individual's estate," but may only seek recovery after the death of the individual's surviving spouse. Id. § 1396p(b)(1)(B), (b)(2).
For purposes of recovery, federal law defines an individual's estate as "all real and personal property and other assets included within the individual's estate, as defined for purposes of [s]tate probate law." Id. § 1396p(b)(4)(A) (2000). The federal law, however, permits states to expand the definition of estate beyond the definition found within probate law. Id. § 1396p(b)(4)(B) (2000). If the state chooses, it may include "any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed. . . through joint tenancy . . . or other arrangement." Id.
Minnesota's estate-recovery statute provides that the state may assert a claim against the estate of a surviving spouse to recoup medical-assistance benefits provided to the predeceased spouse. Minn.Stat. § 256B.15, subd. 1a (2004). The Minnesota statute thus reflects the legislature's exercise of the option to expand the definition of estate to allow claims against the surviving spouse's estate. Gullberg, 652 N.W.2d at 713. But Minnesota limits a "claim against the estate of a surviving spouse . . . to the value of the assets of the estate that were marital property or jointly owned property at any time during the marriage." Minn.Stat. § 256B.15, subd. 2 (2004). Thus, the state may not recover from portions of a surviving spouse's estate that are not traceable to marital or jointly owned property.
In Gullberg, 652 N.W.2d at 714, this court determined that Minnesota's statute was partially preempted by federal law. Specifically, the court concluded that Minnesota's estate-recovery statute goes further than permitted by federal law because it permits recovery "to the value of the assets of the estate that were marital property," while the federal law only permits recovery "to the extent of" the individual's interest at the time of death. Id. To harmonize federal and state law, Gullberg concluded that Minnesota's estate-recovery statute "allows claims against a surviving spouse's estate only to the extent of *496 the value of the recipient's interest in marital or jointly owned property at the time of the recipient's death." Id. Recovery is thus limited to "the value of the recipient's interest in those assets at the time of the recipient's death." Id.
Prior to Gullberg, the state could recover up to the full value of assets that could be traced back to marital or jointly owned property. See Minn.Stat. § 256B.15, subd. 2. After Gullberg, the state's ability to recover was limited to the recipient's interest in marital or jointly owned property at the time of the recipient's death. Gullberg, 652 N.W.2d at 714. Thus, the state's recovery depends on a determination of the recipient's interest in the specified assets at the time of death.
The county and the estate argue that Gullberg restricts the definition of the value of the recipient's interest in the estate of the surviving spouse to either probate-law or marital-property-law principles. The county contends that marital-property-law principles should be applied because the estate-recovery statute specifically refers to marital property. The estate counters that a recipient's interest is more appropriately determined by reference to probate law. We conclude that both the county and the estate read too much into Gullberg's passing references to marital and probate law.
Gullberg's holding was limited to the narrow issue of preemption. Id. at 712, 714. Rather than directly addressing the method for calculating the extent of the recipient's interest in transferred property, the court in Gullberg remanded the issue to the district court for determination of the recipient's interest in the assets of the surviving spouse's estate. Id. at 714-15. Although the Gullberg decision included citations to a marital-property-law case, Searles v. Searles, 420 N.W.2d 581 (Minn.1988), and to a probate statute, Minn.Stat. § 524.2-402(a), (c) (2000), these citations were included merely as support for the precept that a medical-assistance recipient may continue to have some interest in property even after the recipient has transferred the property to a spouse. Gullberg, 652 N.W.2d at 713. Notably, Gullberg stated that the recipient's transfer of his joint tenancy to his spouse was a conveyance by "other arrangement" and that it would therefore fall within the broader optional state definition of estate. Id. Thus the Gullberg opinion essentially applied the optional definition of estate, as allowed by federal law, and established that the medical-assistance recipient had some interest in the homestead after its conveyance, but the opinion did not address the extent of this interest. Id.
We therefore reject the parties' competing arguments that Gullberg must be read to require either a probate-law analysis or a marital-property-law analysis when calculating a medical-assistance recipient's interest under the estate-recovery laws. We are not persuaded that either analysis applies, particularly in this case. Analysis under marital-property law would require us to read into the estate-recovery statute a definition from Minn.Stat. § 518.54 (2004), which explicitly restricts its definitions to the context of marital dissolution, and provides that marital property "means property . . . acquired by the parties, or either of them, to a dissolution, legal separation, or annulment proceeding." Id. § 518.54, subds. 1, 5. We are unable to find a legal basis for incorporating this definition into the estate-recovery statute. See Genin v.1996 Mercury Marquis, 622 N.W.2d 114-17(Minn.2001) (stating that rules of statutory construction prohibit adding words or meaning to statute when legislature has not).
We are similarly unable to find a legal basis for imposing a probate-law analysis, *497 which would require the court to apply a retrospective structuring of the medical-assistance recipient's interest in the surviving spouse's estate. This method, which was proposed by the estate and accepted by the district court, results in a life-estate interest that is based on an artificial assumption that the surviving spouse predeceased the recipient instead of the converse. In this case, Francis Barg did not include a provision for his deceased wife and left his interest in his homestead to his children. Under probate-law principles, the court would have to assume that Dolores Barg survived her husband and received a life-estate interest in his property as his surviving spouse.
This probate-law analysis would also conflict with the estate-recovery laws, which require courts to calculate the recipient's interest at the time of the recipient's death rather than on the future date of the spouse's death. The estate-recovery statute specifically provides that a recipient's joint-tenancy interests "shall not be merged into the remainder interest or the interests of the surviving joint tenants" and that the joint-tenancy interests shall be subject to the provisions of the statute. Minn.Stat. § 256B.15, subd. 1(5) (2004); see also In re Estate of Jobe, 590 N.W.2d 162, 165 (Minn.App.1999) (stating that statutory language extends definition of estate to include nonprobate assets), review denied (Minn. May 26, 1999). Analysis under probate-law principles is also inconsistent with the federal law's expanded definition of estate, which explicitly allows a state to broaden the definition beyond the meaning used in probate law and to include joint-tenancy interests that have been previously conveyed to a spouse. 42 U.S.C. § 1396p(b)(4).
In light of the problems with the use of either probate-law or marital-property-law principles, we conclude that the plain meaning of the estate-recovery statute requires us to apply property-law principles as specifically modified by the statute. Applying this analysis, a recipient's interest in marital property for purposes of estate recovery is limited to that person's legal interest in the property at the time of death. And, under federal law and Gullberg, this interest includes a conveyance of a joint tenancy to a spouse. See id. § 1396p(b)(4)(B); Gullberg, 652 N.W.2d at 713 (stating that recipient maintains joint-tenancy interest in property even after conveyance to spouse because conveyance constitutes "other arrangement").
Applying Gullberg, the relevant statutes, and the principles of property law to the stipulated facts, we start from the elemental threshold that Dolores Barg had a joint-tenancy interest in the property that is now in Francis Barg's estate and that her interest was acquired during their marriage. Before receiving Medicaid benefits, she conveyed her interest in the property to Francis Barg. For purposes of the estate-recovery statute, Dolores Barg's estate retained a joint-tenancy interest in the homestead at the time of her death. See Minn.Stat. § 256B.15, subd. 1(3) (providing for modification of common law principles by allowing continuation of medical-benefit recipient's joint-tenancy interest after recipient's death). The "extent of her interest" is defined by the joint tenancy. A joint tenant's interest in property is an undivided one-half interest in the property's value. Kipp v. Sweno, 683 N.W.2d 259, 260, 263 (Minn.2004). Because the stipulated facts state that the joint-tenancy property was valued at $120,800 at the time of Dolores Barg's death, the extent of the value of Dolores Barg's interest at the time of her death was $60,400. We therefore reverse and remand for the district court to recalculate the allowable claim against Francis Barg's estate.
*498 Finally, the Minnesota Department of Human Services filed an amicus brief in this case, supporting the county's position and urging reversal of the district court's decision. The department advances two independent arguments for reversal. First it asserts that Gullberg's discussion of the preemptive effect of the phrase "to the extent of such interest" is dictum and should not be applied. We disagree. The Gullberg court did not exceed the scope of review on the preemption issue by relying on a full-text analysis of the federal act. The language of the opinion and the stated issue in the case establish that Gullberg squarely addresses preemption and reaches a conclusion on this issue, which became the holding of the case. Gullberg, 652 N.W.2d at 712, 714.
Second, the department urges this court to reverse Gullberg based on the department's "more complete discussion" of the preemption issue in its amicus brief. The amicus brief provides a thoughtful and comprehensive analysis of the preemption question. But that issue was decided in Gullberg, and nothing in Gullberg's analysis suggests that the court did not consider the full spectrum of applicable law and competing policy considerations in its determination of the preemption issue. We therefore decline to reverse Gullberg.
DECISION
For purposes of obtaining reimbursement under Minnesota's estate-recovery statute, Mille Lacs County is entitled to a claim against Francis Barg's estate for Dolores Barg's one-half interest in the joint-tenancy property obtained during the marriage and transferred to Francis Barg. Because the district court erred by applying a probate-law method of calculation, we reverse and remand for a recalculation of the allowance based on principles of real property as modified by specific provisions of the estate-recovery statutes.
Reversed and remanded.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/310792/ | 477 F.2d 1048
Earl E. ROBINSON, Plaintiff, Appellee,v.POCAHONTAS, INC., et al., Defendants, Appellants.
No. 71-1256.
United States Court of Appeals,First Circuit.
Heard March 8, 1973.Decided May 4, 1973.
Frank H. Handy, Jr., Boston, Mass., with whom Viola B. Kneeland, Richard B. Kydd, and Kneeland, Splane & Kydd, Boston, Mass., were on brief, for appellants.
Albert P. Zabin, Boston, Mass., with whom Schneider & Reilly, Inc., Boston, Mass., were on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
1
This is a diversity suit in which plaintiff, Earl E. Robinson, a seaman, seeks recovery from the defendant, Sea Coast IV, Inc., the charterer of the vessel on which he was injured, for negligence under the Jones Act, 46 U.S.C. Sec. 688 (1970), and for unseaworthiness and maintenance and cure under the general maritime law. The jury awarded the plaintiff verdicts of $45,000.00 on the Jones Act and unseaworthiness counts and $21,366.06 on the maintenance and cure claim, of which amount $10,000.00 was designated as punitive damages. On entering judgment the trial court added pre-judgment interest in the amount of $9,589.90, bringing plaintiff's total recovery to $75,955.56. Arguing that the trial court erred in a number of respects in instructing the jury and that it abused its discretion in awarding pre-judgment interest, Sea Coast appeals.
2
The pertinent background facts are as follows. On April 20, 1967, Robinson, while a crewman on the M/V Arthur J. Minners engaged in fishing operations in the Gulf of Mexico, slipped on some fish slime and fell, injuring his back. After receiving preliminary treatment at a small Mississippi port, Robinson was hospitalized under the care of Dr. Alleman, a company physician, in Abbeville, Louisiana. Following testing, Dr. Alleman informed the Minners' captain that he suspected plaintiff of malingering and also that he had syphilis. The captain then discharged Robinson who departed for his home in Virginia.
3
When Robinson arrived in Richmond on May 16, 1967, his back condition had become critical and he required immediate medical attention. After receiving this care, he was admitted to the United States Public Health Service Hospital in Baltimore where physical therapy was administered and a myelogram taken. Although this test proved to be negative, indicating no serious back injury, plaintiff's condition showed little improvement. After leaving the hospital on June 15, 1967, he placed himself under the care of a private physician in spite of Sea Coast's order that he receive all treatment through the free Public Health Service Hospital. Thereafter, his condition was diagnosed as a herniated disc and in early 1968 corrective surgery was performed at a private medical facility. While this operation and the post-operative therapy which he received alleviated his symptoms to some extent, he still did not achieve a full recovery.
4
In the meantime Sea Coast was demonstrating a marked reluctance to honor its obligation to pay maintenance to the plaintiff. Initially payments were withheld on the pretext that Robinson, having contracted venereal disease, had been fired for cause. When this charge was not substantiated, however, payments were made, but on an irregular basis. In late 1967, in spite of the fact that defendant was informed that Robinson would lose his home if he was not paid his back wages, defendant refused to authorize this expenditure and Robinson's mortgage was foreclosed. Finally, in 1968, when plaintiff refused to accept a settlement offer which was characterized by his counsel as "totally inadequate," all payments were terminated.
5
In December 1969 Robinson moved from Virginia to Baltimore and again received treatment at the Public Health Service Hospital. When his condition showed no further improvement, he returned to his private doctors and, following another myelogram, a second ruptured disc was discovered. Plaintiff's experts testified that surgical intervention would again be necessary to correct this condition.
6
On this background, Sea Coast first takes issue with the trial court's instruction that the jury might award plaintiff the private medical expenses he incurred if it found that he acted reasonably in seeking aid at facilities other than those of the United States Public Health Service. Specifically, Sea Coast argues that the evidence was insufficient to justify submitting this issue to the jury in view of the general rule that, absent unusual or emergency circumstances, a seaman who is ordered to receive treatment at a public marine hospital may not consult private physicians or incur additional medical expenses and expect to pass on these costs to his employer. Our review of the record, however, convinces us that this instruction was justified.1 During plaintiff's initial stay in the marine hospital in 1967 a myelogram was taken and was reported to be negative. Thereafter, in spite of the fact that he showed little improvement, plaintiff received no treatment except physical therapy and no further diagnostic tests were made. His experience in 1969 was substantially the same. Again he was placed on a physical therapy program which did little to improve his condition and, since no myelogram was taken, his second ruptured disc was not discovered. Given these facts, it is clear that each time plaintiff entered the marine hospital his condition was incorrectly diagnosed. On this basis it is fair to infer that on both of these occasions the treatment he needed was either not tendered or would not have been forthcoming. Cf. Nunes v. Farrell Lines, Inc., 129 F. Supp. 147 (D.Mass.), modified, 227 F.2d 619 (1st Cir. 1955). Under these circumstances, we hold that the trial court's submission of this issue to the jury was clearly appropriate.2
7
Sea Coast next argues, in light of the absence of a specific demand for unearned wages in the maintenance and cure count of the complaint, that the trial court erred in instructing the jury that this item could be included in its award on this claim. This argument is not persuasive for at least two reasons. In the first place, at least since The Osceola, 189 U.S. 158, 175, 23 S. Ct. 483, 47 L. Ed. 760 (1903), it has been settled that the right to recover wages through the end of the voyage or, as in this case, through the end of the fishing season, see Vitco v. Joncich, 130 F. Supp. 945, 949-950 (S.D.Cal.1955), aff'd, 234 F.2d 161 (9th Cir. 1956), is a recognized element of a disabled seaman's claim for maintenance and cure. See, e. g., Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 913-915 (2d Cir. 1960); Manard v. St. Lawrence Carriers, Inc., 266 F. Supp. 500, 501 (D.Del.1967); Vitco v. Joncich, supra, 130 F.Supp. at 949 and cases cited; Gilmore and Black, The Law of Admiralty, Sec. 6-12 (1957). In view of the unequivocal acceptance of this rule, although the better practice would be to spell out a claim for unearned wages in the pleadings, a demand for these wages would seem to be implicit in Robinson's complaint. In addition, however, in the instant case Sea Coast never made its position clear that such an award would be beyond the scope of the pleadings until after the court had instructed the jury. During trial no objection was raised to Robinson's testimony concerning his rate of compensation or the fact that these wages had not been paid. Indeed, Sea Coast rigorously cross-examined plaintiff on these issues. Under these circumstances, especially since the complaint could have been amended if this issue had been seasonably raised, Sea Coast may not now challenge the propriety of this award.
8
Sea Coast's further contention that the trial court's instruction permitting an award of punitive damages was erroneous as a matter of law is also without merit. Support for such an award is found in Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962), where the Supreme Court held that a seaman could recover attorneys' fees as damages where a shipowner was callous, willful, or recalcitrant in withholding these payments. Mr. Justice Stewart, dissenting primarily on the question of the extent of a seaman's recovery for maintenance and cure but seemingly in agreement with the majority's fundamental premise, stated:
9
"[I]f the shipowner's refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, Sec. 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made." Id. at 540, 82 S.Ct. at 1004.
10
Such awards or the right thereto have been upheld in the progeny of Vaughan. See, e. g., Solet v. M/V Capt. H. V. Dufrene, 303 F. Supp. 980, 989 (E.D.La. 1969); Roberson v. S/S American Builder, 265 F. Supp. 794, 800 (E.D.Va. 1967); Stewart v. S.S. Richmond, 214 F. Supp. 135, 136-137 (E.D.La.1963). The answer to Sea Coast's further argument that the right to maintenance is essentially a contractual right and that generally punitive damages are not awarded for the breach of such rights is also found in Vaughan, supra 369 U.S. at 532-533, 82 S. Ct. at 1000-1001, where the Court stated:
11
"Maintenance and cure differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, 371 [of 287 U.S. 367, 174 of 53 S. Ct. 173, 77 L. Ed. 368], the duty to provide maintenance and cure 'is imposed by the law itself as one annexed to the employment. . . . Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident.' [Footnote omitted.]"3
12
Finally, defendant's assertion that the evidence was insufficient to warrant charging the jury on punitive damages merits little discussion. In view of the defendant's initial use of the venereal disease charge to justify withholding these payments, its refusal to pay past due unearned wages when notified that plaintiff was in danger of losing his home, and its termination of all payments after plaintiff refused to accept its settlement offer, the appropriateness of this instruction seems clear.4
13
Sea Coast's final argument that the trial court erred in adding pre-judgment interest to the verdicts requires, at the outset, resolution of an issue on which the record is silent, namely whether this award was made pursuant to state or federal law. In this regard plaintiff argues, since this is a diversity action, that state law should have been applied and that the application of the "remedial" Massachusetts pre-judgment interest statute, 38 M.G.L.A. c. 231 Sec. 6B, to the case at bar would be an appropriate state-law supplement to federal maritime policy. Sea Coast, on the other hand, contends that the federal admiralty rule, under which an award of pre-judgment interest would rest within the discretion of the trier of facts, see, e. g., American Union Transport Co. v. Aguadilla Terminal, Inc., 302 F.2d 394, 395 (1st Cir. 1962); O'Donnell Transportation Co. v. city of New York, 215 F.2d 92, 95 (2d Cir. 1954), should be employed since this suit was brought to enforce rights created by the general maritime law. On this issue it is clear that Sea Coast must prevail. In Moore-McCormack Lines, Inc. v. Amirault, 202 F.2d 893 (1st Cir. 1953), a diversity action in which the issue was whether this same Massachusetts statute should be applied to augment personal injury awards resulting from the collision of two vessels, this court said:
14
"But this is not a 'typical diversity case' under which a federal district court sitting in Massachusetts would be obliged to apply the local substantive law of Massachusetts in accordance with Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, and Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. The claims sued on here were not based upon Massachusetts law, but were for maritime torts. It is well settled that by force of the Constitution itself, when a common law action is brought, whether in a state or in a federal court, to enforce a cause of action cognizable in admiralty, the substantive law to be applied is the same as would be applied in an admiralty court-that is, the general maritime law, as developed and declared, in the last analysis, by the Supreme Court of the United States, or as modified from time to time by Act of Congress. Jansson v. Swedish American Line, 1 Cir., 1950, 185 F.2d 212, 216, and cases cited. The fortuitous circumstance that in the present case there was diversity of citizenship between the parties plaintiff and defendant may give an added basis for jurisdiction in the federal district court, under 28 U.S.C. Sec. 1332. But whether such diversity existed or not, it is still true that the substantive law to be applied in determining both liability and the amount of damages to be embodied in the money judgment is federal law, not state law." Id. at 896-897.
15
See Canova v. Travelers Insurance Company, 406 F.2d 410 (5th Cir.), cert. denied, 396 U.S. 832, 90 S. Ct. 88, 24 L. Ed. 2d 84 (1969); Newburgh Land & Dock Company v. Texas Company, 227 F.2d 732 (2d Cir. 1955). In light of this express authority, we may assume that this pre-judgment interest award was entered pursuant to the federal maritime rule.5
16
The further question which arises, of course, is whether the trial court abused its discretion in making this award. In this regard we find Newburgh Land & Dock Company v. Texas Company, supra, instructive. In that case, a diversity action in which the trial court added pre-judgment interest to a jury verdict for collision damages, the second circuit, in vacating this award, observed: "[i]t is the federal law that in actions at law when the award of interest rests in discretion, it is the jury who must exercise it. . . ." Id. at 735. given this rule, it is apparent that the trial court's award of pre-judgment interest in the instant case violated the province of the jury and therefore may not stand. In addition, although plaintiff did include demands for interest in his complaint, since he did not request that the jury be instructed that it might, in its discretion, add pre-judgment interest to its award, we conclude that it would be inappropriate to remand this issue to the trial court for further consideration. See Newburgh Land & Dock Company v. Texas Company, supra, at 735.
17
The judgment is modified by striking out the award of pre-judgment interest and, as modified, is affirmed.
1
The court instructed the jury as follows:
"A seaman does not have a free hand in choosing his physician and deciding on his own treatment. The United States Public Health Service maintains marine hospitals at which seamen may receive low cost or free, in some instances, care and treatment. An ill or injured seaman who has been given a hospital ticket, as it is called, by the vessel and provided with transportation to the nearest marine hospital usually must accept the medical services available to him in that hospital. However, if on reasonable grounds a seaman refuses to accept medical treatment at a marine hospital and justifiably, in your view, gets treated by a physician or hospital other than the marine hospital, then he may recover as part of maintenance and cure expenses for medical bills that he actually incurred, . . . ."
We feel that this instruction accurately reflected the law on this issue.
2
We add that our conclusion that plaintiff is entitled to recover the private medical expenses he incurred in the past should not be read as relieving plaintiff of his duty to comply with defendant's orders in obtaining medical care in the future. Thus, if defendant directs plaintiff to have future surgery performed at the Public Health Service Hospital, absent a showing that these facilities are in some manner inadequate or unavailable, plaintiff must comply with this request or bear the cost himself. See Nunes v. Farrell Lines, Inc., supra, at 148
3
Justice Stewart was of the same view
"The duty to provide maintenance and cure is in no real sense contractual, and a suit for failure to provide maintenance or cure can hardly be equated, therefore, with an action for breach of contract. 'The duty . . . is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties.' Cortes v. Baltimore Insular Line, 287 U.S. 367, 372 [53 S. Ct. 173, 174, 77 L. Ed. 368]." Vaughan v. Atkinson, supra, at 534, 82 S.Ct. at 1001.
4
We need not address Sea Coast's further claim that it may not be held liable for punitive damages because no proof was offered (1) that the agent who represented it in the maintenance negotiations was incompetent, or (2) that it had participated in or ratified his callous acts since these issues were not preserved for appeal
5
Plaintiff's attempt to overcome the import of Amirault by suggesting that it was "expressly overruled" in Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959), is not persuasive. While it is true that in Romero the Supreme Court overturned the holding of Doucette v. Vincent, 194 F.2d 834 (1st Cir. 1952), that a civil action on a maritime claim might be maintained on the law side of the federal court, even in the absence of diversity of citizenship, as a claim arising under the Constitution within 28 U.S.C. Sec. 1331 (1970), we do not view the jurisdictional rationale of Doucette as having been of seminal importance to the court's choice of law decision in Amirault | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1917862/ | 272 So. 2d 488 (1973)
Carlos PEREZ, Petitioner,
v.
CARILLON HOTEL et al., Respondents.
No. 42518.
Supreme Court of Florida.
January 31, 1973.
L. Barry Keyfetz of Ser & Keyfetz, Miami, for petitioner.
John G. Tomlinson, Jr. of Williams & Tomlinson, Coral Gables, and Kenneth H. Hart, Jr., Tallahassee, for respondents.
*489 PER CURIAM.
This is the second appearance here of this cause. In its first appearance we reversed the order of the Industrial Relations Commission and remanded the cause to the Judge of Industrial Claims "for determination of the evidence submitted within ninety (90) days of the first hearing." See Perez v. Carillon Hotel, Fla. 1970, 231 So. 2d 519. A reading of the opinion of this Court in the cited case will inform of the factual background.
On the remand the Judge of Industrial Claims ordered the employer-carrier to provide claimant such medical treatment as the nature of the injury or the process of the recovery may require and reserved jurisdiction regarding award of attorney's fees for services rendered before him.
After a review by the Commission of the order recited just above and its affirmance the cause came on for hearing before the Judge of Industrial Claims on the reserved issue regarding attorney's fees and on a claim for reimbursement to claimant of costs incurred by him in preparation of the record in connection with his successful appeal culminating in the decision in Perez v. Carillon Hotel, supra.
By order entered June 21, 1971 the Judge denied an attorney's fee, presumably on the ground there was no specific dollar amount awarded claimant on remand. The Judge also held that taxing the cost of preparation of the transcript against the unsuccessful employer is not a proper taxable cost. The Industrial Relations Commission by short-form order entered May 25, 1972, affirmed. The claimant-petitioner seeks a certiorari review of the order in these proceedings.
After careful study we reverse.
In Perez v. Carillon Hotel, supra, employer-carrier had contended the claimant was not in need of further medical care and the original order so held. But after our reversal and remand, the new order awarded the claimant further medical treatment and surgery as the nature of the injury and the process of his recovery may require. This was a victory for claimant and an attorney's fee was a necessary concomitant. Claimant's counsel need not wait until the benefits are actually or fully and finally obtained before the award of attorney's fees. See Matera v. Gautier, Fla. 1961, 133 So. 2d 732. Under certain circumstances, particularly where the full extent of the benefits in terms of their money equivalent is not known, a temporary attorney's fee may be awarded. Boyd v. Southeastern Utilities Service Co., Fla. 1965, 172 So. 2d 817.
We reverse with direction that the Judge of Industrial Claims determine after due hearing an attorney's fee for claimant, the same to be predicated upon factors other than a percentage of the benefits pursuant to the rationale of Lee Engineering and Construction Company v. Fellows, Fla. 1968, 209 So. 2d 454.
We also agree in this particular case that pursuant to the policy of Rule 3.16 of the Florida Appellate Rules, 32 F.S.A., taxation of the cost of the preparation of the record on appeal in Perez v. Carillon Hotel, supra, against employer-carrier should follow as a necessary incident to the reversal therein. We recede from any language either expressed or implied in Parrott v. City of Fort Lauderdale, Fla., 190 So. 2d 326, text 331, that may be in conflict with our holding herein concerning taxation of cost for preparation of said record.
Therefore, we also direct that on remand the Judge of Industrial Claims ascertain at the hearing on the attorney's fee the claimant's costs incurred in preparation of the record in said appeal and enter an order directing reimbursement thereof by employer-carrier to claimant.
It is so ordered.
CARLTON, C.J., and ROBERTS, ERVIN, BOYD and DEKLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917871/ | 272 So. 2d 921 (1973)
In the Interest of Lisa GRESSETT, a Minor.
No. 47094.
Supreme Court of Mississippi.
February 5, 1973.
Don H. Evans, Jackson, for appellant.
A.F. Summer, Atty. Gen., by Karen Gilfoy and Billy L. Gore, Sp. Asst. Attys. Gen., Jackson, for appellee.
GILLESPIE, Chief Justice.
This appeal is from the Chancery Court of Rankin County in a Youth Court proceeding filed against Lisa Gressett, a seventeen year old minor, who was committed to the State Training School. The petition stated that Lisa Gressett was a delinquent child because "said minor unlawfully, wilfully and feloniously harbored and concealed Gary Moak, an escaped convict."
The only witness offered in support of the petition was J.B. Torrence, a deputy sheriff of Rankin County. He testified that Gary Moak was convicted on a guilty plea to a narcotics charge in Rankin County and that Lisa Gressett visited him at the around the 20th or 21st of January, 1972; jail; that Gary Moak escaped somewhere and that three or four days later, he (Torrence) went to the home of Gary Moak's *922 mother with a Hinds County Deputy Sheriff. Deputy Sheriff Torrence then stated:
I had a deputy sheriff from Hinds County with bloodhounds, and he put the dog out behind the house and in a matter of minutes he called me on the radio and told me he had Gary Moak and this girl with him and the little girl was Lisa Gressett. He brought them on up to the house and I arrested her for assisting a jail escapee.
This was the only proof in support of the charge except Torrence's hearsay statement that Lisa had been with Moak about two or three hours.
The question is whether Lisa Gressett can be adjudged a delinquent under the facts as stated and committed to a training school.
A minor is entitled to constitutional guarantees including notice of charges, right of counsel, right of confrontation and cross-examination, and the privilege against self-incrimination. In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In cases involving the loss of freedom in youth court cases the proof must establish the charge beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
In this case there is no evidence, much less proof justifying a finding beyond a reasonable doubt, that Lisa Gressett concealed or harbored Gary Moak. If all of the evidence, including the hearsay, is conceded to be true, it is just as consistent with her innocence of the charge of concealing and harboring Moak as it is that she is guilty. The commitment order is reversed and the proceedings dismissed.
Reversed and proceedings dismissed.
SMITH, SUGG, WALKER and BROOM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917873/ | 272 So. 2d 9 (1973)
Victor D. HOLLANDER, Appellant,
v.
NOLAN BROWN MOTORS, INC., Appellee.
No. 72-316.
District Court of Appeal of Florida, Third District.
January 15, 1973.
*10 Philip F. Ludovici, Miami, for appellant.
Daniel V. Ligman, Coral Gables, for appellee.
Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.
PER CURIAM.
This is an appeal by the plaintiff below from a judgment entered on a verdict in favor of the defendant Nolan Brown Motors, Inc., directed at the close of the plaintiff's case.
Plaintiff delivered his automobile to the defendant at its place of business, to have the wheels aligned and for lubrication. Some time that day, while the vehicle was stored on defendant's business premises, either before or after the repair and servicing (the record not revealing which) the car was removed or stolen therefrom by a person or persons unknown. This action was by the plaintiff to recover the value of the vehicle.
The appellant has not supplied a record of the trial proceedings, other than four pages which reveal presentation and argument of the motion of the defendant for directed verdict and the colloquy of counsel and the court thereon.
The appellant contends that the granting of the directed verdict by the court was error in that it was based on an incorrect application of law. The portion of the record submitted reveals the trial court, on considering the motion for directed verdict, stated "unless you can both make or show a standard of care in a community, you have not shown the standard of care required. You could have brought in from outside Nolan Brown and established a standard within the community of dealers."
Without necessity to decide whether the trial court proceeded on an inapplicable rule of law, if the judgment is sustainable on other grounds it should be affirmed. Jaffe v. Endure-A-Life Time Awning Sales, Inc., Fla. 1957, 98 So. 2d 77; In re Estate of Yohn, Fla. 1970, 238 So. 2d 290.
The defendant was a bailee of plaintiff's automobile. The test of liability of a bailee for entrusted goods which are lost or stolen is whether the bailee exercised that degree of care toward the goods that a reasonably prudent person would bestow on his own goods. 4 Fla.Jur., Bailments, § 9; 15 Fla.Jur., Garages, Filling and Parking Station, and Liveries, § 18.
In the absence of a record revealing the evidence presented by and on *11 behalf of the plaintiff, we cannot determine whether a sufficient showing was made by plaintiff to make a prima facie case under the applicable law, and the appellant is not in position to demonstrate error in the challenged ruling of the trial court, which comes here with a presumption of correctness. See Broward County Port Authority for Use and Benefit of Cappelen v. F.M. Rule & Company, Fla.App. 1960, 119 So. 2d 82; Gilson v. Murphy, Fearnley & Yawn, Inc., Fla.App. 1963, 151 So. 2d 447; Latin American Benefit Center, Inc. v. Johnstoneaux, Fla.App. 1972, 257 So. 2d 86.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572484/ | 323 F. Supp. 779 (1970)
Aleja Perez HERNANDEZ, as parent and next friend of Victor Soto and Eladio Soto, minors, Angelito Rivera, as brother and next friend of Papo Pagan, a minor, Manuel Ingles, and all others similarly situated
v.
Alfred NOEL, Mayor of the City of Willimantic, John Connor, Richard Nassiff, Roger Baker, Fred Rodgers, Nathan Mandell, Richard Boyden, Joseph Seretny, Members of the Common Council of the City of Willimantic, Martin Viullermet, Chief of the Willimantic Police, Loren Rambush, Denny Gillespie, Officers of the Willimantic Police Department.
Civ. No. 13940.
United States District Court, D. Connecticut.
October 21, 1970.
*780 Bruce N. Berwald, Norman K. Janes, Tolland-Windham Legal Assistance Program, Inc., Willimantic, Conn., for plaintiffs.
William M. Krug, Willimantic, Conn., Basil T. Tsakonas, Danielson, Conn., for defendants.
RULING ON MOTION TO DISMISS
BLUMENFELD, District Judge.
Plaintiffs are United States citizens of Puerto Rican ancestry residing in Willimantic, Connecticut. Purporting to represent all Willimantic residents of similar ancestry, they allege that defendants have deprived them of certain constitutional rights in violation of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985(2), 1986 and 1988, and seek injunctive relief against future violations. The defendants are the chief of police of Willimantic, two police officers, the mayor, and seven members of the common council. The mayor and the seven council members have moved for dismissal on the grounds of lack of jurisdiction and failure to state a claim against them upon which relief may be granted.
Jurisdiction
Plaintiffs allege deprivations, under color of state law, of rights secured by the first, fifth, sixth, and fourteenth amendments to the federal Constitution. Plaintiffs having invoked the Civil Rights Act as the basis for their causes of action, it is clear that original jurisdiction over their claims for redress of those deprivations exists in the federal court under 28 U.S.C. § 1343(3). Monroe v. Pape, 365 U.S. 167, 169, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Schnell v. City of Chicago, 407 F.2d 1084, 1085-1086 (7th Cir. 1969); Lankford v. Gelston, 364 F.2d 197, 198 (4th Cir. 1966); Birnbaum v. Trussell, 347 F.2d 86, 87 n. 2 (2d Cir. 1965).
Failure to State a Claim
In support of their motion for dismissal, the mayor and council members argue that the complaint does not specify any conduct which would make them liable as individuals; and that, considered as an entity comprising the city government, they cannot be regarded as a "person" for purposes of liability under the Civil Rights Act.
A. The Complaint
To bring the issues into sharper focus, it is necessary to outline the scheme of the complaint and the manner in which these defendants fit into that scheme. The gravamen of the complaint is that all defendants, individually and in concert, under color of state law, have subjected and are subjecting plaintiffs and their class to a systematic pattern of harassment, intimidation, discrimination, and violent conduct solely on account of their ancestry and in violation of their constitutional rights.
Three specific incidents are set out in the complaint. Each involves the arrest of one or more of the individual plaintiffs by defendant police officers Rambush and Gillespie. The arrests are said to have been made with undue violence, without justification, solely for the purpose of harassment, and in denial of specific *781 constitutional rights. Plaintiffs allege that these three incidents are typical of the conduct of the two named officers as well as others in the Willimantic police department (the latter unknown officers being represented as defendants by the police chief, who is also sued in his individual and official capacities).
Plaintiffs next set out eight specific allegations of police conduct[1] claimed to constitute the systematic pattern of harassment of which the three specific incidents of arrest are claimed to be typical examples. That conduct is alleged to deprive plaintiffs and their class of their rights to free speech and assembly guaranteed by the first amendment, their right to remain silent under the fifth amendment, to counsel under the sixth amendment, and to due process and equal protection under the fourteenth amendment.
The complaint is divided into three "causes of action." Each contains all of the foregoing allegations. The first contains nothing more. The second alleges a conspiracy among the members of the police department, including those named and those unknown, to engage in the conduct alleged in the first.
The third "cause of action" is the only one to name the defendants who have joined in this motion to dismiss. It alleges that the mayor and members of the city council "acting as the government of the City of Willimantic," have failed or refused to act in various ways, detrimental to plaintiffs and their class. Specifically, it is alleged that these defendants ignored or refused to act on complaints about the police department; refused to provide adequate and proper municipal services to plaintiffs and their class in the same manner such services are provided to others; and permitted, by their inaction and indifference, the police department and other city departments to discriminate against plaintiffs and their class solely because of their ancestry. Finally, plaintiffs allege that these defendants, again "acting as the government of the City of Willimantic," had knowledge of the acts and conduct previously alleged but failed to exercise their lawful power to prevent the deprivation of plaintiffs' rights.
