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https://www.courtlistener.com/api/rest/v3/opinions/1573172/ | 396 S.W.2d 539 (1965)
A. F. VOGT, Appellant,
v.
Charles B. JONES, Appellee.
No. 16666.
Court of Civil Appeals of Texas, Fort Worth.
October 15, 1965.
Pannell, Hooper, Steves & Kerry, and Winfred Hooper, Jr., Fort Worth, for appellant.
Garrett & Garrett, and Rufus Garrett, Jr., Fort Worth, for appellee.
MASSEY, Chief Justice.
By this appeal A. F. Vogt complains because he was unsuccessful in obtaining judgment sought below against Charles B. Jones. It was from a take nothing judgment that he appealed.
Judgment affirmed.
The cause of action sued upon was actually one which in many respects would be proper to consider as though it was a suit by the Tarrant County Water Control and Improvement District No. 1, hereinafter referred to as to the Water District. The Water District had entered into a dirt removal and construction contract with Jones, whereby the latter as "dirt contractor" obligated himself to perform certain earthenwork activities, on land acquired by the Water District pursuant to preparation of an "overflow spillway" at Eagle Mountain Lake.
In another contract, upon valid consideration entered into between the Water District and Vogt, the former purportedly assigned, unimpaired, to Vogt its rights existent in the contingent provision for the payment of liquidated damages in the event *540 Jones failed to complete certain work with-in a specified time. Neither party to this assignment contract placed Jones on notice of the fact thereof until after the occurrence of the events upon which Vogt predicated his suit against Jones.
We believe that the law applicable to the situation posed by the appeal is well stated in Restatement of the Law, Contracts, Ch. 7, "Assignment of Rights and Delegation of Duties or Conditions", Sec. 167, "Defenses and Set-offs to Which an Assignee's Right Is Subject", as follows:
"(1) An assignee's right against the obligor is subject to all limitations of the obligee's right, to all absolute and temporary defenses thereto, and to all set-offs and counterclaims of the obligor which would have been available against the obligee had there been no assignment, provided that such defenses and set-offs are based on facts existing at the time of the assignment, or are based on facts arising thereafter prior to knowledge of the assignment by the obligor."
The liquidated damages for which the contract provided were to become due and owing by Jones to the Water District in the event the work in completion of Phase One of the entire contract was not fully performed by a certain date. In proceeding to discharge his duties under his contract with the Water District, Jones at all times treated it as the sole obligee. The delay in completion of Phase One was by agreement with the very individual or official designated by the Water District to have authority to authorize delays; indeed the delay was caused and occasioned upon the direction and recommendation of such person. He directed that Jones give priority to work under another phase of the total work project contemplated by the contract, leaving undone a material act of performance necessarily incident to conclude Phase One until the very last part of the performance period specified by the entire contract, as amended and extended.
Since the Water District was itself responsible for the delay in Jones' completion of Phase One of the contract it would, of course, be unable to impose the liability for any payment of liquidated damages on account of the delay. As assignee Vogt would likewise be unable to impose such liability on Jones. See Connell Construction Co. v. Phil Dor Plaza Corporation, 158 Tex. 262, 310 S.W.2d 311 (1958); 152 A.L. R. 1349, Anno.: "Liability of building or construction contractor for liquidated damages for breach of time limit where work is delayed by contractee or third person".
By his point of error No. 6 Vogt complains and asserts error in the conduct of the trial in that the court, over objection, admitted such evidence establishing Jones' excuse for his delay in completing Phase One. Trial was before the court without a jury. It is true that Jones went to trial on a general denial, only. Vogt contends that the evidence should not have been received on trial, nor considered in support of the judgment, because predicate therefor was not founded in Jones' pleadings.
The record fails to support point of error No. 6. The objection to which Vogt refers had relation to testimony concerning action taken by Jones upon the request of Vogt. There was no evidence that said action extended the time necessary to perform the whole or any part of the construction contract. There is evidence, unchallenged, that it would have shortened the period necessary to complete the work. We hold that the objection did not extend to the evidence in the record which established that the delay of which Vogt complains was caused and occasioned by the individual or official designated to have authority to authorize such. There was no objection interposed when such evidence was tendered by Jones. The "running bill of exceptions" given Vogt when Jones was allowed to introduce evidence upon action taken at Vogt's request did not extend to and include action occasioned by anyone other than Vogt. The point of error is overruled.
*541 Other points of error are advanced. However, whether overruled or sustained none could have the effect of requiring reversal of the judgment below. The points are overruled as immaterial to the appeal.
Judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584905/ | 187 P.3d 219 (2008)
344 Or. 558
SMITH
v.
BLACKETTER.
No. (S055751).
Supreme Court of Oregon.
May 29, 2008.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573511/ | 396 S.W.2d 115 (1965)
Lathern C. DORSETT, Appellant,
v.
The STATE of Texas, Appellee.
No. 38683.
Court of Criminal Appeals of Texas.
November 24, 1965.
Weldon Holcomb, Tyler, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for the subsequent offense of drunken driving; the punishment, sixty days in jail and a fine of $100.
The state's evidence shows that while driving his automobile at a high rate of speed on a public street in the city of Tyler, appellant overturned at an intersection and his vehicle came to rest upside down.
Officers Richardson and Beck proceeded to the location to investigate the wreck and observed appellant at the scene. In describing appellant's actions and appearance at the time, Officer Richardson testified that he had the smell of alcohol on his breath, his eyes were glassy, his speech was slurred, and he staggered when he walked. The officer expressed his opinion that appellant was under the influence of intoxicating liquor at such time.
The officer also stated that after he took appellant to the hospital, a blood sample was taken from him, with his consent. The specimen was put in a vial, which was sealed and placed in a container. He testified that he then gave the container to the dispatcher to be mailed.
At the trial, Officer Richardson identified state's exhibit #1 as a container, with his handwriting thereon, which held a vial containing a blood sample sent to the state laboratory in Dallas.
Chemist and toxicologist George Brown, of the Department of Public Safety, testified that he received a specimen of blood belonging to appellant from Officer Richardson, of the Tyler police department; that the specimen was in a vial in a sealed container; that he broke the seal on both the container and the vial and examined the blood specimen for its alcoholic content. He stated that the results of his analysis disclosed that the specimen contained 0.27% alcohol by weight and that in his opinion the person from whom the specimen was taken was intoxicated at the time.
*116 Both the container and the vial were offered in evidence by the state as exhibits #1 and #1-A. No objection was made by appellant to the exhibits on the ground that the blood specimen had not been properly identified or traced, and appellant is in no position to now urge such an objection on appeal.
State's exhibits #2, 3, and 4, being the complaint, information, and judgment in Cause No. 11,422, styled The State of Texas vs. Lathern Dorsett on the docket of the County Court of Smith County, were introduced in evidence and showed that on May 14, 1954, the defendant therein was convicted of the misdemeanor offense of driving while intoxicated. Proof was made that such judgment was final, the same having been appealed to this court and affirmed, as reformed, with the issuance of mandate on January 5, 1955.
Certain records of the Drivers' License Division of the Department of Public Safety were introduced in evidence, showing the issuance of a Texas operator's license, #3396358, to Lathern Dorsett, on June 18, 1951, describing him as a "White male; blue eyes; blond hair; 165 pounds; 5' 10''; born June 2, 1929," and listing his address as 1307 West Cochran, Tyler, Texas.
The records introduced further showed that on May 14, 1954, Lathern Dorsett, the holder of such license, was convicted in the County Court of Smith County, in Cause No. 11,422, of the offense of driving while intoxicated.
Appellant did not testify, but called as a witness Officer Beck, the other investigating officer who went to the scene.
Officer Beck testified that in his opinion appellant's "physical ability" at the time was normal, but on cross-examination he stated that he meant that appellant had no physical defects, and expressed the opinion that he was then intoxicated.
We overrule appellant's contention that the evidence is insufficient to sustain the judgment of conviction because the driver's license record introduced in evidence was insufficient to identify him as the person previously convicted of the misdemeanor offense of drunken driving.
Similar proof has been held sufficient where the jury has the opportunity to observe the accused and determine by comparison with the description in the record whether he is the same person previously convicted. See: Jean v. State, 172 Tex.Cr. R. 518, 360 S.W.2d 148, and cases there cited.
Hightower v. State, Tex.Cr.App., 389 S.W.2d 674, relied upon by appellant, is not here controlling, under the facts.
The judgment is affirmed.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573277/ | 553 F.Supp. 235 (1982)
A.C. BANGERT, Plaintiff,
v.
James W. HARRIS and William H. Proctor, Defendants.
Civ. A. No. 82-0629.
United States District Court, M.D. Pennsylvania.
December 14, 1982.
*236 A.C. Bangert, pro se.
William G. Baughman, Markowitz & Seidensticker, P.C., York, Pa., for defendant Harris.
Harold K. Fitzkee, Jr., York, Pa., for defendant Proctor.
MEMORANDUM
CALDWELL, District Judge.
I. Background
Before us are the following related motions in this diversity action brought pursuant to 28 U.S.C. § 1332: defendant Harris' motions to dismiss and for a more specific pleading, plaintiff's motion to strike, and defendant Proctor's motions for an extension of time and to join in defendant Harris' motion. Plaintiff, proceeding pro se, filed his amended complaint on June 11, 1982 pursuant to the court's order and memorandum of June 3, 1982. Service on Proctor occurred on June 24 and on Harris, on June 29. Essentially plaintiff's cause of action is for breach of contract and negligence by defendants, whom plaintiff contends he retained as his attorneys in suits brought in the United States District Court for the Southern District of New York and the District of Connecticut and the Court of Common Pleas, York County, Pennsylvania. Plaintiff has also sought redress for emotional distress, which claims we shall address hereinafter.
Defendant Harris' motions to dismiss and for a more specific pleading were filed on July 16, 1982, together with a supporting memorandum. On August 5 plaintiff filed a motion to strike Harris' motions. Plaintiff also filed on the same date a document that purported to be a brief but which actually raised only trivialities.[1] Harris filed a timely brief in opposition, and we are persuaded that plaintiff is not entitled to the relief he seeks, particularly in light of defendant Harris' immediate filing of amended motions on August 9 and of plaintiff's noncompliance with the mandate of Local Rule 401.1 regarding certification of concurrence or nonconcurrence.[2] Harris' motions, therefore, remain before us for consideration.
II. Defendant Proctor's Motions
Before addressing the merits of these motions, however, we turn to the issue of whether defendant Proctor will be permitted to join in them. Proctor moved for an extension of time pursuant to Federal Rule of Civil Procedure 6(b)(2) after plaintiff had requested entry of a default. The "excusable neglect" showing was sufficient to permit an extension since it appears that originally Proctor had expected Harris' counsel to represent both defendants. Furthermore, plaintiff has filed no opposition and pursuant to Local Rule 401.7, Proctor's motion is deemed unopposed. It is unnecessary to delineate the amount of time for which the extension is granted since Proctor has already filed a motion and memorandum to join Harris' motions. In fact the extension motion was discussed at the pretrial discovery conference held on October 15, 1982, and was at least informally granted. Although Proctor's counsel should have acted more promptly in filing his motion (filed November 15, 1982) to join in Harris' motions, no deadline was established by the court at the conference. Our accompanying order, however, establishes clear and compulsory deadlines for further proceedings in this case.
*237 On December 3, 1982, plaintiff filed combined motions to strike Proctor's motion and for entry of a default judgment. The motions are untimely since opposition to Proctor's extension motion and memorandum of October 6, 1982, would have been due in fifteen (15) days pursuant to Local Rule 401.6. Plaintiff cannot now resurrect matters he failed to oppose earlier, and a default will not be entered.