Plaintiffs' prayer for relief seeks a preliminary and permanent injunction against "defendants" to restrain them from engaging in a systematic pattern of harassment and discrimination and from engaging in any of the conduct specified in footnote 1. Additionally, plaintiffs request specific injunctive relief against the police officers. Finally, they request a preliminary injunction against the mayor and the seven council members, "as the government of the City of Willimantic, acting together and acting individually," and a permanent *782 injunction against the same defendants "acting together and acting individually" from failing to exercise their lawful power to prevent the deprivation of plaintiffs' rights.
B. Power to Grant Relief
In Monroe v. Pape, supra, 365 U.S. at 187-192, 81 S. Ct. 473, 5 L. Ed. 2d 492, the Supreme Court held that municipal corporations (in that case, the City of Chicago) were not "persons" within the meaning of the Civil Rights Act and, therefore, not subject to actions for damages thereunder. See also, Spampinato v. City of New York, 311 F.2d 439 (2d Cir. 1962), cert. denied, 372 U.S. 980, 83 S. Ct. 1115, 10 L. Ed. 2d 144 (1963). Some lower federal courts have held Monroe's prohibition applicable only to damage actions, and expressly allowed Civil Rights suits for injunctive relief against cities or other municipal corporations. E. g., Harkless v. Sweeny Ind. School Dist., 427 F.2d 319, 321-323 (5th Cir. 1970); Dailey v. City of Lawton, 425 F.2d 1037, 1038-1039 (10th Cir. 1970); Schnell v. City of Chicago, supra, 407 F.2d at 1086; Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961).
On the other hand, it was recently held in this circuit that the Appellate Division of the New York State Supreme Court is not subject to suit, because not a "person," in an action for equitable relief brought under the Civil Rights Act. Zuckerman v. Appellate Div., 421 F.2d 625 (2d Cir. 1970). The court in Zuckerman impliedly did not recognize any distinction between damage actions and those for injunctive relief in the application of the Monroe prohibition. Therefore, to the extent, if any, that the complaint in this case can be construed to seek relief against the City of Willimantic, even solely injunctive, it does not state a claim for which relief can be granted in this circuit.
A similar result must be reached insofar as the complaint seeks relief, albeit only injunctive, against the city council, considered as an entity. The common council of the city of Willimantic, as the chief governing body, is the substantial equivalent to the city itself. It has been held that city commissioners, when named as an entity, are not subject to suit under the Civil Rights Act on the theory that suits against municipalities are not authorized under that Act.[2] Henig v. Odorioso, 256 F. Supp. 276, 280 (E.D.Pa.1966), aff'd, 385 F.2d 491 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S. Ct. 1269, 20 L. Ed. 2d 166 (1968).
The complaint in this case, however, names as defendants neither the City of Willimantic nor the entity known as the common council. It names, in addition to the police officers and chief, the mayor and seven members of the council in their individual and official capacities. Abundant authority exists for the allowance of a § 1983 suit for injunctive relief against city officials in those capacities. Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S. Ct. 608, 24 L. Ed. 2d 477 (1970); Harkless v. Sweeny Ind. School Dist., supra, 427 F.2d at 323; Lankford v. Gelston, supra, 364 F.2d 197; Birnbaum v. Trussell, supra, 347 F.2d at 89. City council members, each acting in his official capacity,[3] are not the same as the city council itself.
*783 Having concluded that these defendants are subject to suit under the Civil Rights Act, it remains to consider whether the acts alleged are sufficient to state a claim against them for which relief can be granted. First is the question of specificity, for under appropriate circumstances, a civil rights complaint will be dismissed when wholly conclusory. Powell v. Workmen's Comp. Bd., 327 F.2d 131, 137 (2d Cir. 1964); Valley v. Maule, 297 F. Supp. 958 (D.Conn. 1968). It is clear, however, that plaintiffs have set out their claims with sufficient specificity to survive a motion to dismiss. The three specific arrests are clearly set out, as are the types of conduct alleged to constitute a systematic pattern of harassment. (See footnote 1). Moreover, in reference to the moving defendants, there is no doubt what omissions are relied on for liability. Under the standards of Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959), overruled in part on other grounds Cohen v. Norris, 300 F.2d 24, 29-30 (9th Cir. 1962), the complaint is sufficiently specific. See Cintron v. Vaughan, F. Supp., Civ. No. 13,578 (D.Conn. Apr. 1, 1970); Harris v. Lee, Civ. No. 12,459 (D.Conn. May 27, 1968).
Finally, defendants claim that the plaintiffs have alleged nothing to specifically connect them with the incidents on which the complaint is predicated. Plaintiffs concede that the gist of their complaint against these defendants is their knowing failure to do anything about the deprivation of plaintiffs' rights by the systematic pattern of harassment allegedly engaged in by the police department. Plaintiffs also allege other failures by these defendants (e. g., to act on complaints about the police department or provide adequate services), but have alleged no affirmative acts.
In a number of recent cases seeking damages against police officers under the Civil Rights Act, it has been held that no liability exists unless it is alleged and proved that the officer was either present at or directed or personally cooperated in the acts relied on for liability. Mack v. Lewis, 298 F. Supp. 1351, 1353 (S.D.Ga.1969); Patrum v. Martin, 292 F. Supp. 370, 371 (W.D.Ky. 1968); Runnels v. Parker, 263 F. Supp. 271 (C.D.Cal.1967); Henig v. Odorioso, supra, 256 F.Supp. at 280-281; Jordan v. Kelly, 223 F. Supp. 731, 737 (W.D.Mo. 1963). And see, Angelo Tomasso, Inc. v. Dowling, Civ. No. 13,184 (D.Conn. Sept. 25, 1969).
Where injunctive relief is sought, however, no such rigid requirements obtain. In Schnell v. City of Chicago, supra, 407 F.2d at 1086, the court held:
"Under section 1983, equitable relief is appropriate in a situation where governmental officials have notice of the unconstitutional conduct of their subordinates and fail to prevent a recurrence of such misconduct."[4]
The Supreme Court in Burton v. Wilmington Parking Auth., 365 U.S. 715, *784 725, 81 S. Ct. 856, 861, 6 L. Ed. 2d 45 (1961), held that "no State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be." Nor may a public official. Houser v. Hill, 278 F. Supp. 920, 928-929 (M.D.Ala.1968) (injunction against police chief and others to restrain them from, inter alia, "failing to guarantee to and give * * * plaintiffs * * * proper and adequate police protection * * *" and "allowing hostile white groups to gather and congregate for the purpose of * * * interfering with the exercise of [plaintiffs' constitutional] rights"); Cottonreader v. Johnson, supra, 252 F.Supp. at 499 (injunction against mayor, police chief, and sheriff to restrain them from, inter alia, "failing to permit and to guarantee to * * * plaintiffs * * * their constitutional right to * * * protest their grievances" and "allowing dissident elements to gather * * * for the purpose of * * * interfering with the exercise of [plaintiffs' constitutional] rights"). See also, Lankford v. Gelston, supra, 364 F.2d 197.
"An action, especially under the Civil Rights Act, should not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of the facts, which could be proved in support of their claims." Escalera v. New York City Housing Auth., supra, 425 F.2d at 857. And on a motion to dismiss, the allegations in the complaint must be regarded as true. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964).
Application of those principles requires that plaintiffs be afforded the opportunity to prove the responsibility and liability of the moving defendants which the allegations assert. Accordingly, their motions to dismiss are denied.
So ordered.
NOTES
[1] The complaint alleges: "Said conduct includes, but is not limited to:
"1. Committing acts having no purpose or justification other than to humiliate, degrade, harass, intimidate, and discriminate against the Plaintiffs and the class they represent.
"2. Employing unnecessary deadly force and unnecessary physical force against Plaintiffs and the class they represent.
"3. Arresting Plaintiffs and the class they represent when no crime has been committed for the purpose of intimidation and harassment.
"4. Detaining and questioning Plaintiffs and the class they represent without arrest for the purpose of harassment and humiliation.
"5. Arresting Plaintiffs and the class they represent for the crime of loitering (Conn.Gen.Stats. § 53-179) and threatening arrest for the said crime without cause or justification in an arbitrary, capricious, and discriminatory manner and for the sole purpose of discouraging and preventing Plaintiffs and the class they represent from exercising their constitutionally guaranteed rights to free speech and assembly.
"6. Denying Plaintiffs and the class they represent their right to remain silent in violation of the Fifth Amendment of the United States Constitution.
"7. Denying Plaintiffs and the class they represent their right to counsel as guaranteed by the Sixth Amendment of the United States Constitution.
"8. Subjecting Plaintiffs and the class they represent to fingerprinting when not required by law."
[2] A different result is apparently permitted where the entity sued is only part of the administrative machinery of a county or city. See, e. g., Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Escalera v. New York City Housing Auth., 425 F.2d 853 (2d Cir. 1970); Scher v. Board of Educ., 424 F.2d 741, 743-744 (3d Cir. 1970); Bomar v. Keyes, 162 F.2d 136, 139 (2d Cir. 1947).
[3] These defendants have not raised the defense of official immunity. Since this is an action for injunctive relief, not damages, any such claim would fail. Harris v. Lee, Civ.No.12,459 (D.Conn. May 27, 1968). See, e. g., Lankford v. Gelston, supra, 364 F.2d 197; Cottonreader v. Johnson, 252 F. Supp. 492 (M.D.Ala. 1966). Compare Nelson v. Knox, 256 F.2d 312, 314-315 (6th Cir. 1958) (action for damages) with Birnbaum v. Trussell, supra, 347 F.2d at 89 (same).
[4] While this language has reference to § 1983, it will be noted that § 1986, which plaintiffs invoke, expressly provides a cause of action against persons having knowledge of wrongful acts mentioned in § 1985 and who have power to prevent their commission but refuse or neglect to do so.
The court is cognizant of the affidavits submitted by defendants in support of their motion to dismiss. In effect, they are no more than a denial of the allegations of the complaint. In any event, the court is not disposed to treat these motions to dismiss as motions for summary judgment under the provisions of Fed.R.Civ.P. 12(b), and the affidavits of defendants will therefore not be relied upon at this stage of the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572409/ | 499 S.W.2d 182 (1973)
Patrick Don TURNER, Appellant,
v.
The STATE of Texas, Appellee.
No. 46327.
Court of Criminal Appeals of Texas.
September 25, 1973.
Wayne D. Meissner and John L. Foster, Austin, for appellant.
*183 Robert O. Smith, Dist. Atty., and C. E. Clover, Jr., Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: marihauana. Punishment was assessed by the court at five years, probated.
The record reflects that on October 5, 1971, at approximately 8:00 P.M., Sgt. Bill Ligon of the Austin Police Department received information from a confidential informant that marihuana was being possessed and used at a house located at 4510 Avenue G, Austin. Acting on this information, Sgt. Ligon dispatched Sgts. Snyder, Freudenberg, and Breed, to the above address. Freudenberg drove to Avenue G and dropped off Snyder about one-half block away from the house at 4510 and then parked his car a block or so away.
Snyder walked past the house and noted the descriptions and license numbers of the vehicles at the residence. Snyder then walked between the houses located at 4510 Avenue G and 4512 Avenue G until he was opposite a window located on the side of the house at 4510. Apparently there were no blinds or curtains on this window. Looking through this window he observed appellant and two other persons. Appellant was filling a pipe with what appeared to be marihuana taken from a white plastic bag. The pipe was lighted and passed from appellant to the others, each person smoking the pipe after receiving it. Snyder also saw appellant "christen" the other two by touching them on the head with a "marihuana stalk."
Snyder testified that none of his observations were made from any part of the premises occupied by appellant and that he was at all times standing on the premises located at 4512 Avenue G.[1]
Snyder obtained permission from the owner of the house at 4512 to use the phone. While looking out a window of the residence at 4512, he observed the appellant go out of the house and get into a Dodge van. Snyder relayed the description and license number of the van, and the fact that it was occupied by a single white male carrying a white plastic bag of marihuana, to Sgt. Ligon. Ligon then transmitted this information to Freudenberg and Breed who stopped it and arrested the appellant. A search of the van revealed a white plastic bag of marihuana behind the driver's seat. A marihuana cigarette was found in appellant's shirt pocket.
Appellant contends in his first two grounds of error that the trial court erred in overruling his motion to suppress the evidence and in admitting into evidence the items seized. In essence, appellant urges that Snyder's looking into the window at 4510 Avenue G was a search that was an unreasonable invasion of privacy as protected by the Fourth and Fourteenth Amendments to the United States Constitution. We disagree. The evidence shows that, in fact, no search was conducted.
While it is true that the Fourth Amendment protects people and not places, what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). A search means, of necessity, a quest for, a looking for, or a seeking out of that which offends against the law. This implies a prying into hidden places for that *184 which is concealed. It is not a search to observe that which is open to view. Crowell v. State, 147 Tex. Crim. 299, 180 S.W.2d 343 (Tex.Cr.App. 1944). In Marshall v. United States, 422 F.2d 185 (5th Cir. 1970), it is stated:
"A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest."
Appellant relies on State v. Gonzales, 388 F.2d 145 (5th Cir. 1968) for his contention that Snyder's observations were an illegal search. In that case, a police officer made three trips to the window of a private residence and peered through a window. On the third trip, the officer stood on a drain pipe to make his observations. The window in question had a curtain on it and the police officer went onto the property of the defendant. In the case at bar, Snyder never went onto the appellant's property and the window in question had no curtains or blinds on it. See also Thompson v. State, 447 S.W.2d 175 (Tex. Cr.App. 1969), cert. denied, 398 U.S. 912, 90 S. Ct. 1709, 26 L. Ed. 2d 73; Brock v. United States, 223 F.2d 681 (5th Cir. 1955).
In Gil v. Beto, 440 F.2d 666 (5th Cir. 1971), three police officers went to a motel where the defendant was located. One of the police officers, who knew of the defendant's narcotic activities, obtained permission from the motel owner to use the cabin next to the defendant's to make some observations. After being in the next cabin for a while, one of the officers walked out on a common gravelway and looked through a window partially covered by old blinds. Upon seeing narcotics in the room, the officer then broke in the motel room and arrested the defendant. The U.S. Court of Appeals, in denying the defendant's writ of habeas corpus, stated:
"In Gonzales we granted the prayer for habeas corpus relief because police officers went on Gonzales' private property without a warrant or probable cause and peered in his window. There we held that this unwarranted intrusion upon private property constituted an unreasonable search and that the evidence seized as a result should have been suppressed. Gonzales, however, is inapposite in a case such as this where police officers, who were on the grounds with the permission of the motel owner, stood in a common walkway and looked in an unobstructed motel cabin window. No Fourth Amendment rights are violated when police officers are lawfully on the premises and merely observe what is in plain view."
This court had previously stated, in affirming this same case (Gil v. State, Tex. Cr.App., 394 S.W.2d 810) the rule is that when one is so foolish as to leave his windows unsecured he may not complain if another observes an illegal act being committed therein. See also Giacona v. State, 372 S.W.2d 328 (Tex.Cr.App. 1963), cert. denied, 375 U.S. 843, 84 S. Ct. 92, 11 L. Ed. 2d 70, and Crowell v. State, supra.
In Johnson v. State, 469 S.W.2d 581 (Tex.Cr.App. 1971), police officers went to the defendant's apartment, knocked on the door, and when no one answered, looked through a window whose draperies were parted. They saw some stolen merchandise. In holding the officers' looking through the window not to be an illegal search, this court stated:
"Under this set of facts, we cannot say that appellants could `reasonably assume that they were free from uninvited inspection through the window' and we must hold that no search protected by the Fourth Amendment occurred."
Harris v. United States 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968); Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924); Harless v. State, 473 S.W.2d 519 (Tex.Cr.App. 1971); Legall v. State, 463 S.W.2d 731 (Tex.Cr.App. 1971); Elliott *185 v. State, 450 S.W.2d 863 (Tex.Cr.App. 1970); United States v. Knight, 451 F.2d 275 (5th Cir. 1971), cert. denied, Grubbs et al v. United States, 405 U.S. 965, 92 S. Ct. 1171, 31 L. Ed. 2d 240; United States v. Wright, 146 U.S.App.D.C. 126, 449 F.2d 1355 (1971), cert. denied, 405 U.S. 947, 92 S. Ct. 986, 30 L. Ed. 2d 817.
Snyder was merely investigating a report of an offense being committed when he saw appellant committing the offense. We conclude, as did the Supreme Court of New Jersey in State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962), that it is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement the Fourth Amendment itself draws the blinds the occupant could have drawn but did not.
Appellant contends in his third and final ground of error that the trial court erred in admitting into evidence those items seized as a result of the warrantless arrest at a time when the officers initiating the arrest lacked sufficient probable cause to believe a crime had been committed. He urges that Freudenberg, who initiated the arrest and the subsequent search of his vehicle, lacked sufficient probable cause to do so without a warrant. We disagree. Freudenberg testified that Ligon called his unit and told him that the driver had come out of the house carrying a white plastic bag that he believed contained marihuana. Freudenberg was also given the license number of the vehicle.
In Browning v. State, 488 S.W.2d 801 (Tex.Cr.App. 1973), it is stated:
"The test for determining probable cause in this type of situation is the information known to the officer who requests another to make an arrest."
We also held, in Green v. State, 470 S.W.2d 901 (Tex.Cr.App. 1971), that a radioed police broadcast reporting a felony and a description of the suspects, under the circumstances of that case, was sufficient to satisfy the requirement of probable cause under Article 14.04, V.A.C.C.P.[2] See also Brown v. State, 443 S.W.2d 261 (Tex.Cr. App. 1969).
We conclude that probable cause was shown for appellant's arrest (See Article 14.01, V.A.C.C.P.), and search.
There being no reversible error, the judgment is affirmed.
NOTES
[1] It appears that there is a ten or twelve foot separation in the form of a driveway between the residence occupied by appellant (4510 Avenue G) and the residence from which Snyder observed the illegal activity (4512 Avenue G).
[2] Article 14.04, V.A.C.C.P., provides: "Wh[en] it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is not time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572926/ | 971 S.W.2d 136 (1998)
RETAMA DEVELOPMENT CORPORATION and Retama Park Management Company, L.C., Appellants,
v.
TEXAS WORKFORCE COMMISSION and Jimmy W. Brown, Appellees.
No. 03-97-00790-CV.
Court of Appeals of Texas, Austin.
June 4, 1998.
*137 Brad Lee Sklencar, Soules & Wallace, San Antonio, for Appellants.
Anthony Aterno, Asst. Atty. Gen., Taxation Division, Austin, for Appellees.
Before POWERS, KIDD and B.A. SMITH, JJ.
BEA ANN SMITH, Justice.
Appellants, the Retama Development Corporation and Retama Park Management Company, L.C. (collectively "Retama Park") appeal the district court's grant of summary judgment in favor of appellees, the Texas Workforce Commission ("TWC") and Jimmy W. Brown. Retama Park challenges the TWC's ruling that unemployment benefits awarded to Mr. Brown following his layoff from Retama Park's employment are chargeable to Retama Park's employer account, arguing that its account is protected by section 204.022(a)(2) of the Texas Unemployment Compensation Act. That section provides that unemployment benefits may not be charged to the account of an employer if the employee's last separation from employment was required by a state statute or a municipal ordinance. The issue presented is whether the termination of Mr. Brown's employment was required by statute. Because we agree with the TWC and the district court that it was not, we will affirm the district court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, Retama Park operated a licensed race track in Selma, Texas, where it conducted live horse races in accordance with the Texas Racing Act and the rules of the Texas Racing Commission ("Racing Commission").[1] Pursuant to its regulations and in accordance with the Texas Racing Act, the Racing Commission established live race dates for Retama Park in November and December of *138 1995, with the season's final race scheduled for December 3. Retama Park was required to hold live races on the dates set by the Racing Commission.[2] However, on November 21, Retama Park asked the Racing Commission to end Retama Park's racing season two weeks early by canceling its six remaining live race dates. The Racing Commission granted Retama Park's request the same day.
On November 22, Retama Park laid off Jimmy Brown, who had been employed for the racing season as a security guard. Mr. Brown filed a claim for unemployment benefits with the Texas Employment Commission, the agency now known as the Texas Workforce Commission ("TWC"). The TWC granted Mr. Brown unemployment benefits and ruled that Retama Park's employer account would be charged. Retama Park challenged the charge back, arguing that Mr. Brown's termination was "required by statute" under the meaning of section 204.022(a)(2) of the Texas Unemployment Compensation Act ("TUCA"). See Tex. Lab. Code Ann. §§ 201-217 (West 1996 & Supp. 1998). After making findings of fact and conclusions of law, the appeal tribunal upheld the TWC's decision.[3] Retama Park next sought appellate review at the highest level within the TWC, which adopted the appeal tribunal's findings of fact and conclusions of law and affirmed the determination of a charge back to Retama Park's account.
Retama Park challenged the agency's decision by filing an original petition for judicial review. See Tex. Lab.Code Ann. § 212.201 (West 1996). Both parties moved for summary judgment, agreeing that there are no disputed facts. The district court denied Retama Park's motion and granted the TWC's motion. Retama Park brings this appeal from that final decision, complaining that the district court erred by granting summary judgment in favor of the TWC and by denying summary judgment in favor of Retama Park.
STANDARD OF REVIEW
Appellate review of a summary judgment requires the reviewing court to determine whether the movant has shown that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Here, both parties agree that the material facts are undisputed and that summary judgment is appropriate. When both parties move for summary judgment and the trial court grants one motion and denies the other, the appellate court should determine all questions presented. See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). In this case, the legal question presented is whether Jimmy Brown's discharge was required by statute as intended by TUCA section 204.022(a)(2).
DISCUSSION
Appellants argue that the district court should have granted summary judgment in their favor because Retama Park's employer account was protected from charge back by TUCA section 204.022(a)(2). That section provides that unemployment benefits may not be charged to the account of an employer if the employee's last separation from employment was "required by a statute of this state or an ordinance of a municipality of this state." Tex. Lab.Code Ann. § 204.022(a)(2) (West 1996 & Supp.1998). The crux of appellants' theory is that Retama Park's account should not be charged back because Mr. Brown's termination was "required by statute" when the Racing Commission ended Retama Park's racing season. Retama Park argues that horse racing is such a highly regulated industry that every *139 act is done pursuant to statute, and that acts done pursuant to statutory authority are "required by statute." We reject Retama Park's assertion that every act done pursuant to statutory authority qualifies for charge-back protection under TUCA section 204.022(a)(2).
The TWC determined that an employee's termination is "required by statute" when the termination or layoff occurs pursuant to an agency's statutorily mandated act, but not when the act or order is discretionary. Where the language of a statute is unambiguous, courts must seek the intention of the legislature as found in the plain meaning of the words used. Memorial Hospital The Woodlands v. McCown, 927 S.W.2d 1, 4 (Tex.1996). Whether a statutory provision is ambiguous is a question of law. See State v. Shoppers World, Inc., 380 S.W.2d 107, 110 (Tex.1964). We hold that TUCA section 204.022(a)(2) unambiguously specifies that unless a state statute or municipal ordinance requires an employee's termination, charge-back protection is unavailable to the employer. While a statute requires the Racing Commission's approval for the early termination of the racing season, no statute in this case addresses the termination of racetrack employees. Since no statute or ordinance required the termination of Jimmy Brown's employment, Retama Park's account is not protected by TUPA section 204.022(a)(2).
We agree with appellants that whether an agency's order is mandatory or discretionary is not determinative in invoking the charge-back protection of section 204.022(a)(2). While we reject this distinction on which the agency relied, we nevertheless affirm the TWC's ruling. Courts are not bound by an administrative agency's legal theory provided there is a valid basis for the agency action. See Railroad Comm'n of Tex. v. City of Austin, 524 S.W.2d 262, 279 (Tex. 1975). Because Mr. Brown's discharge was not required by statute, section 204.022(a)(2) charge-back protection is not available to Retama Park. The TWC's ruling has a valid basis, and the district court correctly granted summary judgment in the TWC's favor.
Appellants attempt to bolster their argument that the Racing Commission's order approving Retama Park's request to terminate its racing season two weeks early was "required by statute" by claiming that orders of an administrative agency should be considered as legislative acts. In support of this theory, appellants cite Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41 (Tex.1970). However, the Attic Club court stated that a rule or order promulgated by an administrative agency acting within its delegated authority should be considered under the same principles as if it were the act of the Legislature. Id. at 45. Attic Club does not advance appellants' argument because the Racing Commission's order approving Retama Park's request for an early termination was not a promulgated rule in any sense.
As the appeal tribunal determined in its findings of fact, Retama Park sought to have the remainder of its 1995 racing season canceled due to economic downturn. Appellants apparently concede this point, having stated both in their summary judgment motion and again on appeal that the material facts in this case are undisputed. Retama Park's situation is no different from that of any other employer that discharges employees during an economic downturn; having laid off an employee for its own economic benefit, the employer cannot claim that its account is immune to charge back of the employee's unemployment benefits. At oral argument, counsel for appellants repeatedly urged that Retama Park's situation is unique simply because horse racing is a highly regulated industry. We reject this interpretation of the unambiguous text of section 204.022(a)(2), which applies only if an employee's termination was "required by a statute of this state," not if it indirectly accompanies statutorily required regulation.
We also address Retama Park's complaint that the TWC acted arbitrarily and capriciously in failing to follow its own precedent. In support of their argument, appellants point to Appeal No. 93-004252-10M-012194 in the TWC's Appeals Policy and Precedent Manual. In that case, the employees were laid off at the end of the regularly scheduled racing season; the TWC held that section 204.022 protected the employer racetrack's *140 account from charge back. The TWC did not act arbitrarily and capriciously by failing to apply the same rule in this situation; one prior decision, distinguishable on the facts, does not establish controlling precedent.
The appeal tribunal based its distinction on the undisputed fact that Retama Park had asked the Racing Commission to end its racing season two weeks early, whereas in the prior case, the employer racetrack discharged its employees at the end of the regularly scheduled racing season. The fact that Retama Park asked the Racing Commission to put an early end to its racing season constitutes a valid distinction between the two cases. The TWC did not act arbitrarily and capriciously in refusing to follow a single previous decision when the facts are distinguishable. Furthermore, we today reject the legal principle underlying the previous agency ruling in the TWC policy manual by holding that a termination must be required by statute to invoke the protection of section 204.022(a)(2).
The cases appellants cite as establishing the "arbitrary and capricious" standard for agency conduct further indicate that the TWC's ruling did not violate this standard. Appellants correctly note that Gulf Land Co. v. Atlantic Refining Co. establishes that an administrative agency must follow its own rules and regulations. See Gulf Land Co., 134 Tex. 59, 131 S.W.2d 73, 79 (1939). However, that case is inapposite because the TWC's ruling denying charge-back protection to Retama Park did not violate any of the TWC's rules or regulations. Appellants also cite Public Utility Commission v. Gulf States Utilities Co. in support of their claim that the TWC is bound by its own interpretation of a prior precedent. See Gulf States, 809 S.W.2d 201 (Tex.1991). Gulf States does require an agency to follow the clear, unambiguous language of its own regulations. Id. at 207. However, the opinion does not address the extent to which an agency is bound by its own contested-case precedent. Appellants have failed to explain how the TWC's act of validly distinguishing precedent amounts to disobedience of an agency regulation. Neither Gulf States nor Gulf Land Co. supports appellants' position.
CONCLUSION
TUCA section 204.022(a)(2) protects an employer's account from charge back when an employee's discharge is required by statute. Since no statute required Retama Park to discharge Jimmy Brown, the TWC has shown that it is entitled to judgment as a matter of law. The district court did not err in granting the TWC's motion for summary judgment and in denying Retama Park's summary-judgment motion. Therefore, we overrule appellants' single point of error and affirm the district court's judgment upholding the agency order charging unemployment benefits to the account of Retama Park.
NOTES
[1] See Tex.Rev.Civ. Stat. Ann. art. 179e, § 8.01 (West Supp.1998); 16 Tex. Admin. Code § 303 (1997).
[2] Racing Commission Rule 303.41(a) provides: "An association shall conduct pari-mutuel racing on each date granted [by the Racing Commission]... unless the association receives the prior approval of the executive secretary." 16 Tex. Admin. Code § 303.41(d) (1997).
[3] Either the claimant or the employer may appeal a determination of the TWC examiner to an appeal tribunal established by the Commission and composed of a salaried examiner. Tex. Lab. Code Ann. §§ 212.053, .101 (West 1996). The appeal tribunal affirms or modifies the determination after giving the parties "reasonable opportunity for fair hearing." Id. § 212.102. The TWC may permit any party to further appeal the tribunal's decision. Id. § 212.151. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572922/ | 971 S.W.2d 145 (1998)
TEXAS PARKS AND WILDLIFE DEPARTMENT, Appellant,
v.
W.M. CALLAWAY, Jr., Appellee.
No. 03-97-00655-CV.
Court of Appeals of Texas, Austin.
June 11, 1998.
*146 Dan Morales, Atty. Gen., David J. Preister, Priscilla M. Hubenak, Asst. Attys. Gen., Natural *147 Resources Division, Austin, for Appellant.
Jeffrey Thomas Knebel, Small, Craig & Werkenthin, P.C., Austin, for Appellee.
Before POWERS, ABOUSSIE and JONES, JJ.
JONES, Justice.
This case presents the issue of whether a governmental agency is protected by sovereign immunity when it takes actions that violate both contractual and extracontractual duties. W.M. Callaway, Jr. owns property on which the Texas Parks and Wildlife Department (the "Department") has an easement for a waterway known as the Keith Lake Water Exchange Pass (the "Pass"). Callaway sued the Department on multiple theories for claims arising out of the Department's decision to open the Pass to public boat traffic. The Department filed a plea to the jurisdiction, asserting that each of Callaway's claims arose from an alleged breach of the agreement by which the Department obtained the easement and that the Department's immunity from suit deprived the trial court of jurisdiction. After initially sustaining the Department's plea and dismissing the suit, the trial court subsequently granted Callaway's motion for a new trial and, on reconsideration, denied the Department's plea to the jurisdiction. The Department appeals. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West Supp.1998). We will affirm in part and reverse and render in part.
FACTUAL AND PROCEDURAL BACKGROUND
Our description of the background of this controversy is drawn primarily from Callaway's petition.[1] The Pass is a canal-like waterway approximately 300 feet wide and 3,000 feet long connecting the Sabine-Neches Ship Channel on the east to Keith Lake on the west. The primary purpose of its construction was to foster the propagation of fish and other aquatic life in Keith Lake. In order to construct and maintain the Pass, in July 1976 the Department obtained an easement and right-of-way across land owned at that time by Dalco Oil Company. The easement contains a number of "reservations and conditions," including the following:
5. It is agreed and understood [the Department] will construct, reconstruct, and maintain during the term of this easement a permanent barrier to all water traffic across the gap between the aforementioned weir and the upland to the north.
....
14. It is agreed and understood the "Keith Lake Water Exchange Pass" will be closed to all water traffic except that of the employees or agents of the parties hereto. [The Department] shall post notices of such restriction to the public by signs erected at the Keith Lake entrance to such pass and shall maintain all such signs during the term of this easement.
Construction of the Pass was completed in 1977. Afterwards, the Department complied with the restrictions on public access contained in the easement agreement.
In 1988 Callaway purchased a 12.6-acre tract of land near the location where the Pass intersects the Sabine-Neches Ship Channel. Callaway's tract lies along and beneath the waters of the Pass. In 1994 a significant amount of public attention and inquiry was directed toward the Department concerning the basis for the boating ban in the Pass. In mid-1995 the Department decided to open the Pass to the public. In addition to informing its game wardens to cease enforcing the boating ban, the Department replaced the signs prohibiting boat traffic in the Pass with caution signs, removed the physical barrier to public boat traffic, and announced to the media that the Pass was open to the public. As part of the rationale for its actions, the Department stated that it had determined it had no legal authority to restrict *148 public boating in the Pass because the waters therein constituted "public waters."
In response to the Department's decision to open the Pass, Callaway brought this suit. Callaway claimed that the Department's actions changed the character of the Pass from private to public, effectively taking his property or damaging it without compensation. The Department responded by characterizing Callaway's "takings" claim and other causes of action as merely a suit for breach of the easement agreement. The Department argued that Callaway's "breach of contract" claims were barred by sovereign immunity. Alternatively, the Department argued that it lacked the requisite intent to "take" Callaway's property. The trial court denied the Department's motion to dismiss Callaway's suit on any of the pleaded theories.
Callaway's suit asserted several causes of action relating to the Department's decision to open the Pass to the public: (1) inverse condemnation; (2) violation of due process based on the Department's alleged failure to provide Callaway notice, hearing, and an opportunity to comment on its decision; (3) declaratory judgment that the Department has statutory authority to restrict public boating in the Pass; (4) attorney's fees in conjunction with his request for declaratory relief; (5) trespass to try title; (6) damages for the Department's breach of the easement; and (7) an injunction to prevent future violations of the easement's restrictions on public boating in the Pass. The last two causes of action were pleaded as an alternative to his claims for inverse condemnation and violation of due process. On appeal, the Department complains in a single issue that the trial court erred in failing to sustain its plea to the jurisdiction as to each of Callaway's claims.
DISCUSSION
I. Inverse Condemnation
Article I, section 17 of the Texas Constitution provides, in pertinent part, that "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made...." Tex. Const. art. I, § 17 (emphasis added). Thus, although the state and its agencies may take, damage, or destroy property for public use, this power is inextricably tied to an obligation to provide adequate compensation to those who involuntarily yield vested property rights to the larger community. State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 737 (1941). This constitutional provision "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex. 1980) (citations omitted). An actual taking or physical appropriation is not required. Felts v. Harris County, 915 S.W.2d 482, 484 (Tex.1996).
In the usual situation, the state or its agency compensates the property owner before taking his property, either by paying a mutually agreed price or paying the value as determined in a formal condemnation proceeding. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992). An "inverse condemnation" proceeding is the avenue of relief available when property has been taken or damaged for public use without compensation or a proper condemnation proceeding, and the property owner wishes to recover compensation for his loss. Id. The proceeding is "inverse" in that the property owner, rather than the state or its agency, brings the lawsuit. An inverse condemnation may occur when the state or its agency physically takes or invades property, or when it unreasonably interferes with the property owner's right to use and enjoy his property. Id.; see, e.g., City of Austin v. Teague, 570 S.W.2d 389, 394 (Tex.1978) (city liable in damages to landowner where city sought to impose servitude on land to preserve its natural character).
(a) Sovereign Immunity
The Department, like any state agency, is a creature of the legislature and possesses only such powers as are delegated to it expressly and impliedly by the legislature. State v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Texas Dep't of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex.App.Austin 1992, writ denied). *149 The Department is generally responsible for administering the laws relating to game, fish, oysters, and marine life. Tex. Parks & Wild. Code Ann. §§ 1.011, 12.001, 12.0011 (West 1991). Pursuant to its responsibility for wildlife management, the Department may purchase land "for the construction and maintenance of passes leading from one body of tidewater to another." Tex. Parks & Wild. Code Ann. § 81.102 (West 1991). Alternatively, the Department may condemn the property of any person or corporation in the state. Id. § 81.103. In the present case, the Department acquired, for the nominal sum of $1, an easement and right-of-way for the construction and maintenance of the Pass.
The writing granting the easement contains a number of reservations and conditions, including several provisions that restrict public access to the Pass. Neither Callaway nor the Department argues that the written easement document is ambiguous. Rather, Callaway alleges that the Department's decision to open the Pass to the public and its affirmative action to accomplish that result not only exceeded any rights granted to the Department in the easement agreement, but also resulted in a taking or damaging of his property without compensation.[2] In particular, Callaway alleges that the Department affirmatively acted outside the scope of the easement by replacing the "No Trespassing" signs with caution signs, removing the physical barrier to public boat traffic, and announcing to the media that the Pass had been opened to the public. The Department seeks to escape liability for taking or damaging Callaway's property by its contention that Callaway's real complaint is that opening the Pass to the public was an alleged "breach of contract."[3]
Sovereign immunity consists of two basic legal principles. First, unless waived, the state has immunity from liability. Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 405 (Tex.1997). Second, the state as sovereign is immune from suit without consent. Id.; see also Tex. Civ. Prac. & Rem.Code Ann. § 107.002 (West 1997) (providing for grants of permission to sue the state). Entering into a contract waives the state's immunity from liability, but not its immunity from suit. Federal Sign, 951 S.W.2d at 405-06. In the present case, the Department, as a state agency, is protected by sovereign immunity when it enters into contracts. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). However, an action for inverse condemnation is a limited exception to the doctrine of sovereign immunity. Steele, 603 S.W.2d at 791. When the state or its agency takes, damages, or destroys property for public use, "[t]he Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity...." Id. Thus, if Callaway alleged a valid claim for inverse condemnation relating to the Department's decision to open the Pass to the public, sovereign immunity does not bar the claim.
The Department argues that Callaway's claims are grounded solely on the easement agreement and, therefore, are barred by sovereign immunity. We disagree. Clearly, one purpose of Callaway's suit is to establish the validity of the rights and obligations granted in the easement. However, the basis *150 of Callaway's claim for inverse condemnation does not rest on contractual grounds alone; we must consider the alleged taking or damaging of Callaway's property. See Courtney v. University of Tex. Sys., 806 S.W.2d 277, 283 (Tex.App.Fort Worth 1991, writ denied) (distinguishing breach of contract from divestment of property right). The existence of a contract is not talismanic, but merely leaves the state's immunity from suit intact; it does not build an impenetrable wall nullifying the possibility of other waivers of and exceptions to that immunity. See Federal Sign, 951 S.W.2d at 408 n. 1 (noting that state may not always be immune when it contracts).
(b) Callaway's "Takings" Claim
To recover under a theory that property has been "taken" within the meaning of article I, section 17, the complainant must establish that the state or its agency intentionally performed certain acts that resulted in a taking of property for public use. Green Int'l, Inc., v. State, 877 S.W.2d 428, 434 (Tex. App.Austin 1994, writ dism'd by agr.). In the present case, the Department argues that there was no intent to take Callaway's property. The Department asserts a good-faith belief that it lacks statutory authority to enforce the boating ban and, therefore, argues that its decision to withhold enforcement of its contractual duties was made without the requisite intent. In support of its argument, the Department relies on this Court's opinion in Green International. The Department argues that, as in Green International, its decision to withhold performance was made under a "color of right" within the scope of the easement. Green Int'l, 877 S.W.2d at 434. However, Green International is distinguishable from the present case. In Green International and every other case we have found in which sovereign immunity prevented a private party from recovering damages from the state for an alleged breach of contract, the state's duty to pay or perform arose solely from its contract with the private party. See, e.g., Federal Sign, 951 S.W.2d at 403 (suit for damages and lost profits based on university's alleged breach of contract); Firemen's Ins. Co. v. Board of Regents, 909 S.W.2d 540, 541 (Tex.App.Austin 1995, writ denied) (suit against state university for monies allegedly due pursuant to construction contract); Green Int'l, 877 S.W.2d at 431 (suit against state for monies allegedly due pursuant to construction contract); Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex.1970) (suit for indemnity based on a written track agreement); W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 839-41 (1958) (suit for declaration of rights relating to a state permit); Herring v. Houston Nat'l Exch. Bank, 114 Tex. 394, 269 S.W. 1031, 1033 (1925) (suit to recover money the state allegedly had not paid for the purchase of land).
Here, in contrast, we are not examining sovereign immunity and inverse condemnation solely in the context of the breach of contractual duties. For example, the Department has not merely refused to perform its contractual obligations by allowing the physical barrier to fall into disrepair or by refusing to post "No Trespassing" signs. Rather, the Department has acted affirmatively to open the Pass to public boating. The state's duty to build a structure may come initially from a contract, but once it is built, the constitution itself imposes on the state a duty not to tear it down without paying adequate compensation. Thus, the Department, apart from its contractual obligations, has a duty not to affirmatively take, damage, or destroy property within the meaning of article I, section 17 of the Texas Constitution without making adequate compensation. Accordingly, the question raised by Callaway's claim for inverse condemnation is whether the Department, totally aside from withholding performance of its contractual obligations, has taken or damaged Callaway's property by its affirmative actions.
The Department defends its actions by asserting that the Texas Constitution requires that the Pass be kept open to the public because the waters of the Pass are "public waters." See Tex. Const. art. XVI, § 59(a). The Department argues that because it is required by law to take the actions it did, it has no constitutional duty to compensate Callaway for his loss. We disagree. Disregarding the easement agreement and *151 its restrictions on public boating that the Department has refused to enforce, we are left with Callaway's claim that the Department intentionally and affirmatively performed certain acts that resulted in a taking or damaging of his property for public use. The Department cannot escape the fact that such affirmative acts constitute a taking or damaging for public use merely because the acts that resulted in the taking or damaging were somehow mandated by state law. Many, if not most, such acts could be traced to a legal requirement. To adopt the position urged by the Department would emasculate article I, section 17 of the Texas Constitution. We conclude that Callaway's petition establishes a lawful cause of action under article I, section 17. Accordingly, the trial court did not err in denying the Department's plea to the jurisdiction as to Callaway's inverse condemnation claim.
II. Procedural Due Process
Article I, section 19 of the Texas Constitution provides, in pertinent part, that no citizen may be deprived of property "except by the due course of the law of the land." While this clause of the Texas Constitution is textually different from its federal counterpart in that it refers to "due course" rather than "due process," these terms are without meaningful distinction. University of Tex. Medical Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995). A complainant alleging a procedural due-process claim must establish that he was deprived of notice and an opportunity to be heard with respect to a decision affecting his property. Federal Sign, 951 S.W.2d at 410 (explaining that due course of law exists to prevent the government from depriving persons of property without notice and a hearing); cf. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
In the present case, Callaway alleges that, in addition to taking his property for public use without compensation, the Department took his property without providing him due process. Specifically, Callaway alleges that the Department held no hearing, gave no notice of its decision before or after making it, and provided no opportunity for Callaway to comment on the proposed decision. The Department again responds that Callaway's due-process claim emanates from an alleged breach of contract and is barred by sovereign immunity. See Federal Sign, 951 S.W.2d at 409. Having concluded above that Callaway properly pleaded a constitutional taking claim, we likewise reject the Department's response to Callaway's due-process claim. Callaway has a property interest that is entitled to due-process protection. The Department's duty to afford an appropriate and meaningful opportunity to be heard does not arise from the easement agreement, but from article I, section 19 of the Texas Constitution. The trial court therefore did not err in denying the Department's plea to the jurisdiction as to Callaway's due-process claim.
III. Request for Declaratory Judgment
Callaway requests a declaratory judgment that the Department has authority to keep the Pass closed to the public. Tex. Civ. Prac. & Rem.Code Ann. § 37.004 (West 1997). Further, he seeks a judgment declaring that the Department must use this authority in complying with the easement's conditions and restrict public boating in the Pass. Callaway asserts that the Department acted wrongfully and without legal authority in opening the Pass, and, therefore, his request for declaratory judgment is not barred by sovereign immunity. See Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 714-15 (1945). The Department argues in response that because Callaway also seeks damages based on its decision to open the Pass, his combined claim for a declaratory judgment should be dismissed for lack of jurisdiction on the basis of sovereign immunity. See Federal Sign, 951 S.W.2d at 404-05 (claims for state law violation did not dispense with need to secure legislative consent to sue state agency for damages).
In Cobb, the complainants brought suit to obtain a judgment declaring that they were not "motor carriers" as defined by the tax statute and that state officials, endeavoring to compel respondents to pay the tax, were acting wrongfully and without legal authority. Cobb, 190 S.W.2d at 712. The court *152 held that this was not a suit against the state and thus was not barred by sovereign immunity. Id. The court emphasized that the complainants were not seeking to impose liability on the state or to compel performance of a contract. Id. In the present case, however, Callaway's primary complaint is that the Department has taken his property without compensation or due course of law. Since Callaway primarily seeks money damages, his request for declaratory judgment does not fit under the exception to sovereign immunity established in Cobb.
Although Callaway's request for declaratory judgment is not premised expressly on breach of contract, it is analogous to such a claim. In essence, Callaway seeks a declaration of his rights under the easement and an order enforcing those rights. See Herring v. Houston Nat'l Exch. Bank, 113 Tex. 264, 253 S.W. 813, 814 (1923) (suit against state officers to require them to perform contract by state or to establish validity of contract by state is suit against state itself); Haden, 308 S.W.2d at 840 (applying Herring in case brought to enforce rights arising out of contract with state agency). There is no basis for the injunctive relief or the contractual damages that Callaway seeks unless he can establish that the easement constituted a contract, binding on the Department, which he can enforce. See Haden, 308 S.W.2d at 841. Whether the Department's decision that it was legally required to open the Pass was correct or incorrect, a suit to test it by seeking enforcement of contract rights is necessarily a suit against the state that cannot be maintained without legislative permission. See id. at 842. The trial court therefore erred in denying the Department's plea to the jurisdiction as to Callaway's request for a declaratory judgment.
IV. Request for Attorney's Fees
In conjunction with his request for declaratory relief, Callaway also requests an award of attorney's fees. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997). Having concluded that the trial court erred in denying the Department's plea to the jurisdiction as to Callaway's request for a declaratory judgment, we also conclude that the trial court erred in denying the Department's plea to the jurisdiction as to Callaway's request for attorney's fees.
V. Trespass to Try Title
Callaway asserts a trespass to try title claim against the Department based on the Department's failure to enforce the restrictions on public access to the Pass contained within the easement. Callaway alleges that as a result of the failure of the Department to enforce the restrictions, the easement should be declared void and forfeited. A suit for title to land against the state or its agency cannot be maintained without legislative consent. State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961); Bell v. State Dep't of Hwys. & Pub. Transp., 945 S.W.2d 292, 294 (Tex.App.Houston [1st Dist.] 1997, writ denied).
When the sovereign has neither title nor right to possession, individual state officials and agency employees can be sued in their individual capacities without legislative consent. Lain, 349 S.W.2d at 581-82. The property owner is not required to obtain legislative consent to sue simply because a state official or agency employee asserts a good faith but overzealous belief that title or right of possession is in the state and that he is acting for and on behalf of the state. Id. Because Callaway has not sued any officials in their individual capacities, however, the trial court erred in denying the Department's plea to the jurisdiction as to Callaway's trespass to try title claim.
VI. Breach of the Easement Agreement
As an alternative to his claim for inverse condemnation, Callaway seeks money damages based on the Department's alleged breach of the easement agreement; he also requests a permanent injunction requiring the Department to comply with the conditions of the easement. The state is immune from a suit for money damages based on an alleged breach of contract unless the state has expressly given its consent to be sued. Federal Sign, 951 S.W.2d at 405; Firemen's Ins., 909 S.W.2d at 542; Green Int'l, 877 S.W.2d at 432. In addition, a suit seeking injunctive relief to enforce contractual rights *153 is necessarily a suit against the state that cannot be maintained without legislative permission. Federal Sign, 951 S.W.2d at 408; Haden, 308 S.W.2d at 842. The trial court therefore erred in denying the Department's plea to the jurisdiction as to Callaway's claim for damages and injunctive relief resting on a breach-of-contract theory.
CONCLUSION
We affirm the trial court's denial of the Department's plea to the jurisdiction as to Callaway's inverse condemnation claim and procedural due-process claim. We reverse the portion of the trial court's order denying the Department's plea as to Callaway's remaining claims, and we render judgment dismissing those claims for lack of jurisdiction.
NOTES
[1] In ruling on a plea to the jurisdiction, the trial court must base its decision solely on the well-pleaded allegations in the plaintiff's pleadings. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949); Firemen's Ins. Co. v. Board of Regents, 909 S.W.2d 540, 541 (Tex.App.Austin 1995, writ denied). In the absence of a challenge to their accuracy, these factual allegations must be taken as true. Id.
[2] In its brief, the Department contends that this Court's decision in Firemen's Ins. Co. v. Board of Regents, 909 S.W.2d 540 (Tex.App.Austin 1995, writ denied), is dispositive of the issues on appeal. The Department asserts that Callaway's essential complaint is that the Department "wrongfully" opened the Pass to public navigation. In Firemen's, we held that the plaintiff's allegation of a tort specifically negated the takings claim. More specifically, we found that the plaintiff's allegations of fraudulent inducement of a contract involved claims outside the state's scope of authority, thereby causing the allegation to be a tort and not a takings claim. In the present case, however, a careful reading of Callaway's petition reveals that the essence of his complaint is not a tort such as fraudulent inducement, but that the Department took or damaged his property without proper condemnation proceedings or just compensation.
[3] The rules regarding construction of deeds generally apply in the construction of easements. Lo-Vaca Gathering Co. v. Missouri-Kansas-Texas R.R., 476 S.W.2d 732, 741 (Tex.Civ.App.Austin 1972, writ ref'd n.r.e.). A "condition" in a deed is often treated as a covenant, the remedy for a breach of which is an action for damages. See Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948, 951 (1958). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572412/ | 722 N.W.2d 447 (2006)
In re the ESTATE OF Leonard Earl JOTHAM, Deceased.
No. A05-438.
Supreme Court of Minnesota.
October 12, 2006.
*449 Timothy D. Kelly, Kelly & Berens, P.A., Minneapolis, MN, James W. Nelson, Brainerd, MN, for Appellant, Sandra Barnett.
Raymond A. Charpentier, Charpentier & Lange, Brainerd, MN, for Respondent, Diann Nelson.
Thomas C. Pearson, Erickson, Pearson & Aanes, Brainerd, MN, for Selma Marie Jotham.
Heard, considered, and decided by the court en banc.
OPINION
ANDERSON, PAUL H., Justice.
This case involves a probate proceeding arising out of the death of respondent Diann Nelson's father, Leonard Jotham. Nelson seeks, for purposes of determining intestate succession, to introduce evidence to rebut the presumption that Jotham is the father of appellant Sandra Barnett, which presumption is found in section 257.55, subdivision 1, of Minnesota's Parentage Act. Minn.Stat. § 257.55, subd. 1 (2004). The district court concluded that the statute of limitations in Minn.Stat. § 257.57, subd. 1(b) (2004), bars Nelson from challenging the paternity presumption and declared Barnett to be Jotham's heir as a matter of law. The court of appeals reversed, holding that the district court erred by failing to consider evidence Nelson offered to rebut the presumption that Jotham is Barnett's father. In re Estate of Jotham, 704 N.W.2d 210, 215 (Minn.App.2005). We reverse the court of appeals and remand.
The parties stipulated to the essential facts of this case. Leonard Jotham married Margaret Jotham in 1942, and Diann Nelson was born to Margaret Jotham during this marriage. Leonard and Margaret Jotham were divorced in 1947. Sandra Barnett was born to Margaret Jotham 279 days after the judgment of divorce was entered. Barnett's birth certificate identifies Leonard Jotham as her father, but there has been no judicial determination of Jotham's paternity of Barnett, and the parties agreed that Jotham did not acknowledge paternity in writing.
Leonard Jotham, who did remarry, died intestate on June 8, 2004. His widow filed a Petition for Formal Adjudication of Intestacy, Determination of Heirs, and Appointment of Administrator in which she named herself as Jotham's surviving spouse and Nelson and Barnett as his daughters. Nelson objected to the petition, contending that Jotham is not Barnett's father, and thus Barnett is not entitled to share in Jotham's estate.
The parties stipulated to certain facts, and Nelson offered to introduce evidence that Jotham is not Barnett's father. After a hearing on Nelson's objections, the district court issued an order in which it concluded that Jotham is Barnett's father as a matter of law, and thus Barnett is entitled to inherit from Jotham's estate. The court based its conclusion on the presumption of paternity set forth in Minn. Stat. § 257.55, subd. 1(a), of Minnesota's Parentage Act, which provides that a man is presumed to be the father of a child born to the man's former wife within 280 days of the termination of their marriage.[1]*450 Applying this presumption, the court determined that Barnett is presumed to be Jotham's child because she was born within 280 days of Jotham's divorce from Margaret Jotham. The court concluded that it could not consider the evidence offered by Nelson to rebut this presumption because Nelson's challenge to Jotham's paternity of Barnett is barred by the three-year statute of limitations in Minn.Stat. § 257.57, subd. 1(b). Section 257.57, subdivision 1, provides in pertinent part:
A child, the child's biological mother, or a man presumed to be the child's father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action:
* * *
(b) For the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c), only if the action is brought within two years after the person bringing the action has reason to believe that the presumed father is not the father of the child, but in no event later than three years after the child's birth.
Nelson appealed the district court's order, and the court of appeals reversed. Jotham, 704 N.W.2d at 210, 215. While the court of appeals agreed that the presumption in section 257.55, subdivision 1(a), applies to this case, the court held that the district court erred by concluding that it could not consider the evidence Nelson offered to rebut the presumption. Id. at 215. The court of appeals reasoned that the statute of limitations in section 257.57, subdivision 1(b), by its plain language only limits the time in which "an action to declare the nonexistence of a father-child relationship" may be brought. Id. at 213-14; see Minn.Stat. § 257.57, subd. 1(b). Because the case at bar was not an action brought under section 257.57 (2004), but rather a probate proceeding in which, as the court of appeals characterized it, a party sought to defensively rebut a presumption of paternity, the court concluded that the limitations period of section 257.57 did not apply. Jotham, 704 N.W.2d at 213-14. The court also observed that another section of the Parentage Act, Minn.Stat. § 257.55, subd. 2 (2004), authorizes rebuttal of a paternity presumption "in an appropriate action," without limiting "an appropriate action" to one brought under the Parentage Act. Id. at 214. We granted Barnett's petition for review on the issue of whether Minn.Stat. § 257.57 bars Nelson's attempt to rebut the presumption of Jotham's paternity of Barnett for purposes of intestate succession.
I.
The construction of a statute is a question of law, subject to de novo review by our court. In re Estate of Palmer, 658 N.W.2d 197, 199 (Minn.2003). The goal of statutory construction is "to ascertain and effectuate the intention of the legislature." Minn.Stat. § 645.16 (2004). A court must construe the words of a statute according to their plain meaning. River Valley Truck Ctr., Inc. v. Interstate Cos., 704 N.W.2d 154, 161 (Minn.2005). If the meaning of the words of a statute is not clear, a court construes the statute by considering the intent of the legislature in drafting the law. Minn.Stat. § 645.16 (2004). Uniform laws are construed to effectuate their purpose of making uniform the laws of the states in which they are enacted. Minn.Stat. § 654.22 (2004).
The Minnesota Probate Code gives district courts "jurisdiction over all subject matter relating to estates of decedents, including * * * determination of heirs and successors of decedents." Minn.Stat. § 524.1-302(a) (2004). The Probate Code recognizes that cases may arise in which a *451 parent-child relationship must be established in order to determine heirship for purposes of intestate succession. Minn. Stat. § 524.2-114 (2004) (amended 2005). In cases not involving adoption, the Code provides that "a person is the child of the person's parents regardless of the marital status of the parents and the parent and child relationship may be established under the Parentage Act, sections 257.51 and 257.74." Minn.Stat. § 524.2-114.
Minnesota's Parentage Act, Minn.Stat. §§ 257.51-257.74 (2004), was adopted in 1980 and is modeled on the Uniform Parentage Act. Morey v. Peppin, 375 N.W.2d 19, 22 (Minn.1985). Minnesota's Parentage Act creates causes of action for individuals seeking to establish the existence or nonexistence of a father-child relationship. Minn.Stat. § 257.57. The standing and timeliness requirements for the causes of action set forth in section 257.57 vary depending on whether the suit is brought for the purpose of declaring the existence or the nonexistence of a father-child relationship and which, if any, of the paternity presumptions apply. See id. In particular, section 257.57, subdivision 1(b), imposes a three-year statute of limitations running from the date of the child's birth[2] for an action to declare the nonexistence of a father-child relationship that is presumed based on a marital relationship. Section 257.57, subdivision 1(b), also restricts standing to bring such an action to the child, the child's biological mother, and a man presumed to be the child's father under Minn.Stat. § 257.55, subd. 1(a)-(c).
In addition to creating causes of action, the Parentage Act sets forth nine paternity presumptions, including the presumption that a man is the biological father of a child born to the man's former wife within 280 days of the termination of their marriage relationship. Minn.Stat. § 257.55, subd. 1(a). The Act provides that a presumption of paternity "may be rebutted in an appropriate action only by clear and convincing evidence." Minn.Stat. § 257.55, subd. 2.
On appeal to our court, Barnett argues that the three-year statute of limitations and the standing requirements of section 257.57, subdivision 1(b), for actions to declare the nonexistence of a father-child relationship presumed under section 257.55, subdivision 1(a), prohibit Nelson from presenting evidence to rebut the presumption of Jotham's paternity of Barnett. Barnett notes that Nelson does not fall within the limited class of people permitted to bring an action under section 257.57, subdivision 1(b), and that the limitations period for bringing such an action has long since expired. While Barnett's standing argument was not raised either at the district court or at the court of appeals, standing is jurisdictional and thus may be raised at any time. In re Petition for Improvement of County Ditch, No. 86, Branch 1, 625 N.W.2d 813, 817 (Minn. 2001); In re Welfare of Mullins, 298 N.W.2d 56, 61 n. 7 (Minn.1980).
In opposition to Barnett's argument, Nelson asserts that her effort to rebut the presumption of Jotham's paternity of Barnett cannot be equated with the institution of an action under section 257.57 and thus is not subject to the standing requirements or time limitations of that section. Instead, Nelson contends that she is simply litigating heirship in a probate proceeding, and this proceeding is outside the scope of the Parentage Act.
*452 The narrow issue presented for our review is whether the statute of limitations and/or standing requirements in section 257.57, subdivision 1(b), apply to a party in a probate proceeding attempting to rebut a presumption of paternity for intestacy purposes. While this is an issue of first impression for our court, we recently considered a related issue in In re Estate of Palmer, 658 N.W.2d 197. In Palmer, Michael Smith petitioned for summary distribution of the estate of James Palmer, alleging that Smith was Palmer's child, despite the fact that none of the statutory presumptions of paternity applied. Palmer, 658 N.W.2d at 198. Palmer's widow objected, arguing that paternity for purposes of intestate succession must be decided under the methods set forth in the Parentage Act. Id. at 199. Had Smith been required to use the Parentage Act to establish paternity, his claim would have been barred by the statute of limitations in Minn.Stat. § 257.58.
In Palmer, we interpreted the phrase "may be established" in Minn.Stat. § 524.2-114 as permissive, "permitting, but not requiring, that parentage in a probate proceeding be determined in accordance with the dictates of the Parentage Act." Id. Accordingly, we held that, for the purpose of establishing intestate succession, parentage may be established by "clear and convincing evidence apart from the Parentage Act and its time limitation on bringing actions to determine paternity." Id. at 197. Nelson contends this language in Palmer permits her to introduce evidence to dispute Jotham's paternity of Barnett and obligates Barnett to prove Jotham's paternity by clear and convincing evidence. But Barnett contends, and we agree, that the case before us is distinguishable from Palmer in a crucial way. Palmer held that, where a party is unable to use the Parentage Act to establish paternity for purposes of intestate succession, the party may employ an alternative means of establishing paternity namely, proving paternity by clear and convincing evidence. See id. at 197, 198. Here, unlike in Palmer, a party is attempting to challenge the paternity of an individual who is presumed to be the decedent's child, rather than seeking to establish the parentage of one who does not benefit from a presumption of paternity under the Parentage Act. Thus, we conclude that Palmer does not decide the outcome of this case.
Instead, this case presents an opportunity for us to clarify when it is appropriate for a probate court to use a Parentage Act presumption to establish paternity for intestacy purposes and when the alternative method described in Palmer clear and convincing evidence of paternitymay be employed. When a party benefits from a Parentage Act presumption of paternity and relies on that presumption to establish paternity in a probate proceeding, the party has chosen to establish paternity under the Parentage Act, as expressly authorized by the Probate Code. See Minn.Stat. § 524.2-114. In such a situation, the provisions of the Parentage Act must apply in their entirety. That is, when a party seeking to establish paternity in a probate proceeding invokes a Parentage Act presumption, the provisions of the Act limiting attempts to rebut such a presumption may not be disregarded. Put another way, because the Parentage Act sets forth a carefully constructed, unitary statutory scheme, the presumptions found in section 257.55, subdivision 1, cannot be divorced from the rest of the Act. Cf. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 12 (Minn.2002) (noting that a statute must be read and construed as a whole). Our holding in Palmer thus does not give probate courts license to pick and choose among the provisions of the Parentage Act when *453 ascertaining parentage for probate purposes. Accordingly, we conclude that when a party benefits from a presumption of paternity found in the Parentage Act and relies on that presumption to establish paternity in a probate proceeding, the probate court must apply the Parentage Act in its entirety to determine paternity for purposes of intestate succession.
While it appears that no other court has addressed the precise question presented in this case, the New Jersey Supreme Court in In re Trust Created by Agreement Dated December 20, 1961, 166 N.J. 340, 765 A.2d 746 (2001) [hereinafter Trust 1961], considered a similar issue. In Trust 1961, several trust beneficiaries challenged the paternity of another beneficiary, Jenia, thereby contesting Jenia's status as a beneficiary. Id. at 751. Under New Jersey's Parentage Act, Jenia was presumed to be the child of the trustor's son and, under the terms of the trust, was therefore a beneficiary.[3]Id. at 749, 753. To contest Jenia's parentage, the beneficiaries relied on a provision in the New Jersey Probate Code that a parent-child relationship "`may be established * * * regardless of the time limitations set forth in [the Parentage Act].'" Id. at 754 (alteration and omission in original) (quoting N.J. Stat. Ann. § 3B:5-10).
In rejecting the beneficiaries' challenge, the New Jersey court in Trust 1961 drew a conceptual distinction between that case and one of its earlier cases, Wingate v. Estate of Ryan, 149 N.J. 227, 693 A.2d 457 (1997), which held, as we did in Palmer, that an individual who seeks to establish paternity in a probate proceeding but who does not benefit from a presumption of paternity found in the Parentage Act is not required to use the Parentage Act to prove paternity. Trust 1961, 765 A.2d at 754-55. The court in Trust 1961 noted that the Parentage Act was meant to facilitate, not hinder, the establishment of paternity for inheritance purposes. Trust 1961, 765 A.2d at 754-55 (citing Wingate, 693 A.2d at 457). The New Jersey court concluded that the holding in Wingate applies "principally to parties seeking to establish or confirm their parentage, as opposed to those seeking to defeat the established parentage of others." Id. at 755, 166 N.J. 340 (emphasis added).
We agree with the distinction drawn in Trust 1961 between individuals seeking to establish paternity and those contesting the presumed paternity of another. In the Parentage Act, the legislature also recognized this distinction, differentiating between actions to declare the nonexistence of a presumed parent-child relationship and actions to establish a parent-child relationship. See Minn.Stat. §§ 257.57; 257.58. By imposing substantially shorter limitations periods for actions to declare the nonexistence of a presumed parent-child relationship than for suits to declare the existence of such a relationship, the Act evinces a policy favoring the establishment of parent-child relationships. Compare Minn.Stat. §§ 257.57, subd. 1(a) (allowing actions to declare the existence of a father-child relationship to be brought at any time), with Minn.Stat. § 257.57, subd. 1(b) (requiring actions to declare the nonexistence of a father-child relationship to be brought no later than three years after the child's birth). This policy discouraging challenges to presumed parent-child relationships bolsters our conclusion that, in a *454 probate proceeding in which a Parentage Act presumption is invoked, paternity must be determined in accordance with the dictates of the Parentage Act.
II.
Having concluded that, because Barnett benefits from a presumption of paternity, paternity for intestacy purposes must be determined under the Parentage Act, we now turn to the provisions of that Act to ascertain whether the Act permits Nelson to rebut the presumption of paternity in this case. The Parentage Act permits presumptions of paternity to be rebutted in "an appropriate action" by clear and convincing evidence. Minn.Stat. § 257.55, subd. 2. Section 257.55, subdivision 2, provides:
A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.
(Emphasis added.) But the Act does not define "an appropriate action," nor is there a single common meaning of that phrase. See Minn.Stat. § 645.08(1) (2004) (providing that phrases in a statute should be construed according to their common and approved usage). Because this phrase is susceptible to more than one reasonable interpretation, we conclude that it is ambiguous. See Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Consequently, we look beyond the words of section 257.55 to ascertain the legislature's probable intent. See Minn.Stat. § 645.16. In so doing, we consider the purpose of the Parentage Act and the consequences of a particular construction. Id.
The legislature's use of the limiting phrase "an appropriate action" demonstrates the legislature's intent to restrict the circumstances in which a presumption of paternity under the Parentage Act may be rebutted. See In re Nicholas H., 28 Cal. 4th 56, 120 Cal. Rptr. 2d 146, 46 P.3d 932, 941 (2002). To interpret "an appropriate action" to mean any properly instituted legal proceeding would render the phrase essentially meaningless and runs afoul of the rule of statutory construction that dictates that, if possible, no word or phrase of a statute should be deemed superfluous or insignificant. See Amaral, 598 N.W.2d at 384; see also Minn.Stat. § 645.16 ("Every law shall be construed, if possible, to give effect to all its provisions."). Thus, we conclude that a narrower construction of "an appropriate action" is required.
That the legislature elsewhere in the Parentage Act explicitly created causes of action to declare the nonexistence of a presumed father-child relationship informs our efforts to discern the meaning of "an appropriate action." See Minn.Stat. § 257.57. We have said that statutes relating to the same person or thing or having a common purpose should be construed together. Apple Valley Red-E-Mix, Inc. v. State by Dept. of Public Safety, 352 N.W.2d 402, 404 (Minn.1984) (explaining the doctrine of in pari materia); see also State v. Lucas, 589 N.W.2d 91, 94 (Minn. 1999) ("The doctrine of in pari materia is a tool of statutory interpretation that allows two statutes with common purposes and subject matter to be construed together to determine the meaning of ambiguous statutory language."). Because section 257.57 and section 257.55, subdivision 2, deal with the same subject matterchallenging presumed father-child relationshipsand appear in a single act having a single purpose, we conclude that they are *455 in pari materia and should be construed together. See In re Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 46 (Minn.2000) (quoting Hagen v. County of Martin, 253 Minn. 367, 371, 91 N.W.2d 657, 660 (1958)). Reading these sections together strongly suggests that the legislature intended the phrase "an appropriate action" in section 257.55 to signify an action in which the party seeking to rebut a paternity presumption would not be barred by the standing or timeliness requirements in section 257.57 from bringing an action to declare the nonexistence of the presumed father-child relationship.
Other courts analyzing the meaning of "an appropriate action" in the context of the Uniform Parentage Act have similarly concluded that the phrase signifies an action instituted pursuant to the Act.[4]See P.G. v. G.H., 857 So. 2d 823, 828 (Ala.Civ. App.2002); J.A. v. C.J.H., 923 P.2d 758, 761-62 (Wyo.1996); see also Nicholas H., 120 Cal. Rptr. 2d 146, 46 P.3d at 941. While we are not bound by these courts' interpretations, we endeavor to construe uniform laws to effectuate their purpose of making the laws of the states in which they are enacted consistent with each other. Minn.Stat. § 654.22.
Moreover, as a matter of public policy, construing "an appropriate action" to encompass suits not satisfying the standing and timeliness requirements of section 257.57 would frustrate one of the Parentage Act's primary purposesthe establishment of parent-child relationshipsand would be contrary to legislatively established public policy favoring presumptions of legitimacy and the preservation of family integrity. See Minn.Stat. §§ 257.55, 257.57; Schaefer v. Weber, 567 N.W.2d 29, 30-31 (Minn.1997); Murphy v. Myers, 560 N.W.2d 752, 756 (Minn.App.1997); Pierce v. Pierce, 374 N.W.2d 450, 452 (Minn.App. 1985). A broad interpretation of "an appropriate action" would permit parties to circumvent the standing and timeliness requirements of section 257.57 and would eviscerate the carefully crafted limitations the legislature has placed on challenges to a presumed father-child relationship. We do not believe that the legislature, which has unmistakably expressed its desire to foster and protect a child's legitimacy, meant in section 257.55 to permit an individual to challenge a sibling's parentage more than 50 years after her birth. Such belated challenges would be destructive of family harmony and stability and would undermine familial relationships long presumed to exist.
Accordingly, we conclude that the phrase "an appropriate action" as used in the first sentence of section 257.55, subdivision 2, is limited to an action in which the party seeking to rebut a paternity presumption would not be barred from bringing an action to declare the nonexistence of the presumed father-child relationship under Minn.Stat. § 257.57. That is, a Parentage Act paternity presumption may be rebutted only by one who meets the standing and timeliness requirements for an action to declare the nonexistence of the presumed father-child relationship under section 257.57. Because Nelson does not satisfy the standing and timeliness requirements *456 of section 257.57, subdivision 1(b), this is not "an appropriate action" within the meaning of section 257.55, subdivision 2, and Nelson cannot attempt to rebut the presumption of Jotham's paternity of Barnett.[5]
III.
To avoid the statute of limitations of section 257.57, Nelson contends that her attempt to rebut the presumption of Jotham's paternity of Barnett is a defensive denial of paternity not subject to a statute of limitations. Nelson cites earlier decisions of our court in which we stated that a defensive denial of paternity, even when asserted to rebut a paternity presumption, is not subject to time limitations. State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349-50 (Minn.1991); see also Reynolds v. Reynolds, 458 N.W.2d 103, 105 (Minn.1990). In opposition, Barnett urges us to adopt a narrow definition of a defensive denial of paternity, a definition that Nelson does not meet. Barnett argues that "[a] denial of paternity is defensive only when asserted by the presumed father of the child in an action seeking to enforce a legal duty that exists by reason of the parentage at issue."
Generally, a "statute of limitations may be used as a shield, not as a sword, and * * * the statute of limitations does not bar a party from raising a pure defense." Reynolds, 458 N.W.2d at 105. Consequently, we have distinguished between a defensive denial of paternity and an action to declare the nonexistence of a parent-child relationship pursuant to section 257.57. See Braswell, 474 N.W.2d at 349-50; Reynolds, 458 N.W.2d at 105; State ex rel. Ward v. Carlson, 409 N.W.2d 490, 493 (Minn.1987). We have said that "the right to deny paternity defensively, whether asserted to rebut a presumption of paternity or simply to defend against an allegation of paternity where there is no presumed father, is not subject to time limitations and may be exercised by the defendant in any action in which it is alleged that he is the child's father." Braswell, 474 N.W.2d at 350. Because Nelson seeks to offer evidence to rebut a presumption of paternity, the court of appeals characterized Nelson's position as a defensive denial of paternity. See Jotham, 704 N.W.2d at 214.
We disagree with the court of appeals and conclude that Nelson is not defensively denying paternity in the sense expressed in Braswell, where we spoke only of a denial of paternity "by the defendant in any action in which it is alleged that he is the child's father." Braswell, 474 N.W.2d at 350. The cases in which we have discussed defensive denial of paternity all involved a putative or presumed father defending himself against a charge of paternity, either in a divorce proceeding or in a child support action. See id. at 348, 350; Reynolds, 458 N.W.2d at 104-05; Carlson, 409 N.W.2d at 490, 493. Consequently, we conclude that a denial of paternity is defensive only when asserted by a *457 presumed or putative father in a suit seeking to enforce against him a legal obligation that exists by reason of the contested father-child relationship.[6]
Here, while Nelson is attempting to rebut a presumption of paternity, the presumption is not being used to bind her to a legal obligation arising out of the presumed parent-child relationship. Further, our case law indicates that only a presumed or putative father may be considered to be defensively denying paternity. See Braswell, 474 N.W.2d at 350. In addition, Nelson is not asserting a "pure defense," the term used in Reynolds, as she is not defending herself against a suit brought by Barnett. See Reynolds, 458 N.W.2d at 105.
Because Nelson is not defensively denying paternity, she may only rebut the presumption of Jotham's paternity of Barnett if she can bring action under section 257.57, subdivision 1(b), of the Parentage Actthat is, "an appropriate action." But Nelson plainly does not satisfy either the standing or the timeliness requirements of section 257.57, subdivision 1(b), and thus cannot bring an action to contest Jotham's presumed paternity of Barnett. Accordingly, we conclude that Nelson is barred from attempting to rebut the presumption of Jotham's paternity of Barnett in this probate proceeding. Therefore, we hold that the court of appeals erred in reversing the district court's conclusion that Nelson cannot challenge the presumption of paternity, and we reverse the court of appeals and remand to the district court for further proceedings consistent with this opinion.
Reversed and remanded.
GILDEA, Justice (dissenting).
I respectfully dissent. I agree with the majority that Barnett benefits from the presumption of paternity found in Minn. Stat. § 257.55, subd. 1(a) (2004). I depart from the majority in its conclusion that the presumption is conclusive. In my view, this construction is inconsistent with the Parentage Act. I would affirm the court of appeals.