Although plaintiff appears to be attempting to oppose the motion of Proctor filed on November 25 (rather than November 11 as plaintiff states) as untimely, such opposition is directed largely to Proctor's failure to attach to the motion a copy of defendant Harris' amended motion and memorandum of August 9, 1982. We know of no requirement for doing so.[3] Also plaintiff has completely misread Federal Rule of Civil Procedure 11 as requiring counsel to read and understand another party's pleading. Although a desirable practice, it is not within the ambit of Rule 11, which addresses the responsibilities attendant to signing one's own pleadings.
Under the circumstances and in view of the considerable delay already occasioned in this case, we are permitting Proctor to join in Harris' motions to dismiss and for a more definite statement. In the interest of fairness to plaintiff, however, who has not been responsible for the lack of expeditiousness, we are excusing his failure to file a proper opposing brief (see n. 1 supra and accompanying text) and will consider the motions on their merits rather than deeming as unopposed all parts of those motions which plaintiff has failed to address. Were we to follow the latter course of action, the motions would be granted in their entirety.
III. The Complaint and Motions to Dismiss and for a More Definite Statement
The motions we now address are grounded in the following issues: whether plaintiff has set forth claims upon which relief can be granted and whether recovery of treble damages and exemplary damages is proper under applicable Pennsylvania law. Plaintiff's complaint consists of seven counts. Counts I, II, and III are directed to the representation of plaintiff by defendants in the federal court civil action filed in New York. Count I alleges breach of contract; Count II alleges "intentional legal malpractice;" and Count III alleges "vindictive and intentional infliction of mental distress." Count IV is a breach of contract claim with respect to the federal court civil action filed in Connecticut. Counts V, VI, and VII are directed to the Pennsylvania county court action. The counts are essentially identical to Counts I, II, and III.
IV. The Legal Malpractice Claims
Defendants have moved to dismiss Counts II and VI in their entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Their motion is based on the failure of Pennsylvania law to recognize "intentional legal malpractice" as a cause of action. (emphasis supplied) Although defendants are technically correct, it certainly cannot be argued that malpractice by attorneys, whether intentional or negligent, has provided anything but fertile ground for litigation for many years.[4] Our research has shown that negligent conduct is generally alleged by clients seeking redress for malpractice. It logically follows, however, that if a client alleges intentional actions by an attorney, which actions are not in the client's best interest and which the attorney knows or should know are not, the client may sue the wrongdoer. To argue that negligent conduct has a remedy but that intentional conduct does not is illogical and incorrect.
*238 The case of Schenkel v. Monheit, 266 Pa. Super. 396, 405 A.2d 493, 494 (1979), quoting R. Mallen & V. Levit, Legal Malpractice 123 (1977) listed the three essential elements for a professional negligence action.
1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.
It is obvious from plaintiff's complaint that he is alleging conduct by defendants that injured plaintiff while defendants were under a duty to protect plaintiff's interests. In fact, paragraphs 15 and 16 of Count II and paragraphs 56 and 57 of Count VI address actions defendants "neglected" to take on plaintiff's behalf. The complaint concededly could have been more artfully drafted, but plaintiff is proceeding pro se and his status compels us to exercise leniency. Moreover, were we to follow defendants' suggestions and dismiss a layman's malpractice claim simply because he chose to use the word "intentional," we would be thwarting the mandate of Rule 8(f) that "[a]ll pleadings shall be so construed as to do substantial justice." Accordingly, defendants' motion to dismiss these counts is denied.
V. The Intentional Infliction of Mental Distress Claims
Turning to Counts III and VII, claiming "intentional infliction of mental distress," we find, that although this appears to be a tort claim cognizable under Pennsylvania law through Restatement (Second) of Torts, § 46, plaintiff must be mindful of the heavy burden he bears of showing that the conduct of defendants was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir.1979), quoting Restatement (Second) of Torts, § 46, comment d. Furthermore, it is the province of the court to determine initially "whether there is sufficient evidence for reasonable persons to find extreme or outrageous conduct," id., and, if not, to withhold the issue from consideration by the jury.
The cases examining this tort have looked for four essential elements: (1) extreme and outrageous conduct (2) that is intentional and reckless (3) and causes emotional distress (4) that is severe. See, e.g., Chuy, supra; Kutner v. Eastern Airlines, Inc., 514 F.Supp. 553 (E.D.Pa.1981); Martin v. Municipal Publications, 510 F.Supp. 255 (E.D. Pa.1981); Curran v. Dural, 512 F.Supp. 699 (E.D.Pa.1981). Defendants have asked us either to dismiss Counts III and VII or to require plaintiff to plead more specifically. As authority they have cited the old case of Parsons Trading Co. v. Dohan, 312 Pa. 464, 167 A. 310 (1933) and Federal Rule of Civil Procedure 9(g), which provides, "When items of special damage are claimed, they shall be specifically stated."
We find defendants' position unpersuasive. As the court in Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (3d Cir.1979), noted in reversing a dismissal by the district court in a malicious prosecution and defamation action, considerable latitude and liberal opportunity for amendments should be accorded to avoid dismissal for failure to comply with Rule 9(g). The dismissal motion is, therefore, denied.
The alternative motion of defendants for a more definite statement under Rule 12(e) is likewise denied pursuant to the rationale in North Carolina Mut. Life Ins. Co. v. Plymouth Mut. Life Ins. Co., 266 F.Supp. 231 (E.D.Pa.1967). In that case part of plaintiff's claim was for damages to its reputation and present and future business relationships and defendant moved for a more definite statement. Among its reasons for denying defendant's motion, the court listed the accessibility of more details through discovery and depositions and the fact that the complaint was not so vague as to preclude defendant from framing a response thereto. Our review of Counts III and VII of the present complaint indicates that defendants can file an answer, and our *239 accompanying order sets forth the requirements for doing so.
VI. The Exemplary Damages Claims
We turn now to defendants' contentions with regard to dismissal of the claims for exemplary damages, which plaintiff has included in all counts of the complaint. As we have previously noted, Counts I, IV, and V are based on breach of contract, and it has long been the general rule in Pennsylvania that exemplary, or punitive damages are not recoverable for breach of contract because "the motive for breaching a contract is not important and ... the recovery would be restricted to the damages caused by the breach itself." Mellon Bank, N.A. v. Aetna Business Credit Inc., 500 F.Supp. 1312, 1321 (W.D.Pa.1980), citing Pittsburgh C. & St. L. Railway Co., 123 Pa. 140, 150, 16 A. 607 (1888), wherein the court held that the measure of damages would be the same regardless of whether the breach was through inability or willful refusal to perform. See also Culbreth v. Simone, 511 F.Supp. 906, 915 (E.D.Pa.1981). In accordance with applicable law, therefore, the exemplary damages claims in Counts I, IV, and V are dismissed.
Plaintiff has also claimed exemplary damages in the malpractice (Counts II and VI) and emotional distress (Counts III and VII) claims. Defendants have moved to dismiss on the basis that the conduct of the defendants/attorneys in the present action could not support an award of punitive damages. They have pointed to Medvecz v. Choi, 569 F.2d 1221 (3d Cir.1977), a medical malpractice action, as authority that "mere negligence" is not sufficient to warrant such damages.
A reading of Medvecz, however, convinces us that these damages ought not to be dismissed from the present case at this time. Pennsylvania has adopted the Restatement (Second) of Torts § 908, which sets forth a punitive damages standard of "outrageous conduct" or "acts done with a bad motive or with a reckless indifference to the interests of others." The Medvecz court provides a thorough survey of the law and points out that the Restatement makes no exception for medical malpractice cases with regard to punitive damages. Moreover, it discusses several cases from other jurisdictions in which the "reckless indifference" standard has been applied.
More recently, in Berroyer v. Hertz, 672 F.2d 334 (3d Cir.1982), another medical malpractice case, a dentist successfully appealed a sizable punitive damages award when the court found insufficient support for submission of an exemplary damages interrogatory to the jury. Because the determination on whether to submit consideration of such damages to the jury is for the court, see e.g., Focht v. Rabada, 217 Pa.Super. 35, 38, 268 A.2d 157, 159 (1970), we cannot now determine this matter. At the time of trial, Counts II, III, VI, and VII will be re-examined in this regard, but at the present time, defendants' motions to dismiss the exemplary damages claims therein must be denied.
VII. The Treble Damages Claims
All seven counts of plaintiff's complaint set forth treble damages claims. These claims must be dismissed in that there is no statutory authority therefor. It is true that in certain instances treble damages may be assessed under Pennsylvania law. See, e.g., 32 P.S. § 512 (conversion of logs adrift in named rivers); 68 P.S. § 250.311 (tenants' unlawful removal of personal property distrained upon by landlord for rent). However, the cases addressing such damages hold that express authorization by statute is mandatory for such recovery. See, e.g., Goldberg v. Friedrich, 279 Pa. 572, 124 A. 186 (1924); Hughes v. Stevens, 36 Pa. 320 (1860). Plaintiff has cited no statutory basis for his claims and our research has disclosed none. Therefore, these claims are dismissed.
ORDER
AND NOW, this 14th day of December, 1982, IT IS HEREBY ORDERED THAT:
1. Defendant Proctor's motions for an extension of time and to join in defendant Harris' motions to dismiss and for a more definite statement are granted.
*240 2. Plaintiff's motions to strike, filed on August 5 and December 3, 1982, are denied. Counsel for defendants need not submit briefs on the latter motion if they have not done so.
3. Plaintiff's request for entry of default (submitted as part of his aforesaid December 3 motion to strike) is denied.
4. Defendants' combined motions to dismiss and for a more specific pleading are disposed of as follows:
a. The motion to dismiss counts II and VI (legal malpractice claims) of the complaint is denied.
b. The motion to dismiss counts III and VII (intentional infliction of mental distress claims) of the complaint is denied.
c. The motion for a more definite statement of counts III and VII is denied.
d. The motion to dismiss the exemplary damages claims in counts I, IV, and V (breach of contract claims) of the complaint is granted.
e. The motion to dismiss the exemplary damages claims in all remaining counts (II, III, VI, and VII) of the complaint is denied.
f. The motion to dismiss the treble damages claims from all seven counts of the complaint is granted.
5. Defendants are directed to file a responsive pleading within thirteen (13) days of the date of this order pursuant to Federal Rules of Civil Procedure 12(a)(1) and 6(e).
6. Failure to comply strictly with the time limit set forth in paragraph 5 shall result in entry of a default against the offending party(ies).
7. Failure to comply strictly with paragraph 5 and in the future with all provisions of the Federal and Local Rules shall result in the imposition of appropriate sanctions, including, but not limited to, those in Local Rule 119.
NOTES
[1] One was a typographical error in defendant's motions wherein the word "plaintiff" was consistently and erroneously substituted for the word "defendant" in the prayers for relief. Another was defendant's statement that plaintiff had been represented in patent infringement suits. We believe these were copyright cases, but plaintiff's amended complaint does not say.
[2] Moreover, a letter from Harris' attorney attached to Harris' amended motions and also Harris' reply brief indicate that plaintiff had agreed by phone to permit amended motions to be filed and that his motion to strike was in direct violation of that agreement. If counsel is accurate in his representations, this conduct is not encouraged by the court.
[3] We note that Proctor's motion indicates that these documents were attached, when in reality they were not. This oversight by counsel, although careless, is of little import in view of the fact that the documents are in the official file and plaintiff was served with copies long before the date of Proctor's current motion.
[4] A comprehensive survey of the case law dating back to 1834 appears in Duke & Company v. Anderson, 275 Pa.Super. 65, 418 A.2d 613 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573288/ | 396 S.W.2d 876 (1965)
Lee Bradford SMITH, Appellant
v.
The STATE of Texas, Appellee.
No. 38508.
Court of Criminal Appeals of Texas.
November 3, 1965.
Rehearing Denied December 15, 1965.