The statute of limitations and standing requirements of Minn.Stat. § 257.57, subdivision 1(b) (2004), by the statute's plain language, apply only to actions brought "[f]or the purpose of declaring the nonexistence of [a presumed] father and child relationship." As the court of appeals correctly observed, the case at bar is not such an action. In re Estate of Jotham, 704 N.W.2d 210, 213-14 (Minn.App.2005). Rather, this is a probate proceeding instituted for the purpose of determining the appropriate devolution of Jotham's property upon his death. Because Nelson has not brought an action under section 257.57, subdivision 1(b), the requirements in that subdivision do not apply to her attempt to rebut the presumption of Jotham's paternity of Barnett.
Notwithstanding the plain language, the majority imports the statute of limitations and standing requirements of section 257.57 into this case through its construction of section 257.55. In section 257.55, subdivision 2, the Parentage Act provides *458 that a paternity presumption may be rebutted "in an appropriate action only by clear and convincing evidence." Minn. Stat. § 257.55, subd. 2 (2004). To render the requirements of section 257.57, subdivision 1(b), applicable to Nelson, the majority construes "an appropriate action" to mean a suit in which the party seeking to rebut a paternity presumption satisfies the standing requirements and statute of limitations of Minn.Stat. § 257.57 (2004). I disagree.
We have said that rules of statutory construction "forbid adding words or meaning to a statute that were intentionally or inadvertently left out." Genin v. 1996 Mercury Marquis, 622 N.W.2d 114, 117 (Minn.2001); see River Valley Truck Ctr., Inc. v. Interstate Cos., Inc., 704 N.W.2d 154, 167 (Minn.2005) ("[T]he rules of statutory construction forbid us from adding words to a statute."); Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995) (noting that courts should not read into statutes restrictions that the legislature did not include). Yet, the majority reads into section 257.55, subdivision 2, the standing and timeliness requirements of section 257.57, restrictions which the plain language of the Parentage Act make inapplicable here.
In my view, if the legislature meant "an appropriate action" to have the narrow meaning the majority ascribes to it, the legislature could have so provided.[7] In fact, in other sections of the Parentage Act, the legislature displayed its ability to specifically identify a Parentage Act suit by referring to a Parentage Act suit as "[a]n action under sections 257.51 to 257.74," Minn.Stat. § 257.65 (2004), "an action to determine the existence of the father and child relationship under sections 257.51 to 257.74," Minn.Stat. § 257.651 (2004), and "an action brought under sections 257.51 to 257.74," Minn.Stat. § 257.59, subd. 1 (2004). The legislature's use of a different phrase in section 257.55, subdivision 2, strongly indicates that the legislature meant to denote something other than a Parentage Act suit. See 2A Norman J. Singer, Statutes and Statutory Construction § 46.06 (6th ed. 2000) ("[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended."); cf. Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 677 n. 4 (Minn.2004) ("The legislature would not have employed different terms in different subdivisions of the statute if it had intended those subdivisions to have the same effect.").
I agree with the court of appeals that a probate proceeding such as the instant case is "an appropriate action" in which a presumption of paternity may be rebutted. Jotham, 704 N.W.2d at 214-15. Minnesota Statutes § 645.45 (2004) provides that the word "action," when used in a statute, means "any proceeding in any court of this state." "Appropriate" is defined as "suitable" or "compatible." American Heritage Dictionary of the English Language 91 (3rd ed.1992); Merriam-Webster's Collegiate Dictionary 57 (10th ed.1993); see also Minn.Stat. § 645.08(1) (2004) (providing that words in a statute are construed according to their common usage). Permitting rebuttal of a paternity presumption for intestacy purposes does not interfere with the purpose of the Parentage Act, which we have recognized is to enforce child support obligations. See In re *459 Estate of Palmer, 658 N.W.2d 197, 200 (Minn.2003). Thus, I would hold that a probate proceeding is "an appropriate action" within the meaning of section 257.55, subdivision 2.[8]
An examination of other provisions in the Parentage Act confirms that this result accords with legislative intent. For example, in section 257.66, subdivision 1, the legislature provided that a "judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes." Consistent with this provision, a paternity presumption would be conclusive in a probate case if the presumption had been the subject of a court order or judgment. See id. The presumption at issue here was not the subject of a "judgment or order of the court," and therefore, consistent with section 257.66, subdivision 1, it should not be deemed conclusive.
The majority's construction, however, converts what the legislature intended to be a rebuttable presumption[9] into a presumption that essentially becomes conclusive after three years. Under the majority's reasoning, a party need not obtain a Parentage Act judgment to conclusively establish a parent-child relationship, as section 257.66 contemplates. Instead, a party may simply wait for the three-year limitations period in section 257.57, subdivision 1(b), to expire and the paternity presumption to become irrefutable.[10] In my view, such a construction runs afoul of the objective that statutes should "be construed as a whole so as to harmonize and give effect to all its parts." Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944).
Because I conclude that this probate proceeding is "an appropriate action" in which a presumption of paternity may be rebutted, I would affirm the court of appeals.
ANDERSON, G. BARRY, Justice (dissenting).
I join in the dissent of Justice Gildea.
NOTES
[1] The district court first considered whether the Parentage Act, Minn.Stat. §§ 257.51-257.74 (2004), applies to individuals born before it was enacted in 1980 and decided that it does apply. The court of appeals agreed with the district court, and the parties did not seek further review of this question. Jotham, 704 N.W.2d at 213, 215.
[2] The three-year limitations period is subject to a narrow exception, which is not at issue in this case. Minn.Stat. § 257.57, subd. 1(b).
[3] In addition, Jenia's paternity had previously been adjudicated in her presumed parents' divorce proceeding. Trust 1961, 765 A.2d at 748-49. Though the instant case does not involve a prior adjudication of paternity, the New Jersey court's analysis in Trust 1961 is nonetheless instructive, as the court distinguished that case from a case similar to Palmer. See Trust 1961, 765 A.2d at 754-55.
[4] In addition, in the 2002 version of the Uniform Parentage Act, the phrase "in an appropriate action" has been deleted, and the 2002 version explicitly provides that a presumption of paternity under the Act may be rebutted only by an adjudication also obtained under the Parentage Act. National Conference of Commissioners on Uniform State Laws, Uniform Parentage Act § 204 (2002), available at http://www.law.upenn.edu/bll/ulc/upa/final 2002.pdf. We read this alteration as a clarification of the meaning of "an appropriate action," indicating that the phrase was meant to denote an action in compliance with the standing and timeliness requirements of the Parentage Act.
[5] Contrary to the dissent's assertion, our opinion today does not render a cause of action under Minn.Stat. § 257.57, subd. 1(a), "superfluous upon expiration of the three-year statute of limitations." Given our conclusion in State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d 346, 349-50 (Minn. 1991), that a presumed father's defensive denial of paternity is not subject to any statute of limitations, a paternity presumption is not necessarily conclusive after the three-year statute of limitations in section 257.57, subdivision 1(b), has run.
As to the balance of the dissent's argument, while we acknowledge that there is often more than one viable approach to interpreting a statute, we believe that the approach we have taken is the better way to resolve this case because it adheres more closely to the legislature's intent.
[6] Braswell, Reynolds, and Carlson essentially carve out a narrow exception to our interpretation of "an appropriate action" as an action in compliance with the standing and timeliness requirements of section 257.57. That is, "an appropriate action" means an action in which the party seeking to rebut a paternity presumption would not be barred from bringing an action to declare the nonexistence of the presumed father-child relationship under section 257.57 or a suit instituted against a presumed father seeking to enforce against him a legal duty arising out of the presumed father-child relationship.
[7] The majority's citation of the 2002 revised version of the Uniform Parentage Act underscores this point. The revision referenced by the majority reveals both that the legislature is perfectly capable of specifying that a paternity presumption may be rebutted only by an action comporting with section 257.57 and that the legislature, not this court, is the appropriate body to do so.
[8] Even if, as the majority concludes, this is not "an appropriate action" within the meaning of section 257.55, our analysis cannot end there. If this is not "an appropriate action," section 257.55, subdivision 2, does not set the evidentiary standard for rebuttal of the paternity presumption, and we must instead look to the common law, which developed its own demanding standard for overcoming a presumption of paternity based on marriage. See Golden v. Golden, 282 N.W.2d 887, 889 (Minn.1979); State v. E.A.H., 246 Minn. 299, 306, 75 N.W.2d 195, 200 (1956); Haugen v. Swanson, 219 Minn. 123, 127, 16 N.W.2d 900, 902 (1944).
[9] As the Minnesota Court of Appeals has said, "[t]he presumptions contained in the Parentage Act are not conclusive of paternity, but rather create a functional set of rules that point to a likely father." State v. Thomas, 584 N.W.2d 421, 424 (Minn.App.1998) (quotation omitted), rev. denied (Minn. Nov. 17, 1998).
[10] In addition, the majority's construction renders the cause of action authorized by section 257.57, subdivision 1(a), superfluous upon expiration of the three-year statute of limitations in subdivision 1(b). See Minn. Stat. § 257.57, subd. 1(a) (noting that an action to establish paternity may be brought "[a]t any time"). Because a paternity presumption would be conclusive after the three-year period expired, an action under section 257.57, subdivision 1(a), to declare the existence of a presumed father-child relationship would be unnecessary. Thus, the majority's interpretation of the phrase "an appropriate action" violates the very canon of construction on which the majority purports to rely, that a statute must be construed to give effect to all of its provisions. Minn.Stat. § 645.16 (2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917845/ | 272 So. 2d 813 (1973)
Thomas H. MARKHAM, Petitioner,
v.
Nancy S. MARKHAM, Respondent.
No. 42667.
Supreme Court of Florida.
January 31, 1973.
Rehearing Denied February 28, 1973.
William H. Maness, Jacksonville, for petitioner.
Black & Leggett, P.A., Jacksonville, for respondent.
BOYD, Justice.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 265 So. 2d 59. The decision sought to be reviewed has been certified by the District Court as one passing on a question of great public interest, thereby giving this Court jurisdiction under § 4, Article V, of the Florida Constitution, F.S.A.
Respondent-wife brought an action for the dissolution of marriage. During the presentation of testimony on the issue of temporary custody of the children of the parties, petitioner-husband offered in evidence recordings of telephone conversations intercepted when he tapped two telephone lines coming into the home of the parties. The wife filed motion to suppress the intercepted wire communication contents and evidence derived therefrom, relying upon Title 18, Section 2518, of the Omnibus Crime Bill of 1968, and Section 934.06, Florida Statutes, F.S.A.
The trial court denied the motion to suppress and ruled that the tape recordings were admissible, preserving only to the wife the right to object to portions of the recordings on the grounds of relevancy or materiality.
*814 On appeal, the District Court held that the statutory and constitutional law of the State of Florida precluded the admissibility into evidence of a recording of a telephone conversation if neither party thereto consents, in the absence of authorization for such recording by a court of competent jurisdiction. In reaching its decision, the District Court, relying principally on constitutional guarantees of the right to privacy and Florida Statutes § 934.01(4)[1], F.S.A., held:[2]
"The undisputed facts in this cause are that neither party to the conversations consented to the interception. The interception of the conversations resulted from the wiretapping activities by a third party. The subject statute does not provide that a subscriber-husband is permitted to wiretap. It states unequivocally that `when none of the parties to the communication has consented', such interception should be allowed only upon a court's order. The cited Florida constitutional provisions shores up the conclusion that a husband does not possess the right to invade his wife's right of privacy by utilizing electronic devices." (Emphasis theirs)
The District Court has correctly answered the question presented and its decision is adopted as the decision of this Court. The Statute in question makes no exception allowing admission of wiretap evidence in domestic relations cases when neither party to the communication consented to the interception.
Accordingly, the decision of the District Court in this cause is affirmed and the writ is discharged.
It is so ordered.
CARLTON, C.J., and ROBERTS and ERVIN, JJ., concur.
MELVIN, WOODROW H., Circuit Judge, dissents with opinion.
MELVIN, WOODROW H., Circuit Judge (dissenting).
I respectfully record here my dissent.
The Congress of the United States of America and the members of the Legislature of the State of Florida are a composition of reasonable and intelligent citizenry elected by the people for the purpose of representing them in the law writing branch of the government. As I understand the provisions in the Constitution and the statute upon which the majority of this great Court would bottom its opinion the same are based upon the common sense proposition that before a person may be heard to complain as to a telephone interception, that person must have had a reasonable right to expect that such communication would not be subject to interception. That is to say, such person must have a reasonable right under known existing circumstances to expect privacy in connection with the telephone conversation.
The situation to which this Court would so apply the law is one which in my judgment the writers thereof never contemplated.
The husband caused an intercepting device to be placed upon his telephone lines, the listing of which was in his name and for which he paid the required charge. The lines in question were to his home. We then have the relatively simple question of whether or not his wife while within the sacred confines of the marital home, *815 had a reasonable right to expect privacy in the use of telephone lines connected from the marital domicile to the place where the recipient of her affections was listening.
I perceive that neither the Congress nor the Legislature of Florida could have envisioned by the enactment of the Constitution and statute referred to, that the husband no longer could be considered the head of his household; that he no longer could be considered as the protector of his wife and his marriage or his family. We are now invited, however, to conclude that the Congress and the Legislature intended to grant such right of privacy to a spouse in the furtherance of his or her conspiracy with a lover to break two of the basic ten commandments relating to human conduct. I can no more perceive a right of privacy on the part of those here thus engaged to so use the telephone lines in the reasonable expectation of privacy relating thereto, than would have been so had they claimed the right of privacy in the use of the husband's bedroom. Such a conclusion would seem to me to be tortured logic. I therefore note my dissent.
NOTES
[1] "To safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. * * *"
[2] Markham v. Markham, 265 So. 2d 59, 61 (Fla.App. 1st 1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917847/ | 135 N.W.2d 199 (1965)
MIDWAY MOBILE HOME MART, INC., et al., Respondents,
v.
CITY OF FRIDLEY, Appellant.
No. 39491.
Supreme Court of Minnesota.
May 14, 1965.
Hall, Smith, Hedlund, Juster, Forsberg & Merlin, Minneapolis, for appellant.
Douglass Sheets & Bell, and Thomas Sweeney, St. Paul, for respondents.
ROGOSHESKE, Justice.
Appeal by the city of Fridley from an order directing it to issue a building permit to the plaintiffs for the construction of a *200 building to be used in connection with the sale of mobile homes.
Plaintiff Midway Mobile Home Mart, Inc., owns an interest in real property located in the city of Fridley which it desires to use for a mobile-home sales business. Prior to the purchase of the land under a contract for deed, plaintiffs received assurances from various city officials that the zoning ordinance of the city permitted the intended use of the property. On October 2, 1963, plaintiffs submitted plans to the Fridley building board for a building estimated to cost $8,000 to be erected on the property for use in its business. The board formally approved the plans as complying with the building code of the city. On October 7, plaintiffs applied to the city council for a building permit. The council refused to issue the permit on the ground that the provisions of its comprehensive zoning ordinance do not permit such intended use of the property without a special-use permit. Plaintiffs thereupon instituted this action seeking relief either upon the theory of a suit for a declaratory judgment, an action in the nature of mandamus, or one for a mandatory injunctionor perhaps for a review by certiorari. The complaint alleged compliance with the "ordinances and regulations of the City" and that the property "is properly zoned for the purposes and uses for which the plaintiff * * * wishes to use said lot." The relief demanded was an order "compelling the defendant to forthwith issue a building permit" and substantial damages caused by delay in approval.
On March 30, 1964, the case was called for pretrial, at which time a "zoning map" and the city code were received as evidence. The record is not at all clear, but it appears that the parties and the court then agreed that each party "would submit their facts" and a written argument, after which the court would consider the case submitted and render a decision. The statements submitted were partly factual, partly in the nature of offers of proof, and argumentative.
So far as pertinent to our disposition, the plaintiffs' "Statement of Facts" contained a declaration of its ownership of the property and a copy of the contract for deed was attached as proof thereof; a recital of the oral and written assurances made by various named city officials that the property was zoned for commercial use within a "C-2" or a "C-2S" district and that the intended use was permitted by the ordinance; the fact that construction plans were submitted to and approved by the building board; and the details of the council's denial of its application for a building permit. It further declared as a fact that a like use upon property in the city similarly zoned "C-2S" is permitted to the Northeast Mobile Home Sales without a special-use permit, claimed required by defendant under the zoning ordinance, or a special permit to "park, store or occupy" a house trailer or mobile home, also claimed required by c. 41 of the city code; and asserted that the sale of mobile homes is "not similar in any way" to the operation of a used-car lot.[1] Finally, the statement included an affidavit of a realtor as proof that the intended use would in no way impair the value or enjoyment of adjoining property.
Defendant's statement, by reference to the paragraphs of plaintiffs' statement, admitted all declarations made by plaintiffs except as follows: (1) It refused to admit plaintiffs' ownership of the property and objected to receiving the contract for deed into evidence because the mortgage registration tax had not been paid, a prerequisite therefor under Minn.St. 287.10;[2] (2) it branded as "untrue" plaintiffs' statement concerning Northeast Mobile Home Sales and declared that the use of property owned by that enterprise was pursuant to permits duly issued by both *201 the city and the state; (3) it stated, directly contrary to plaintiffs' opinion evidence, that defendant could prove that the adjoining residential property would be adversely affected, and that in the opinion of a "professional appraiser" the value of adjoining residential, church, and commercial structures "will all depreciate in the approximate sum of ten percent" if plaintiffs' intended use of the property is permitted; (4) it denied without explanation plaintiffs' assertion of the dissimilarity of the sale of mobile homes and a used-car lot[3] and declared in effect that the zoning ordinance vested the council with discretionary power to exclude plaintiffs' proposed use of the property; and, finally, (5) it asserted that c. 41 of the city code also required a special permit to park or store a mobile home, whether occupied or not.
The court made no findings, simply issuing an order "[u]pon the statement of facts submitted by the plaintiffs and defendant and upon all the exhibits, pleadings and proceedings" as follows:
"IT IS HEREBY ORDERED:
"A. That the defendant forthwith issue a building permit to the plaintiffs for the construction of said building to be used in connection with its mobile home sales lots.
"B. That the plaintiff, Midway Mobile Home Mart, Inc., a Minnesota corporation, is entitled to conduct a mobile homes sales business on the property, commonly referred to as 6200 Highway 65 Northeast, Fridley, Minnesota, * * *:
* * * * * *
"C. That Chapter 41 of the City Code of the City of Fridley does not apply to the retail business of mobile home sales.
"D. That the plaintiffs or either of them do not recover money damages or attorney's fees from the defendant."
This appeal was filed 16 days following the order. For reasons unexplained, defendant made no effort to secure findings. However, defendant now urges as a primary ground for reversal or for a new trial that the court erred in failing to make specific findings as required by Rule 52.01, Rules of Civil Procedure. Plaintiffs' response is that findings were not required because "the Court explicitly stated that the basis of the order was the concise `statement of facts submitted by the plaintiffs and defendant.'" It is obvious this cannot be the basis, for the facts submitted upon which plaintiffs appear to claim that the council acted arbitrarily and unreasonably were neither "concise" nor undisputed.
The entire record, including the arguments of counsel before the district court and here, does not enable us to ascertain the basis for the court's order. An examination of the zoning map shows that plaintiffs' property is located in an area zoned for commercial use. The provisions of the zoning ordinance make it clear that plaintiffs' intended use is neither expressly permitted nor excluded.[4] It further appears that if it were established that the proposed use was "similar in character" to numerous uses expressly permitted, e. g., "[a]utomobile display and sales rooms, parking lots and structures," and would not "impair the use, enjoyment or value" of adjoining property,[5] the council could not arbitrarily refuse the permit. On the other hand, if the proposed use was similar to those enumerated uses permitted only upon securing a special-use permit, e. g., "[u]sed car sales *202 lots," the provisions of the ordinance require that preliminary consideration must be given to plaintiffs' application by the city's zoning board of appeals before action by the council.[6] In either event, and although the theory of plaintiffs' action is obscure, the primary issue necessarily raised was whether the council acted unreasonably under the facts presented.
Clearly, upon this issue findings are mandatory under Rule 52.01,[7] for without findings it does not appear that the court passed upon the disputed facts material to this issue, and we can only speculate as to the basis for the decision. The purpose of the rule is to make definite and certain what the issues were and how they were decided, and thus afford this court a clear understanding of the basis for the decision.[8] It should be noted that while the rule imposes the duty to make findings upon the court, where none are made or where they appear insufficient or inadequate, the burden is upon the parties to bring the matter to the attention of the court by a motion authorized by Rule 52.02.
While on this record we would be disposed to uphold the court's conclusion that c. 41 of the city code has no application to the retail sale of mobile homes, such a piecemeal review would not dispose of the case. On what we perceive to be the primary issue, the record is so incomplete and insufficient that we believe findings could not be made without requiring plaintiffs to disclose the theory upon which they base their claim for relief and having a trial on the merits. Accordingly, we must reverse and order a new trial.
Reversed and new trial granted.
NOTES
[1] Under the zoning ordinance a special-use permit is expressly required for a used-car lot. City Code of Fridley, § 45.12-20.
[2] This objection was withdrawn on oral argument before this court.
[3] In its argument the city claimed plaintiffs' intended use was similar to a used-car lot, requiring a special-use permit, and not similar to "[a]utomobile display and sales rooms, parking lots and structures, and gasoline service stations," expressly permitted in districts zoned "C-2 and C-2S." City Code of Fridley, § 45.12-1.
[4] Id. §§ 45.10, 45.12, and 45.13.
[5] Id. § 45.12-21.
[6] Id. § 45.12-20.
[7] Rule 52.01 provides: "In all actions tried upon the facts without a jury * * * the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment * * *."
[8] Asch v. Housing and Redevelopment Authority, 256 Minn. 146, 97 N.W.2d 656. See, also, Graphic Arts Educational Foundation, Inc. v. State, 240 Minn. 143, 59 N.W.2d 841; Naffke v. Naffke, 240 Minn. 468, 62 N.W.2d 63. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/742499/ | 116 F.3d 489
97 CJ C.A.R. 1094
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of AMERICA, Plaintiff-Appellee,v.John William TRAPP, also known as J.W. Trapp, Defendant-Appellant.
No. 96-7054.
United States Court of Appeals, Tenth Circuit.
June 24, 1997.
Before PORFILIO, LUCERO, and MURPHY, Circuit Judges.
1
ORDER AND JUDGMENT*
2
Appellant John William Trapp was indicted on one count of conspiracy to manufacture marijuana in violation of 21 U.S.C. § 846 and one count of racketeering in violation of 18 U.S.C. § 1962(c). The jury found him guilty of the racketeering charge. Trapp now appeals his conviction on four grounds: (1) the government failed to prove that at least one of the predicate acts of which Trapp was found guilty was within the statute's five year limitation period; (2) the evidence was insufficient to sustain the jury's guilty verdict; (3) the court abused its discretion with respect to three different evidentiary rulings; and (4) the government failed to deliver all requested discovery, and Trapp discovered new evidence. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRMS Trapp's conviction.
BACKGROUND
3
Trapp was elected Sheriff of Choctaw County, Oklahoma, on January 3, 1989 and served until he resigned in October 1995. In January 1990, the Federal Bureau of Investigation ("FBI") began investigating Trapp and his employees for requesting and receiving bribes from marijuana growers and night club owners. After a five-year investigation, the grand jury returned an indictment against Trapp on September 27, 1995, charging conspiracy to manufacture marijuana in violation of 21 U.S.C. § 846 and racketeering in violation of 18 U.S.C. § 1962(c). In support of the racketeering charge, the government alleged Trapp committed ten predicate bribery acts constituting a pattern of racketeering.1
4
Racketeering act six alleged Trapp received and agreed to receive bribes from Jimmy Allen Foley and Joe Collvins. In 1989, Foley and Collvins were growing marijuana on leased land in Choctaw County. In September or October of 1989, Mike Mitchell, the undersheriff, arranged a meeting with Foley at which Mitchell solicited bribes in return for Mitchell and Trapp's abstention from arresting Foley and Collvins for marijuana production. Foley and Mitchell arranged a subsequent meeting at which Trapp was present. At this subsequent meeting, Trapp also solicited bribes from Collvins. Foley and Collvins agreed to pay Trapp and Mitchell $10,000 for protection from prosecution for growing marijuana. Mitchell later requested an additional $2,500 because Trapp "thought the ten was about what he should get." R. at 716-17. In either December 1989 or January 1990, Mitchell again approached Foley and told him that the payoff for 1990 growing season would be $20,000. Foley and Collvins decided not to grow marijuana in 1990.
5
Racketeering act seven alleged Trapp solicited a bribe from David Edward Grant, a chef who had previously been arrested for marijuana cultivation. In 1991, Trapp began investigating several complaints from Grant's neighbors about Grant shooting toward them or their property. Sometime in the summer of 1991, Trapp reprimanded Grant for the shootings and told him that if he was planning to grow marijuana on his property, he would need to pay Trapp $12,000. Later, in the summer of 1992, Trapp arrested Grant for extortion, telling Grant "that's what that twelve thousand dollars could help take care of." R. at 863-64. The charges against Grant were later dismissed.
6
Racketeering act eight alleged Trapp solicited a bribe from Randy Lee Chappell who ran the Fish Market in Choctaw County. Chappell sold speed and crank at the Fish Market and split the profits with Gene Wynn, owner of the Fish Market. On January 10, 1990, Trapp met with Chappell at the Fish Market and inquired about the drug sales. Trapp stated "he didn't mind a man making some money but he wanted his part of it," and indicated that he expected twenty-five percent of the money from any drug sales. R. at 563-65. Later the same day, the Fish Market was raided by state drug agents. After Chappell was arrested, Trapp met with Chappell to be sure that Chappell had said nothing to the drug agents about his solicitations. Trapp then instructed Chappell to tell the agents that Trapp had been at the fish market only to investigate rumors. While out of jail on bond two days after his arrest, Chappell contacted the FBI about the activities at the fish market and about Trapp's solicitation of bribes.
ANALYSIS
A. WAIVER
7
Trapp argues that predicate acts six, seven and eight did not occur within the five year limitation period for criminal violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968.2 In this case, Trapp raised the statute of limitations defense for the first time in his post-trial motions. Whether an affirmative defense has been waived is a mixed question of law and fact which "require[s] us to accept the district court's factual conclusions unless clearly erroneous but review the application of the facts to the law under a de novo standard." F.D.I.C. v. Oaklawn Apartments, 959 F.2d 170, 173 (10th Cir.1992). Because whether Trapp has waived his statute of limitations defense involves primarily a consideration of legal principles, we review that claim under a de novo standard. Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 850 (10th Cir.1986) (mixed question of law and fact is reviewed de novo when issue involves primarily consideration of legal principles); see also Sheet Metal Workers Int'l Assoc. v. Air Systems Eng'g, Inc., 831 F.2d 1509, 1510 (9th Cir.1987) (whether statute of limitations defense was waived was question of law subject to de novo review). We find Trapp waived his statute of limitations defense.
8
In order to prevail on a criminal RICO charge, the government must prove that one of the alleged predicate acts occurred within the five year statute of limitations. Although RICO does not expressly provide for a statute of limitations, 18 U.S.C. § 3282 contains a residual five-year criminal statute of limitations. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 146, 155 (1987) ("[T]he 5-year statute of limitations applies to criminal RICO prosecutions [ ] because Congress has provided such a criminal limitations period when no other period is specified.").
9
Trapp relies on Waters v. United States for the proposition that the statute of limitations poses a jurisdictional bar and can thus be raised at any time. 328 F.2d 739, 743 (10th Cir.1964). However, in United States v. Gallup, this court held, under circumstances remarkably similar to this case, the statute of limitations to be an affirmative defense, not a jurisdictional bar. 812 F.2d 1271, 1280 (10th Cir.1987).3 In Gallup, the defendant contended that "there was insufficient evidence of an overt act in furtherance of the conspiracy under § 371, occurring within the statutory period of limitation." Id. The court held that Gallup had waived the statute of limitations defense because he failed to raise the issue during trial. Id.
10
It was in post-trial motions that Trapp first raised the statute of limitations as a bar. This is insufficient to preserve this issue for appeal. See Gallup, 812 F.2d at 1280; see also Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir.1993) (holding issue raised for first time in post-trial motion not preserved for appeal). In fact, this court has even held that a statute of limitations defense which was raised in the defendant's answer and pretrial order was waived because it was never mentioned again until after trial. See Cavic v. Pioneer Astro Indus., Inc., 825 F.2d 1421, 1425 (10th Cir.1987).
B. SUFFICIENCY OF THE EVIDENCE
11
Trapp argues the government presented insufficient evidence to prove predicate acts six, seven, and eight. This court reviews "the evidence in the light most favorable to the government to determine whether any rational[ ] trier of fact could find the defendant guilty beyond a reasonable doubt." United States v. Horn, 946 F.2d 738, 741 (10th Cir.1991). To prove a pattern of racketeering activity under RICO, the government "must establish two or more predicate offenses which are related to the activities of the enterprise." United States v. Zang, 703 F.2d 1186, 1194 (10th Cir.1982), cert. denied, 464 U.S. 828 (1983).
12
Trapp claims the evidence supporting predicate act six was insufficient to show that Trapp, rather than Mitchell, solicited and received bribes from Collvins and Foley. A reasonable juror, however, could have found Trapp and Mitchell shared a common objective to solicit and receive bribes. Both Collvins and Foley testified as to their conversations with Mitchell and Trapp and the circumstances of the meeting between the four. This was sufficient evidence for a reasonable juror to have found Trapp guilty of predicate act six.
13
Trapp alleges that his conviction on predicate act seven involves an impermissible variance between the evidence at trial and the allegation in the indictment. The propriety of a variance in the evidence is a question of law reviewed de novo. United States v. Cardall, 885 F.2d 656, 670 (10th Cir.1989). In the indictment, the government alleged that the solicitation constituting predicate act seven took place in "about the summer of 1989." At trial, however, the key witness, Grant, testified that the solicitation occurred in 1991.4 Trapp appears to claim that this variance in dates precludes any reasonable jury from finding him guilty of predicate act seven. A variance in date alone does not establish that no rational trier of fact could have believed the witness' testimony. See United States v. Nunez, 668 F.2d 1116, 1127 (10th Cir.1981) (finding jury could reasonably convict defendant even though there was variance in time alleged in indictment and time proven at trial).
14
Trapp claims witness Chappell was not credible and that his testimony concerning predicate act eight was uncorroborated. Trapp thus seems to argue that no reasonable jury could have found him guilty. This court, however, has "recognized the general rule that in a criminal case a jury may convict a defendant on the uncorroborated testimony of an accomplice." United States v. Sloan, 65 F.3d 861, 863 (10th Cir.1995), cert. denied, 116 S.Ct. 824 (1996). Moreover, this court has held that "[c]redibility choices are resolved in favor of the jury's verdict." Horn, 946 F.2d at 741. There is thus no reason to disturb the jury's finding that Trapp was guilty of predicate act eight.
C. EVIDENTIARY RULINGS
15
Trapp claims the trial court erred in making three specific evidentiary rulings. First, Trapp takes issue with what he characterizes as hearsay testimony of Mitchell, Trapp's undersheriff. We review this claim under an abuse of discretion standard. United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir.), cert. denied, 488 U.S. 923 (1988) (stating district court's decision to admit statements of co-conspirator under Fed.R.Evid. 801(d)(2)(E) is reviewed for abuse of discretion).
16
Co-conspirator statements are not considered hearsay under Fed.R.Evid. 801(d)(2)(E) and may properly be admitted if the trial court finds: "1) a conspiracy existed; 2) both the declarant and the defendant against whom the declaration is offered were members of the conspiracy; and 3) the statement was made in the course of and in furtherance of the conspiracy." United States v. Caro, 965 F.2d 1548, 1557 (10th Cir.1992). Any factual findings made by the district court underlying the decision to admit are reviewed under a clearly erroneous standard. United States v. Peveto, 881 F.2d 844, 852 (10th Cir.), cert. denied, 493 U.S. 943 (1989).
17
Trapp claims the district court did not make a finding that a conspiracy existed and thus the first element of Caro was not met. The record, however, shows that the court in fact made two such findings. Based on the cumulative testimony of several witnesses regarding Trapp's collaboration with others to solicit bribes, the district court was not clearly erroneous in finding there was sufficient evidence a conspiracy existed. Accordingly, we find the district court did not abuse its discretion by admitting Mitchell's testimony.
18
Trapp further claims the trial court erred when it failed to strike testimony elicited through the government's improper use of leading questions. In reviewing cases involving leading questions under Fed.R.Evid. 611(c), "we ... reverse on the basis of improper leading questions only if 'the judge's action ... amounted to, or contributed to, the denial of a fair trial.' " Miller v. Fairchild Industries, Inc., 885 F.2d 498, 514 (10th Cir.1988), cert. denied, 494 U.S. 1056 (1990) (quoting McCormick on Evidence 12 (Cleary, ed., 1984)).
19
During direct examination of witness Collvins, the government improperly used leading questions. Pursuant to Fed.R.Evid. 611(c), the court admonished the government to refrain from using leading questions. Trapp, however, argues the court should have further corrected the situation by striking the testimony. Trapp claims he was prejudiced and made to look less credible when he was forced to object and to request curative admonitions in front of the jury. We find this argument unpersuasive. Having to object and to request the court to admonish the government in front of the jury do not necessarily amount to the denial of a fair trial. The district court corrected the impropriety by both sustaining Trapp's objections and admonishing the government. The district court was required to do no more. United States v. Gant, 487 F.2d 30, 35 (10th Cir.1973), cert. denied, 416 U.S. 941 (1974) (finding district court made genuine effort to prevent improper use of leading questions).
20
Trapp's third evidentiary claim is that the court should have stricken Foley's testimony because he invoked his Fifth Amendment right against self incrimination on certain questions during cross examination. When Foley invoked this right during trial, Trapp neither made a motion to strike nor to order the witness to answer. We thus review this claim under a plain error standard. United States v. Young, 470 U.S. 1, 6-7 (1985).
21
Trapp relies on United States v. Montgomery to argue the trial judge should have stricken Foley's testimony. 998 F.2d 1468 (9th Cir.1993). In Montgomery, the Ninth Circuit found the district court did not abuse its discretion in striking a witness' entire testimony after the witness refused to submit to cross examination. Montgomery, 998 F.2d at 1479. It does not follow from Montgomery, however, that a court is always required to strike testimony when a witness invokes the Fifth Amendment. Rather, " '[t]he district court's power to control the conduct of trial is broad.' " Id. (quoting United States v. Parza, 612 F.2d 432, 438 (9th Cir.1979)).
22
In United States v. Esparsen, 930 F.2d 1461, 1469 (10th Cir.1991), cert denied, 502 U.S. 1036 (1992), this court stated:
23
Courts have balanced [the competing concerns of the right to present witnesses with the goal of eliciting the truth through cross examination] by drawing a line between direct and collateral matters.... When the refusal to answer cross-examination questions involves collateral matters, we have held in the analogous situation of a prosecution witness who invokes the fifth amendment that the testimony should not be struck.
24
The questions which Foley refused to answer dealt with factual issues in pending charges against him in a different state. These were clearly not matters directly affecting Trapp's case. Trapp claims the questions were relevant to credibility. Before he refused to answer Trapp's questions, however, Foley had already admitted several times that he had grown marijuana in the past. Thus, Trapp's desire to diminish the witness' credibility had already been achieved; his ability to search for the truth during cross examination was not impaired.
25
We therefore find the district court did not err in making the three challenged evidentiary rulings.
26
D. FAILURE TO PRODUCE DISCOVERY AND NEW EVIDENCE
27
Trapp claims the government violated Fed.R.Crim.P. 16(a)(1)(D) by failing to deliver all requested discovery. Here again, Trapp claims the evidence purportedly withheld was relevant to credibility of witnesses. He asserts the following matters were withheld by the government: 1) evidence of a felony check charge against a witness; 2) evidence of prior state charges against a witness; 3) dismissal of state charges against the same witness; and 4) results of a witness' polygraph test.
28
According to Trapp, the government's failure to disclose the witness' complete criminal records and polygraph test violates Brady v. Maryland, 373 U.S. 83 (1963). "[C]laims that the prosecution violated Brady, including the determination of whether suppressed evidence was material," are reviewed de novo. United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir.1994). "To establish a Brady violation, the defendant must establish: 1) that the prosecution suppressed evidence; 2) that the evidence was favorable to the accused; and 3) that the evidence was material." Id.
29
Trapp presented no evidence to establish the government suppressed any evidence. Trapp merely states that the government should have turned over all evidence of an exculpatory nature with respect to the witnesses. Counsel's cross examination of those witnesses, however, indicates that Trapp knew of the criminal charges against the witnesses.
30
With respect to Trapp's claim that the government suppressed the results of a witness' polygraph test, it is true the government did not disclose those results. The government, however, states it had no intention of introducing the evidence and the test results were in fact never introduced. Under those conditions, there was no Brady violation. See United States v. Hall, 805 F.2d 1410, 1417-18 (10th Cir.1986) (finding when government does not intend to introduce results of polygraph at trial, "the charts and reports [are] not discoverable under the provisions of Rule 16(a)(1)(D) Fed.R.Crim.P.").
31
Trapp also seeks a new trial based on newly discovered evidence. "The allegedly newly discovered evidence must be more than impeaching or cumulative; it must be material to the issues involved; it must be such that it would probably produce an acquittal; and a new trial is not warranted if the new evidence is such that, with reasonable diligence, it could have been discovered and produced at the original trial." United States v. Youngpeter, 986 F.2d 349, 356 (10th Cir.1993).
32
The newly discovered evidence is a witness's statement that he "was going to lie about everything to just hang J.W. Trapp." R. at 1469. Trapp gives no explanation why he could not have discovered this evidence with reasonable diligence prior to or during the trial. More important, Trapp makes no showing that this evidence is material. He argues that the evidence would have been used for impeachment purposes and states that "[i]f the jury had known the true circumstances surrounding the witnesses," the jury would have acquitted Trapp as to predicate acts six and seven. This alone is insufficient. According to Youngpeter, the "newly discovered evidence must be more than impeaching." 986 F.2d at 356. Trapp is therefore not entitled to a new trial.
CONCLUSION
33
For the reasons set forth above, we AFFIRM the conviction entered in the United States District Court for the Eastern District of Oklahoma.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3
1
Because the jury found Trapp guilty of predicate acts six, seven, and eight, we limit our discussion to only those three acts
2
Predicate Acts one, two, five, and ten, as alleged in the indictment, were all within the five year statute of limitations. [Record at 15, 18-21, 25, 30]
3
In United States v. Cooper, 956 F.2d 960, 961-62 (10th Cir.1992), this circuit reaffirmed the principal holding of Waters. However, both Cooper and Waters are inapposite to this case. Those cases stood for the proposition that a "substantive offense could not be prosecuted if it was not filed before the expiration of the limitation period." Cooper, 956 F.2d at 961 (emphasis added) (holding when information filed after expiration of statute of limitations, statute of limitations served as bar to prosecution without express waiver by defendant). In fact, the court in Cooper specifically distinguished Gallup because it "does not deal with the issue of whether the statute of limitation is a bar to prosecution of a substantive offense[, but rather] ... whether, in a conspiracy case, the government had to prove an overt act charged in the indictment was committed before the limitation expired." Id
United States v. Stoner dealt with the question whether the statute of limitations for a conspiracy charge is jurisdictional. 98 F.3d 527, 532-33 (10th Cir.1996), reh'g en banc granted Mar. 3, 1997. Stoner involved a situation where the government had failed to allege at least one specific act in furtherance of the conspiracy within the limitations period. Id. Here, however, the government did allege certain predicate acts were committed within the RICO statute of limitations. It just so happened, however, that the jury only found the occurrence of three predicate acts, none of which occurred within the five-year limitations period. Thus, Stoner is also inapplicable to this case.
4
We note that based on this testimony adduced at trial, predicate act number seven would have indeed fallen within the five year statute of limitations | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/733597/ | 105 F.3d 649
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.Donald Eugene TIDWELL, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Robert HOLMES, Defendant-Appellant.
Nos. 96-4016, 96-4119.
United States Court of Appeals, Fourth Circuit.
Submitted: Nov. 26, 1996Decided: Jan. 9, 1997
Appeals from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, Chief District Judge. (CR-94-297)
Louis H. Lang, CALLISON, TIGHE, ROBINSON & HAWKINS, L.L.P., Columbia, South Carolina; Lionel S. Lofton, Charleston, South Carolina, for Appellants.
J. Rene Josey, United States Attorney, Marshall Prince, Assistant United States Attorney, Christopher Seybolt, Columbia, South Carolina, for Appellee.
D.S.C.
AFFIRMED.
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
OPINION
PER CURIAM:
1
This is a consolidated appeal of convictions arising from a largescale drug conspiracy in South Carolina. Appellant Donald Tidwell appeals his conviction for conspiracy to possess with intent to distribute cocaine,1 and Appellant Robert Holmes appeals his convictions on two counts of possession with intent to distribute cocaine.2 Both Appellants contend that the district court erred by denying their FED. R. CRIM. P. 29 motions for acquittal. After reviewing the record, we find no reversible error and affirm Tidwell's and Holmes's convictions and sentences.
2
In appeal No. 96-4016, Tidwell asserts that the evidence failed to establish that he either had knowledge of the conspiracy or agreed to join the conspiracy as charged in the indictment. According to Tidwell, the evidence merely showed that he associated with the other defendants, and that they were possibly involved in drug transactions. Tidwell's claim is without merit.
3
We review a denial of a motion for acquittal under a sufficiency of evidence standard.3 To sustain a conviction the evidence, when viewed in the light most favorable to the government, must be sufficient for a rational jury to have found the essential elements of the crime beyond a reasonable doubt.4 All reasonable inferences from the facts established to those sought to be established may be made.5 In this case, the government presented testimony showing that Tidwell was a participant in the drug conspiracy and that Tidwell purchased substantial quantities of cocaine on several occasions.
4
While Tidwell argues that the government's evidence consisted exclusively of testimony by co-defendants which was self-interested and therefore unreliable, such an argument is unavailing. Tidwell had every opportunity to challenge the criminal histories, biases, and motivations of the government's witnesses during cross-examination and argument. The jury found the government's evidence believable and the jury's decision on the credibility of witnesses is not reviewable by this court.6
5
In appeal No. 96-4119, Holmes asserts that the evidence was insufficient to establish that he was the person who sold cocaine to the informant on two occasions. Holmes's claim is without merit as the evidence, when viewed in the light most favorable to the government, was sufficient for a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.7 The government offered eyewitness testimony that Holmes was the one who provided cocaine to the informant on January 19, 1994. In addition, testimony established that the informant purchased cocaine from the same individual on January 26, 1994. Like Tidwell, Holmes had an opportunity to challenge the government's witnesses during cross-examination, and we cannot substitute our judgment for the jury's.8
6
Accordingly, the district court ruled correctly in denying the Defendants' Rule 29 motions. 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
1
21 U.S.C. § 846 (1994)
2
21 U.S.C. § 841(a)(1) (1994)
3
United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505 U.S. 1228 (1992)
4
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.1993); see Glasser v. United States, 315 U.S. 60, 80 (1942)
5
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982)
6
United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989)
7
United States v. Murphy, 35 F.3d 143, 148 (4th Cir.1994), cert. denied, --- U.S. ---, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No. 94-7337)
8
United States v. Johnson, 55 F.3d 976, 979 (4th Cir.1995) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1572341/ | 722 N.W.2d 379 (2006)
IN RE BW(M).
No. 23962.
Supreme Court of South Dakota.
September 29, 2006.
Affirmed (JJD) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572347/ | 437 F.Supp. 474 (1977)
MORSE ELECTRO PRODUCTS CORP., Plaintiff,
v.
S. S. GREAT PEACE, her engines, etc., TA Cheng Marine Co., Ltd., Norton Lilly & Co., Inc., Maher Terminals Company, Inc., W. J. Byrnes & Co. of New York, Inc., Ultimate Distributions Systems, and Interport Trucking Co., Defendants.
MAHER TERMINALS COMPANY, INC., Third-Party Plaintiff,
v.
SULLIVAN SECURITY SERVICE, Third-Party Defendant.
Civ. A. No. 74-457.
United States District Court, D. New Jersey.
September 7, 1977.
*475 *476 *477 *478 Martin B. Mulroy, Edison, N. J., for plaintiff; Bruce J. Hector, New York City, of counsel.
Thomas G. Aljian, Warren, N. J., for defendant Ta Cheng Marine Co., Ltd., and Norton Lilly & Co., Inc.; Dougherty, Ryan, Mahoney, Pellegrino & Giuffra, New York City by Peter J. Zambito, New York City, of counsel.
Gurry & Conlon by Thomas P. McHugh, South Orange, N. J., for defendant Maher Terminals Company, Inc.; McHugh, Heckman, Smith & Leonard by James M. Kenny, New York City, of counsel.
Lum, Biunno & Tompkins, Newark, N. J. by Raymond W. Troy, Newark, N. J., for defendant W. J. Byrnes & Co. of New York, Inc.
M. Keith Marshall, West Orange, N. J., for defendants Interport Trucking Corp. and Ultimate Distribution Systems, Inc.; Leo Howard, New York City, of counsel.
OPINION
COOLAHAN, Senior District Judge.
Plaintiff, Morse Electro Products Corp. (hereinafter Morse), is the consignee of 466 cartons of 8-track tape recording/playing decks shipped f. o. b. from Kobe, Japan, to Port Newark, New Jersey, aboard the vessel S.S. Great Peace. Plaintiff claims it failed to receive 432 of these cartons because of a "misdelivery" of the cargo to an unknown thief. This admiralty action[1] requires that a determination be made as to who among the parties should bear the loss of the cargo.
Plaintiff moves for summary judgment pursuant to Fed.R.Civ.P. 56(a) against defendant Ta Cheng Marine Co., Ltd. (hereinafter Ta Cheng), the carrier and owner of the S.S. Great Peace. Ta Cheng moves to dismiss the complaint, and moves, in the event it should be held liable to Morse, for summary judgment on the issue of indemnification against defendant Maher Terminals Company, Inc. (hereinafter Maher), the terminal operator. W. J. Byrnes & Co. of New York, Inc. (hereinafter Byrnes), plaintiff's customs broker-freight forwarder, moves for summary judgment against plaintiff. Interport Trucking Corp. (hereinafter Interport) and Ultimate Distribution Systems, Inc. (hereinafter Ultimate), the designated truckmen, move for summary judgment against plaintiff and cross-claimant defendants Maher and Byrnes.[2] All of these motions have been submitted on the papers in accordance with Fed.R.Civ.P. 78.[3]
On February 14, 1973, Ta Cheng, the carrier, issued an on-board bill of lading (No. TRSKN-12) at Kobe, Japan, which acknowledged receipt in apparent good order and condition of 466 cartons containing six 8-track tape recording/playing decks per carton. The cartons were to be delivered at the Port of New York to the order of First National City Bank, whose assistant cashier endorsed the reverse side of the bill of lading over to plaintiff, Morse. See Exhibit 1 to plaintiff's answer to Ta Cheng's interrogatories. Ta Cheng agreed to notify Morse, the consignee of the cargo, of the arrival date. Norton Lilly & Co. acted as Ta Cheng's New York agent.
*479 Byrnes had been for several years prior to and at the time of the misdelivery the customs broker for Morse. Byrnes would pay both customs and freight duties and clear the import. It would also issue delivery orders to the trucking company designated by Morse (deposition of Robert W. Hughes, Byrnes' import manager, pp. 64-65). Since 1972 Morse's designated truckmen had been Interport and Ultimate.[4] Herbert Reader of Ultimate provided the messenger to pick up Morse's delivery orders. (Affidavit of Anthony Firrielo, vice president of Byrnes, ¶ 5.)
On April 1, 1973, the cargo arrived at Port Newark. The day before, March 31, Morse was notified of the expected date of arrival. (Traufield deposition, pp. 25-26.) The entire shipment of 466 cartons was received by Maher and placed in shed No. 141 at the terminal. (Deposition of Frank Jadach, senior vice president of Maher operations, p. 41, lines 8-9, 24-25; p. 52, lines 1-3.) Maher arranged the security at the terminal. (Jadach deposition, p. 58, lines 11-14).[5] None of Norton Lilly's personnel was physically at the pier or the terminal. (Jadach deposition, p. 56, lines 23-25.)
Byrnes was notified of the delivery. On April 3, 1973, Byrnes prepared in quintuplicate a delivery order designating Interport as the truckman for the cargo. Byrnes addressed the order to Maher's terminal delivery clerk of the S.S. Great Peace, who would release the cargo to truckmen bearing a proper delivery order. (Maher's answer to cross-claimant Ta Cheng's interrogatories, ¶¶ 31, 32.)
Byrnes received from Morse the shipping documents before the S.S. Great Peace arrived in port. Delivery orders are routinely prepared by a clerk at Byrnes but are left undated until the cargo is cleared through customs and a permit has been lodged at the pier. On April 3, 1973, identification permit No. 034228 was lodged covering the subject shipment with customs at shed 141. Therefore, on April 3, Lori Eadicicco, Byrnes' clerk, signed and dated the original delivery order (No. 38245) and named Interport and Ultimate as designated truckmen. (Affidavit of Anthony Firrielo, ¶¶ 1-6.)
According to Firrielo, Byrnes' vice president (Firrielo affidavit, ¶ 7), Byrnes followed the routine procedure established by Interport and Ultimate in 1972. This procedure required Byrnes to place several delivery orders designating Interport and Ultimate together in a sealed envelope addressed to them. Interport/Ultimate's messenger would then pick up the envelope. Delivery orders are normally kept in the desk drawer of the preparer. (Byrnes' answers to Ta Cheng's interrogatories, 6.) Blank delivery orders are also kept in Byrnes' warehouse.
Byrnes states that at approximately 4:45 p. m. on April 3, 1973, Interport's messenger, Jack Schwartz, picked up the sealed envelope which contained two copies of the delivery order for the 466 cartons of tape-players, along with two other delivery orders for cargos belonging to Morse.[6] Another copy of the delivery order for the tape-players was sent to Ann Laona (or Leona), an employee of Morse. (Affidavit of Lori Eadicicco, Byrnes' employee, ¶¶ 1-5; see also, Hughes deposition, p. 77, lines 3-6, 20-25; p. 78, lines 3-5.) Lori Eadicicco placed the sealed envelope along with another sealed envelope addressed to Interport/Ultimate in a pick-up box on her desk. (Eadicicco affidavit, ¶¶ 6-7.)
Interport denies ever having received this delivery order. (Interport's answers to Byrnes' interrogatories, 4-5, 6d, 7a.) Byrnes, however, contends the delivery order was sealed in the envelope which Interport picked up on April 3. Interport's messenger, who was well known to Byrnes' employees, contends that he was not required to sign for the envelopes.
*480 The following day, April 4, two truckmen claiming to be from Allied City Express (hereinafter Allied) presented a delivery order on Byrnes' stationery accurately describing the cargo of 466 cartons of tape-players but designating Allied instead of Interport as truckman. The truckmen first presented the delivery order to customs at the pier and received an authorization for release. However, because the cargo had not yet been discharged, they were not permitted to take the cargo away.
On April 10, 1973, the Allied truck returned, again presenting the delivery order. Maher employees gave the truckmen 216 cartons of the cargo. The next day, April 11, another 216 cartons were loaded onto the Allied truck pursuant to the bogus delivery order. A total of 432 of the 466 cartons were misdelivered.
The bogus delivery order was signed "H. Kingman," a fictitious signature. Allied had no employee by that name and had no knowledge of Morse's cargo. Obviously someone had obtained the original delivery order and a blank Byrnes delivery order form. The blank form was conformed to the original, substituting only Allied for Interport and a fictitious signature for that of the Byrnes employee. Byrnes' employee notes, however, that the fraudulent delivery order lacked a customs identification number. (Hughes deposition, pp. 71-72.)
In the late afternoon of April 12, Ann Laona of Morse called Byrnes to inquire as to when Morse could expect delivery.[7] A check of Byrnes' records showed that the delivery order had been picked up on April 3. (Firrielo affidavit, ¶ 8.) Byrnes called Interport's president, Horace Schwartz (no relation to Interport's messenger, Jack Schwartz), who denied ever having received the delivery order for the 466 cartons of tape-players. Byrnes claimed that the Interport/Ultimate messenger signed for the order. (Firrielo affidavit, ¶¶ 9-10.) Jack Schwartz denied signing for the order as no signature was normally required. (Byrnes answers to Ta Cheng's interrogatories, 16; Interport answers to Byrnes interrogatories, 2-3.) On April 13 a duplicate delivery order No. 38245 was sent to Interport. Horace Schwartz called Byrnes back on April 17 to advise that 432 of the cartons had already been picked up. Schwartz had been told by Maher's delivery clerk that the cargo had been picked up by Allied on April 10 and 11.
Maher states that its checker was assigned on April 10 and 11 to tally the 216 cartons on each occasion (Jadach deposition, pp. 41, 53) after it received the customs release (Jadach deposition, p. 35). Maher's pier personnel ran a credit check against the name of the truckman, Allied. Approval was received. (Jadach deposition, pp. 45, 59.) Frank Jadach, Senior Vice President of Operations for Maher, stated that the S.S. Great Peace received the usual "clerking" of a vessel; that is, there was a review of all delivery orders presented by truckmen and delivery of cargo to them. The procedures employed by Maher for the S.S. Great Peace were approved by Norton Lilly & Co., Morse's agent. These are the same procedures employed by other terminal operators at the port. (Jadach affidavit.) Norton Lilly inspected the Maher facilities just before the misdelivery. Maher required that truckmen drivers have their pictures taken. Maher also photographs their licenses and verifies the existence and credit of the truckman itself. These procedures, however, failed to prevent the misdelivery. Maher released the balance of 34 cartons to Interport which, in turn, delivered them to Morse. (Jadach deposition, p. 55.) Maher stated that all that was needed for release of cargo was a "Delivery Order." (Jadach deposition, p. 60, lines 18-25; p. 61, line 1.)
Maher reported the theft to the Security Bureau. The investigation disclosed that blank delivery orders are kept in or on *481 desks of several employees in Byrnes' office. The orders are not numbered, nor are they stamped when issued. No receipts are required, and identification is not required of those picking up the orders. Usually, however, the truckman is known to Byrnes. The investigation led to recovery of 55 full cartons and 4 pilfered cartons. (See Exh. 21, p. 5, to Morse's answers to Ta Cheng's interrogatories.) That together with the delivered cartons left 2,378 tape-players unrecovered. The present action seeks damages for the loss of this unrecovered portion of the cargo.
Before this Court can address the rather difficult legal questions posed by this action, it must first turn its attention to the question of jurisdiction. Clearly, as noted above, p. 478, n. 1, the Court has admiralty jurisdiction over claims arising out of the contract of carriage, bill of lading, between Morse, the consignee of the goods, and Ta Cheng, the ocean carrier. 28 U.S.C. § 1333(1); Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 807 (2d Cir. 1971); David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295, 297 (2d Cir. 1964), cert. denied, 380 U.S. 976, 85 S.Ct. 1339, 14 L.Ed.2d 271 (1965); North American Smelting Co. v. Moller S. S. Co., 204 F.2d 384, 385 and n. 2 (3d Cir. 1953). However, the question of jurisdiction is not resolved so simply. Former Chief Judge Friendly in dictum in Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d at 807 n. 5, observed that the contract of carriage does not continue indefinitely after discharge of the cargo. He continued:
". . . If a shipper [consignee] is dilatory in calling for his goods, the relationship between the carrier and the shipper would no longer be governed by the contract of carriage. Cf. Carver, Carriage of Goods by Sea 697-98 (1957). In such event, it seems likely that any dispute between the parties would no longer be within the admiralty jurisdiction, their relative rights and duties becoming a matter for the common law. However, we need not decide that question, since here there is no claim of unreasonable delay on the part of the shipper in calling for the container."
Ta Cheng, in its supplemental brief, invites the Court to adopt this dictum. Ta Cheng for the first time in its supplemental brief claims that Morse, or its agents, were dilatory in picking up the cargo.[8] The Court must decline the invitation, because to accept it would extend Judge Friendly's dictum to a misdelivery case.
Footnote 5 of Leather's Best raises an interesting problem. In a case such as the one at bar, where the only basis for federal jurisdiction is admiralty,[9] footnote 5 would suggest that the Court can only determine it has jurisdiction after it has made a factual decision that the delay in picking up the cargo was not unreasonable. Ta Cheng advances no standard to judge the reasonableness of the delay. Were it not for the fact that the case at bar is a misdelivery as opposed to a theft case, the Court would have great difficulty with this issue.
The distinction between a misdelivery case and a theft case was succinctly made in David Crystal, Inc. v. Cunard Steam-Ship Co., supra, 339 F.2d at 298, where the court said:
". . . The law already recognizes this distinction for a warehouseman [bailee] is absolutely liable for misdeliveries *482 but is responsible in trespassory theft cases only where he has been negligent. See North American Smelting Co. v. Moller S. S. Co., 204 F.2d 384 [386 and note 5] (3d Cir. 1953). These differing standards are based on sound policy considerations since it is proper that a warehouseman should bear a greater responsibility for being duped by false pretenses than for thefts that cannot be avoided despite the exercise of ordinary care."
In essence, the misdelivery case is one in which the party in possession of the cargo gives it to one not entitled to receive it. Or, as the court defined the term in David Crystal (339 F.2d at 300): "A `misdelivery' in maritime practice is a technical term of art applied where there is a complete failure to deliver goods to the owner, consignee, or other authorized holder of a bill of lading." In the theft case, the thief steals the cargo from its rightful custodian.
In Leather's Best there was no misdelivery. The carrier was not "duped by false pretenses"; the cargo was simply stolen. Judge Friendly's dictum in footnote 5 referred to the fact that since David Crystal the contract of carriage had been interpreted as continuing to govern the relationship of the parties until delivery to the consignee. Judge Friendly obviously concluded that the carrier's liability under the bill of lading should not be increased or extended by the unreasonable delay of the shipper (consignee). At some point in time, the liability of the carrier for theft should be restricted to cases where the carrier was negligent under the common law. Consequently, the standard of care would be defined by the applicable State law, and the dispute would no longer give rise to federal admiralty jurisdiction.
Another factor which may have influenced Judge Friendly was that in Leather's Best the theft occurred after partial delivery. The shipper had already begun to carry away the cargo. On a Friday the shipper took about half the cargo away from the pier area, but left the remaining half for the next business day, the following Monday. The area where the cargo was stored was guarded and enclosed; the cargo was heavy and not easily transported. The shipper could have removed all of the cargo on Friday had he been willing to pay the extra cost for overtime work or for additional workers. Over the weekend the remaining half of the cargo was stolen. In the context of these facts, the delay may have made the theft possible despite the ordinary care exercised by the carrier. The court concluded that under the circumstances unreasonable delay would terminate the obligation of the carrier to safeguard the cargo under the bill of lading.[10] The facts in the case at bar indicate that the consignee did not exercise any control over the goods. The cargo was misdelivered before its agents attempted to pick it up.
In the case of misdelivery, the cargo is within the control of the carrier or his agents. It is the carrier's error or that of his agents which causes the delivery to the wrong party. The law imposes strict liability for such misdelivery in the absence of controlling language to the contrary in the bill of lading. However, the law recognizes that if the misdelivery is caused by the negligence of the consignee or its agents, then the carrier is relieved of liability. See, David Crystal, Inc. v. Cunard Steam-Ship Co., supra, 339 F.2d 295. The delay of the consignee or his agents in calling for the cargo under circumstances where the liability is absolute is clearly distinguishable from the Leather's Best situation, as David Crystal makes clear. Nor has it been alleged in the case at bar that the delay was the negligent act which caused the misdelivery so as to relieve the carrier of liability, and at the same time deprive this Court of jurisdiction.
The Court is not called upon to reconsider this well accepted distinction between theft and misdelivery cases and the policies underlying it. Consequently, in *483 light of the continuing viability and persuasive nature of the David Crystal case, the Court can only conclude that Judge Friendly's observations in footnote 5, if applied, should only be applied to theft cases. Nor can the Court read Judge Friendly's opinion to suggest a contrary result, as he specifically accepts the logic of David Crystal with respect to the distinction between these two types of cases. 451 F.2d at 807.[11]
The Court having admiralty jurisdiction over the claim arising out of the bill of lading, it may now consider whether it should exercise pendent jurisdiction over the claims against the other parties to this suit.[12] Clearly, the Court has the power to hear pendent State claims because they, along with the federal claim, derive from a "common nucleus of operative fact." The federal issue is substantial, and the nature of the claims are such that they would normally be expected to be tried all in one judicial proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir. 1976). In addition, since the merger of our Civil and Admiralty Rules in 1966, there is no longer an impediment to the exercise of pendent and ancillary jurisdiction in admiralty cases.[13]See, 3 Moore's Federal Practice (2d ed.) § 14.36, pp. 750-752; Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d at 810 n. 11, 810-811 n. 12.
As Judge Friendly observed in Leather's Best, 451 F.2d at 810 n. 12, Fed.R. Civ.P. 14(c) adds support for this position.[14] Judge Friendly continued [451 F.2d 810-811 n. 12 (dictum)]:
"But if we were presented with the question, it would be only with the greatest reluctance that we would conclude that under the merged rules the doctrine of ancillary jurisdiction did not extend to admiralty as well as to civil impleader. . . . Certainly the practical considerations which support the doctrine of ancillary jurisdiction in the context of civil impleader are equally persuasive on the admiralty side. . . . In any event, we do not perceive the requirement of independent jurisdiction in premerger admiralty impleader to have had constitutional *484 underpinnings. Rather it reflected a judicial conception of the limited nature of Admiralty Rule 56 and the appropriate reach of the then distinct admiralty jurisdiction."
Judge Friendly concluded that the only possible constitutional consideration which might have influenced the judicial limitation of admiralty impleader was the concern for the denial of the jury trial right guaranteed under the Seventh Amendment. In Leather's Best, the court found that it was not confronted with such a possible denial, because the third-party defendant there had made no demand for a jury trial. Likewise, in the case at bar, no demand for a jury trial has been made by any of the parties. Consequently, this Court is also not faced with this constitutional problem.
Defendant Byrnes relies most heavily on the District Court opinion in the David Crystal case in support of its position that this Court lacks jurisdiction to entertain the claims asserted against Byrnes.
In David Crystal, Inc. v. Cunard Steam-Ship Co., 223 F.Supp. 273, 290 (S.D.N.Y. 1963), the court found that the acts of the customs broker, even if tortious, did not have their impact on the pier, but in the offices of the customs broker, and thus were not maritime torts. However, the claims against Byrnes do not rest upon an allegation of maritime jurisdiction. Rather, the jurisdictional base is that of pendent and ancillary jurisdiction. The District Court in David Crystal likewise rejected pendent claims against the customs broker because it found it necessary to have an independent basis of admiralty jurisdiction to sustain claims against the impleaded party. The District Court's major concern was the deprivation of the right to a jury trial for non-admiralty claims. As Leather's Best makes clear, these concerns are moot absent a demand for a jury trial.
In addition, it must be remembered that the District Court opinion in David Crystal was written three years before the merger of the Civil and Admiralty Rules, and two years before United Mine Workers v. Gibbs, supra, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. Gibbs liberalized the more restrictive pendent jurisdiction standards articulated in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). The District Court did not have the benefit of the Supreme Court's new standard in Gibbs when it wrote its opinion. Secondly, the court was aware of the limits of the Admiralty Rules and could not have anticipated the application of the concept of pendent jurisdiction to admiralty cases after the merger of the Civil and Admiralty Rules.
Byrnes also fails to mention the fact that on appeal the Second Circuit in David Crystal did not have to reach the issue whether the District Court had jurisdiction over the direct claims against the third-party defendants. The court stated that it would
". . . accept without detailed analysis and discussion the authorities that impose jurisdictional obstacles to such direct recovery, . . . despite our observation that adherence to those precedents often needlessly fragments law suits and might deserve further consideration in the appropriate case." (339 F.2d at 300, emphasis added.)
The Second Circuit thus specifically noted the undesirability of the rule and the need to reconsider it when the issue was appropriately raised. Leather's Best was the case that occasioned the reconsideration, though it came by way of dictum.
This Court has no doubt that it has the power to exercise pendent jurisdiction over the claims asserted against all the third-party defendants.[15]Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d at 810-811 n. 12.
The Court must consider yet another problem, not addressed by the parties, which is raised by Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). This problem is whether, in light of Aldinger, this Court may exercise pendent jurisdiction *485 over the parties (ancillary jurisdiction). In Aldinger the Supreme Court affirmed the Ninth Circuit's finding that pendent jurisdiction was not available to adjudicate State law claims against a county, over which party federal jurisdiction was otherwise nonexistent. The Supreme Court refused to extend pendent jurisdiction to parties where the federal claim was based on civil rights jurisdiction. The Aldinger Court did so, based in part on the fact that municipalities, counties, and other governmental units are not persons suable under 42 U.S.C. § 1983. The Court stated (427 U.S. at 17, 96 S.Ct. at 2421):
". . . Parties such as counties, whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that `civil action' over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff's claim of additional power over a `pendent party,' the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress."
The Supreme Court continued (427 U.S. at 18, 96 S.Ct. at 2422):
"There are, of course, many variations in the language which Congress has employed to confer jurisdiction upon the federal courts, and we decide here only the issue of so-called `pendent party' jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together. As we indicated at the outset of this opinion, the question of pendent-party jurisdiction is `subtle and complex,' and we believe that it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction. Two observations suffice for the disposition of the type of case before us. If the new party sought to be impleaded is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence."
This Court is convinced that the prohibition set forth in Aldinger should not and would not be extended to admiralty cases of misdelivery. The primary claim arising out of the bill of lading is within exclusive federal admiralty jurisdiction. Clearly, only in a federal court could all of the claims be tried together. There is no indication whatever that Congress implicitly or explicitly has determined that the parties sought to be joined in this action should not be joined. The Aldinger requirements for the exercise of ancillary jurisdiction having been met, the Court is free to exercise ancillary as well as pendent jurisdiction in this case.
The Court will exercise its discretion to permit both the pendent and ancillary claims, it being in the interests of judicial economy and fairness, and in order to resolve all matters arising out of the same constitutional case for purposes of Article III. See, Aldinger v. Howard, supra; United Mine Workers of America v. Gibbs, supra.
Having concluded that this Court has jurisdiction, I shall now proceed to discuss the merits of these motions. The first issue is the extent to which federal legislation *486 governs the relationship and liabilities of these parties. Two federal statutes have possible impact here. The first is the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1301, et seq. COGSA applies only from the time cargo is loaded on board ship until it is discharged from the ship. Because the misdelivery occurred after the cargo was unloaded from the ship, the terms of COGSA do not apply to this case. 46 U.S.C. § 1301(e). Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d at 806; North American Smelting Co. v. Moller S.S. Co., 204 F.2d at 385; Machado & Co., Inc. v. Flota Mercante Dominicana, 1970 AMC 1943 (S.D.N.Y.1970). Nor has the bill of lading extended the application of COGSA beyond its statutory reach. Cases which have applied COGSA after discharge of the cargo from the ship have done so pursuant to terms in the bill of lading. E. g., Royal Typewriter Co. v. M/V Kulmerland, 346 F.Supp. 1019, 1023 n. 4 (S.D.N.Y.1972), affirmed, 483 F.2d 645 (2d Cir. 1973). However, the question whether a term in the bill of lading, invalid under COGSA, springs back to life after discharge from the ship, when COGSA no longer applies, will be addressed later in this opinion.
Similarly, the other statute of possible relevance, the Harter Act, 46 U.S.C. § 190, et seq., does not apply here. The Harter Act applies to "the period between the discharge of cargo from the vessel and its proper delivery." Levatino Co. v. M/S Helvig Torm, 295 F.Supp. 725, 728 (S.D.N.Y.1968). Proper delivery is defined as the discharge of the cargo to a fit and proper pier, see, Caterpillar Overseas, S.A. v. S.S. Expeditor, 318 F.2d 720 (2d Cir.), cert. denied, 375 U.S. 942, 84 S.Ct. 347, 11 L.Ed.2d 272 (1963); Isthmian S.S. Co. v. California Spray-Chemical Corp., 290 F.2d 486 (9th Cir. 1961), affirmed as modified on rehearing, 300 F.2d 41 (9th Cir. 1962); Mamiye Bros. v. Barber S.S. Lines, Inc., 241 F.Supp. 99, 105 (S.D.N.Y.1965), affirmed, 360 F.2d 774 (2d Cir. 1966), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966); Gilmore & Black, The Law of Admiralty 126 (1957),[16] and possibly notice, Calcot, Limited v. Isbrandtsen Co., 318 F.2d 669, 673 (1st Cir. 1963); Kinderman & Sons v. Nippon Yusen Kaisha Lines, 322 F.Supp. 939, 941-942 (E.D.Pa.1971); Tan Hi v. United States, 94 F.Supp. 432, 435 (N.D.Cal. 1950).
The Court is convinced that notice sufficient to comport with a logical reading of the Harter Act was given in this case. On March 31, 1973, Morse was notified of the expected time of arrival. On April 1, 1973, the cargo arrived. Byrnes was notified and prepared a delivery order on April 3. It is logical to assume that the thieves obtained the original delivery order on the 3d, or the morning of the 4th, because they showed up at the pier asking for the cargo with the bogus delivery order already in hand on the 4th. If the Court were to read the notice requirement as plaintiff would have it do, then the Harter Act would apply until the plaintiff or its agents came to pick up the cargo. If this were so, then the Harter Act would apply in every misdelivery case, because misdeliveries by definition occur before the rightful owner has had an opportunity to pick up the cargo. Cases such as David Crystal clearly demonstrate that such a reading of the notice requirement of the Harter Act is incorrect.
Some of the parties to this action have contended that the Harter Act requires no notice before its terms cease to apply. However, the Court is inclined to adopt those cases such as Calcot and Tan Hi which have read Harter to include a reasonable notice requirement. It would seem logical that Congress intended the protections of the Harter Act to cease only after the consignee or his agents have been notified of the discharge of its cargo to a fit and proper pier. The notice given here, though it was of the expected date of arrival, was sufficient to permit Morse to set in motion the steps necessary for pick-up of the cargo, *487 which Morse did. Byrnes prepared the delivery order and sealed it in an envelope for Interport/Ultimate before the misdelivery. Certainly there was actual notice. Therefore, the Harter Act does not apply. No term of the bill of lading extends the application of the Harter Act beyond its statutory reach.
It now remains for the Court to consider the terms of the actual contract of carriage, bill of lading. The bill of lading has four clauses of possible relevance here. Those clauses are 1, 2, 9 and 15. Clause 1 reads:
"(Clause Paramount) This bill of lading shall have effect subject to the provisions of the Chinese Merchant Marine Act of 1929 and any subsequent revised Act if in force, which shall be deemed to be incorporated herein, and nothing here contained shall be deemed to surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under that Act. If any term of this bill of lading be repugnant to that Act to any extent, such term shall be null and void to that extent but no further."
The parties failed, in their pleadings or briefs, to address the possible relevance of Chinese (Nationalist) law, and in particular, the Chinese Merchant Marine Act of 1929, on this issue. The Court specifically requested supplemental briefs on this question. Only the plaintiff and Ta Cheng have submitted anything on this issue. Ta Cheng does not address the issue, but merely asks that it be deferred pending a finding of applicability of the bill of lading.
Clause 2, like clause 1, refers to Chinese law. However, clause 2 requires:
"Any dispute arising under this bill of lading shall be governed by Chinese law except as may be otherwise provided herein, and any such dispute shall be decided by the Court in China."
Plaintiff's supplemental brief basically argues a waiver position as to both clauses 1 and 2. Ta Cheng has failed to plead or argue the relevance of Chinese law, and has failed to request Chinese venue. It has, consequently, abandoned its rights thereunder.
The Court is unaware of the Chinese law and its possible relevance to the dispute surrounding this misdelivery. Under the "classic view," foreign law had to be specifically pleaded and proved as any other fact. See, Weintraub, Commentary on the Conflict of Laws (1971) p. 61. Though courts have now regarded foreign law as a question of law, not fact, a usual requirement is that notice be given that it will be relied upon. Id. at 61-64. No such notice was given here. In fact, the parties failed to raise the issue. Unlike the famous case of Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir.), cert. denied, 352 U.S. 872, 77 S.Ct. 97, 1 L.Ed.2d 77 (1956), in which failure to plead and prove foreign law, which had to be applied (because the choice-of-law rule was lex loci delicti and the place of the wrong was Arabia), resulted in a dismissal, the case at bar can be decided under admiralty and other relevant State laws. In the present case, Chinese law may have no relevance to the issues presented. Consequently, the Court will view clause 1 as having been waived.