*877 Herschel B. Cashin, Galveston, for appellant.
Jules Damiani, Jr., Dist. Atty., Thomas L. Douvry, Asst. Dist. Atty., Galveston, and Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is an unlawful sale of heroin with a prior conviction of possession of narcotics alleged for enhancement; the punishment, life.
In view of our disposition of this case a recitation of the facts is not deemed necessary other than that which follows. Federal Narcotic Agent Merriweather testified that he had worked in the Houston area for some two years prior to the transaction in question as an undercover agent buying narcotics and that seven dollars a capsule would be a normal price to pay for a capsule of heroin in that area. He further testified that appellant sold him heroin capsules, charging him seven dollars per capsule on the day charged in the indictment. The District Attorney, testifying in the absence of the jury, said that the appellant had been to visit the "people" in the District Attorney's office on several occasions and was obviously a "friend" of theirs.
Appellant, testifying in his own behalf, stated that Merriweather identified himself as a narcotic agent and asked him to make a "buy" from one Clark in order to make a case against Clark. He stated that Merriweather exhibited his credentials and told him that Sheriff Kline had said that appellant would help him make out some narcotics cases. Appellant further stated "when I saw him with George Reyna I knew he was the law," and that he bought the narcotics from Clark paying him $7.00 for each capsule and received no profit from either Clark or Merriweather.
In the face of this testimony the Court declined to grant the following requested charge to which refusal appellant excepted:
"If the defendant was in no way interested in behalf of the seller but acted only as agent of Ronald B. Merriweather in procuring heroin from another, or if you have reasonable doubt thereof, you must find the defendant `not guilty', and so state in your verdict."
This question has been before this Court many times, the latest being Durham *878 v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737, and Townsel v. State, 162 Tex.Cr.R. 433, 286 S.W.2d 162. The rule there expressed is that "If an accused is in no way interested in behalf of the seller but acts only as an agent of the prosecutor he is not guilty of making a sale." The jury should have been given the requested charge or one of like import, and the Court's failure to grant his request constitutes reversible error.
For the error assigned, the judgment is reversed and the cause is remanded.
ON STATE'S MOTION FOR REHEARING
WOODLEY, Judge.
By brief and oral argument counsel for the state urges that, in view of the definition of "sale" in Section 1 (10) of the Uniform Narcotic Drugs Act (art. 725b Vernon's Ann.P.C.) the Durham decision is unsound and should be overruled, the definition being: "`Sale' includes barter, exchange, or gift, or offer therefor, and, each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee."
The state cites the case of People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578, 579, wherein the Supreme Court of Illinois expressed the opinion that such definition "shows a legislative intent that the act of a person whether as agent, either for the seller or the purchaser, or as a go-between in such a transaction constitutes a sale."
People v. Shannon has been cited with approval in other Illinois cases and by the New Jersey Supreme Court in State v. Weissman, 73 N.J.Super. 274, 179 A.2d 748, 93 A.L.R.2d 1001.
On the other hand, the holding of this Court in Durham v. State is supported by the following decisions of the courts of the State of New York:
People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427, affirmed 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492; People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535; People v. Buster, 286 App.Div. 1141, 145 N.Y.S.2d 437; and the recent case of People v. Fortes, 24 A.D.2d 428, 260 N.Y.S. 2d 716 (June 1965) where it was held that it was error not to charge as requested and submit to the jury as an issue of fact whether defendant sold the heroin to the complaining witness or was acting at her request and solely as her agent in acquiring the heroin.
The New York cases cited hold that one who acts solely as agent of the buyer cannot be convicted of crime of selling narcotics, and where it clearly appeared that the defendant in the purchase of narcotics acted as agent for a police officer who had disguised his identity: is in no way associated with the seller in a common scheme or plan, and received no financial profit from the single sale, he is not guilty of the offense of selling narcotic drugs.
All the cases above cited are from courts of states that have adopted the Uniform Narcotic Drugs Act which contains the above quoted definition of "sale".
Though the Illinois Courts have expressed such view, we have found no case where an agent of the purchasing officer who was in no way connected with the seller, and received no profit, has been finally convicted of the offense of sale of a narcotic drug to said officer.
We think that the New York cases and the Durham case are correct and reject the view that one who acts only as an agent, servant or employee of a law enforcement officer in the purchase of narcotic drugs for evidence purposes, and who is in no way connected or associated with the seller and receives no financial profit from the single sale, can be guilty of selling the narcotic drugs when the law enforcement officer is not.
See United States v. Sawyer, 3 Cir., 210 F.2d 169; United States v. Moses, 3 Cir., 220 F.2d 166.
*879 Cases from 5th Circuit Court are to the effect that in the Federal Courts the question is "whether the accused acted as a participant in the sale on behalf of the buyer or on behalf of the seller." Jackson v. United States, 5 Cir., 311 F.2d 686; Henderson v. United States, 5 Cir., 261 F.2d 909; Coronado v. United States, 5 Cir., 266 F.2d 719.
We are unable to distinguish this case from Durham v. State, supra.
People v. Fortes, supra, is further authority for our holding on original submission that the trial court erred in failing to submit to the jury the defense raised by appellant's testimony.
The state's motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917958/ | 135 N.W.2d 12 (1965)
178 Neb. 715
Ernest BIERSCHENK et al., Appellants,
v.
The CITY OF OMAHA, Nebraska, a Municipal Corporation of the metropolitan class et al., Appellees.
No. 35814.
Supreme Court of Nebraska.
May 7, 1965.
*13 Shrout, Hanley, Nestle & Corrigan, Omaha, for appellants.
Herbert M. Fitle, City Atty., Edward M. Stein, Frederick A. Brown, Sebastian J. Todero, Walter J. Matejka, James E. Fellows, Omaha, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.
BROWER, Justice.
The appellants, Ernest Bierschenk and 11 other resident landowners and taxpayers in the area affected, as plaintiffs, brought this action on behalf of themselves and those similarly situated. Its purpose was to enjoin the City of Omaha, Nebraska, a municipal corporation, hereinafter referred to as the city, its mayor, council, and other officers who were joined with it as defendants and who are appellees in this court, from enforcing ordinance No. 22649 of said city by which a large portion of an area known as Keystone and Benson Gardens was annexed to the city.
On appropriate pleadings to raise the issues hereinafter discussed, a trial was held in the district court for Douglas County, Nebraska. The trial court found in favor of the defendants that the annexation was valid and dismissed the plaintiffs' petition. The plaintiffs have appealed to this court from an order overruling their motion for a new trial.
Plaintiffs first contend that the area involved included agricultural land rural in nature and that the trial court erred in holding to the contrary which they urge requires a reversal of the judgment. The statute governing the annexation of territory by a city of the metropolitan class is section 14-117, R.R.S.1943, the pertinent portion of which reads: "The corporate limits of any city of the metropolitan class shall be fixed and determined by the council of such city by ordinance. The city council of any metropolitan city may at any time extend the corporate limits of such city over any lands, lots, tracts, street or highway, such distance as may be deemed proper in any direction * * *; Provided, that any other laws and limitations defining the boundaries of cities or villages or the increase of area or extension of limits thereof, shall not apply to lots, lands, cities or villages annexed, consolidated or merged under this section. This grant of power shall not be construed as conferring power upon the council to extend the limits of a metropolitan city over any agricultural lands which are rural in character." In the case of Wagner v. City of Omaha, 156 Neb. 163, 55 N.W.2d 490, this court considered *14 this section and held: "Annexation of territory by a metropolitan city pursuant to section 14-117, R.S.1943, is a legislative matter. However, courts have the power to inquire into and determine whether the conditions exist which authorize the annexation thereof.
"In doing so it is not for the courts to determine what portions may be properly annexed, for the fixing of boundary lines under this authority is a legislative act.
"Constitutional and statutory limitations on the nature and extent of the territory which may be annexed to a municipal corporation must be observed. * * *
"A municipal corporation or its corporate authorities have no power to extend its boundaries otherwise than provided for by legislative enactment or constitutional provision. Such power may be validly delegated to municipal corporations by the legislature and when so conferred must be exercised in strict accord with the statute conferring it.
"The burden is on one who attacks an ordinance, valid on its face and enacted under lawful authority, to prove facts to establish its invalidity."
From the testimony it appears that the area annexed by the ordinance included 727 acres of which 118 acres were in streets and roads; 26 acres were occupied by parks, schools, churches, and public grounds; 28 acres were industrial; and 3 acres were commercial. There were 1,218 residences built on an area of 446 acres. The remaining portion was in scattered lots which had no buildings upon them. The whole area had been platted with the exception of one tract of 5 acres zoned commercially with a filling station thereon. Much of it thereafter had been replatted or subdivided, often repeatedly. The lots in the various plats and subdivisions varied greatly in size. Those to the northern part of the annexed area were generally smaller and a greater percentage of these had residences upon them. Midway from north to south was that called the Keystone Addition where the lots were much larger. The area of these varied from about 1 acre to as much as 6 acres. Some of the owners had sold off portions of the larger lots. Near Blondo Street on the south, the lots were again smaller although often larger than those on the north end. The greater portion of the commercial and industrial zoned lots were on the south near Blondo Street. The area was supplied with water by the Metropolitan Utilities District, a separate entity. Electric, gas, and sewer lines having connections with those in the city ran through the district. Certain streets were extensions of those in the city. Most of the streets and utilities had been planned and zoned in conformity with the ordinances of the city pursuant to its power to make regulations applying to lands within 3 miles of the corporate limits. Considerable growth, particularly residential in nature, was shown in the area.
Several witnesses for the plaintiffs testified concerning the use of premises claimed by them to be agricultural lands rural in nature. There was evidence concerning flower and vegetable gardens, orchards, vineyards, and pastures maintained by residents on lots in the area itself and adjoining it. Pictures of ponies kept for children and riding horses pastured in enclosures were introduced. One resident had fed two or three steers at times on his premises although they were pastured elsewhere the year before he testified. Another raised hogs on his lots. Some corn was raised for feed although most of it was sweet corn. Certain persons had 5 acres in corn or produce but, generally speaking, this consisted of the sum of several small tracts added together and often portions lay outside the annexed area. Most of the vegetables and fruit raised and cattle and hogs fed were consumed by the producer or his family. Produce not consumed was generally given away to relatives or friends. Little was sold and the sums received for it were always quite small and when related *15 to the owner's other income was trifling. Many witnesses who were retired had been engaged in commercial enterprises within the city. Widows testified their husbands had been so employed in their lifetime. The witnesses not retired were generally engaged in commercial pursuits in the city. No one appears to have depended upon agriculture for his or her living. Several witnesses testified that they purchased their holdings because they liked spacious living. Photographs of some premises claimed to be used agriculturally have spacious grounds and beautiful wooded areas. The buildings adapted for livestock were practically all small, old, and dilapidated. None showed corncribs, granaries, or other modern agricultural facilities.
This court in Wagner v. City of Omaha, supra, affirmed the judgment of the trial court which had adjudged the annexation ordinance to be void. The cases are clearly distinguishable. In the cited case there were two tracts containing between 90 and 103 acres of unplatted agricultural lands out of 490 sought to be annexed. The court in its opinion in that case stated: "`Rural' means of or pertaining to the country as distinguished from a city or town, whereas `urban' means of or belonging to a city or town. In many of the cities and villages throughout the state there are tracts which are only partially developed as residential areas wherein substantial parts of the land are used for agricultural purposes but which tracts are, in fact, urban in character. It was clearly not the intention of the Legislature, if such an area develops outside the boundaries of a metropolitan city, to prevent such city from annexing it. It was, however, the purpose of the act to prevent annexation by such city of agricultural areas which are rural in character." From the evidence it appears that although a part of the area may be used agriculturally, it is certainly not rural in nature. The plaintiffs' contention that the trial court erred in not holding the annexed area included agricultural lands rural in nature is without merit.