Just as parties are free to exercise their own autonomy in selecting law to apply to their contracts, they are free to choose a venue for litigation of their disputes arising out of their contracts, provided the jurisdiction chosen has some relationship to the parties or the contract. See, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Central Contracting Co. v. Maryland Cas. Co., 367 F.2d 341, 345 (3d Cir. 1966). They are also free to waive it.[17] The parties' failure to raise foreign law by way of pleading or otherwise, even after the Court specifically requested supplemental briefs on the matter, *488 indicates a desire to abandon whatever rights or liabilities are created thereunder.
In addition, the Court finds that it would be impractical and unreasonable to adjudicate these matters in Nationalist China. In Copperweld Steel Co. v. Demag-Mannesmann-Boehler, 347 F.Supp. 53, 54 (W.D.Pa. 1972), the court determined that even after the Bremen case, a forum selection clause in a contract must be read to determine whether the forum selected is a reasonable one. The court concluded that Germany was not a reasonable forum to adjudicate the contract issues in that diversity case because of the "obvious impracticality of conducting the litigation in Germany." I find that this principle is no less compelling in an admiralty case, though I am aware that the Bremen case was also one in admiralty.
In light of my disposition of this matter on other grounds, I need not decide whether clause 2 is a mandatory forum selection clause. See, Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956 (5th Cir. 1974). Consequently, I turn my attention to the remaining relevant clauses in the bill of lading.
Clause 9 reads in pertinent part:
"The carrier shall not be responsible for loss of or damage to, or in connection with, goods arising or resulting from:
. . . . .
(2) . . . thefts or robberies by any person on board, on craft or ashore whether or not employed by the carrier, . . .."
Ta Cheng argues that this clause exempts it from liability for the misdelivery here. However, the Court disagrees.
First, the exception for liability found in clause 9 refers to "thefts or robberies," not misdeliveries. The distinction between these terms of art is well known by those in the trade. Cf. David Crystal, Inc. v. Cunard Steam-Ship Co., supra, 339 F.2d at 300, where the court noted:
". . . but such disclaimers are not favored by the courts and must be strictly construed. . . . Somewhat similar considerations of strict construction led us to hold that a theft exception in Cunard's [the carrier] bill of lading, also found in the Clark [carrier's stevedore]-Cunard agreement, did not apply to the facts of this case. And because, as between Cunard and Clark, strong policy considerations favor placing responsibility for the misdelivery on Clark, any attempt to escape from that responsibility should be unequivocally expressed."
Similar policy considerations favor strict construction here. If the parties intended to except liability for misdeliveries, they could have specifically done so as they did in clause 15.[18]
Plaintiff argues that clause 9, which excepts the carrier's negligence from liability, would be void under COGSA. Plaintiff admits that COGSA does not apply after the goods were unloaded from the ship, but argues that once the clause was invalidated under COGSA, it should not be permitted to spring back to life once the goods reach shore. Morse relies on David Crystal for this proposition. In that case, the Second Circuit held that a clause in the bill of lading which provided that the carrier's responsibility for the cargo terminated at delivery and that the carrier could abandon the goods on the wharf was void under COGSA. The court added (339 F.2d at 298-299):
". . . It seems to us that once the law declared this clause void, it should remain void forever. It would be unfair to permit the void clause to spring to life once the goods reach land."
Accord, Leather's Best, Inc. v. Mormaclynx, supra, 451 F.2d at 816. See also, 46 U.S.C. § 1303(8). Cf. The Ghazee, 172 F. 368, 370 (2d Cir. 1909); David Crystal also makes clear that the parties may contract away or *489 reduce liability in the bill of lading, but subject to the prohibitions of COGSA and Harter. Thus, though Harter and COGSA standards would not generally apply, they would prohibit inconsistent clauses in bills of lading despite the fact that the cargo was properly unloaded and delivered. Because of the Court's disposition of this matter on other grounds, it need not determine whether the waiver included in clause 9, void under COGSA, would spring back to life once the goods reached land.[19]
The parties are in virtually complete agreement that clause 15 has no relevance to this case. It reads in pertinent part:
"The carrier shall not be liable in any capacity whatsoever for any delay, nondelivery or misdelivery, loss of or damage to or in connection with goods carried on deck and herein stated as being so carried." (Emphasis added.)
The parties contend that this clause refers specifically to goods carried on deck. Plain meaning, the parties argue, indicates that this exemption is restricted to goods carried on deck pursuant to an on-deck bill of lading. The cargo in the present action was carried under the deck and, therefore, clause 15 is inapplicable to the facts in this case. The Court agrees with this reading of clause 15.
The bill of lading, therefore, contains no valid provision exempting the carrier from liability.[20] Consequently, the facts of the present case are quite analogous to those in David Crystal, to which I turn for resolution of the issues now before me.
In David Crystal the issue was the same as the one presented here: who among the respective parties should bear the loss for misdelivered cargo.[21] The District Court after a trial determined that the plaintiff, David Crystal, Inc. (the buyer and owner), could recover from Cunard (the carrier), who in turn could recover from John T. Clark & Son (the carrier's stevedore). The claims against the buyer's customs broker, Penson & Co., were dismissed for lack of admiralty jurisdiction.[22]
Clark unloaded the cargo of shirts from Cunard's vessel to a pier in Brooklyn, New York, and subsequently misdelivered the cargo "upon the presentation of a forged Penson delivery order, obtained through the complicity of one of Penson's employees." 339 F.2d at 297. After Penson[23] received Cunard's arrival notice, it obtained clearance from customs. It then gave the folder relating to the shipment to its traffic clerk for preparation of the delivery order. The order named Arrow Carriers as the truckman. The order was placed on the outside of a folder and placed on the traffic clerk's desk with other delivery orders in the outgoing mail box.
When the traffic clerk left his desk, an employee of Penson surreptitiously took the *490 delivery order and gave it to his confederates. They filled out a blank delivery order conforming it to the original, substituting the name of a fictitious trucker and forging the name of Penson's traffic clerk. This bogus delivery order was presented to Clark's employee, who gave the cargo to the thieves bearing the bogus delivery order. These facts are virtually the same as the facts in the case at bar.
The Circuit Court in David Crystal found "that although the bill [of lading] continued to govern the parties' relationships after discharge, its terms did not insulate Cunard from liability." 339 F.2d at 297. The court observed that because the bill of lading did not specify the carrier's obligation once it discharged the cargo to the stevedore, "the law steps in to fill the lacuna; this it does by properly characterizing Cunard's status as a bailee." 339 F.2d at 298. The court continued (339 F.2d at 298):
". . . And there is no sound reason to alter its bailee status simply because it landed the shirts on Clark's pier. Absent a valid contract to the contrary, a bailee remains liable for the safety of the goods in whatever hands he may place them."
See also, Taylor v. United States, 66 F.Supp. 231, 233 (E.D.Pa.1946).
The Second Circuit observed that there was no direct admiralty precedent establishing the standard of responsibility of a bailee who misdelivers cargo. It adopted the rationale of the District Court, which relied on common law and the Uniform Commercial Code in constructing the standard that a bailee is absolutely liable for misdelivering cargo, unless the mistake was induced by the bailor or his agents. The court reasoned (339 F.2d at 298):
". . . the rule of absolute liability represents a sound allocation of responsibility for the bailee is in a better position than the bailor to establish procedures to minimize the risk of misdeliveries and to insure against the few misdeliveries that will inevitably occur despite the most careful precautions."[24]
The court found in David Crystal, as I have here, that there was no valid term in the bill of lading which eliminated or reduced this liability.
The court then proceeded to discuss whether the customs broker's negligence worked an estoppel against the plaintiff's recovery from the carrier. The David Crystal court, in reliance on a case from our own Circuit, MacAndrews & Forbes Co. v. United States, 23 F.2d 667 (3d Cir. 1928), noted (339 F.2d at 299): "The law is clear that if Penson's negligence caused the misdelivery, Crystal would be barred from recovery." This doctrine is known as "estoppel by negligence." See, District Court opinion in David Crystal, supra, 223 F.Supp. at 286.
The court in David Crystal refused to upset the District Court's finding that the customs broker could not be faulted for its office procedures or for hiring and retaining the man, Segarra, who stole the delivery order and forged the order used to obtain the misdelivered goods. The court found that Segarra had not acted within the scope of his authority when he took the valid delivery order. He was permitted, however, to exercise temporary control over such orders with respect to answering inquiries, but he was not authorized to give them to truckmen. Nor did he have authority to complete blank forms. He was a mere custodian of the forms, and his forgery of the forms was not binding on his principal, Penson.
The Second Circuit found "that by trusting Segarra to this limited extent Penson may have facilitated the plot, [but] we are *491 unwilling to stretch the tenuous line of causation and say that Penson `proximately caused' the misdelivery." 339 F.2d at 299. The court concluded that Penson's negligence, if any, was not the proximate cause of the misdelivery. Consequently, the carrier's liability was not negated by the bailor's agent's negligence.
It is important at this point to note that the findings with respect to Penson's negligence and proximate cause were questions of fact before the District Court. In the case at bar, Ta Cheng and Maher argue that as a matter of law Byrnes was negligent. They claim that it was negligent for Byrnes to leave blank delivery orders in its warehouse and in the unlocked desk of one of its employees. These delivery orders were unnumbered and unstamped. There is no system employed to account for destroyed, lost, or discarded delivery order forms. The facts seem to indicate that there is easy access to these orders. At lunch time, the office is left unlocked, but someone remains there to have lunch in the office.
The prepared delivery order is placed in an envelope addressed to the designated truckman, but is left in an open outgoing-mail box on a desk in the office. There is open access to that desk. Often the truckman picking up the envelopes containing the orders is not required to present identification. Byrnes claims that is because the truckman's runners are usually well known to its employees. No receipt is required when the delivery orders are picked up. However, Byrnes claims to have a log. There is a factual dispute over whether Interport/Ultimate's messenger, Jack Schwartz, was required to sign for the orders he picked up on April 3. Byrnes claims to have placed the original Morse order for the 466 cartons of tape-players in the envelope which Interport/Ultimate picked up. However, Interport/Ultimate claims not to have received it.
Whether or not these procedures are negligent is a question of fact to be determined by the trier of fact after a plenary hearing. It may be that the procedures employed by Byrnes were reasonable and met the applicable standard of care.[25] Clearly, similar facts gave rise to some skepticism by the District Court in David Crystal with respect to Penson's negligence. 223 F.Supp. at 287-288.
However, unlike David Crystal, there is no allegation that one of the customs broker's employees, who would have easy access to the delivery orders, was responsible for the theft. Consequently, the question of office security may indeed be relevant to the question of negligence.
It is apparent that whether Byrnes was negligent can only be determined at trial. However, Byrnes and Morse argue that they are entitled to summary judgment relieving Byrnes of liability based on the proposition that even if Byrnes were negligent, its negligence was not the proximate cause of the misdelivery. Byrnes relies on David Crystal for that proposition. 223 F.Supp. 273, 287-288, affirmed, 339 F.2d 295, 299.
The District Court in David Crystal stated (223 F.Supp. at 288):
"Furthermore, the document which Segarra abstracted was not the one used to obtain delivery. It is unquestioned that Clark made delivery on a forged order. The blank which Segarra also abstracted was, beyond doubt, an incomplete instrument. Only the intervening criminality of the co-conspirators gave some life, albeit abortive, to the document."
The court thus interpreted the forged delivery order as an intervening and supervening criminal act which prevented Penson's negligence, if any, from being the proximate cause of the misdelivery, despite the *492 intentional acts of one of Penson's employees.
The case sub judice presents a factually distinguishable situation. I will not adopt per se the rationale of David Crystal on this point and apply it to facts which, in my opinion, might not have given rise to that rationale. I believe that only after a trial on this issue could I determine whether Byrnes' negligence, if any, was in fact the proximate cause of the misdelivery.
In David Crystal the District Court concluded that its case was factually distinguishable from MacAndrews & Forbes Co. v. United States, supra, 23 F.2d 667. This Court believes that the present case is factually closer to MacAndrews than it is to David Crystal on the question of proximate cause.
In MacAndrews the plaintiff's carrier, the United States, was to deliver a cargo of fox skins. Plaintiff's customs house broker designated Cantwell and Wall as truckmen to receive and deliver the goods. The letter, which was in essence a delivery order, was delivered to the office of the trucking firm. The truckman took the delivery order to a public garage where its trucks were kept. As was its practice, the order was placed in the desk drawer of the office of the garage, where its truckmen would go to find it. Obviously, the court concluded, the order was removed from the unlocked drawer by someone other than Cantwell and Wall's truckman. The following morning the order was used to obtain the cargo.
The court said (23 F.2d at 667):
"Where, as here, a fraud has been committed by a third party, and the loss must fall on one of two innocent parties, the law lets it rest on the one whose act made possible the perpetration of the fraud."
The court concluded (23 F.2d at 667):
". . . In that regard we are clear, as was the court below, that the fraud was made possible by those acting for the plaintiffs. The ship brokers were entitled to receive the shipment, and, had they applied to the delivery clerk, they would have received it. Instead of so doing, they signed a written order directing delivery to their trucking firm; but the order for this valuable shipment, instead of being delivered by that firm to its truckman, was left in an unlocked drawer in a public garage, where it was evidently found and abstracted by some person, who was thus by the lack of care of the plaintiff's agent and lack of due care is negligence put in a position to wrongfully obtain the goods." (Emphasis added.)
The delivery order was all that was required to obtain the goods. The court found that it clothed the bearer with authority to take the cargo. The court thus found that the plaintiff's agent's negligence was the proximate cause of the misdelivery. But for plaintiff's agent's negligence in leaving the delivery order in a place where it could be stolen, the misdelivery could not have occurred. The conclusion was that this negligence estopped the plaintiff from recovery.
The case at bar is closer to MacAndrews, where the negligence of the plaintiff's agent might well have been the proximate cause of the misdelivery. David Crystal involved a claim of negligence against Penson based on the complicity of one of its employees in the theft of the original delivery order. Thus the court had to confront the question whether the employee acted within the scope of his authority. In both MacAndrews and the case at bar there is no allegation that an employee of the customs broker was involved in the theft of the original delivery order and the blank delivery order used to obtain Morse's cargo. I conclude, therefore, that the question of proximate cause is one of fact to be resolved at trial.
If after trial it is determined (1) that Byrnes was negligent, and (2) that its negligence was the proximate cause of the misdelivery, then Byrnes' negligence would be an absolute bar to Morse's recovery against Ta Cheng and Maher. See, David Crystal, Inc. v. Cunard Steam-Ship Co., supra; MacAndrews & Forbes Co. v. United States, supra. If such a finding is made, *493 then Morse could recover on its claim against Byrnes for breach of its duty to Morse. Consequently, Morse's motion for summary judgment against Ta Cheng must be denied as there exists a genuine issue of material fact as to whether Byrnes' negligence works an estoppel against Morse's recovery against Ta Cheng. Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir.), cert. denied, 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244 (1969). I must for the same reasons deny Ta Cheng's cross-motion to dismiss the complaint. Likewise Byrnes' motion for summary judgment against Morse must be denied.
I now turn to Ta Cheng's summary judgment motion against Maher. Ta Cheng argues that if it is held to be liable to Morse for the misdelivery, then Ta Cheng is entitled to recover against Maher for breach of an implied warranty of workmanlike service. This theory was recognized in David Crystal, where the court ruled that the ultimate loss would fall upon the stevedore (terminal operator).
In David Crystal the Second Circuit noted (339 F.2d at 299):
". . . The Supreme Court recently indicated, in Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964), that the implied warranty may be breached even where, as here, there has been no showing of negligence on the stevedore's part. Surely, Clark [the stevedore] was in a far better position to prevent the misdelivery than Cunard [the carrier] and liability should properly fall upon the party who is best situated to adopt protective measures."
Thus, it would seem that under the authority of David Crystal, absent even negligence of the stevedore,[26] liability is imposed on it because it is in a better position to prevent misdelivery than is the carrier, who has usually ceased to exercise control over the cargo once it is in the hands of the stevedore. Consequently, if it is found that Ta Cheng is absolutely liable, fairness and logic dictate, and precedent suggests, that the ultimate loss should be carried by Maher, the party who could best sustain it.
Neither Ta Cheng nor its agent, Norton Lilly, maintained any control over the cargo once it was delivered to Maher. None of Ta Cheng or Norton Lilly's agents were present at the pier. Maher had complete responsibility. It hired the workers to care for the cargo. It did the stevedoring. It hired Sullivan Security Service to safeguard the pier.[27] It actually gave the cargo to the thieves bearing the bogus delivery order.
Nor does MacAndrews suggest a different result here. In MacAndrews the court refused to impose liability on the party who actually misdelivered the goods on the basis of the stolen delivery order. But the court refused to impose liability on that party because of the plaintiff's agent's own negligence. What David Crystal suggests is that only if the plaintiff's agent is not negligent, or his negligence is not the proximate cause for the loss, then as between the carrier and stevedore, the loss should fall on the latter. If, however, Byrnes' negligence does bar Morse's recovery from Ta Cheng, then the Court would not need to consider the question of any breach of duty to Ta Cheng by Maher. Nor would Maher be *494 liable directly to Morse, because the loss would be borne by Byrnes.
If Byrnes' negligence is the proximate cause for the misdelivery, then the Court would need to consider whether Maher might be jointly liable, assuming its negligence were also considered as a proximate cause of the misdelivery. MacAndrews suggests that no joint liability on the part of Maher could be maintained. As the court in MacAndrews observed (23 F.2d at 668):
". . . Manifestly, in the press and course of the delivery of goods at a wharf, it was not the duty of the delivery clerk [stevedore-terminal operator], when the signed order was presented to him, to refuse delivery until he had ascertained whether the truck and the truckman were authorized to receive the packages. To place on a delivery clerk [stevedore-terminal operator], when a truckman presented a bona fide order calling for delivery of goods, the duty of dropping his work and further satisfying himself of the agency of a truckman presenting such valid order, would be impracticable. The negligence of the plaintiff had clothed the truckman with such semblance of authenticity that the delivery clerk [stevedore-terminal operator] was justified in assuming the status of the truckman was that of an authorized holder of the delivery order."
MacAndrews suggests that the stevedore-terminal operator would not be liable despite its failure to investigate further the identity of the bearer of the delivery order. The only distinguishing factor is that in the case at bar a bogus delivery order as opposed to the original was employed. Only if it were found that Maher was negligent in not realizing that the order was bogus might it, along with Byrnes, be jointly liable.[28]Cf. Union Marine & General Ins. Co. v. American Export Lines, Inc., 274 F.Supp. 123 (S.D.N.Y.1966). The language in MacAndrews might still suggest that Maher should not be held liable for failure to scrutinize the delivery order. In any event, this result is not possible, because Byrnes' negligence, if the proximate cause of the misdelivery would be a total bar to recovery against the carrier. Consequently, Maher could not be held jointly liable.[29] Again because Ta Cheng's motion for summary judgment against Maher depends on the fact questions raised by Morse's summary judgment motion, it must also be denied.[30]
The Court now will turn its attention to the last summary judgment motion, that of Interport/Ultimate against Maher and Byrnes. The truckman claims that because the delivery order used to obtain the cargo was not the original delivery order, which it denies even receiving, it cannot be held liable to anyone for the misdelivery. There is an issue of fact as to whether the truckman actually received the delivery order. Byrnes' employees say Interport/Ultimate did receive it, and the latter says it did not. Assuming, arguendo, that it did, it is true that the original delivery order was not presented by the thieves to Maher employees when the cargo was misdelivered.
However, if it is proved that Interport/Ultimate did in fact receive the original order, and it can be shown that through its negligence the order fell into the hands of the thieves, then it, along with Byrnes, could be liable for their negligence in permitting the thieves to obtain the orders. This, of course, would only subject Interport/Ultimate to liability in the event its *495 negligence was the proximate cause of the misdelivery.[31] The blank delivery order would still have to have been secured from Byrnes; thus, joint liability.
At this point, it seems that Byrnes could not show that the original order was stolen from Interport/Ultimate rather than from its own office. However, this is a fact to be decided at trial.
If, however, the Court is presented with a factual situation such that it must consider joint liability,[32] then conceivably Interport/Ultimate may be held liable to Morse along with Byrnes. Maher claims that if it is held liable to Ta Cheng, it might be able to recover from Interport/Ultimate. However, even if the Court distinguishes the MacAndrews case and holds that Maher was negligent in accepting for delivery a bogus delivery order, and holds that Interport/Ultimate was liable to it for its negligence in permitting the original order to get into the hands of the thieves, Byrnes would have to be jointly liable to Maher for permitting the blank order to be taken. However, Byrnes' negligence, if then a proximate cause of the misdelivery, would completely bar recovery by the plaintiff. Consequently, Maher would itself not be liable. This rather complex circle leaves this Court with the conclusion that there remains no theory upon which Maher could maintain a claim against Interport/Ultimate. Likewise, the Court can find no theory upon which Byrnes could maintain a claim against Interport/Ultimate. Therefore, Interport/Ultimate's motion for summary judgment against Maher and Byrnes will be granted. All other motions for summary judgment are denied.[33]
Counsel shall submit an order in conformity with this opinion.
NOTES
[1] Jurisdiction of the claims arising under the bill of lading is properly cognizable under this Court's admiralty jurisdiction. 28 U.S.C. § 1333(1). The parties request the Court to exercise pendent jurisdiction over the claims sounding in tort and contract. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). See also, Fed.R.Civ.P. 9(h).
[2] Defendant-third-party plaintiff Maher cross-claims against Byrnes, Ta Cheng/Norton Lilly and Interport/Ultimate. Defendant Ta Cheng/Norton Lilly cross-claims against Maher, Byrnes, and Interport/Ultimate. Defendant Byrnes cross-claims against Maher, Ta Cheng/Norton Lilly, and Interport/Ultimate. Defendant Interport/Ultimate cross-claims against Maher, Byrnes, and Ta Cheng/Norton Lilly.
[3] All defendants' motions for summary judgment are brought pursuant to Fed.R.Civ.P. 56(b).
[4] Interport was the trucking company, and Ultimate was the warehousing company.
[5] Maher employed Sullivan Security Service.
[6] One of the other two delivery orders was for 151 cartons of tape-players. Another envelope with two delivery orders for Morse consigned goods was prepared on April 2, 1973, and placed in the same box. (Byrnes' answers to Ta Cheng interrogatories, 11-14.)
[7] Plaintiff claims that Ann Laona also called Bob Brown of Interport inquiring about delivery. (Morse answers to Byrnes interrogatories, 2c.) Ann Laona requested a photocopy of the delivery order on April 13 to ascertain whether Interport had picked it up. (Morse answers to Byrnes interrogatories, 4.)
[8] The Court would have a problem with a claim raised for the first time in a supplemental brief which could be determinative of both jurisdiction and the merits. Despite the absence of a relevant standard of reasonableness, the facts do not appear to support inordinate delay. But in light of the resolution of this issue on other grounds, the Court need not confront the problems raised by Ta Cheng's belated claim.
[9] The pleadings demonstrate that the parties are not diverse. However, in plaintiff's supplemental brief, for the first time, it alleges on information and belief that Maher is incorporated in New Jersey and has no office in New York. Plaintiff concludes that there is diversity jurisdiction between it and Maher. Failure to allege diversity in the complaint bars this Court from considering the propriety of exercising diversity jurisdiction. See, Leather's Best, Inc. v. S. S. Mormaclynx, supra, 451 F.2d at 809 n. 10.
[10] The court did not conclude that the delay was in fact unreasonable. It merely concluded that it may have been, given these facts.
[11] Judge Friendly was a member of the panel that decided the David Crystal case. He concurred in Judge Kaufman's opinion except for the part where Judge Kaufman read the language in the bill of lading as not excepting the carrier from liability for misdeliveries. David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d at 300, et seq.
[12] The parties need not specifically plead pendent jurisdiction where the court has admiralty jurisdiction over the principal claim. Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d at 809 n. 10.
[13] Pendent jurisdiction can serve as a basis for jurisdiction for Morse's direct claims against all defendants who could not have been sued under the Court's admiralty jurisdiction as well as for the cross-claims of the various defendants. Parties may also be impleaded by defendants in a case where the impleaded parties are sued on claims which are properly pendent to the federal claim. The parties as well as the claims must be properly pended to the federal claim. I shall discuss the question of ancillary jurisdiction later.
[14] Rule 14(c) reads:
"Admiralty and Maritime Claims.
When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff."
The Court is of the opinion that Morse's claims against the defendants other than Ta Cheng and Norton Lilly are not cognizable under admiralty jurisdiction. However, the Court could entertain claims against these other defendants by virtue of the doctrines of pendent and ancillary jurisdiction. Rule 14(c) would permit the plaintiff who did not sue directly the third-party defendant to do so, once the third-party defendant was properly joined. Rule 14(c) does not confer jurisdiction.
[15] That includes the direct claims of Morse and the cross-claims by the various defendants against one another.
[16] But see, Milikowsky Bros. v. W. F. Kampman's, 1969 AMC 111, 112 (N.D.Ill.1968), where the court defined delivery as a transfer to the possession of the consignee or his agents.
[17] The Court believes that the holding in Carbon Black Export v. The S.S. Monrosa, 254 F.2d 297 (5th Cir. 1958), appeal dismissed, 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959), relied upon by plaintiff for the contrary proposition, has been undermined by the Supreme Court's opinion in The Bremen.
[18] Judge Friendly's concurring and dissenting opinion in David Crystal, 339 F.2d at 300, et seq., does not even suggest a different result. There Judge Friendly concluded that "errors in delivery" was specific enough a term to express the intent to exempt the carrier from liability for misdeliveries. No such language was employed in the present case.
[19] The logic behind this rule articulated in David Crystal was (339 F.2d at 299):
". . . It would be unfair to permit the void clause to spring to life once the goods reached land, for by then Crystal had justifiably relied on the clause's inapplicability in making its decision on adequate cargo insurance."
Judge Mulligan in his dissent in Leather's Best, 451 F.2d at 817-818, disagreed with the David Crystal rationale on this issue. He claimed that the parties could not be held to have anticipated the court's finding that the limitation of liability was void, and, consequently, the parties would not have relied on its invalidity in allocating the costs of insurance. Because I need not reach this issue, I need not consider which of these rationales is more persuasive.
[20] The parties have not claimed that clause 13 has any relevance to the case. The facts indicate that the carrier did not store the goods at the risk and expense of the consignee.
[21] The Court is aware that David Crystal is not binding on this Court. However, it has been a widely followed case and is well reasoned. The Court finds it to be very helpful in the resolution of the issues presented in this case because of its great factual similarity.
[22] This issue was discussed previously in this opinion. The Second Circuit found it unnecessary to reach the issue of jurisdiction.
[23] Penson was also the consignee of the goods, but that is a fact of no significance in distinguishing David Crystal, because the relationship of the parties in David Crystal is the same as that in the case at bar.
[24] This proposition is well accepted.
". . . It is uniformly held that a delivery of bailed property by the bailee to one not the true owner and not authorized by the bailor to receive it is, of itself a conversion, and a breach of the contract of bailment for which the law imposes an absolute liability upon the bailee for loss or damages occasioned thereby, irrespective of the fact that he may have acted in good faith and without negligence, and even though the misdelivery was the result of innocent mistake or was induced by fraud or trick."
8 Am.Jur.2d, Bailments, § 167. See also, discussion supra, pp. 481-482.
[25] The question as to what standard of care should be employed was not reached in David Crystal. This Court would need to consider it at trial. It would seem that Byrnes' standard of care would be defined under State law. Though this case is not a diversity action, it would still seem that the federal court would apply the choice-of-law principles of the forum in which it sits. Cf. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
[26] Maher claims that it was not negligent. It employed the same procedures for clerking vessels in Ta Cheng's case as it did in others. Maher photographs the truckman and his license and checks the credit of the trucking firm. The procedures employed, according to Maher, were set up by Norton Lilly, Ta Cheng's agent, who inspected the facilities and approved of them shortly before the misdelivery. Maher also claims that it was never supplied with a list from Byrnes of persons authorized to sign delivery orders. (See Hughes deposition 75.) Byrnes claims that Maher should have realized the order was incorrect because the truckman was different from the one Morse always uses and because the customs identification number did not appear in the upper right-hand corner. However, on the authority of MacAndrews these allegations of negligence and Maher's defenses thereto may be irrelevant.
[27] These motions for summary judgment do not require the Court to consider Maher's claims against Sullivan Security Service in the event it is held ultimately liable.
[28] This could conceivably be held to be a failure to perform services in a workmanlike manner and a breach of its duty owed to the carrier. See, Cameco, Inc. v. S. S. American Legion, 514 F.2d 1291 (2d Cir. 1974).
[29] The Court, therefore, need not consider the same issue raised by Ta Cheng in its discussion of Vana Trading Co., Inc. v. S. S. Mette Skou, 415 F.Supp. 884 (1976), reversed, 556 F.2d 100 (2d Cir. 1977). Other questions of liability between respective parties need not be reached at this time.
[30] The issue of attorneys' fees incurred by Ta Cheng in defense of Maher need not be reached at this time either.
[31] Byrnes claims that the procedures it followed with respect to delivery orders were set up by Interport in 1972, and subsequently approved by it. (Firrielo affidavit, ¶ 7.)
[32] No res ipsa loquitur claim has been made with respect to negligence between Maher and Byrnes.
[33] Consequently all parties remain in the case.
Interport/Ultimate's summary judgment motion will be granted in the alternative as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572357/ | 722 N.W.2d 169 (2006)
Robert James GRANT, Appellant,
v.
IOWA DEPARTMENT OF HUMAN SERVICES, Appellee.
No. 04-1114.
Supreme Court of Iowa.
July 14, 2006.
Rehearing Denied October 12, 2006.
*170 Natalie Hope Cronk of Johnston & Nathanson, P.L.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Tabitha Gardner, Assistant Attorney General, for appellee.
CADY, Justice.
This appeal is from a district court's ruling on a petition for judicial review of an administrative agency decision. The Iowa Department of Human Services (DHS) dismissed an application to correct a child abuse report on grounds of issue preclusion. The district court affirmed. Upon our review, we reverse the district court judgment and remand for further proceedings.
I. Background Facts and Proceedings
Robert Grant and Linda Jensen had a tumultuous, rollercoaster relationship. They were married in 1991, followed by periodic episodes of discontent and reconciliation. In November 2000, Robert filed for divorce for the second time, and a *171 custody battle ensued over their two sons, Robert Jr. and Samuel. Robert Jr., known as Bo, was born in 1995. Samuel, known as Sam, was born in 1997. He has Down syndrome. The dissolution trial was eventually scheduled for July 2002.
In August 2001, during the pendency of the dissolution, Linda filed a petition for relief from domestic abuse in district court. Linda and Robert entered into a consent agreement resulting in a protective order entered by the district court that granted Linda temporary custody of Bo and Sam, with visitation on alternating weekends to Robert. The visitation exchange was set up to take place at a police station, and Robert exercised his visitation at a local motel.
Following a weekend visit in October 2001, Bo reported that Robert became angry after Bo and Sam started to argue. Robert responded by grabbing Bo by the shoulder and throwing a toy truck that struck Sam on the head. Bo also reported that Robert kicked him in the groin after he objected to his father's behavior. The incident was subsequently reported to the state Department of Human Services (DHS). The department promptly conducted a comprehensive investigation and assessment.
The department filed a founded assessment report on November 8, 2001. The child protection worker who conducted the investigation prepared the report that determined the incident met the definition of child abuse based on Robert's failure to provide proper supervision of children under his care.[1] The report indicated Robert denied the incident occurred, and further *172 stated that Robert believed Bo fabricated the event due to improper influences from Linda and a male friend. The child protection worker found Bo to be credible based on a variety of factors, and concluded Robert failed to properly supervise the two boys by "a preponderance of evidence." The report also concluded the incident was not minor, and that Robert was the alleged perpetrator in a prior founded child abuse report in November 2000. The prior report involved an assault incident between Robert and a stepchild. Consequently, the current report was placed in the state child abuse central registry.
Based on the event that occasioned the child abuse report, Linda filed an application in the domestic abuse proceeding to modify the terms of the visitation so as to limit Robert to supervised visits with Bo and Sam. The application for modification was set for hearing before the district court, and both Linda and Robert were represented by counsel.
The district court modified the visitation provided under the protective order by written order on December 7, 2001. It found the incident reported by Bo "took place" and that Robert "demonstrated inappropriate anger" that endangered the children. The court found Bo's report was consistent, detailed, and credible. To the contrary, the court found Robert's denial was "implausibl[e]" and "hollow."
On March 5, 2002, Robert filed a written statement with the DHS claiming the report and assessment were erroneous. He requested that it be corrected. Robert claimed the report should be changed from "founded" to "not confirmed" and be removed from the central registry for four reasons: (1) Bo fabricated the incident due to manipulative influences by Linda; (2) there was insufficient evidence of a physical injury to Bo or Sam; (3) Robert does not fit the profile of a child abuser; and (4) employees at the motel where the visitation took place reported Robert was an attentive father to the boys. Additionally, Robert asserted that he submitted to a polygraph examination that revealed he truthfully answered questions about the alleged incident.
The DHS denied the correction request, and Robert sought review through the state inspection and appeals procedure. The DHS asserted Robert was precluded from seeking to change the conclusion in the report from "founded" to "not confirmed" because the district court decision previously determined the incident occurred as reported by Bo. The DHS sought to dismiss the request.
An administrative law judge issued a proposed ruling dismissing the request. The director of the Department of Human Services subsequently adopted the ruling as a final decision.
Robert then sought judicial review of the DHS decision from the district court. *173 The district court affirmed the agency action based on issue preclusion.
Robert appealed, and raised three grounds of error. First, he claimed the doctrine of issue preclusion did not apply because there was no identity of issues between the modification-of-visitation proceeding in district court and the request to correct the abuse report before the administrative agency. Second, he claimed issue preclusion did not apply because a statute gave him the right to an evidentiary hearing on his request to correct the abuse report. Finally, he claimed issue preclusion did not apply under an exception to the rule, based on the legislature's specific allocation of jurisdiction to the DHS to correct child abuse assessments.
II. Standard of Review
Chapter 17A governs our review. We may only interfere with the agency's "decision if it is erroneous under one of the grounds enumerated in the statute, and a party's substantial rights have been prejudiced." Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006) (citing Iowa Code § 17A.19(10)). We are bound by the agency's findings of fact "if supported by substantial evidence in the record as a whole." Id. (citing Excel Corp. v. Smithart, 654 N.W.2d 891, 896 (Iowa 2002); Iowa Code § 17A.19(10)(f)). "[T]he question on appeal is not whether the evidence supports a different finding than the finding made by the commissioner, but whether the evidence `supports the findings actually made.'" Id. (quoting St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa 2000)). In contrast, we are not bound by the agency's interpretation of the law and "may substitute our interpretation for the agency's." Id. (citing Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 604 (Iowa 2005)). Finally, while "[w]e allocate some degree of discretion" to the agency in its application of the law to the facts, we may reverse if the agency's application of the law to the facts was affected by "irrational reasoning; failure to consider relevant facts; or irrational, illogical, or wholly unjustifiable application of law to the facts." Id. (citing Iowa Code § 17A.19(10)(c), (i), (j), (m)).
Whether the elements of issue preclusion are satisfied is a question of law. See Comes v. Microsoft Corp., 709 N.W.2d 114, 117 (Iowa 2006) (reviewing decision as to applicability of doctrine of issue preclusion for correction of errors at law); Mrozek v. Intra Fin. Corp., 281 Wis.2d 448, 699 N.W.2d 54, 61 (2005) ("Whether issue preclusion is a potential limit on litigation in an individual case is a question of law. . . ."); accord Bartlett v. Dep't of Revenue ex rel. Bartlett, 125 P.3d 328, 330 (Alaska 2005); Smith v. U.S.R.V. Props., LC, 141 Idaho 795, 118 P.3d 127, 130 (2005); Simpson v. Chi. Pneumatic Tool Co., 693 N.W.2d 612, 616 (N.D.2005). Therefore, we are not bound by the agency's decision on this issue, and may substitute our own interpretation of the law for the agency's. See Iowa Code § 17A.19(10)(c) (stating a reviewing court may reverse agency action if it is "[b]ased upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency").
III. Issue Preclusion
Issue preclusion, or collateral estoppel, "prevents parties from relitigating issues previously resolved in prior litigation if certain prerequisites are established." Comes, 709 N.W.2d at 117 (citing Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981)). We have identified four elements that must be satisfied in order for the prior determination to have preclusive effect in a subsequent proceeding. They are:
*174 "(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment."