Plaintiffs next contend the trial court erred in finding the land annexed was sufficiently connected to or contiguous with the city limits to permit its annexation. They place great emphasis on the irregularity of the boundaries of the area and the narrow neck with which the greater portion of it is connected to the city. There are 132 different calls of metes and bounds in the description. As viewed on the plats in evidence the outline of the border is indeed grotesque. From Blondo Street on the south where it joins the city limits to Fort Street on its north is practically 2 miles. On the south it is about 800 feet wide east and west. Further north its breadth narrows to 460 feet, again widens, and some distance further north it is a neck of only 252 feet. Still further north it is 2,950 feet wide. Testimony on behalf of the city in explanation of the odd shape of the area to be annexed indicates that the growth of the city in many instances extended on ridges and spurs. There is testimony concerning the plats introduced in evidence and the plats themselves which show that the narrow necks in portions of the annexed area were along a street of some importance which connected the city to the more thickly populated area to the north and that along this street even at its narrowest point were houses.
In Wagner v. City of Omaha, supra, the question presently before us was discussed as follows: "Appellees contend this question should be, is the area sought to be annexed sufficiently conterminous or adjoining to the city that it can extend its limits over it? The authority granted to the city by section 14-117, R.S.1943, is: `The city council * * * may at any time extend the corporate limits of such city over any lands, lots, tracts, street or highway, such distance as may be deemed proper in any direction, * * *.' It will be observed that the act contains neither the word contiguous or conterminous in relation to what lands, lots, tracts, street or highway the city may extend its boundaries to include. The city's present boundary joins the area *16 sought to be annexed on the north and partially on the west of the northern part. We find the area sufficiently joins the city so that it could properly extend its boundaries to include the area, provided the nature thereof is of such character that the city has the authority to do so." Plaintiffs cite Village of Niobrara v. Tichy, 158 Neb. 517, 63 N.W.2d 867, where this court reversed the judgment of the trial court permitting annexation because the area was not contiguous to the city. There no proof of any contiguity of boundary at all was shown and, moreover, the court was construing section 17-407, R.R.S.1943, applicable to cities of the second class and villages where the statute expressly requires contiguity. The cited case has no application to the one before us.
The plaintiffs cite cases from other jurisdictions which we have noted and need not discuss because of the difference either in the factual situation or the statute which they construe. The defendants, on the other hand, call our attention to 2 McQuillin, Municipal Corporations (3d Ed.), s. 7.20, p. 312, where examples are set out of annexation cases approved by other courts where the area annexed is joined to the city by a very narrow strip. These cases also need not be considered. It is only necessary to determine that under section 14-117, R.R.S.1943, a city of the metropolitan class may annex an area by extending its boundaries to form a common one with the portion annexed if the area so attached is urban in nature and is connected to the city by a substantial link of narrower land of the same character.
The plaintiffs contend that the court erred in permitting the annexation because the boundaries of the parcel involved are so irregular as to prevent the city from providing adequate services to the area involved. It is pointed out that there are so many corners and turns that it is possible for one going in a straight line to enter, leave, reenter, and again leave the premises involved in a very short distance. Plaintiffs argue the city fire or police departments would experience great difficulty in answering calls from any location along these borders in ascertaining whether the call comes from areas in their jurisdiction and whether the call should be answered by them or departments from outlying areas in the county.
The city concedes that there might arise problems growing out of the annexation of the territory involved. However, the statute governing the annexation of such territory does not require that the boundaries of the area should be regular or enclosed by straight lines. It is shown that the city does not tend to grow in straight lines and that other portions of the boundary along the city limits are irregular and involve problems in servicing other areas because thereof. There was evidence on behalf of the city by officials of the fire and police departments, together with one charged with the responsibility of providing street service and garbage collection, that they had laid plans to serve the area sought to be annexed and were preparing to do so when enjoined at the commencement of the action. In all instances of annexation it is to be assumed some such difficulties will arise. We do not think that there is merit in this last objection of the plaintiffs.
It follows that the annexation is valid and that the judgment of the trial court was right and should be and is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573616/ | 396 S.W.2d 469 (1965)
CITY OF WACO, Appellant,
v.
S. C. BUSBY, Appellee.
No. 4383.
Court of Civil Appeals of Texas, Waco.
November 10, 1965.
Rehearing Denied December 2, 1965.
*470 Thomas R. Hunter, City Atty., Waco, for appellant.
Naman, Howell, Smith & Chase, George Chase, Waco, for appellee.
McDONALD, Chief Justice.
This is an appeal by defendant City of Waco from a judgment against it in a negligence case.
Plaintiff Busby sued the City of Waco for damages for the negligence of its employees in destroying 2 floating type boathouses belonging to plaintiff. Plaintiff alleged the boathouses had been torn loose from their moorings on Lake Waco by heavy rains; that he was in the course of repairing them in preparation for returning them to their original moorings, when the employees of the City, under the direction of the Waterworks Superintendent, pulled the boathouses out of the lake, breaking them into pieces, and completely destroying them.
Trial was to a jury which acquitted defendant of removing boathouse #1 from the lake; and found in connection with boathouse #2:
1) Employees of the City of Waco removed boathouse #2 from the point it was lodged in Lake Waco.
2) In removing boathouse #2 from Lake Waco the employees of the City damaged or destroyed boathouse #2.
5) Employees of the City of Waco were negligent in the manner in which they attached the cable to boathouse #2.
6) Such negligence was a proximate cause of plaintiff's damages.
7) Employees of the City of Waco were negligent in pulling boathouse #2 onto the shore.
8) Such negligence was a proximate cause of plaintiff's damages.
9) Employees of the City of Waco did not exert more force than was required under the circumstances on boathouse #2 in pulling it from the lake.
12) Employees of the City of Waco failed to inspect boathouse #2 to determine whether it would float before attempting to remove it from the lake.
13), 14) Such failure was negligence, and a proximate cause of plaintiff's damages.
20), 21) Fixed the damages to boathouse #2 at $500.
The trial court rendered judgment on the verdict for plaintiff for $500.
Defendant City appeals, contending the trial court erred in holding the City liable because:
1) The action of the City in removing the boathouse from the lake was a governmental function.
2) There is material and fatal variance between the allegations of plaintiff's NOTICE OF CLAIM, and the proof.
3) There is a conflict between the answer to Issue 9, and the answers to Issues 5, 7 and 12.
We revert to defendant's 1st contention that the action of the City in removing the boathouse from the lake was a governmental function. It is undisputed that the employees of the City under the supervision of the Waterworks Superintendent pulled plaintiff's boathouse from Lake Waco with a winch truck and destroyed it. The record further reflects that the Waco Waterworks Superintendent is responsible for Lake Waco and that some of the waterworks' employees are assigned to Lake Waco to take care of the gates, filtration plant, and to pull trash out of the lake. The record reflects the use of the lake for waterworks and recreational purposes. *471 The maintenance of a waterworks by a City is a proprietary function and the City is liable for the negligent acts of its employees in connection with the furtherance of this activity. White v. City of San Antonio, Sup.Ct., 60 S.W. 426; City of Wichita Falls v. Lipscomb, CCA, W/E Ref., 50 S.W.2d 867; City of River Oaks v. Moore, CCA, (n. r. e.) 272 S.W.2d 389. If the City maintained the lake for more purposes than in connection with its waterworks, the acts of the employees were at least concurrently in furtherance of the waterworks' function along with other functions, and the City is liable for negligence of its employees acting in a concurrent governmental and proprietary capacity. City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480. We think the City liable.
Defendant's 2nd contention is that there is a material and fatal variance between the Notice of Claim and the proof.
The Charter of the City of Waco provides that:
"The City shall not be held responsible on account of any claim for damages to any person or property unless the person * * * claiming such damages shall, within 30 days * * * file a statement under oath, as to the nature and character of such damages or injuries, the extent of same, and the place where same happened, the circumstances under which happened, the conditions causing same, with a detailed statement of each item of damages and the amount thereof * * *."
Plaintiff filed his claim under oath within the proper time, stating he was the owner of
"2 light stall boathouses which were moored to the west bank of Lake Waco just south of the old highway 6 bridge * * * flood caused the waters of said lake to rise to such an extent that the moorings * * * were broken loose and the boathouses were caused to be washed out into the lake. * * * On or about July 14, 1964 without notice to (Busby) * * * employees of the City under the direction of their superior attached a winch truck cable onto the said boathouses, and in an attempt to remove them from the lake, completely destroyed the said boathouses. * * * said boathouses had a value prior to the acts of the * * * employees of the City * * * of $2250 * * * and after the * * * employees of the City finished their task * * * had a value of zero * * *."
Plaintiff's proof showed that employees of the City caused the destruction of the boathouse by the intentional act of pulling it onto the shore from the lake. Defendant asserts that plaintiff failed to direct its attention with reasonable certainty to the place and injury complained of; that plaintiff's witness placed boathouse #2 on the north side of the bridge, but that no mention of the north side of the bridge is made in the Notice of Claim.
Where the description is such that the City is enabled to locate the place of the accident, the object of the charter provision is accomplished. City of Dallas v. Myers, CCA (n. w. h.) 64 S.W. 683. A statement is sufficient if it designates the place that men of common understanding and intelligence can, by the exercise of reasonable diligence, and without other information from the claimant, find with reasonable certainty the place where it is claimed the injury was received. Gardner v. City of Houston, CCA (n. w. h.) 320 S.W.2d 715; City of Wichita Falls v. Williams, CCA, (n. w. h.), 342 S.W.2d 588.
Under the record, we think the Notice sufficient, and that there is no material and fatal variance between the Notice and proof.
Defendant's 3rd contention is that there is a conflict between the jury's answers *472 to Issue 9 and Issues 5, 7 and 12. Issue 9 found that the employees of the City did not exert more force than was required under the circumstances in pulling the boathouse from the lake. Issue 5 found that the employees of the City were negligent in the manner they attached the cable to the boathouse; Issue 7 found that the employees were negligent in pulling the boathouse onto the shore; and Issue 12 found that the employees of the City failed to inspect the boathouse to determine if it would float before attempting to remove it from the lake (which was negligence).
There is no conflict in the issues.
All of defendant's points and contentions are overruled.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573619/ | 396 S.W.2d 29 (1965)
Wilma CHAPMAN, Plaintiff-Appellant,
v.
Mason H. KING, Defendant-Respondent.
No. 8460.
Springfield Court of Appeals. Missouri.
October 28, 1965.
*31 A. L. Shortridge, Joplin, for plaintiff-appellant.
Robert E. Seiler, Karl W. Blanchard, Joplin, for defendant-respondent. Seiler, Blanchard & Van Fleet, Joplin, of counsel.
STONE, Judge.
In this jury-tried damage suit for personal injuries resulting from a vehicular collision, plaintiff Mrs. Wilma Chapman had judgment for $500 against defendant Mrs. Mason H. King. On this appeal by plaintiff, her complaints are that the verdict "was so grossly inadequate as to indicate bias and prejudice of the jury," that the trial court abused his discretion in refusing to grant plaintiff a new trial on the ground of newly-discovered evidence, and that the court erred in giving defendant's instructions 8, 9 and 10.