Comes, 709 N.W.2d at 118 (quoting Hunter, 300 N.W.2d at 123); see also Restatement (Second) of Judgments § 27, at 250 (1982) ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."); id. § 29, at 291 ("A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue.").
In considering the application of the doctrine, it is important to observe that it applies to both legal and factual issues. We have said "where a particular issue or fact is litigated and decided, the judgment estops both parties from later litigating the same issue. The entire premise of issue preclusion is that once an issue has been resolved, there is no further fact-finding function to be performed." Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 348-49 (Iowa 2002) (citations omitted); see Restatement (Second) of Judgments § 27 cmt. c ("An issue on which relitigation is foreclosed may be one of evidentiary fact, of `ultimate fact' (i.e., the application of law to fact), or of law.").
While a request to correct data and findings in an abuse report can present a variety of legal and factual issues that may prevent a party from satisfying the first element of issue preclusion, in this case, Robert only sought to challenge the finding by the DHS that the incident occurred as described by Bo. Thus, the issue raised by Robert in the proceeding to correct the assessment was factual in nature, and dealt with credibility did the incident occur as described by Bo? Although the modification of the visitation proceeding presented different legal issues, the same predicate factual issue raised by the request to correct the child abuse assessment was presented did the incident occur as described by Bo? Accordingly, the identity of the factual issues supports application of the doctrine of issue preclusion under the circumstances of this case, as long as the other elements are met.[2]
Notwithstanding, as with most principles of law, the doctrine of issue preclusion is not without exceptions. See Restatement (Second) of Judgments § 28, at 273-74 ("Exceptions to the General Rule of Issue Preclusion"). Even when all elements of the doctrine are satisfied, there are circumstances when it will not be applied to prevent relitigation of an issue.
We have recognized an exception to the doctrine when the allocation of jurisdiction *175 between two courts or adjudicative bodies justifies a new determination of the issue by the body given jurisdiction over an action. Heidemann v. Sweitzer, 375 N.W.2d 665, 667-68 (Iowa 1985). This exception has been fully stated in Restatement (Second) of Judgments section 28(3):
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
. . . .
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them . . . ."
Restatement (Second) of Judgments § 28(3), at 273.
A comment to the Restatement rule explains that the exception applies to situations in which issue preclusion is "asserted in an action over which the court rendering the prior judgment would not have had subject matter jurisdiction." Id. cmt. d, at 279. The comment further explains that the exception does not apply to every incident when a court in the first action does not have subject matter jurisdiction over the second action, but only when there are special reasons to exclude application of the issue preclusion doctrine. See id. ("In many such cases, there is no reason why preclusion should not apply; the procedures followed in the two courts are comparable in quality and extensiveness, and the first court was fully competent to render a determination of the issue on which preclusion is sought. In other cases, however, there may be compelling reasons why preclusion should not apply."). One such reason is when "the legislative allocation of jurisdiction . . . may have been designed to insure that when an action is brought to determine a particular issue directly, it may only be maintained in a court having special competence to deal with it." Id. The comment states:
In such instances, after a court has incident[al]ly determined an issue that it lacks jurisdiction to determine directly, the determination should not be binding when a second action is brought in a court having such jurisdiction. The question in each case should be resolved in the light of the nature of litigation in the courts involved and the legislative purposes in allocating jurisdiction among the courts of the state.
Id.
The situation presented in this case is the subject of this exception. Although the district court lacked jurisdiction to hear and decide initial requests to correct child abuse reports, it decided an issue of fact in the course of exercising its jurisdiction in a parallel court proceeding that was subsequently presented to an administrative agency in the course of exercising its jurisdiction to hear and decide requests to correct child abuse reports.
We adopted and applied this exception in Heidemann v. Sweitzer, where a finding by a district court in a suppression hearing in a criminal case that an arresting officer failed to comply with the implied consent procedures was asserted to preclude relitigation of the same factual issue by a hearing officer in a Department of Transportation (DOT) hearing to revoke a driver's license for refusal to submit to a chemical test under the implied consent law. Heidemann, 375 N.W.2d at 666-67. We found that the legislature specifically vested the DOT with jurisdiction to revoke a driver's license for refusal to submit to testing pursuant to the implied consent procedure by enacting chapter 321B, and that this *176 grant of specific jurisdiction was a recognition "that the department has special competency to resolve the relatively narrow issues which arise in such license revocation proceedings." Id. at 668. We found the decisionmaking authority given to the DOT by the legislature would be undercut by applying the doctrine of issue preclusion based on a parallel criminal proceeding that happened to rule on a factual issue concerning a law enforcement officer's compliance with the statutory procedure for requesting a driver to submit to a chemical test. Id. Thus, we must decide if the legislature similarly designed the child abuse statute to enable the DHS to decide issues presented in an action to correct a child abuse assessment even though they may have previously been decided in a parallel court proceeding.
Our legislature enacted the child abuse statute after it recognized "[c]hildren in this state are in urgent need of protection from abuse." Iowa Code § 232.67. In order "to provide the greatest possible protection to victims or potential victims of abuse," the legislature established a comprehensive system of child abuse reporting, assessment, and rehabilitation. Id. The legislature also placed the DHS at the forefront of this protective net, and assigned it myriad critical responsibilities and duties to perform. See generally id. chs. 232, 235A. One such duty involves the receipt and assessment of child abuse reports, as well as the maintenance of a central registry of founded child abuse assessments. See id. § 232.71B(1)(a) ("If the department determines a report constitutes a child abuse allegation, the department shall promptly commence an appropriate assessment within twenty-four hours of receiving the report."); id. § 235A.14(1) ("There is created within the state department of human services a central registry for child abuse information."); id. § 232.71D(3) (stating founded child abuse reports shall be placed on the central registry). The primary purpose of the assessment by the DHS is to protect the child named in the report, and a secondary purpose is to provide services. Id. § 232.71B(1)(b). The purpose of a central registry of founded child abuse reports is to help increase the ability of the State to confront the problem of child abuse and help identify victims or potential victims of abuse through a "single, statewide source of child abuse data." Id. § 235A.12.
Under this statutory scheme, the DHS promptly conducts an assessment of every report alleging child abuse. Id. § 232.71B(1)(a). The assessment involves a comprehensive investigation and evaluation by a child protection worker, followed by a written assessment report. Id. § 232.71B(4) (assessment process); id. § 232.71B(11) (assessment report). The assessment process has numerous statutory requirements and components, and can involve the input of a multidisciplinary team, as well as others. Id. § 232.71B(4)(10). An assessment of founded child abuse means the name of the child, the alleged perpetrator, and the pertinent assessment data, are placed on the central registry. Id. § 232.71D(3).
The comprehensive nature of the assessment process reveals the importance of accurate assessments. The existence of a central depository of the assessments to be used by various persons and agencies to combat child abuse also gives rise to separate legislative concerns for the safeguarding of the rights of others and the need for a fair and efficient assessment and registry system. See id. § 235A.12 ("[V]igorous protection of rights of individual privacy is an indispensable element of a fair and effective system of collecting, maintaining and disseminating child abuse information."). To this end, the legislature provided for a means for those who are the *177 subject of a child abuse report to examine and request the correction of data or findings of an assessment claimed to be erroneous. Id. § 235A.19. If a timely request is filed,
[t]he department shall provide the subject with an opportunity for an evidentiary hearing pursuant to chapter 17A to correct the data or the findings, unless the department corrects the data or findings as requested. The department may defer the hearing until the conclusion of a pending juvenile or district court case relating to the data or findings.
Id. § 235A.19(2)(b).
Considering the statutory scheme and important goals sought to be addressed, we think our legislature would not have given the DHS the responsibility to assess child abuse reports and maintain a central registry of the assessments without recognizing that the DHS possesses a special competency to carry out these duties consistent with the legislative goals. See Restatement (Second) of Judgments § 28 cmt. d, at 279 (stating that issue preclusion should not prevent relitigating an issue within the special competency of the decisionmaker in the second action). Likewise, the legislature would not have given the DHS the important duty to determine and correct errors in assessments without recognizing the existence of a special competency to perform this responsibility. Thus, it is evident that our legislature designed the correction process so that issues relating to the correction of erroneous matters in assessment reports would be decided by the DHS. Cf. Heidemann, 375 N.W.2d at 668 ("The legislature by enacting chapter 321B has specifically vested the department with jurisdiction to revoke a driver's license for refusal to submit to chemical testing under Iowa's implied consent statute, thereby recognizing that the department has special competency to resolve the relatively narrow issues which arise in such license revocation proceedings. The department's administrative decision-making authority should not be undercut by the fortuitous circumstance that a parallel criminal proceeding may result in an evidentiary ruling concerning compliance with implied consent requirements.").
Moreover, the nature of the statutory proceeding to correct an erroneous assessment reveals that the DHS should not be deprived of the ability to decide issues presented in the course of a correction hearing that it might otherwise be precluded from deciding under a judicial doctrine because the issue happens to have been decided in a previous proceeding before another adjudicative body. The purpose of the legislative grant of jurisdiction to the DHS under section 235A.19(2)(b) to hear claims to correct data in an assessment is to correct error. Yet, the judicial doctrine of issue preclusion was not created and is not used to preclude relitigation of an issue because the decision was correct. Instead, it has an entirely different focus. It precludes relitigation of an issue not because it was correctly decided, but rather to protect litigants from the vexation of relitigating issues and to promote judicial economy by preventing unnecessary litigation of issues previously decided. State ex rel Casas v. Fellmer, 521 N.W.2d 738, 740-41 (Iowa 1994); see Robert C. Casad & Kevin M. Clermont, Res Judicata: A Handbook on Its Theory, Doctrine, and Practice 113 (2001) ("The doctrine of issue preclusion rests on the premise that one court should be as capable as any other to resolve issues in dispute. Once a judgment resolves the issues after the adversary system of adjudication has run its full and fair course, the issues should not again be open *178 to dispute by the same parties in any court. Issue preclusion not only accords with the dictates of fairness but also serves the interests of economy of judicial effort, fosters the certainty and stability of repose, and tends to prevent the anomalous situation, so damaging to public faith in the judicial system, of two authoritative but conflicting answers being given to the very same question."); Allan D. Vestal, Res Judicata/Preclusion 8-12 (1969) (listing as purposes of issue preclusion, finality, prevention of harassment, efficient use of the courts, and prestige of the courts/consistency). The doctrine of issue preclusion applies even if the prior decision was wrong. See Gail v. W. Convenience Stores, 434 N.W.2d 862, 863 (Iowa 1989) ("The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact the judgment may have been wrong or rested on a legal principle subsequently overruled in another case." (citing Federated Dep't Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 108-09 (1981))). Thus, the statutory correction procedure established by the legislature serves the goal of ensuring that the assessment data is correct, and this statutory goal is inconsistent with the doctrine of issue preclusion. The important public interest in maintaining correct records demands that the application of the doctrine of issue preclusion not be used to prevent the DHS from correcting assessment reports.
This conclusion is further supported by the language of the statute that permits the DHS to "defer the hearing" to correct an assessment "until the conclusion of the pending juvenile or district court case relating to the data or findings." Iowa Code § 235A.19(2)(a). Clearly, the legislature understood that courts could be litigating issues of child abuse covered in a DHS assessment during the same time the DHS may be asked to correct an error in the assessment, and it permitted the DHS to "defer the hearing" on the correction request until a decision in the court action. Yet, this discretion to defer the correction hearing does not mean the agency must defer the correction decision to the courts. We have previously recognized in Heidemann that an agency with special competency and jurisdiction to decide particular matters should give weight to prior court decisions on the same issues presented before the agency, but the agency must ultimately decide the issue based on the power granted by the legislature. See Heidemann, 375 N.W.2d at 668 ("`Perhaps some weight should be given to the decision handed down by the court, but certainly the agency has the right to exercise the power given to it by the legislature.'" (quoting Allan D. Vestal, Preclusion/Res Judicata Variables: Adjudicating Bodies, 54 Geo. L.J. 857, 886-87 (1966))). The court decision can be an aid to assist the agency in its goal to maintain accurate records, and we think our legislature had this concept in mind when it authorized the DHS to delay a hearing on a correction request until the conclusion of a parallel court proceeding.
In the end, the legislative policies and goals are best served by allowing the DHS to correct its own assessment of a child abuse report free from the doctrine of issue preclusion. The DHS should consider all timely claims of error by those who are the subject of a child abuse report and decide all issues presented by a correction request. Consequently, we reverse the decision of the district court and remand the case to the DHS for a hearing on the request to correct the assessment.
REVERSED AND REMANDED.
NOTES
[1] Iowa Code section 232.68(2)(d) defines "child abuse," in part, to include
[t]he failure on the part of a person responsible for the care of a child to provide for the adequate food, shelter, clothing or other care necessary for the child's health and welfare when financially able to do so or when offered financial or other reasonable means to do so.
Iowa Code § 232.68(2)(d) (2001); see also Iowa Admin. Code r. 441-175.21 (" `Denial of critical care' is the failure on the part of a person responsible for the care of a child to provide for the adequate food, shelter, clothing or other care necessary for the children's health and welfare when financially able to do so, or when offered financial or other reasonable means to do so and shall mean any of the following: (1) Failure to provide adequate food and nutrition to the extent that there is danger of the child suffering injury or death. (2) Failure to provide adequate shelter to the extent that there is danger of the child suffering injury or death. (3) Failure to provide adequate clothing to the extent that there is danger of the child suffering injury or death. (4) Failure to provide adequate health care to the extent that there is danger of the child suffering injury or death. A parent or guardian legitimately practicing religious beliefs who does not provide specified medical treatment for a child for that reason alone shall not be considered abusing the child and shall not be placed on the child abuse registry. However, a court may order that medical service be provided where the child's health requires it. (5) Failure to provide the mental health care necessary to adequately treat an observable and substantial impairment in the child's ability to function. (6) Gross failure to meet the emotional needs of the child necessary for normal development. (7) Failure to provide for the proper supervision of the child to the extent that there is danger of the child suffering injury or death, and which a reasonable and prudent person would exercise under similar facts and circumstances. (8) Failure to respond to the infant's life-threatening conditions (also known as withholding medically indicated treatment) by providing treatment (including appropriate nutrition, hydration and medication) which in the treating physician's reasonable medical judgment will be most likely to be effective in ameliorating or correcting all conditions, except that the term does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant when, in the treating physician's reasonable medical judgment any of the following circumstances apply: the infant is chronically and irreversibly comatose; the provision of the treatment would merely prolong dying, not be effective in ameliorating or correcting all of the infant's life-threatening conditions, or otherwise be futile in terms of the survival of the infant; the provision of the treatment would be virtually futile in terms of the survival of the infant and the treatment itself under the circumstances would be inhumane."); id. ("`Proper supervision' means that supervision which a reasonable and prudent person would exercise under similar facts and circumstances, but in no event shall the person place a child in a situation that may endanger the child's life or health, or cruelly or unduly confine the child. Dangerous operation of a motor vehicle is a failure to provide proper supervision when the person responsible for the care of a child is driving recklessly, or driving while intoxicated with the child in the motor vehicle. The failure to restrain a child in a motor vehicle does not, by itself, constitute a cause to assess a child abuse report.").
[2] The other three elements that the issue was raised and litigated, material and relevant, and necessary and essential are not challenged by Robert on appeal. Therefore, we do not address them and assume without deciding they are met. See ALCOA v. Musal, 622 N.W.2d 476, 479-80 (Iowa 2001) ("It is a well-established rule of appellate procedure that `[t]he scope of appellate review is defined by the issues raised by the parties' briefs.' Issues not raised in the appellate briefs cannot be considered by the reviewing court." (Citations omitted.)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572366/ | 722 N.W.2d 10 (2006)
272 Neb. 390
NEBRASKA LIQUOR DISTRIBUTORS, INC., appellee,
v.
NEBRASKA LIQUOR CONTROL COMMISSION, appellant.
No. S-05-890.
Supreme Court of Nebraska.
September 29, 2006.
*11 Jon Bruning, Attorney General, J. Kirk Brown, and Milissa Johnson-Wiles, Lincoln, for appellant.
Michael J. Lehan, Blair, for appellee.
WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
On remand from our decision in Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 269 Neb. 401, 693 N.W.2d 539 (2005), the district court reversed the decision of the Nebraska Liquor Control Commission (Commission) that denied a wholesale liquor license to Nebraska Liquor Distributors, Inc. (NLD). Under Neb. Rev.Stat. § 84-917(6)(b) (Reissue 1999), in an appeal from an administrative agency, a district court "may affirm, reverse, or modify the decision of the agency or remand the case for further proceedings." This case presents the question whether the district court should have remanded the matter to the Commission for further proceedings, instead of reversing the Commission's decision. The district court chose to reverse, as permitted by the statute. We affirm.
PRIOR PROCEEDINGS
On September 6, 2001, NLD applied for a class X wholesale liquor license from the Commission. The Commission denied the license, concluding that NLD was disqualified because of a business relationship prohibited by Neb.Rev.Stat. § 53-169.01 (Reissue 2004). The Commission found that NLD's sole shareholder, Mitchell Johnson, had a continuing business relationship with his brother, Lynn Johnson, who is chairman of the board of Johnson Brothers Liquor Company (Johnson Brothers).
The Commission had previously denied Johnson Brothers a wholesale liquor license because of its relationship with United States Distilled Products Company (USDP), a liquor manufacturer. The Nebraska Court of Appeals affirmed that decision in Johnson Bros. Liquor Co. v. Nebraska Liquor Control Comm., No. A-99-1182, 2000 WL 1725059 (Neb.App. Nov.21, 2000) (not designated for permanent publication). In that case, the evidence showed that Lynn was a de facto officer or employee of USDP. This created a prohibited relationship between Johnson Brothers and USDP, requiring the denial of Johnson Brothers' application.
The Commission relied on the Johnson Bros. Liquor Co. decision to establish a connection between USDP and Mitchell as well, and denied NLD a liquor license. NLD appealed the Commission's decision, and the district court affirmed. In its affirmance, the district court took judicial *12 notice of the Johnson Bros. Liquor Co. decision and found that Mitchell had an interest in USDP through Johnson Brothers. The case was then appealed to this court. We held that it was inappropriate for the district court to rely on Johnson Bros. Liquor Co. in affirming the Commission's decision. Nebraska Liq. Distrib., supra. We reversed the judgment and remanded the cause with directions to the district court to complete its de novo review of the record.
DISTRICT COURT'S DECISION
On remand, after a de novo review, the district court found that the record did not establish a prohibited relationship between NLD and USDP. The district court found that there was no evidence of a business interest between Johnson Brothers and USDP and the Johnson Bros. Liquor Co. opinion could not be considered. The district court reversed the Commission's decision and directed the Commission to issue a wholesale liquor license to NLD. The Commission now appeals, arguing that the district court should have remanded the matter to the Commission so it could produce evidence of the relationship between NLD and USDP that was inappropriately established through judicial notice.
ASSIGNMENT OF ERROR
The Commission assigns that the district court erred in failing to remand this matter to the Commission for further proceedings.
STANDARD OF REVIEW
The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. See Arndt v. Department of Motor Vehicles, 270 Neb. 172, 699 N.W.2d 39 (2005).
ANALYSIS
The Commission contends that after this cause was remanded to the district court, the court should have remanded the matter to the Commission for further proceedings. It argues that because the district court relied on the Court of Appeals' decision in Johnson Bros. Liquor Co. without knowledge that it was incorrect to do so, the court should have allowed it another opportunity to adduce evidence of the relationship it attempted to establish through judicial notice.
The Administrative Procedure Act governs appeals from Commission decisions. See § 84-917. Section 84-917(6)(b) provides, "When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the court may affirm, reverse, or modify the decision of the agency or remand the case for further proceedings." Because the statute does not provide a standard for determining when remand would be appropriate, the Commission has asked this court to adopt one. The Commission proposes the following standard:
When certain evidence has been found on appeal to have been inappropriately received and weighed in the original agency decision, a remand to that agency for further proceedings would serve the interests of justice if: (1) additional evidence on a pivotal issue can be shown to be available either on the existing record or by an affirmative post-remand showing by a party; and (2) there is no showing that the party that offered the evidence which was found on appeal to be inappropriately considered in the original proceeding did so in bad faith.
*13 Brief for appellant at 9. The Commission argues that the public interest would be best protected by applying this standard and remanding the matter to the Commission. Id.
We decline to adopt the Commission's proposed standard. Under § 84-917(6)(b), a district court hearing an appeal from an agency "may . . . remand the case for further proceedings." (Emphasis supplied.) Statutory language is to be given its plain and ordinary meaning. We will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. See 24th & Dodge Ltd. Part. v. Acceptance Ins. Co., 269 Neb. 31, 690 N.W.2d 769 (2005). Generally, the word "may" when used in a statute will be given its ordinary, permissive, and discretionary meaning unless it would manifestly defeat the statutory objective. When the word "may" appears, permissive or discretionary action is presumed. Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475 (2005). Thus, under § 84-917(6)(b), a district court has discretion concerning the disposition of an appeal from an administrative agency.
Here, the district court, in its discretion, chose to reverse the Commission's decision, as it was empowered by the Legislature to do. The Commission does not argue that the district court incorrectly decided the case, nor does it argue that the court abused its discretion by failing to remand the matter. Instead, it requests an exception which would allow it another opportunity to produce additional evidence. The Commission had the opportunity in its original hearing to present evidence to support its denial of a liquor license to NLD. It failed to do so, and we see no reason why it should get a "second bite at the apple."
CONCLUSION
We conclude that the district court did not err in failing to remand the matter to the Commission for further proceedings. Therefore, we affirm.
AFFIRMED.
HENDRY, C.J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1572386/ | 722 N.W.2d 585 (2006)
2006 WI App 181
STATE of Wisconsin, Plaintiff-Respondent,
v.
Dion W. DEMMERLY, Defendant-Appellant.[]
No. 2005AP181.
Court of Appeals of Wisconsin.
Submitted on Briefs January 19, 2006.
Opinion Filed August 10, 2006.
*586 On behalf of the defendant-appellant, the cause was submitted on the briefs of Edward John Hunt of Hunt & Quinn S.C., Milwaukee.
*587 On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
Before LUNDSTEN, P.J., DYKMAN and DEININGER, JJ.
¶ 1 DYKMAN, J.
Dion Demmerly appeals from an order denying his WIS. STAT. § 974.06 (2003-04)[1] postconviction motion. Dion asserts that having attorneys from the same law firm represent him and his co-defendant brother, Douglas Demmerly, created an actual conflict of interest.[2] He contends that the trial court had an obligation to override his waiver of conflict-free representation. Dion also contends that he was denied effective assistance of counsel because the alleged conflict of interest compromised his defense. Finally, Dion contends that his counsel's failure to request a jury instruction on the defense of accident constituted ineffective assistance of counsel. Because we determine that the trial court did not have an obligation to override Dion's waiver of conflict-free representation, we conclude that his waivers were valid. In addition, we conclude that Dion has not met his burden of proving ineffective assistance of counsel based on his attorney's cross-examination of Douglas or his failure to request a jury instruction on accident.
BACKGROUND
¶ 2 The relevant facts of the case are as follows. On July 3, 1993, someone burglarized Dion Demmerly's fireworks stand. Dion suspected that James Lane was responsible. Dion, his brother, Douglas Demmerly, Douglas's son, Jason Demmerly, and Jason's friend, Brandon Brownlee, followed the suspect to his home. Through the window of Lane's home, Dion saw what he believed was the stolen merchandise. The Demmerlys and the two other men returned home. Dion and Douglas armed themselves and the four men went back to Lane's house. Douglas brought a shotgun and a .22 pistol and Dion carried a double-barreled sawed-off shotgun and a protective vest. When they arrived, James, armed with a .22 caliber rifle, and his brother, Joel Lane, came outside onto the porch and a confrontation ensued regarding the stolen merchandise. Brandon and Jason remained in the car during the argument and left in the midst of the confrontation. The argument intensified and resulted in Dion fatally shooting James. No one witnessed the shooting.
¶ 3 The State charged Dion with first-degree intentional homicide. The State also charged Douglas as a party to the crime of first-degree intentional homicide. See State v. Demmerly, No. 93-2235, unpublished slip op. at 1, 1994 WL 98495 (Wis.Ct.App. Mar. 29, 1994). Dion retained Attorney Brian M. Maloney of Appleton, Wisconsin, and Douglas retained Attorney Mary Lou Robinson, of the law firm of Robinson, Robinson, Peterson, Berk & Cross, also of Appleton, Wisconsin. At a preliminary hearing, the trial court dismissed the charges against Douglas based on a lack of probable cause.
¶ 4 Dion replaced Attorney Maloney with Attorney Avram D. Berk of Robinson, Robinson, Peterson, Berk & Cross. Shortly thereafter, the Oconto County District Attorney filed a motion asking the trial court to inquire into a possible conflict *588 of interest because Attorney Berk was a member of the same law firm as Attorney Mary Lou Robinson, who continued to defend Dion's brother, Douglas, in the State's appeal of the trial court's dismissal of the charges against Douglas. At a motion hearing, Robinson opposed the motion and stated that Douglas would waive any potential conflict. Attorney Berk also opposed the motion. Dion responded to questions of the court regarding the knowingness of his waiver of the potential conflict and the court accepted his waiver.
¶ 5 In March 1994, we reversed the order dismissing the complaint against Douglas. State v. Demmerly, No. 93-2235, unpublished slip op. at 1, 1994 WL 98495 (Wis.Ct.App. Mar. 29, 1994). The State re-charged Douglas, this time with second-degree reckless homicide. As a result, Dion and Douglas became co-defendants again, and the district attorney asked the court to conduct a new inquiry into the potential conflict of interest. During the motion hearing, the court engaged in a colloquy with Douglas and Dion and accepted their waivers of conflict-free representation.
¶ 6 Dion's trial began in January 1995. Prior to opening statements, Douglas testified as a witness for the State, outside the presence of the jury. Under questioning by the district attorney, Douglas asserted his Fifth Amendment right to remain silent and the State moved to grant Douglas use immunity. The court granted the motion. This ruling led the court to revisit the conflict of interest issue for a third time. Again, the court accepted Dion's and Douglas's waivers of the conflict in having attorneys from the same law firm represent them.
¶ 7 Dion's theory of the case was that he did not intend to shoot Lane, but that Dion's gun discharged by accident when he tried to block Lane's gun in self-defense. Dion requested a jury instruction on self-defense, but did not request an instruction on accident. At the conclusion of a seven-day trial, the jury found Dion guilty of first-degree intentional homicide.
¶ 8 In March 1996, Dion filed a motion for postconviction relief challenging evidentiary rulings and alleging discovery violations. He asserted that there was insufficient evidence to support his conviction. The circuit court denied the motion. Dion then retained Attorney Paul Wagner, of the same law firm as Mary Lou Robinson, and appealed the circuit court's denial of his postconviction motion and the judgment of conviction. We affirmed the circuit court's decision. State v. Demmerly, No. 96-1898, unpublished slip op. at 4, 1996 WL 737272 (Wis.Ct.App. Dec. 27, 1996).
¶ 9 In October 2003, Dion filed a motion for postconviction relief, pursuant to WIS. STAT. § 974.06. In the motion, Dion contended that the performance of Attorney Berk at trial and during postconviction proceedings was ineffective because of the conflict of interest and Berk's failure to request a jury instruction on accident. In addition, Dion asserted that his appellate counsel, Attorney Wagner, was ineffective for failing to raise the conflict of interest issue and for laboring under the same alleged conflict that existed at the trial level because Wagner was a member of Robinson's law firm.[3] Finally, Dion contended that the trial court erroneously exercised its discretion by failing to disqualify Attorney Berk from representing Dion because of a conflict of interest. The circuit court denied the motion and Dion appeals.
*589 DISCUSSION
A. Circuit Court's Acceptance of Dion's Waiver of Conflict-Free Representation
¶ 10 Dion contends that the trial court erroneously exercised its discretion by accepting his conflict of interest waiver, thus allowing Attorney Berk to remain as his counsel. We review a trial court's disqualification decision because of conflict of interest for erroneous exercise of discretion. See State v. Miller, 160 Wis.2d 646, 654, 467 N.W.2d 118 (1991); see also Wheat v. United States, 486 U.S. 153, 163, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (holding that trial courts have wide latitude when deciding whether to reject a waiver of conflict-free representation when an actual or potential conflict exists). We will not hold that the trial court erroneously exercised its discretion if the record demonstrates that the trial court in fact exercised discretion and there is a reasonable basis for its conclusion. State v. Tkacz, 2002 WI App 281, ¶ 8, 258 Wis.2d 611, 654 N.W.2d 37.
¶ 11 Dion refers to case law in which a trial court declined to accept a defendant's waiver of conflict-free representation. Wheat, 486 U.S. at 162-63, 108 S.Ct. 1692; Miller, 160 Wis.2d at 649, 467 N.W.2d 118; State v. Kaye, 106 Wis.2d 1, 14, 315 N.W.2d 337 (1982). Dion maintains that the trial court's decision to accept his waiver, despite the potential for a serious conflict of interest, was an erroneous exercise of discretion.
¶ 12 The State correctly asserts that the case law Dion cites does not hold that a trial court must refuse to allow counsel to represent defendants in the same proceeding when an actual or serious potential for a conflict exists. The central issue in Kaye was whether the defendant had proven ineffective assistance based on his counsel's representation of a co-defendant at sentencing. Kaye, 106 Wis.2d at 6, 315 N.W.2d 337. We held that Kaye had not proven ineffective assistance of counsel based on this conflict of interest, but we recognized the difficulty of establishing such conflicts when the defendant has not made an objection at trial. Id. at 13, 315 N.W.2d 337. Therefore, we instructed trial courts to engage in a colloquy with defendants to ensure that they understand the possibility of a conflict when the same attorney or law firm represents more than one defendant in the same case. Id. at 14, 315 N.W.2d 337. If, following the colloquy, defendants choose to waive the right to separate counsel, the trial court should respect their mutual decision. Id. at 16, 315 N.W.2d 337. In Wheat, the Supreme Court explored a trial court's discretion in this area when deciding whether a court may override a defendant's waiver of the right to conflict-free representation when to do so might interfere with the defendant's Sixth Amendment right to choose one's counsel. Wheat, 486 U.S. at 158, 108 S.Ct. 1692. The Court held that when a trial court finds an actual or potential conflict of interest, the court may reject the defendant's waiver and require that separate counsel represent the defendant. Id. at 162-63, 108 S.Ct. 1692. Finally, in Miller, the supreme court qualified its holding in Kaye and followed the reasoning of Wheat, holding that a trial court may, within its discretion, disqualify an attorney, even over the defendant's objection, when there is an actual conflict of interest or serious potential for a conflict of interest. Miller, 160 Wis.2d at 660-61, 467 N.W.2d 118.
¶ 13 Contrary to Dion's assertion, none of these cases involve a situation where a trial court accepted a defendant's valid waiver of the right to conflict-free *590 representation.[4] Furthermore, while these cases illustrate that a court may use its discretion to disqualify an attorney, none hold that a trial court must reject a defendant's voluntary waiver of the right to conflict-free representation. We find the holding of United States v. Lowry, 971 F.2d 55 (7th Cir.1992), on this issue persuasive. Like Dion, Lowry claimed that the trial court misused its discretion in not disqualifying his attorney due to a serious conflict of interest. Id. at 60. The Lowry court recognized that Wheat provides trial courts with discretionary power to override a defendant's waiver of conflict-free representation. However, "Wheat failed to delineate any instance where the court is required to override the defendant's waiver and disqualify the attorney. In other words, while courts sometimes can override a defendant's choice of counsel when deemed necessary, nothing requires them to do so." Id. at 64. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant's right to retain counsel of his choice and could leave the accused with the impression that the legal system had conspired against him or her. Id.
¶ 14 Here, the conflict of interest issue arose several times during the proceedings. The record reveals that each time the issue arose, Dion voluntarily and knowingly waived his right to conflict-free representation. On three separate occasions, the trial court conducted a colloquy with Dion regarding the conflict of interest issue and Dion does not contest the adequacy of the court's colloquies. The court properly exercised its discretion in allowing Dion to retain the attorney of his choice. In explaining its reasoning the trial court stated:
[W]e can not lose sight of the fact that Dion and Douglas predicated their defense on the desire for their lawyers to work together in defending both of them. The lawyers were talking and sharing information. The brothers even signed an agreement ... allowing for free exchange of information and waiving potential conflict.
Given the consistency of Dion's waivers and the trial court's sound reasoning, we conclude that the trial court did not erroneously exercise its discretion in accepting Dion's waivers, or in allowing Attorney Berk to remain as Dion's counsel.
B. Ineffective Assistance of Counsel
¶ 15 Dion contends that he was denied effective assistance of counsel because his counsel's law firm also represented his co-defendant brother Douglas. See U.S. CONST. amend. VI; WIS. CONST. art. I, § 7. Dion asserts that this dual representation created an actual conflict of interest that compromised his defense. Specifically, Dion claims that Attorney Berk's cross-examination of Douglas was deficient because it did not emphasize Douglas's lack of credibility or motivation to testify. However, when Dion validly waived the right to conflict-free representation he necessarily waived the right to assert that his counsel was ineffective because of the alleged conflict. Lowry, 971 F.2d at 63. While there is no Wisconsin case law directly on point, the State cites federal *591 cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation. Under Harvey v. McCaughtry, 11 F.3d 691, 695 (7th Cir. 1993), "[a] defendant who knowingly and intelligently waives his attorney's potential or actual conflict of interest may not, under any circumstances, later claim that such a conflict deprived him of his right to effective assistance of counsel." See also Gomez v. Ahitow, 29 F.3d 1128, 1135-36 (7th Cir.1994) ("[The defendant] knowingly and intelligently waived his right to conflict-free counsel . . . . [The defendant] cannot now be heard to complain that the conflict he waived resulted in ineffective assistance of counsel."); Lowry, 971 F.2d at 63 (holding "a valid waiver of the right to conflict-free counsel bars any later claim of ineffective assistance growing from that conflict"); United States v. Beniach, 825 F.2d 1207, 1210 (7th Cir.1987) ("[O]nce having made a knowing and intelligent waiver, a criminal defendant may not later attack his conviction premised upon an assertion of conflict.").
¶ 16 The Lowry court provided the rationale for this rule when it stated "[t]o hold otherwise would be to render the waiver meaningless; a defendant would lose nothing by waiving his right and sticking with counsel who had a conflict, since he could always allege `ineffective assistance' if convicted." Lowry, 971 F.2d at 63. With the caveat discussed below, we adopt the rule established by the Seventh Circuit that a defendant who validly waives his right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict. Harvey, 11 F.3d 691, 695 (7th Cir.1993).
¶ 17 We question whether a valid waiver of a conflict of interest should act to bar all ineffective assistance claims where deficient performance is prompted by the waived conflict of interest. There may be instances in which counsel's performance is deficient and unreasonably so even in light of the waived conflict of interest. An example will help explain the small door we leave open today.
¶ 18 Suppose a defendant validly waives a conflict of interest due to counsel's concurrent representation of a co-defendant and later, at trial, counsel is unexpectedly faced with whether he or she should present evidence that has the potential to simultaneously help the co-defendant and hurt the defendant. Suppose counsel opts to present the evidence and that, if this action is viewed solely from the defendant's perspective, it is deficient performance. This is exactly the sort of risk the defendant accepted when choosing to be represented by an attorney who was also obligated to represent the interests of the co-defendant. Thus, defendant's waiver defeats his ineffective assistance claim if counsel's action was reasonable in light of the choice created by dual representation. But what if the evidence seriously harms the defendant with no significant corresponding chance of helping the co-defendant? That is to say, what if counsel's decision is not a reasonable strategic decision, even considering counsel's conflict of interest? Should a valid waiver defeat all ineffective assistance claims, even when counsel's choice is objectively unreasonable, taking into account the conflict? We have no occasion to answer this question today.