The transcript on appeal, as it came to us, raised a question as to our appellate jurisdiction, for the prayer of plaintiff's petition was for damages in the sum of $25,000 and she had judgment for $500. Thus, on the face of the record, our Supreme Court would have been vested with exclusive appellate jurisdiction [Art. V, Sec. 3, Const. of 1945; V.A.M.S. § 477.040] under the general rule that, in the absence of "exceptional circumstances" [Glore v. Bone, Mo., 324 S.W.2d 633, 634; Combs v. Combs, Mo., 284 S.W.2d 423, 424] such as those which we discussed in Mitchell v. Mosher, Mo.App., 352 S.W.2d 932, the amount in dispute where plaintiff appeals *32 from an allegedly inadequate judgment is the difference between the amount prayed for and the amount of the judgment. Miller v. Harner, Mo., 373 S.W.2d 941, 942(1); Mitchell v. Mosher, Mo., 362 S.W.2d 532, 533(1); Rossomanno v. Laclede Cab Co., Mo. (banc), 328 S.W.2d 677, 679(1). However, in the jurisdictional statement in plaintiff's brief, we were told that "the amount in dispute is less than $15,000"; and, at the time of submission, plaintiff's counsel stated that his client's claim was limited to $15,000 and, by leave of court and consent of opposing counsel, the prayer of plaintiff's petition was reduced to $15,000. In these circumstances, the amount in dispute is $14,500 and we have appellate jurisdiction. V.A.M.S. § 477.040; Fowler v. Terminal R. Ass'n., Mo., 363 S.W.2d 672, 674-675 (5, 6); Davis v. Hilton, Mo.App., 366 S.W. 2d 501(1); Davis v. Ball, Mo.App., 271 S.W.2d 605. See Feste v. Newman, Mo. (banc), 368 S.W.2d 713, 715-716(6, 7); Heuer v. Ulmer, Mo., 273 S.W.2d 169.
The collision under consideration occurred shortly before 3:00 P.M. on Tuesday, December 18, 1962, in Joplin, Missouri, at the intersection of 22nd Street, a paved east-and-west street 34 feet in width, and Sergeant Avenue, a paved north-and-south street 30 feet in width. 22nd Street is designated by ordinance as a "right-of-way street"; and, on the northwest corner of the intersection of 22nd and Sergeant (hereinafter referred to as the intersection), there is a triangular sign bearing the single word "yield," facing toward and directed to southbound traffic on Sergeant. Plaintiff, alone in a 1956 Plymouth two-door sedan, was eastbound on 22nd Street en route to a junior high school to pick up her two daughters and take them to a 3:00 P.M. dental appointment. Defendant, likewise alone in a 1959 Mercury four-door station wagon, was southbound on Sergeant en route to a 3:30 P.M. medical appointment. Both drivers were familiar with the intersection. The weather was good and the pavement was dry.
As is usually the case, plaintiff and defendant (the only two witnesses as to the collision) did not view the occurrence through the same glass. Plaintiff's version was that, eastbound at a speed of 15 to 20 miles per hour, she had been "about one or two car lengths from the intersection" (she estimated a car length at 18 feet) when she first had seen defendant's southbound station wagon approaching the intersection at a speed of 20 to 25 miles per hour; that, as the front end of plaintiff's automobile "was going into the intersection," the front end of defendant's station wagon "was about one car length from [north of] the intersection"; that she had continued to watch the station wagon without changing her course or speed"I had the right-of-way, that's whatI expected her to slow down"; that plaintiff first had recognized that there was danger of a collision "after I got out into the intersection about half a car length . . . I realized she [defendant] wasn't going to stop"; but that it then had been too late for plaintiff to avoid the accident so she had continued forward on the same course and at the same speed to the point of impact in the southeast quadrant of the intersection.
Defendant's account was that she had stopped before entering the intersection, "back from the yield sign a little"; that she had looked to her right or to the west and had seen plaintiff's automobile on 22nd Street more than one-half block west of the intersection, eastbound "at a moderate rate of speed, [so] that I could have gotten across [22nd] street"; that she then had looked to her left or to the east and had observed a westbound automobile on 22nd Street more than one-half block from the intersection; that she had started forward, thinking that she had "plenty of time to get across"; but that, as she had moved into the intersection, she had looked to the west again and then had discovered that plaintiff "had speeded up and was approaching the intersection," whereupon defendant had applied the brakes on her station wagon but not in time to avoid the accident.
*33 The front end of defendant's southbound station wagon struck the rear half of the left side of plaintiff's eastbound automobile. As a result of the impact, the rear end of plaintiff's automobile was pushed in a counter-clockwise direction and the automobile came to rest, headed north, with the right rear wheel on the curb at the southeast corner of the intersection. Plaintiff (so she said upon trial) was thrown "against the right-hand door." Defendant's station wagon stopped in the intersection.
Policeman Bottenfield, who investigated the accident, testified that neither driver had claimed any injury. Before she got out of the automobile, plaintiff admittedly told defendant that she did not think that she was injured; but, when she alighted, a small cut and a bruise on one knee were observed. After a passing motorist had driven her home, plaintiff took a taxicab to the office of L. H. McPike, M.D., her "family doctor." Dr. McPike, called as a witness for defendant, stated that plaintiff's only complaints on the day of accident were that "she was having pain with both knees and her left leg." He "cleaned up and dressed . . . lacerations of both knees and . . . a little laceration of the left leg" and then directed plaintiff to a radiologist in another building for X-rays of her knees and left leg, the only "involved portions of the anatomy." After the X-rays, she walked six blocks to her home.
Plaintiff made eight visits to the office of Dr. McPike during the period from December 18, 1962, the date of accident, to February 7, 1963. On the second visit, to wit, on December 20, 1962, plaintiff "complained of some soreness in her left wrist." On the sixth visit, to wit, on January 25, 1963, she complained for the first time of "pain in her neck"; but, on the seventh visit, to wit, on February 1, 1963, there was "no pain in neck." On the eighth visit, to wit, on February 7, 1963, Dr. McPike "thought she was well" and dismissed her. Dr. McPike's treatments consisted of "some muscle relaxants and ultrasonic." During the entire period she was under the care of Dr. McPike, plaintiff made no complaint to him about her back"I had so many other things that I didn't," notwithstanding the fact that (so she insisted upon trial) she had experienced pain in her back continuously during that period of care and subsequently to the time of trial.
After dismissal by Dr. McPike, plaintiff took an undisclosed number of treatments by R. W. Davis, D. C. He was not called as a witness, although plaintiff had talked with him on the day before trial and plaintiff's counsel stated during trial that he was available.
Plaintiff's only medical witness was B. E. DeTar, Jr., M.D., a general surgeon who had examined plaintiff on June 30 and August 5, 1964, but had neither administered nor recommended any treatment. Dr. DeTar found no loss of motion or muscle spasm in plaintiff's back, neck or left knee, although, as "a matter of judgment" grudgingly conceded to have been predicated upon subjective complaints of pain, he did report areas of tenderness in those regions. Plaintiff's counsel here places primary emphasis upon Dr. DeTar's findings of (1) "two little areas of spur formation which is an indication of a form of arthritis" in the lumbar back, at "the fourth lumbar vertebra principally and then the third lumbar vertebra secondarily," and (2) a "very tiny" bit of arthritis between the sixth cervical and seventh cervical vertebrae so "tiny" that the radiologist did not report it and that Dr. DeTar did not discover it until he was "reviewing these [X-ray] films and getting ready for today." The arthritis found by Dr. DeTar "is the type that is associated either with injury or just ordinary wear and tear and aging of the bones" or, in other words, is either traumatic or developmental. In the doctor's language, "all you can say is, there is a general indication there might have been some trauma that produced that." In answer to a long hypothetical question including (among others) the important assumption that, prior to the accident of December 18, 1962, plaintiff "had never had any pain in her back or *34 neck . . . and that ever since that date she has been having this pain in her neck, left knee and back, the lower back," Dr. DeTar expressed the opinion that the accident described to him "could result in the conditions I found (sic) at the present time."
On cross-examination, Dr. DeTar said that, if there had been a back injury, he would diagnose it as a lumbosacral sprain; and, with that character of injury, the doctor agreed that there would have been "a wrenching and a tearing . . . and some bleeding into the ligaments" and that "ordinarily" there would have been pain at the time of accident or, if "delayed," within 24 to 48 hours thereafter. Accordingly, Dr. DeTar readily admitted that the assumption that plaintiff had experienced pain in her neck and back continuously since the accident was an "important factor" entering into his above-quoted opinion (i. e., that the accident "could result in the conditions I found at the present time") and that, if plaintiff had not experienced such pain, his opinion would change.
X-rays taken by Dr. DeTar showed a lordosis ("a swayback type of situation") and a "mild" scoliosis ("a side-to-side curve") in plaintiff's lower back, but the doctor had "no evidence one way or the other" on which to base an opinion as to whether or not there had been any change in either of those conditions by reason of the accident. However, he agreed that those conditions could cause pain or discomfort in the back and that they could have accounted for plaintiff's complaint that, prior to the accident, "I had had a tired feeling in my back, especially after I would be in bed all night."
Of alleged inadequacy of the verdict. Under our juridical system, determination of the amount of damages is primarily for the jury.[1] And where, as here, the trial court has denied a new trial for alleged inadequacy, the rule upon appeal is that the jury's exercise of its discretion in the assessment of damages is conclusive unless the verdict is so shockingly inadequate as to indicate that it is the result of passion and prejudice or of a gross abuse of such discretion.[2] We do not weigh the evidence but rather seek only to ascertain whether the trial court abused its discretion in denying a new trial. And our inquiry is whether, viewing the record in the light most favorable to the trial court's ruling on the complaint of inadequacy, it reasonably may be said that the verdict was supported by substantial evidence.[3] In this inquiry, we must bear in mind that the credibility of the witnesses, including the medical experts, and the weight and value to be accorded to their testimony were, in the first instance, matters peculiarly within the province of the jury,[4] in keeping with the fundamental principle that the *35 jury may believe all or none of the testimony of any witness, or may accept it in part and reject it in part, just as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case.[5]
The only objective evidences of injury to instant plaintiff were the relatively inconsequential lacerations on her knees and left leg. Her alleged "pain, suffering and difficulties" rested largely upon her own testimony and were in no sense conceded by defendant. Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 14, 212 S.W.2d 915, 920. There was no evidence of medical or hospital expenses, loss of earnings, or other so-called special damages. Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 11; Wilhelm, supra, 358 Mo. at 14, 212 S.W.2d at 920. Contrast Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 728, 729; Boschert v. Eye, Mo., 349 S.W.2d 64, 66; Hufft v. Kuhn, Mo., 277 S.W.2d 552, 555; Brown v. Moore, Mo., 248 S.W.2d 553, 558-559(9).
The jurors were not required to believe plaintiff's testimony about her alleged "pain, suffering and difficulties" [Wilhelm, supra, 358 Mo. at 14, 212 S.W.2d at 920; Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617, 623] or to embrace the inconclusive, suppositions opinion testimony of her only medical witness "as to causation [which] was based upon facts related by plaintiff which the jury could accept or reject." Roush, supra, 245 S.W.2d at 12. See Hemminghaus v. Ferguson, 358 Mo. 476, 487, 215 S.W.2d 481, 486 (6). That plaintiff admittedly made no complaint to Dr. McPike about her back, although upon trial she insisted that her back had pained her continuously while she was under his care, well might have been considered by the triers of the facts as particularly meaningful and significant [compare Porter v. Smoot, Mo.App., 375 S.W.2d 209, 213-214], and plaintiff's own medical evidence fairly might have been regarded by them as not persuasive of any serious or permanent injury. Davidson v. Schneider, Mo., 349 S.W.2d 908, 912.
From all of the foregoing, it is to us clearly apparent that the jurors rationally and reasonably could have concluded that any injury sustained by plaintiff as a result of the accident was trivial or not serious in "its end result" [Davidson, supra, 349 S.W.2d at 912; Conner v. Neiswender, 360 Mo. 1074, 1079, 232 S.W. 2d 469, 472see Roush, supra, 245 S.W.2d at 11(5); Grayson v. Pellmounter, Mo. App., 308 S.W.2d 311, 314(3)], and that the verdict for $500 reflects a justifiable view of the evidence considered from the standpoint favorable to the verdict. Polizzi v. Nedrow, Mo., 247 S.W.2d 809, 812; Wilhelm, supra, 358 Mo. at 15, 212 S.W.2d at 920. It necessarily follows that we may not convict the trial court of an abuse of discretion in approving the verdict [Mitchell, supra, 362 S.W.2d at 537; Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 707(8, 9)], and that plaintiff's point on appeal that the verdict "was so grossly inadequate as to indicate bias and prejudice of the jury" must be denied.
In Artstein v. Pallo, Mo. (banc), 388 S. W.2d 877, upon which instant plaintiff primarily relies, "[t]he parties [agreed] that, if the plaintiff [was] entitled to recover at all, the award of [$500] damages [was] grossly inadequate" [388 S.W.2d at 882], and the meritorious question on appeal was whether or not the new trial granted by the trial court should have been limited to the issue of damages only. Obviously, the instant situation affords no basis for application of the holding in Artstein, supra.
Of newly-discovered evidence. Plaintiff's second assignment is that the trial court "abused his discretion in refusing to grant plaintiff a new trial on the ground *36 of newly-discovered evidence of X-rays taken after the date of the collision and not available to plaintiff through no lack of diligence of plaintiff's counsel . . ." This refers to two X-rays of plaintiff's lumbar spine alleged to have been taken by Dr. Davis, the chiropractor, on February 5 and 20, 1963. The material allegations of plaintiff's motion for new trial and of the supporting affidavits of plaintiff's counsel and Dr. Davis, all timely filed on November 27, 1964, fifteen days after entry of judgment [V.A.M.R. Rule 78.02], are digested below.
Plaintiff's counsel averred "that previous to the trial on numerous occasions he had questioned R. W. Davis, D. C. . . . and had been told that they [the X-rays] were not available and could not be located and only on November 25, 1964 were said X-rays located, the same having been misfiled as shown by Dr. Davis' attached affidavit and that diligent search had been made for said X-rays on many occasions prior to the trial," and that the X-rays were "not cumulative evidence only but [were] strongly corroborative evidence and proof positive that plaintiff's lumbar spine was injured and damaged as a result of the collision." Dr. Davis stated in his affidavit that he had told both plaintiff's counsel and defendant's counsel prior to the trial that the X-rays had been made; that affiant "had searched for these X-rays on numerous occasions at the request of [plaintiff's counsel] and had been unable to locate them because they had been misfiled under the name of another patient"; that "within the last few days affiant has located and reviewed these X-rays and in his opinion . . . [they] show that there was a development of arthritis on one or more of the lumbar vertebrae, the most noticeable arthritic development [being] upon the 3rd and 4th lumbar vertebrae"; and that "affiant believes that these X-rays are competent evidence to show that the arthritis that developed in [plaintiff's] lumbar spine was of traumatic origin or grossly aggravated by trauma when compared with . . . an X-ray made at DeTar Clinic . . . on June 30, 1964" received in evidence as plaintiff's exhibit 13. No affidavit of Dr. DeTar was filed.
On December 7, 1964, defendant timely filed the opposing affidavit of her counsel [V.A.M.R. Rule 78.03; V.A.M.S. § 510.350], in which he affirmed that "when affiant interviewed Dr. Davis . . . on November 10, 1964, . . . for the purpose of locating and inspecting Dr. Davis' X-rays of the plaintiff, Dr. Davis stated that he had turned over [plaintiff's] X-rays to her attorney and that he (Dr. Davis) did not have them"; that "Dr. Davis had previously reported to plaintiff's then attorney, Max Glover of Webb City, that plaintiff's condition had been treated and corrected, that she would not have any more trouble and she was physically in good condition," as shown by Dr. Davis' letter of April 29, 1963, copied verbatim in the affidavit; and that, when "affiant called on Dr. Davis at his office on December 1, 1964, . . . Dr. Davis refused to discuss the matter with affiant and said that he would have to be subpoenaed before he would talk." In his letter of April 29, 1963, to attorney Glover, Dr. Davis had written that plaintiff "returned to the office for further treatment, on April 9, 1963," complaining "of her neck giving her more trouble"; that "upon examination I found some tension and muscular constriction at the level of the 6th and 7th cervical vertebrae"; that "this condition has been treated and corrected, and I do not think we will have any more trouble"; and that "on her last visit to my office I talked with [plaintiff] in regard to her condition and I feel certain that she is physically in good condition." (Emphasis ours.) Plaintiff tendered no reply affidavit.
Motions for new trials on the ground of newly-discovered evidence are entertained reluctantly [Lindhorst v. Curtis Mfg. Co., Mo.App., 105 S.W.2d 972, 976 (10)], examined cautiously [Arnold v. May Department Stores Co., 337 Mo. 727, *37 740, 85 S.W.2d 748, 756(14) ], and construed strictly. Cook v. St. Louis & Keokuk R. Co., 56 Mo. 380, 382; Gerth v. Christy, Mo.App., 231 S.W. 639, 640. For courts ever have been mindful not only "of the temptation to parties smarting under defeat to make them, and . . . of the facility with which plausible grounds are manufactured" [State v. McLaughlin, 27 Mo. 111, 112see Lindhorst, supra, 105 S.W.2d at 977] but also of the fact that, "if the discovery of new, material evidence alone would be ground for new trial, there would be no end to litigation" [Mayor, Etc., of Town of Liberty v. Burns, 114 Mo. 426, 433, 19 S.W. 1107, 1109; Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, 113] whereas public policy requires that "litigation sometime end." Curry v. Thompson, Mo., 247 S.W.2d 792, 799, 31 A.L.R.2d 1225. So it is that our appellate courts repeatedly have said that such motions are to be tolerated, but not encouraged; viewed with aversion, rather than with favor; and granted as an exception, but refused as a rule.[6]
A new trial should not be awarded on the ground of newly-discovered evidence unless the moving party first satisfies the following prerequisites (to which we hereinafter sometimes refer by number) by showing (1) that the evidence has come to his knowledge since the trial, (2) that his failure to learn of such evidence sooner was not due to want of diligence, (3) that such evidence is so material that it probably would produce a different result if the new trial were granted, (4) that it is not cumulative only, (5) that the object of the testimony is not merely to impeach the character or credit of a witness, and (6) that the affidavit of the witness himself is produced or its absence accounted for.[7] The ruling of an after-trial request predicated on newly-discovered evidence rests largely in the sound discretion of the trial court;[8] and, unless there has been a clear abuse of that discretion, the appellate court will not interfere.[9] Any doubt as to whether the trial court's discretion has been exercised soundly in a given situation must be resolved in favor of the ruling made.[10]
Passing the inferences which might be drawn from the affirmation in the affidavit of defendant's counsel that, when interviewed on November 10, 1964, two days prior to trial, "Dr. Davis stated that he had *38 turned over [plaintiff's] X-rays to her attorney," we are of the opinion that the trial court reasonably might have concluded that plaintiff had failed to make a satisfactory showing of several of the six prerequisites to the granting of a new trial for newly-discovered evidence. Prerequisites 1 and 2 The affidavits of plaintiff's counsel and Dr. Davis were to the effect that the X-rays under discussion "could not be located" prior to trial; but, if counsel then had regarded them as material, no doubt the "misfiled" X-rays could have been located before trial in the same manner they were found after trial. The trial court would have been justified in finding that plaintiff had not made a satisfactory showing that failure to produce the X-rays at the trial was not due to want of diligence.[11]
Prerequisites 4 and 5. To some extent, the X-rays fairly might have been regarded by the trial court as both cumulative and impeaching, those being "at least in part fact questions." Womack v. McCullough, Mo., 358 S.W.2d 66, 69(7). Plaintiff's counsel treats of the X-rays as being cumulative or, cloaking the same thought in different nomenclature, "strongly corroborative," for it is argued in plaintiff's brief that "this arthritic condition [at the third and fourth lumbar vertebrae] had developed and was definitely found by Dr. DeTar" and "the early development of the arthritis about two months after the accident confirms Dr. DeTar's findings and opinion that the accident was the cause of the traumatic arthritis." But from another viewpoint, the X-rays would tend to impeach Dr. DeTar in that, if offered to demonstrate the alleged traumatic causation of the arthritic condition, they would run counter to the testimony of Dr. DeTar who, when asked whether an X-ray taken "maybe just a month or so after the accident" would show the arthritic "spur formation," answered "not necessarily, no, it probably would not." In this connection, we note that plaintiff's trial theory was that the accident of December 18, 1962, had caused an arthritic condition, not that it had aggravated a pre-existing arthritic condition.
Prerequisite 3. Having in mind all of the foregoing and, importantly, Dr. Davis' letter of April 29, 1963, to plaintiff's then attorney, which closed with the assurance that "I feel certain that she [plaintiff] is physically in good condition," the trial court reasonably might have believed that plaintiff had failed to satisfy the third prerequisite by showing that the proffered X-rays were so material that they probably would produce a different result upon another trial.[12] We cannot find an abuse of discretion on the part of the trial court in its refusal to grant a new trial for newly-discovered evidence.
Of alleged error in giving defendant's instructions 8, 9 and 10. Aside from the fact that none of these instructions were set forth in plaintiff's brief, as is plainly required by V.A.M.R. Rule 83.05(a), for which failure this point properly might *39 be disregarded,[13] plaintiff is in no position to complain here about these instructions because they in no wise related to the issue of damages but dealt only with submission of the issue of liability, on which the jury found for plaintiff anyway. In these circumstances, the giving of the assailed instructions could not constitute reversible error.[14]
The judgment should be and is affirmed.
RUARK, P. J., and HOGAN, J., concur.
NOTES
[1] Spica v. McDonald, Mo., 334 S.W.2d 365, 368(1); Donahoo v. Illinois Term. R. Co., Mo., 300 S.W.2d 461, 469(10); Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 1150, 238 S.W.2d 674, 681(14); Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 706(4); Porter v. Smoot, Mo.App., 375 S.W.2d 209, 212(2).
[2] Vogrin v. Forum Cafeterias of America, Mo., 308 S.W.2d 617, 622(5); Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 792(2); Conner v. Neiswender, 360 Mo. 1074, 1077, 232 S.W.2d 469, 470 (2); Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 11, 212 S.W.2d 915, 918(5); Coghlan, supra note 1, 179 S.W.2d at 706(2).
[3] Miller v. Harner, Mo., 373 S.W.2d 941, 947(2, 3); Mitchell v. Mosher, Mo., 362 S.W.2d 533, 536(2, 3); Spica, supra note 1, 334 S.W.2d at 368(2); Waller v. Oliver, Mo., 296 S.W.2d 44, 49(7, 8); Roush v. Alkire Truck Lines, Mo., 245 S.W.2d 8, 10(2-4); Conner, supra note 2, 360 Mo. at 1077, 232 S.W.2d at 470-471 (3-5); Porter, supra note 1, 375 S.W. 2d at 212(3, 4).
[4] Patison v. Campbell, Mo., 337 S.W.2d 72, 75(4); Vogrin, supra note 2, 308 S.W. 2d at 623(7); Combs v. Combs, Mo., 284 S.W.2d 423, 426(6); Roush, supra note 3, 245 S.W.2d at 12(6); Wilhelm, supra note 2, 358 Mo. at 12, 212 S.W.2d at 918; Mickel v. Thompson, 348 Mo. 991, 1003, 156 S.W.2d 721, 728(13).
[5] Baker v. Brown's Estate, 365 Mo. 1159, 1165, 294 S.W.2d 22, 27(13); Patison, supra note 4, 337 S.W.2d at 75(4); Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280(5); Hutchison v. Thompson, Mo., 175 S.W.2d 903, 911.