¶ 19 Here, Dion claims that Attorney Berk's cross-examination of co-defendant Douglas was deficient and prejudiced Dion's defense and that this alleged deficient performance was prompted by counsel's conflict of interest. But we need not explore whether the possible exception to our conflict-of-interest-waiver rule applies *592 here. Dion's ineffective assistance claim fails because his counsel's cross-examination of Douglas was not deficient. Therefore, we will analyze Dion's argument as a mine-run ineffective assistance of counsel claim under the framework of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
¶ 20 Wisconsin has adopted the Strickland test for ineffective assistance of counsel. See, e.g., State v. Johnson, 153 Wis.2d 121, 126, 449 N.W.2d 845 (1990). Under this two-part test, in order to establish ineffective assistance of counsel a defendant must prove (1) that the counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To prove deficient performance the defendant must show specific acts or omissions that are "outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. 2052. The defendant has the burden to overcome the presumption that the counsel's decisions were based on reasonable professional judgment. Id. To prove prejudice, the 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." Id. at 694, 104 S.Ct. 2052.
¶ 21 A claim of ineffective assistance of counsel contains a mixed question of law and fact. State v. Thiel, 2003 WI 111, ¶ 21, 264 Wis.2d 571, 665 N.W.2d 305. We will not overturn a trial court's findings of fact relating to the circumstances of the counsel's conduct and strategy unless the findings are clearly erroneous. State v. Love, 227 Wis.2d 60, 67, 594 N.W.2d 806 (1999). Whether counsel's performance was deficient and whether the deficient performance prejudiced the defendant are questions of law that we review de novo. Id.
¶ 22 The record demonstrates that Attorney Berk's cross-examination of Douglas was not unreasonable. The cross-examination revealed that Douglas's motivation for testifying was based on his desire to receive leniency from the State on his pending charges. For example, Attorney Berk elicited that in July 1994, when Douglas was facing charges for being a party to the crime of second-degree reckless homicide, he met with police, his attorney, and the prosecutor to discuss possible dismissal of his charges. During cross-examination, Douglas admitted that after talking with the police officers, he believed they were going to dismiss the charges. Attorney Berk further cross-examined Douglas as follows:
Q. And have officers tried to contact you to talk to you about this case?
A. Yes.
Q. And about your testimony in this case?
A. Yes.
Q. And during those conversations have they told you facts or theories about the case?
A. Theories about the case, yes.
Q. Have any officers ever tried to tell you that you are wrong and this is how it happened and tried to get you to change your story?
A. Yes.
Q. Have they tried to get you to talk to your son to have him change his testimony?
A. Yes, many times.
Q. Did you feel that by talking to them that you would be helping yourself?
A. Yep. Yes.
*593 Q. In fact when you gave that first statement, that very first statement on July 3rd of '93, weren't you told something by the officer who took the statements?
A. Yes.
Q. What did you understand would happen if you gave that statement?
A. That they would help me, that things start up way up here and they end up way down here.
Q. That if you cooperated, they would be easy on you?
A. Um-hmm.
Q. And give you a break?
A. Yeah. I mean yes.
¶ 23 On re-cross-examination, Dion's attorney also elicited the following testimony from Douglas:
Q. Mr. Demmerly, from the time of your arrest, from July 3rd of 1993 and July 11th of 1994 haven't you done everything you could do to make the best arrangement you could possibly make for yourself?
A. Yes.
Q. On the charges that you were facing?
A. Yes.
Q. And you have done everything you could, including having numerous conversations with investigating officers in this case without your attorney present and despite being represented by an attorney?
A. I have been cooperating probably more than fully on that basis.
¶ 24 Dion also asserts that Douglas's testimony left the jury with a false impression of Douglas's immunity.[5] However, if there was any confusion as to whether Douglas testified under a grant of immunity, the jury received an instruction that clearly explained Douglas's immunity:
You have heard the testimony of Douglas Demmerly, who has received immunity. This means that Douglas Demmerly's testimony and evidence derived from that testimony cannot be used in a later criminal prosecution of Douglas Demmerly. This witness, like any other witness, may be prosecuted for testifying falsely. You should consider whether receiving immunity affected the testimony and give the testimony the weight you feel it deserves.
¶ 25 We conclude Attorney Berk's cross-examination was reasonable and exhibited professionally competent assistance. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Douglas was a key witness for both sides because he was the only other person present about the time the shooting occurred. Attorney Berk had the difficult task of making the jury believe the portions of Douglas's testimony and prior statements that supported Dion and disbelieve the parts of Douglas's testimony that supported the State. Attorney Berk effectively cross-examined Douglas and elicited Douglas's motivation for testifying. Because Dion did not show that Attorney Berk's performance was deficient we need not address whether the performance was prejudicial. We reject Dion's assertion that Attorney Berk rendered ineffective assistance while cross-examining Douglas.
¶ 26 Dion also contends that he was denied effective assistance of counsel because Attorney Berk failed to request a jury instruction on the defense of accident. *594 We disagree. Dion maintains that he was entitled to this instruction because jury instructions "should fully and fairly state the law that applies to the case." See State v. Hurd, 135 Wis.2d 266, 275, 400 N.W.2d 42 (Ct.App.1986). Dion also relies on State v. Watkins, 2002 WI 101, ¶¶ 33, 44-45, 255 Wis.2d 265, 647 N.W.2d 244, which held that accident is a long-recognized defense and that accident and self-defense are not necessarily mutually exclusive. Yet, Watkins does not address the issue of whether failure to ask for an instruction on accident is objectively unreasonable.
¶ 27 We addressed this issue in State v. Ambuehl, 145 Wis.2d 343, 352, 425 N.W.2d 649 (Ct.App.1988). There, the defendant was convicted of attempted murder and claimed that her counsel's failure to request an instruction on accident constituted deficient performance. In rejecting Ambuel's argument, we reasoned that "[i]ntent to kill is the crux of attempted first-degree murder. All reasonable persons know that intent is the antithesis of accident. . . . For that reason, we reject the view that the trial court must explain to the jury that accident is the opposite of intent." Id. We concluded that because the defendant was not entitled to an accident instruction, the attorney's failure to make this request was not deficient performance. Id. Similarly, Attorney Berk's failure to request an instruction on accident was not deficient performance.
Judgment and order affirmed.
NOTES
[] Petition for review filed.
[1] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[2] Because the two brothers share a surname, we will refer to them by their given names.
[3] For the proper procedure on how to challenge the effectiveness of appellate counsel, see State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992).
[4] In State v. Kaye, 106 Wis.2d 1, 5-6, 315 N.W.2d 337 (1982), the defendant did not raise the conflict of interest issue until after trial in a postconviction motion asserting he was denied effective assistance of counsel during the sentencing. Both Wheat v. United States, 486 U.S. 153, 157, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), and State v. Miller, 160 Wis.2d 646, 655-56, 467 N.W.2d 118 (1991), involved situations where a defendant voluntarily proffered a waiver of the right to conflict-free representation, but the trial court refused to accept the waiver.
[5] During re-cross-examination, Attorney Berk asked Douglas the following: "And Mr. Conley has given you complete immunity from anything you say in this proceeding; you understand that don't you?" Douglas answered: "No, I didn't think I was getting immunity from anything. I didn't understand that." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3034460/ | FILED
NOT FOR PUBLICATION MAR 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50568
Plaintiff - Appellee, D.C. No. CR-07-00751-PSG-1
v.
MEMORANDUM *
FEDERICO FRANCO-VASQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD and M. SMITH, Circuit Judges.
Federico Franco-Vasquez appeals the sentence imposed following his guilty
plea to being an illegal alien found in the United States after deportation in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
HL/Inventory
violation of 8 U.S.C. § 1326. Franco-Vasquez contends that the district court
should not have counted his 2007 conviction for driving under the influence as part
of his criminal history because the offense occurred during the commission of the
instant offense of illegal reentry after deportation. This argument is foreclosed by
United States v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009).
AFFIRMED.
HL/Inventory | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1572519/ | 2 So.3d 516 (2008)
TECHE ELECTRIC SUPPLY, L.L.C.
v.
M.D. DESCANT, INC., et al.
No. 08-171.
Court of Appeal of Louisiana, Third Circuit.
December 11, 2008.
*517 Edward C. Abell, Jr. The Onebane Law Firm, Lafayette, LA, for Plaintiff/Appellee, Teche Electric Supply, L.L.C.
Russel W. Wray Chris P. Pierce, Wray & Pierce, L.L.P., Baton Rouge, LA, for Defendants/Appellants, M.D. Descant, Inc., National Fire Insurance Company of Hartford, and Western Surety Company.
Court composed of SYLVIA R. COOKS, J. DAVID PAINTER and CHRISTOPHER J. ROY, pro tem, Judges.
COOKS, Judge.
M.D. Descant, a general contractor, entered into a contract with the State of Louisiana for the construction of the Southwest Louisiana War Veterans Home in Jennings, Louisiana. The contract was duly recorded, and National Fire Insurance Company provided a performance and payment bond for the project.
M.D. Descant subcontracted the electrical portion of the project to Kirk Knott Electric, Inc. During the period from April, 2003 through February 17, 2004, Teche Electric Supply, L.L.C., sold electrical materials to Kirk Knott. The bulk of the electrical materials provided by Teche was delivered to the Kirk Knott yard in Carencro and then transported by employees of Kirk Knott to the construction site. During the time frame Teche was supplying electrical materials for the job in question, Kirk Knott filed for bankruptcy.
Not having been paid for supplied electrical materials, Teche filed a Statement of Lien and Privilege in the amount of $201,267.68 in the mortgage records against Kirk Knott on April 23, 2004. Teche mailed a notice of nonpayment to the State and to M.D. Descant on May 6, 2004. On June 2, 2004, M.D. Descant filed a Bond for Removal of Lien, which substituted a bond of Western Surety Company to secure payment of Teche's outstanding lien. The State of Louisiana accepted the project, with said acceptance recorded on February 14, 2005. On March 1, 2005, Teche filed suit against Defendants, M.D. Descant, National Fire Insurance Company, and Western Surety Company, for the full amount of its statement, interest, attorney fees, and costs.
On June 18, 2007, Defendants filed a motion for summary judgment contending Teche failed to preserve its right to lien the public works project when it failed to furnish notice of nonpayment within 75 days of the delivery of materials as required by La.R.S. 38:2242(F). Teche filed a cross motion for summary judgment, arguing its letter mailed on May 6, 2004, sufficiently provided notice of nonpayment to the appropriate parties as required by law; and thus, urging it was entitled to judgment as a matter of law.
After a hearing on the motions, the trial court took the matter under advisement. Judgment was rendered denying Defendants' motion for summary judgment and *518 granting Teche's motion for summary judgment. The trial court agreed with the parties that the motions "put before the court the issue of the correct interpretation" of La.R.S. 38:2242(F). The trial court determined that Teche's letter mailed May 6, 2004, preserved its right to file a lien for nonpayment of materials sold by Teche to Kirk Knott. The judgment awarded Teche the sum of $196,298.63, together with legal interest thereon from the date of judicial demand until paid and ten percent of said principal and interest as attorney fees. Defendants have appealed the trial court's judgment, asserting the following assignments of error:
1. The trial court erred in determining that Teche furnished the notice of nonpayment required by La.R.S. 38:2242(F).
2. The trial court erred in construing La.R.S. 38:2242(F) to allow one notice issued within 75 days of the last day of the month of the last delivery to apply to all materials delivered.
3. The trial court erred in liberally construing La.R.S. 38:2242(F).
4. The trial court erred in finding that no genuine issue of material fact existed as to the incorporation of the materials into the Project.
5. The trial court erred in awarding amounts invoiced for freight charges for deliveries made to a location other than the Project site.
6. The trial court erred in awarding attorney fees.
ANALYSIS
In Hines v. Riceland Drilling Co., 04-503, pp. 3-4 (La.App. 3 Cir. 9/29/04), 882 So.2d 1287, 1289-90, writ denied, 04-2705 (La. 1/07/05), 891 So.2d 681, this Court set forth the law applicable to the appellate review of summary judgments, stating as follows:
In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La. 2/29/00), 755 So.2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:
Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
Hines, 882 So.2d at 1289-90.
As the trial court noted, this appeal involves the correct interpretation of La. R.S. 38:2242, the amended provision of the Louisiana Public Works Act, which in part deals with the time period within which an unpaid materialman must give written notice *519 to a contractor and owner in order to file a lien on a public building project. Unlike workers and suppliers involved in private building projects, similarly situated workers and suppliers engaged by public agencies on building projects cannot protect themselves with liens against public property because liens are not enforceable against publicly-owned property. State Through Div. of Admin. v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937. As noted by the supreme court in Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 70 (La.1990) (Citations omitted):
Because of the need to protect those performing labor and furnishing materials for public works, the Legislature in 1918 passed Act 224, the precursor to current public works statutes, La. R.S. 38:2241 et seq., granting rights to laborers and materialmen involved in public works. The public contract law did not grant its beneficiaries a lien on the public work itself, but gave them, in effect, a "privilege against the unexpended fund in the possession of the authorities with whom the original contract ha[d] been entered into."
The pertinent sections of La.R.S. 38:2242 provide:
B. Any claimant may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done.
....
F. In addition to the other provisions of this Section, if the materialman has not been paid by the subcontractor and has not sent notice of nonpayment to the general contractor and the owner, then the materialman shall lose his right to file a privilege or lien on the immovable property. The return receipt indicating that certified mail was properly addressed to the last known address of the general contractor and the owner and deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered, regardless of whether the certified mail was actually delivered, refused, or unclaimed satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first. The provisions of this Subsection shall apply only to disputes arising out of recorded contracts.
Prior to the passage of subsection F in the 1999 legislative acts, the right to file a privilege or lien in the described circumstances only required a statement to be filed in the applicable court records. There was no requirement that notice be sent to the owners and contractors. Subsection F now mandates that owners and contractors be furnished with notice of nonpayment as a prerequisite to the right to file a lien or privilege on the project. Failure to do so results in the materialman "los[ing] his right to file a privilege or lien on the immovable property."
In finding in favor of Teche below, the trial court issued the following reasons for judgment:
With respect to the timeliness of notice, although McInnis, supra., the case relied upon by the defendants, clearly states that lien statutes are to be strictly interpreted, the holding of the case contradicts the proposition. The court upheld a lien filed after the pre-amendment *520 forty-five day period when the public entity had knowledge of the amount due. Similarly, in Levingston Supply Co. v. American Employers' Ins. Company, (La.App. 1 Cir.1968) 216 So.2d 158, the First Circuit court of Appeal liberally interpreted the pre-amendment statute to uphold a lien filed prior to the beginning of the forty-five day period. It appears to this court that McInnis, the sole authority offered by the defendants for a strict interpretation, is not persuasive in this matter.
The court is persuaded by the arguments presented by the plaintiff. Without the 1999 amendment, the materialman's lien could have been timely noticed at any time before March 31, 2005, some eleven months after the deadline under the amendment. Under the pre-amendment law, a materialman could file his "claim" without reference to dates of delivery. If the legislature had wished to refine the requirement to a claim for each delivery, one may assume they would have done so. The court is also of the opinion that a requirement for notice with each delivery would adversely impact the business relationship between supplier and contractor, and increase bothersome paperwork. Furthermore, the defendants do not contend that they had no knowledge of the non-payment, which fact triggers the equity considerations expressed in VPP[VVP] America [951 So.2d 461]. Equity falls on the side of the unpaid plaintiff.
Subsequent to the trial court's judgment, the Second Circuit Court of Appeal in Electric Supply Co., Inc. v. Great American Ins. Co., Inc., 42,727 (La.App. 2 Cir. 12/12/07), 973 So.2d 827, addressed the application of La.R.S. 38:2242(F). In that case, the unpaid materialman recorded its lien on January 23, 2001 and mailed a copy to the contractor and owner on the next day. When the claim was not paid, the materialman filed suit against the contractor and owner, who in turn filed a motion to cancel the lien on the ground that the materialman did not comply with La.R.S. 2242(F) when it failed to send notice of nonpayment prior to filing the lien. The trial court agreed with the owner and contractor and ordered that the lien be extinguished and removed from the mortgage records. On appeal, the court noted that "the only issue ... [was] whether La.R.S. 38:2242(F) requires that notice of nonpayment be given to the general contractor and owner before a materialman files his lien or privilege." Id. at 828. The second circuit reasoned as follows:
In examining La.R.S. 38:2242, we are mindful of the admonition that in general, lien statutes are stricti juris and should thus be strictly construed. Guichard Drilling Co. v. Alpine Energy Services, Inc., 94-1275 (La.7/3/95), 657 So.2d 1307. "[P]ublic contract laws are to be strictly construed such that the privileges granted are not extended beyond the statutes." Wilkin, 561 So.2d at 71. See also McInnis Bros. Const., supra.
The first sentence of Subsection (F) is clear: "In addition to the other provisions of this Section, if the materialman has not ... sent notice of nonpayment [by the subcontractor] to the general contractor and the owner, then the materialman shall lose his right to file a privilege or lien on the immovable property." Subsection (F) requires that the materialman must send notice of nonpayment to preserve his right to file a privilege or lien. The reason for this requirement is obvious. A contractor or owner is not always going to be aware of the materialman from whom a subcontractor has obtained materials that the subcontractor has used on a public *521 works project, so forcing the claimant materialman first to give notice to the general contractor and owner places those parties in the position of being able to withhold payment to the subcontractor so as to avoid ultimately having to make a double payment.
Subsection (F), which was added in 1999, places a notice requirement upon materialmen that is in addition to the requirements applicable to all claimants that are found in Subsection (B); hence, Subsection (F) begins with, "In addition to the other provisions of this Section...."
Electric Supply counters that the second sentence in Subsection (F) sets forth the period in which notice can be given. However, the second sentence in Subsection (F) apparently only explains how the notice provision can be satisfied, and the latest date on which the notice can be given assuming a lien or privilege has not yet been filed. In fact, according to this second sentence, the notice period could expire before the end of the 45-day period to make a claim that is set out in Subsection (B): "deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered... satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first."
An additional notice provision for claimants who have contractual privity with a subcontractor, but not with a contractor, is set forth in La. R.S. 38:2247, which states, with our emphasis:
Nothing in this Part shall be construed to deprive any claimant, as defined in this Part and who has complied with the notice and recordation requirements of R.S. 38:2242(B), of his right of action on the bond furnished pursuant to this Part, provided that said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any claimant having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall in addition to the notice and recordation required in R.S. 38:2242(B) give written notice to said contractor within forty-five days from the recordation of the notice of acceptance by the owner of the work or notice by the owner of default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.
We note that the above-referenced notice is not the same as the notice required of materialmen found in Subsection (F) of La. R.S. 38:2242. The notice of nonpayment in Subsection (F) is to be given to the owner and contractor to preserve the right to file a claim, while the notice referenced in La. R.S. 38:2247 is to be given to the contractor to preserve the right of action against the contractor or the surety. In addition, the notice required in Subsection (F) would be untimely if it was given before a claim was filed but after 75 days had elapsed since the last day of the month in which material was delivered, even if *522 the 45-day statutory lien period had not elapsed. The notice requirement found in La. R.S. 38:2247 references only the 45-day statutory lien period provided in La. R.S. 38:2242(B)
In the present case, Teche filed its lien on April 23, 2004 and furnished a copy of the lien and made demand by its letter dated May 3, 2004. Teche does not attempt to factually distinguish Electric Supply, but rather argues that the Second Circuit's holding in that case is "in error, that it contradicts prior interpretations of R.S. 38:2242(F), defeats the intent of the statute, and should not be followed by this Honorable Court." We do not agree.
Under the previous law, a materialman was not required to furnish any notice of nonpayment. La.R.S. 38:2242(F) clearly changed the law to require a materialman to furnish notice of nonpayment to preserve the right to file a lien. To interpret La.R.S. 38:2242(F) as Teche argues, that it allows for a post-filing notice, would defeat the clear intent of that statute and revert the law to its pre-amendment status. La. R.S. 38:2242(F) clearly provides that the failure to send notice of nonpayment "shall" cause the loss of the right to file a lien.
Teche relies on the Second Circuit case of VVP America, Inc. v. Design Build Development Services, Inc., 41,652 (La. App. 2 Cir. 1/31/07), 951 So.2d 461. In that case, the lien was filed by the materialman on July 20, 1999, and the letter demanding payment was not sent until August 29, 2000. The Second Circuit concluded the materialman was entitled to recover the money and that the sequence of the lien being filed before the notice was sent was not fatal to the claim. However, as appellants point out, VVP America is clearly distinguishable from the present case. The court in VVP America did not discuss La.R.S. 38:2242(F) because that statute did not become effective until after the last delivery of materials occurred in that case. Thus, the court in VVP America was still bound by the prior law.
Teche argues equity demands that M.D. Descant be ordered to pay for the electrical supplies, as they will unfairly profit if they are not forced to pay. Teche's cries for equity apparently extend only to materialmen and not contractors and owners. As noted by appellants in their brief, a ruling designed solely to assure compensation for materialmen may create a double payment scenario. If a subcontractor receives payment from the contractor but fails to pay his materialman, then a lien filed by the materialman may cause the contractor to pay twice for the same materials. As the court noted in Electric Supply, "forcing the claimant materialman first to give notice to the general contractor and owner places those parties in the position of being able to withhold payment to the subcontractor so as to avoid ultimately having to make a double payment." Id. at 829-30.
We find the second circuit's ruling in Electric Supply applicable to this case. Teche failed to furnish notice of nonpayment prior to filing its lien. Thus, under La.R.S. 38:2242(F), the failure to meet the notice requirements by Teche causes a "loss" of the "right to file a lien or privilege." As a result, Teche has no claim against Defendants. Therefore, the trial court erred in granting Teche's motion for summary judgment.
DECREE
For the foregoing reasons, we reverse the trial court's grant of summary judgment in favor of Teche Electric. Judgment is hereby rendered in favor of M.D. Descant dismissing Teche Electric's petition *523 with prejudice. All costs of this appeal are assessed against Teche Electric.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917885/ | 135 N.W.2d 43 (1965)
THERMORAMA, INC., Respondent,
v.
Ray SHILLER et al., Defendants,
Ray Shiller and Samco Sportswear, Inc., Relators.
No. 39656.
Supreme Court of Minnesota.
April 23, 1965.
*44 Firestone, Fink, Krawetz, Miley & O'Neill, St. Paul, for relators.
Harold J. O'Loughlin, St. Paul, for respondent.
KNUTSON, Chief Justice.
A writ of prohibition has been issued upon the application of two defendants.
Plaintiff commenced this action to recover damages for an alleged conspiracy by defendants to ruin plaintiff's business. It is plaintiff's claim that defendants were bound by an oral contract to restrict themselves to the manufacture of various garments exclusively for plaintiff; that they were given secret information under a fiduciary relationship with plaintiff; and that unbeknown to plaintiff they had conspired together to destroy plaintiff's business by setting up a *45 rival business of their own. After the commencement of the action, plaintiff moved for permission to inspect, copy, and photograph a large variety of defendants' business records. It is not necessary to detail the nature thereof in this opinion, but it is sufficient to say that they included practically all of defendants' business records. It is plaintiff's claim that it requires an examination of these records for the purpose of establishing the conspiracy. Defendants opposed the motion on the grounds that the items covered by plaintiff's discovery proceedings related mainly to damages; that plaintiff should first be compelled to establish that defendants were bound by a contract not to compete with plaintiff; and that such discovery would have no legitimate purpose in connection with the trial of the lawsuit but would only serve to give plaintiff, who is in competition with defendants, access to defendants' valuable business secrets, such as customer lists, costs, methods of manufacturing and selling, financial strength, and identity of representatives. It is defendants' position, as shown by an affidavit in opposition to the motion, that there was no restrictive agreement between plaintiff and defendants; that defendant Samco manufactured various garments for its own customers as well as for plaintiff; that it was known to the trade and to plaintiff that Samco was in such open competition; that plaintiff had never complained about defendants' distributing to other retailers; that it is common practice to represent competing concerns; that the salesmen who did the actual selling were independent manufacturer's representatives with their own customers; and that to disclose these records to plaintiff would cause irreparable harm to defendant Samco.
The motion for leave to examine these records was heard before the Honorable Ronald E. Hachey of the Ramsey County District Court on April 7, 1964. On July 16, 1964, Judge Hachey issued his order granting plaintiff's motion, stating in a short memorandum that he felt plaintiff's request was based on good cause. Defendants failed to comply with the court's order, and on July 23, 1964, the Honorable Albin S. Pearson issued an order to show cause why defendants Shiller and Samco should not be punished for contempt for failing to comply with the order of Judge Hachey. On July 30, 1964, the matter came before the Honorable Robert V. Rensch on the order to show cause. Judge Rensch found defendant Shiller in contempt of court and imposed a sentence of 30 days in jail unless he complied with the order by August 5, 1964. On August 4, 1964, a motion to stay the execution of the above order finding defendant Shiller in contempt was heard by Judge Hachey, and on August 5, 1964, he refused to vacate the order of July 16 but did stay enforcement of the order for a period of 30 days. On September 22, 1964, defendants obtained a writ of prohibition from this court restraining further proceedings relative to the enforcement of the July 16 order until the matter could be heard. In his return to the writ, Judge Hachey says that his order for production of the documents sought to be examined by plaintiff was based upon good and reasonable grounds; that defendants requested for the first time on August 4 that a finding of conspiracy be made before the production of the documents was required; and that this request was denied because he was of the opinion that the issue of conspiracy could not be separated from the issue of damages and could best be resolved by an examination of the documents.
Rule 34, Rules of Civil Procedure, provides in part:
"Upon motion of any party showing good cause therefor * * * and subject to the provisions of Rule 30.02, the court * * * may (1) order any party to produce and permit the inspection * * * of * * * documents * * * relating to any of the matters within the scope of the examination permitted by Rule 26.02 * *."
*46 Under this rule, as qualified by Rule 30.02, when a defendant is concerned about having his trade secrets discovered, he should request that the district court provide such safeguards as are necessary to protect him. In Snyker v. Snyker, 245 Minn. 405, 407, 72 N.W.2d 357, 359, we said:
"Where records and documents, which are the object of discovery and inspection procedures, contain both privileged and nonprivileged evidence, the trial court, in the exercise of a sound discretion, may permit their inspection subject to express conditions and requirements which reasonably shield and protect the person for whose benefit the privilege exists. That this may be effectively done is illustrated by the analogous cases which have arisen under Rule 34, as modified by Rule 30(b), of the Federal Rules of Civil Procedure, 28 U.S.C.A., with respect to the safeguarding of secret trade or manufacturing processes."
The court further found in that case that by limiting disclosure to a delegate of the trial judge (an accountant) the privilege was amply protected. The writ of prohibition which had been issued was discharged.
1. Normally, the trial court has a wide discretion in determining whether the discovery rules are being used by a litigant in bad faith to unreasonably annoy, embarrass, oppress, or injure a party or the witnesses, and also has a wide discretion in protecting the parties and witnesses from such abuses. Webster v. Schwartz, 249 Minn. 224, 81 N.W.2d 867; Baskerville v. Baskerville, 246 Minn. 496, 75 N.W.2d 762.
2. Rule 34 requires as a prerequisite to the issuance of an order permitting discovery that the moving party show good cause. This rule is a broad one, but it is subject to Rule 30.02, which provides that the court may make any order which justice requires to protect a party from annoyance, expense, embarrassment, or oppression.
3. Existence of "good cause" within the meaning of Rule 34 is largely a question of fact. Determination of that issue should be left to the trial court. Under the customary rule, we will not interfere with the trial court's determination unless it clearly appears that the order has no reasonable support.
4. Whether prohibition should be used to restrain the trial court from an abuse of this wide discretionary power has been the source of considerable discussion. Prohibition is an extraordinary remedy and should be used only in extraordinary cases. It will be used only in those cases where it appears that the court is about to exceed its jurisdiction or where it appears the action of the court relates to a matter that is decisive of the case; where the court has ordered the production of information clearly not discoverable and there is no adequate remedy at law; or in rare instances where it will settle a rule of practice affecting all litigants.
In Brown v. St. Paul City Ry. Co., 241 Minn. 15, 62 N.W.2d 688, 44 A.L.R.2d 535, we discussed the harshness of the rule which requires an attorney to subject himself to a finding of contempt and then appeal from the contempt order before a pretrial order can be reviewed, and we there suggested that possibly a better remedy would be to permit the use of a writ of prohibition so that the matter could be reviewed before irreparable harm had been done.
In Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, this procedure was used, and again in Boldt v. Sanders, 261 Minn. 160, 111 N.W.2d 225, we issued a writ of prohibition to review the action of the trial court but discharged the same when we determined that the trial court had not abused its discretion. However, the use in these limited areas does not mean that this court will review all pretrial orders in this manner. In Ex parte Fahey, 332 U.S. 258, 259, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, 2043, Mr. Justice Jackson, speaking *47 for the court, said with respect to the use of extraordinary writs in an area similar to this:
"Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as a substitute for appeal. As extraordinary remedies, they are reserved for really extraordinary causes."
The other resolution of the problem poses the harsh requirement that an attorney must subject himself to a contempt finding before he can obtain any relief, as we have pointed out in the cases mentioned above. Where to draw the line between these two undesirable results so as to do the least harm is a problem not easily solved. But the bar must be advised that it is only in exceptional cases that we will interfere with the trial court's action in this field. Much must be left to the exercise of a sound judicial discretion by the trial court. This court has neither the time nor the inclination to undertake a review of any other than exceptional pretrial orders prior to trial.
In this case, the trial court's order is a sweeping one, but the nature of the case is such that it undoubtedly was necessary to examine most, if not all, of the records covered by the order to get at the facts. At best, it would be difficult for the trial court, and almost impossible for us, to sift what was discoverable from what may not have been necessary for the purpose intended on the basis of the affidavits submitted in support of and in opposition to the application for relief. We are confident that, upon proper application, the trial court will provide such protective measures as may be necessary to accomplish the legitimate objects of plaintiff's search and at the same time protect such trade secrets of defendants as plaintiff ought not to be permitted to see, and to exclude such other information as plaintiff is not entitled to have.
5. When it clearly appears that all the documents a litigant wishes to examine relate only to an issue such as damages, as to which he is entitled to discovery after establishment of a prima facie case that he has a cause of action, it is not unreasonable to require the party seeking the aid of the court to make such showing before he is granted carte blanche authority to examine a competitor's business records. However, cases do arise where the issue of damages is so related to the issue of liability that they cannot be separated. The trial court felt that this was such a case, and we are inclined to agree. There being no written contract between the parties, such limited agreements as exist, if there are any, and a breach of them, can probably only be shown by the business dealings of defendants with other parties. Under these circumstances, it was within the discretion of the trial court to order an inspection of these business records. That there may be more than suspicion in some of plaintiff's claims might be evident from Thermorama, Inc. v. Buckwold, 267 Minn. 551, 125 N.W.2d 844, which involved an application for an injunction to restrain defendant, J. (Jack) Buckwold, from doing business with plaintiff's competitors.
6. Ordinarily, before discovery will be denied on the grounds that business secrets of a competitor may be disclosed, the party making such claim must also show that he is acting in good faith in refusing to permit examination of his records. In an Annotation on this subject in 17 A.L. R.2d 390, we find the following:
"Clearly, before the court will make any effort to protect trade secrets from disclosure by way of discovery or inspection, *48 it must appear that the party alleging that he will be harmed by the disclosure of such information is acting in good faith, and not merely using the claim of trade secrets as a means of avoiding legitimate disclosures."
In this case we are convinced that the matter of compelling defendants to open their business records to plaintiff, subject to such protective orders as may be necessary upon a proper application of defendants, should be left to the sound discretion of the trial court.
The writ is accordingly discharged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917888/ | 272 So.2d 333 (1973)
Johnny Beamon JENNINGS, Plaintiff-Relator,
v.
Elayn HUNT, Director, Department of Corrections, Defendant-Respondent.
No. 52810.
Supreme Court of Louisiana.
January 15, 1973.
Murphy W. Bell, Baton Rouge, for plaintiff-relator.
William J. Guste, Jr., Atty. Gen., Jack E. Yelverton, Asst. Atty. Gen., LeRoy A. Hartley, Special Counsel to Atty. Gen., for defendant-respondent.
TATE, Justice.
The narrow issue for determination before us: Is a Louisiana convict entitled to credit against his sentence for time spent confined in a mental hospital in other state, to which he had escaped and where he was captured, insofar as this *334 out-of-state confinement resulted from a detainer issued against him by Louisiana authorities based upon the sentence being served at the time of his escape. We hold he is.
The relevant facts are as follows:
The petitioner Jennings was sentenced in 1964 to serve concurrently three terms in the Louisiana State Penitentiary, the maximum of which was for nine years. He escaped on August 5, 1965 and was captured in Florida on August 10. Louisiana placed a detainer[1] against him on August 13, 1965. Florida criminal charges were at that time pending against him based on offenses committed during his brief escape.
In 1966, he was committed to the Florida State Hospital, after he had been adjudged mentally incompetent to stand trial. The Florida charges against him were subsequently nol prossed. After several efforts by Florida[2] to have Louisiana retake custody of the applicant, he was finally returned to this state on January 20, 1971.
The question before us is res nova for Louisiana. The jurisprudence from other American jurisdictions is sparse and is often based on particular state statutes. Nevertheless, the following general principles may be deduced from it:
Generally, credit for time spent while serving a sentence under a conviction in one jurisdiction will not be allowed against a sentence upon another conviction in a second jurisdiction. Annotation, Jail SentenceCredit, 18 A.L.R.2d 511 (1951), and later case service; 24B C.J.S. Criminal Law § 1995(4), at pp. 641-642; 21 Am.Jur.2d "Criminal Law", Section 140. But see People v. Martin, 3 N.Y.2d 217, 165 N.Y.S.2d 26, 144 N.E.2d 20 (1957). The basic reasoning behind this rule is that each jurisdiction's punishment must be separately satisfied by custodial confinement of the violator.
Similarly, under this principle, credit against a Louisiana sentence should not be allowed for time in custody in Florida by virtue of a contemporaneous legal pre-trial detention for Florida offenses. Nevertheless, where the out-of-state detention results solely from the sentencing state's detainer on a fugitive complaint, the defendant may be entitled to credit for time served in out-of-state detention pending extradition. People v. Havey, 11 Mich.App. 69, 160 N.W.2d 629 (1968); contra: Ex parte Tanner, 178 Cal. 792, 175 P. 81 (1918). This rule appears to be reasonable and sound.
Under the present circumstances, therefore, we hold that the petitioner is entitled to credit against his 1964 Louisiana sentences insofar as his detention in Florida between 1966 and 1971 resulted solely from the Louisiana detainer. However, insofar as the Florida custody resulted partly from detention for Florida offenses, no credit will be allowed.
If, as a result of the Louisiana sentence, the prisoner had been confined in a Louisiana mental institution, as the Florida authorities desired, the period of commitment therein by our own state law must be credited *335 against the sentence imposed by the court. La.R.S. 28:59. We see no reason why a different rule should apply when the prisoner is confined in a Florida mental institution solely as the result of a detainer placed against him because of his Louisiana sentence.
In the record before us, Florida authorities indicated a willingness to transfer the applicant to Louisiana as early as September 14, 1966. However, at that time, Florida charges were still pending against him. It was not until August 5, 1968, that the warden of the Louisiana State Penitentiary was officially informed that all Florida charges against the applicant had been dismissed or nol prossed against him, to which letter was attached photocopies of such authorizations. The Florida official wrote the Louisiana warden: "You are therefore advised that you may now take custody of this patient for return to the Louisiana State Penitentiary at Angola."
Thus, after August 5, 1968, the applicant's custodial detention in a Florida mental institution for the criminally insane resulted solely from the detainer placed against him by Louisiana authorities and Louisiana's failure to return him to our state to complete his sentence.
The trial court had dismissed the applicant's suit for credit upon the concept that he might be entitled to credit against an escape conviction, if and when it resulted, but not against the sentence(s) from which he had escaped. For the reasons above set forth, we reverse this holding.
Accordingly, the defendant Director of the Department of Corrections is hereby ordered to grant the applicant-prisoner credit upon his 1964 sentence(s) for time served from August 5, 1968 to January 20, 1971, the date upon which he was turned over to Louisiana authorities.
Reversed and rendered.
NOTES
[1] A detainer is a written request by the legal authorities of one state addressed to a penal institution of another state requesting that a detainee be held for delivery to their custody upon his release from the other state's penal institution. See 12 Words & Phrases verbo "Detainer" (1972 Cumulative Pocket part). Cf., also, Wexler and Hershey, Criminal Detainers in a Nutshell, 7 Criminal Law Bulletin 753 (1971).
[2] Letters from Florida officials to Louisiana hospital and penal authorities of September 14, 1966, January 16, 1967, January 27. 1967, February 22. 1968, August 5, 1968, August 13, 1968, and December 11, 1970. | 01-03-2023 | 10-30-2013 |
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