[6] Cook v. St. Louis & Keokuk R. Co., 56 Mo. 380, 382; McClellan v. Kansas City Public Service Co., Mo.App., 19 S.W.2d 902, 908(6); Lewis v. McClellan, Mo.App., 1 S.W.2d 247, 250(5); Gerth v. Christy, Mo.App., 231 S.W. 639, 640; E____ v. G____, Mo.App., 317 S.W.2d 462, 468-469(5). See Devine v. Wells, 300 Mo. 177, 185, 254 S.W. 65, 67(1); Gromowsky v. Ingersol, Mo.App., 241 S.W.2d 60, 64(8); In re Priest's Estate, Mo.App., 227 S.W.2d 474, 478(5).
[7] Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393, 402; Womack v. McCullough, Mo., 358 S.W.2d 66, 68; Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, 111(5); Lynch v. Baldwin, Mo., 117 S.W.2d 273, 276 (9); Grubbs v. Kansas City Public Service Co., 329 Mo. 390, 405, 45 S.W.2d 71, 78; Devine, supra note 6, 300 Mo. at 187-188, 254 S.W. at 68; State v. McLaughlin, 27 Mo. 111, 112; State v. Page, Mo. App., 192 S.W.2d 577, 579(10); Browhaw v. Dowd, Mo.App., 187 S.W.2d 29, 30 (1).
[8] Davis v. Illinois Term. R. Co., Mo., 326 S.W.2d 78, 86-87; Arnold v. May Department Stores Co., 337 Mo. 727, 740, 85 S.W.2d 748, 756(13); In re Priest's Estate, supra note 6, 227 S.W. 2d at 478(6); Lindhorst v. Curtis Mfg. Co., Mo.App., 105 S.W.2d 972, 977.
[9] Womack, supra note 7, 358 S.W.2d at 68; Fidelity & Cas. Co. of N. Y. v. Western Cas. & Sur. Co., Mo.App., 337 S.W.2d 566, 574(5); Pippas v. Pippas, Mo.App., 330 S.W.2d 132, 138(12); Deacon v. City of Ladue, Mo.App., 294 S.W. 2d 616, 626(13); I____ v. B____, Mo. App., 305 S.W.2d 713, 721(10); Citizens Bank of Senath v. Johnson, Mo.App., 112 S.W.2d 916, 921(12); Galeener v. Derris, Mo.App., 20 S.W.2d 167, 169(3).
[10] Cook, supra note 6, 56 Mo. at 384; McKnight v. Batrick, Mo.App., 49 S.W.2d 277, 281; Galeener, supra note 9, 20 S.W. 2d at 169; McClellan, supra note 6, 19 S.W.2d at 908(9); Lewis, supra note 6, 1 S.W.2d at 251(8).
[11] Holt, supra note 7, 377 S.W.2d at 402; Womack, supra note 7, 358 S.W.2d at 70 (8); Young, supra note 7, 326 S.W.2d at 111-113(6); In re Priest's Estate, supra note 6, 227 S.W.2d at 478(4); McClellan, supra note 6, 19 S.W.2d at 906-907.
[12] Curry v. Thompson, Mo., 247 S.W.2d 792, 798-799(3-5), 31 A.L.R.2d 1225; McClellan, supra note 6, 19 S.W.2d at 907 (5); Galeener, supra note 9, 20 S.W.2d at 169(2); Citizens Bank of Senath, supra note 9, 112 S.W.2d at 921(10); Lewis, supra note 6, 1 S.W.2d at 251(9). See Holt, supra note 7, 377 S.W.2d at 402; Davis, supra note 8, 326 S.W.2d at 86-87(10); Gaty v. United Rys. Co. of St. Louis, 286 Mo. 503, 517-519, 227 S.W. 1041, 1045(1, 2); Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527, 536(15); Fischman v. Schultz, Mo.App., 55 S.W.2d 313, 319(9).
[13] Brown v. Thomas, Mo.App., 316 S.W. 2d 234, 237(9); Bartlett v. Hume-Sinclair Coal Mining Co., Mo.App., 351 S.W.2d 214, 217(5); Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 539; State ex rel. State Highway Com'n. v. Warner, Mo.App., 361 S.W.2d 159, 165(11).
[14] Cochran v. Wilson, 287 Mo. 210, 228, 229 S.W. 1050, 1056(5); Craton v. Huntzinger, Mo., 187 S.W. 48, 53(8); State ex rel. State Highway Com'n. v. Southern Securities Co., Mo.App., 60 S.W.2d 632, 635(9); Broughton v. S. S. Kresge Co., Mo.App., 26 S.W.2d 838, 840(6); Edwards v. Missouri Pacific Ry. Co., 82 Mo.App. 478, 482-483(2). See Kelly v. Columbia Box Co., Mo., 248 S.W. 589, 591(4). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573556/ | 396 S.W.2d 174 (1965)
Hiram C. CLEVENGER, Appellant,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
No. 16600.
Court of Civil Appeals of Texas, Dallas.
October 22, 1965.
Rehearing Denied November 19, 1965.
*175 Charles Ben Howell, Dallas, for appellant.
Gordon H. Rowe, Jr., Leachman, Gardere, Akin, Porter & DeHay, Dallas, for appellee.
CLAUDE WILLIAMS, Justice.
This is a workmen's compensation case. Hiram C. Clevenger, an automobile salesman for McAllister Mercury-Comet, Inc., sustained personal injuries while playing baseball at a company-sponsored picnic or outing. He sought to recover workmen's compensation benefits alleging that his injuries were sustained while he was in the course and scope of his employment for his employer which carried workmen's compensation insurance with Liberty Mutual Insurance Company. The case was tried before the court and a jury in the district court but the jury was unable to agree upon the answer to the special issue inquiring whether Clevenger sustained his injuries while in the course and scope of his employment. The jury was discharged (but no mistrial ordered) and thereafter plaintiff filed a motion for summary judgment and defendant Liberty Mutual Insurance Company moved the court to enter judgment in its favor, re-urging its motion for instructed verdict made at the close of the evidence. The trial court overruled plaintiff's motion for summary judgment and sustained defendant's motions thereby holding, as a matter of law, that plaintiff was not within the course and scope of his employment at the time of his accidental injuries and that he should be denied recovery.[1]
*176 In his first point of error appellant contends that the trial court erred in sustaining appellee's motion for instructed verdict since such motion did not comply with the procedural requirements of Rule 268, Texas Rules of Civil Procedure by failing to contain specific grounds therefor. At the conclusion of appellant's testimony during the trial appellee filed its written motion for instructed verdict, such motion being couched in general terms relating to the issue of benefits accruing to the employer by virtue of the picnic. At the conclusion of all of the testimony the same motion was filed but not ruled upon. After the jury had announced that it was unable to render a complete verdict, and was especially unable to answer the question on the course and scope of employment, the trial judge dismissed the jury but did not enter an order of mistrial. Subsequently appellee filed another motion for instructed verdict which contained specific grounds directed to the question of scope of employment. Appellee also filed its motion for judgment predicated upon the proposition that appellant was not in the course and scope of his employment, as a matter of law. The court sustained appellee's motions.
It is well established in Texas that where a jury is unable to agree upon a verdict and has been discharged, but no order of mistrial has been entered, that the trial judge may reconsider a motion for instructed verdict and act upon the same. Slay v. Mary Couts Burnett Trust, 143 Tex. 621, 187 S.W.2d 377; Clark v. Jones, Tex.Civ. App., 164 S.W.2d 62; First Nat'l Bank in Graham v. Corbin, Tex.Civ.App., 153 S.W.2d 979; Fitts v. Carpenter, Tex.Civ.App., 124 S.W.2d 420; Peveto v. Herring, Tex. Civ.App., 198 S.W.2d 921; Whisenant v. Fidelity & Casualty Co. of New York, Tex. Civ.App., 354 S.W.2d 683. One court has held that the trial judge may act upon a motion for instructed verdict which was not made until after the jury had been discharged for failure to agree upon the verdict. Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190.
The fact that the first two motions for instructed verdict filed by appellee did not strictly comply with Rule 268, T.R.C.P. by not being specific enough in its grounds, does not defeat the trial court's action. In the first place, appellant made no objection to the generality in specifying grounds contained in the motions and therefore may be said to have waived any objection thereto. Routte v. Guarino, Tex.Civ. App., 216 S.W.2d 607; Baylor v. Eastern Seed Co., Tex.Civ.App., 191 S.W.2d 689. Even so, it has been repeatedly said that the requirement of Rule 268, T.R.C.P. dealing with "the specific grounds therefor" is for the benefit of the trial court and the party opposing the motion has been held not to be in a position to complain on appeal because of failure to properly inform the court as to the reasons why the motion should be granted. The basis for this rule is that the trial court has general authority to withdraw a case from a jury and grant judgment on its own motion where the evidence does not warrant submission of any appropriate issues to the jury. Marlin Associates v. Trinity Universal Ins. Co., Tex.Civ. App., 226 S.W.2d 190; Baylor v. Eastern Seed Co., supra; Rockett v. Texas State Board of Medical Examiners, supra. Appellant's first point of error is overruled.
Appellant's Points 2, 3 and 4 assail the court's action in sustaining appellee's motion *177 for an instructed verdict and holding, as a matter of law, that under the facts presented by the record appellant was not acting within the course and scope of his employment for his employer at the time he sustained his accidental personal injuries. Appellant argues that there was sufficient probative evidence in the record to justify the submission of the issue to the jury and that, the jury having failed to agree upon such issue, an order of mistrial should have been granted.
In reviewing the propriety of the trial court's action in granting the motion for instructed verdict our duty is to examine all of the testimony in the case that is relevant to the issue of course and scope of employment and consider the evidence in the light most favorable to the appellant, disregarding all conflicts and indulging in every intendment reasonably deducible from the evidence in favor of the appellant. 4 Tex.Jur.2d, § 835. Only if the evidence presented is of such a conclusive character that reasonable minds could not differ as to its effect and only one conclusion may reasonably be drawn from it, the question becomes one of law, thereby justifying the granting of the instructed verdict. 56 Tex.Jur.2d, § 212, p. 553; 3 McDonald, Texas Civil Practice, § 11.28.
To comply with these rules we have carefully read and studied the entire statement of facts. We deem it desirable and appropriate to set forth essential portions of the testimony relating to the issue of course and scope of employment.
In September 1962 Clevenger was employed by McAllister Mercury-Comet, Inc. as an automobile salesman. His duties were to sell both new and used automobiles for which he received a $400 a month guarantee and twenty-five per cent of the net profit. His supervisors were Mr. McAllister, Mr. Gregory, the used car manager, and Mr. Chapman, the assistant used car manager. About a week before the company picnic was to be held he received notice of the picnic in a bulletin put out by the company. This bulletin, Plaintiff's Exhibit 1, announced that a company picnic for all employees and their immediate families would be held on Sunday afternoon, September 23rd, at Sandy Lake Lodge, Carrollton, Texas, and that a softball game would be played between the parts and service departments and the sales department. It said: "Let's all go to the picnic and have a lot of fun!" When asked whether the bulletin, Exhibit 1, was the only notice of the picnic that he had, Clevenger testified:
"Q. What other notice did you have?
"A. From my sales managers, and they asked us to go.
"Q. Who were they?
"A. Mr. Gregory and Mr. Chapman.
"Q. All right, sir. Did they talk to you, personally, about it?
"A. Yes, sir.
"Q. Now, when was this?
"A. Well, I would say they talked to me some about it every day that week.
"Q. The week before the picnic?
"A. Yes, sir.
"Q. What conversation did they have with you, relative to this picnic?
"A. Well, they were encouraging us to all go; they wanted 100 per cent of the company there: and they told us that they really expected us to be there.
"Q. They expected you to be there?
"A. Yes, sir."
Clevenger testified that selling automobiles is a highly competitive business. He described the sales and sales training policies of his employer as being "aggressive". He said that they were much more aggressive than most dealers. As an example he cited the instance of the "bird dog plan" which meant that anyone from janitor on *178 up who tipped off a salesman concerning the sale of a new car would be given ten or fifteen dollars. His company also had promotional deals going all the time such as bonuses and prizes for salesmen and that the "salesman of the month" would receive a hundred dollar suit of clothes or alligator shoes. Each morning the company had sales meetings and some were held at the Holiday Inn, Eastern Hills or other motels. The theme of all of these meetings was to produce more business and to sell more cars. He said that the salesmen were required to attend these off-premises sales meetings. When asked why the company held the picnic on Sunday he replied: "That was the only day they could have 100 per cent there." Further, he testified that Mr. Gregory and Mr. Chapman discussed the picnic with him and let him know that they wanted to see him there. He drove to the picnic in a company car using company gasoline and arrived between 11:30 and 12:00 o'clock. The picnic grounds at Sandy Lake had been reserved by the company and was supposed to be for no one except employees of the company together with their families or close friends. When he got inside the picnic grounds he found that the company had a new model Monterey Mercury automobile on display just inside the gate to the picnic grounds and under a little shed. This was the beginning of the new model cars for the year and they had not been shown to the public. When asked to tell about the new model automobile he testified:
"Q. Now, tell us how they had that set up and displayed?
"A. They had the car parked there, and I believe all four doors were open, and the trunk; and I am not sure about the hood being open.
"Q. All right.
"A. And, of course, it had the new car stickers in the windows, and different little plaques sticking on the car, explaining the new features of it.
"Q. What do you mean, `little plaques'? What does
"A. They were the type that you justThey are kind of magnetized, and will stick to the car.
"Q. All right.
"A. That was the thing that really caught my eyes, because that is the first ones I had seen like that.
"Q. All right. Well, what did these little plaques say, generally, the ones that you saw?
"A. Oh, they were
"Q. Or, what were they telling about?
"A. Oh, they were explaining the new features of the car, the material that the car was made out of, this new back window. They were explaining that. And, I believe, there was one on the grille, telling what kind of mateial that the car was made from.
"Q. Well, about how many of those plaques? I know you can't say exactly, but, were there just a few of them on there?
"A. I would say that there were a dozen on it.
"Q. Okay. At the various points?
"A. Yes, sir.
"Q. Explaining the new features of that new car?
"A. Yes, sir.
"Q. All right. And, had that car ever been shown to the public?
"A. No, sir.
"Q. It hadn'tHad you seen one like that one, before?
"A. Yes, sir, I saw one, at the dealers showing, in the Auditorium, here.
*179 "Q. What about the other salesmen out there, so far as you know? Had they see it?
"A. Part of them had, and part of them had not.
"Q. Several of them had never seen one like that, at all, is that right?
"A. No, sir. I am sure that the service department had not seen too much of the car.
"Q. I beg your pardon?
"A. I am reasonably sure that the service department, and office staff, had not seen too much of the car."
He said he stopped and looked at the new automobile and especially the signs and plaques that they had on it. He especially checked out the rear window which apparently was different from other models. After looking at the new automobile he went to the ball park where people were playing softball. Mr. Chapman took him by the arm and wanted him to get into the ball game. He was not particularly interested in playing, having worked all week, but he figured if the boss wanted him to do it, "It is just kind of best to do it." He played second base and when a ball was hit towards him he ran to catch it and stepped in a low place on the playing field and injured his knee. He became ill due to the pain and his leg started swelling up. He drove home and called a doctor.
On cross-examination Clevenger stated that they "talked about the car, and probably have a good year; and where they were going to go."
A portion of Clevenger's deposition was read, including the following:
"Q. (Mr. McKnight) `Question: And he was telling you and the other men that he thought it was a real selling feature?
`Answer: Yes, sir.
`Question: And he wanted you to push it?
`Answer: Yes, sir.
`Question: How about the new car sales managers? Did you have any discussions with them, along the same line?
`Answer: Yes, sir.'
"THE COURT: Are you talking about out at the picnic?
"MR. McKNIGHT: Yes, sir. That is where it is.
"THE COURT: All right.
"Q. (By Mr. McKnight) `Question: And all thosethese all took place right up there in front of the new car?
`Answer: Yes, sir, saying that the big window wasthe big window was the big issue on the car, and they were trying to sell itsell it to the salesmen, of course, that it was a good thing.'"
Again on cross-examination, Clevenger testified:
"Q. All right. Now, Mr. Clevenger, you are not telling the Jury that anybody made you go out to the picnic that day, are you?
"A. No, sir.
"Q. I mean, you went out there voluntarily?
"A. Yes, sir.
"Q. All right. Well, why did you do it? Did you go just to have a good time?
"A. No, sir.
"Q. Why?
"A. Because they stressed the fact so much that they wanted 100 per cent there, and I just felt like it was necessary for me to go.
*180 "Q. All right.
"A. The way they put itbrought it around for us to go.
"Q. Who did?
"A. The management.
"Q. And who, specifically?
"A. Mr. Gregory, Mr. Chapman, Mr. Warren, and the new car sales manager, and also, Mr. McAlister.
"Q. All right. Were they fairly insistent about it?
"A. Yes, sir."
The witness Gladys Davis testified in part:
"Q. What are the facts, if any, with which you are familiar with regard to whether or not the company was insistent upon the employees being at that picnic?
"A. They asked everyone to go, for public relations and purposesfor employee relations.
"Q. All right. And did they have a good turn out?
"A. Very good.
"Q. Do you remember if they had a high percentage of the salesmen there?
"A. As far as I know, they were all there."
A fellow salesman, Louis D. Wallace, testified concerning compulsory attendance at the company picnic, as follows:
"Q. And did anyone, in a managerial capacity over at McAlister, have any conversations with you about the picnic in the week or so before it was put on?
"A. Well, it was discussed, yes. I would say they did.
"Q. All right. State the facts as to whether or not the management was energetic in pushing this picnic?
"A. Well, they were pretty energetic in trying to get people to come, you mean?
"Q. Yes.
"A. Yes, sir.
"Q. Were they particularly interested in the salesmen, or could you tell?
"A. I wouldn't be able to say, exactly. I think they wanted everyone to attend.
"Q. All right. Were they fairly insistent, in your knowledge, as to the attendance at the picnic?
"A. Well, I will say this: I attended because I felt like it was in my best interests as an employee to attend. I felt like, the way it was promoted and all, it might be damaging, as theymy image as an employee, if I didn't show up. I wasn't particularly wanting to go that day, but I went, anyway, on that account.
"Q. I see. You felt like, in other words, it would hurt you, as an employee, if you didn't go?
"A. I thought there was a possibility of that, yes."
The witness Cagle, the service manager, testified that he took the new model automobile to the picnic grounds so that the employees' wives who hadn't seen the new car would have an opportunity of looking at it to see what they would have the next year. He said that this automobile was the first model that had a peculiar back window and that the salesmen needed to be familiarized with this innovation; that they needed to be sold on the idea that it was a good selling point for the automobile. He testified that the picnic was a social function designed to improve relations and build a better organization which would inure to the benefit of McAllister Mercury-Comet, Inc.
*181 The witness T. V. Gregory, used car manager, testified that the picnic was designed to promote a more efficient operation which, he admitted, makes ultimately more profit for the company.
The witness Buffington, testifying for the defendant, said he was a salesman working on a commission and that he attended the company picnic. His testimony in this regard was:
"Q. Did you go to the picnic?
"A. I did.
"Q. All right, sir. Did you go because you wanted to, or because you had to?
"A. Well, here isThe company spent the money, and of course, I'm notI'm just speaking for myself, but my wife and I felt that we wasn'tIt wasn't compulsory for us to go, but we felt like we were obligated to go.
"Q. All right. Did you conduct any business out there, sir?
"A. Pardon me?
"Q. Was there any business conducted out there, that you know about?
"A. Well, I steered a customer out there, is the only thing I can tell you.
"Q. Who was that?
"A. I forgot his name.
"Q. All right. Was he an employee, or not?
"A. No, he wasn't an employee."
On cross-examination he reiterated that he thought that he and his wife were obligated to go to the picnic because the company had been nice to them. He said:
"Q. You considered that picnic as good a place as anywhere else to conduct business, though, if you got a chance, didn't you?
"A. That is right."
When we apply the test, stated above, to the entire record in this case, and especially to the quoted portions thereof, we are of the opinion that there is clearly evidence of probative force to support the submission to the jury of the special issue on course and scope of employment. While we do not hold that under the peculiar facts in this case Clevenger was acting within the course and scope of his employment at the time he sustained his injuries, as a matter of law, we do hold that the evidence presented does not compel the opposite finding, as a matter of law. We hold that under the record here made there was sufficient evidence of probative force to justify the court in submitting, as he did in the first instance, the issue on course and scope of employment, accompanied by appropriate instructions defining such term. Kelty v. Travelers Ins. Co., Tex.Civ.App., 391 S.W.2d 558, 565.
Art. 8309, Sec. 1(4), Vernon's Ann.Civ. St. defines an injury received within the scope and course of the employee's employment as being: "* * * all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer's premises or elsewhere." The legitimate question presented here is whether the picnic, when considered in its entirety, was an activity "having to do with and originating in" the employer's business. We think that when the testimony is viewed as a whole that reasonable minds could very well differ on this question and therefore the issue became one for the jury's consideration.
While scores of opinions have been written and published on varying kinds of factual situations involving workmen's compensation claims growing out of injuries sustained by employees engaged in recreational or social activities outside the premises of the employer, we believe that Professor *182 Larson in his work on "Workmen's Compensation" has correctly stated the rule applicable, as follows:
§ 22.00. Recreational or social activities are within the course of employment when
"(1) They occur on the premises during a lunch or recreation period as a regular incident to the employment; or
"(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
"(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health or morale that is common to all kinds of recreation and social life.'
The above quoted testimony illustrates that a factual situation was presented as to whether the employer in this case expressly or impliedly required the attendance and participation of Clevenger at the picnic in question. As Professor Larson says at § 22.22:
"If the activity although not an integral part of the job is in effect required, it is clear enough that the employer has brought that activity within the employment. * * * The compulsion need not take the form of a direct order if the employee is made to understand that he is to take part in the affair."
The situation involving implied compulsion to attend recreational activity, such as here, is typified in the case of Employers Mutual Liability Ins. Co. v. Sanderfer, Tex. Civ.App., 382 S.W.2d 144 in which the employee testified that while he was not forced or compelled to go on the hunting trip during which he was injured, he said that his boss "told me it would be a good idea for me to go * * *. He didn't chase me up there. He told me it would be a good idea for me to go." Compensation was awarded the employee because the hunting trip was found to be in the "furtherance of the affairs or business of the employer."
We believe that our decision here is in accord with the clear mandate that the Workmen's Compensation Act is to be liberally construed and that the issue of course and scope of employment is ordinarily an issue of fact for the determination of a jury. Shelton v. Standard Ins. Co., Tex. Sup.Ct., 389 S.W.2d 290; Janak v. Texas Employers Ins. Ass'n, Tex.Sup.Ct., 381 S.W.2d 176; and Jecker v. Western Alliance Ins. Co., Tex.Sup.Ct., 369 S.W.2d 776.
Appellee, and apparently the trial court, relied chiefly upon the case of Campbell et al. v. Liberty Mutual Ins. Co., Tex.Civ.App., 378 S.W.2d 354, being the only other Texas reported case dealing with the specific question of injuries sustained by an employee while attending a company picnic. While we agree completely with the opinion of the Court of Civil Appeals at Eastland in the Campbell case, we find that it is not authoritative of the issue here presented. That appeal was from a summary judgment. The motion for summary judgment by the insurance company was supported by affidavits which were clear and express in their terms relating to the facts and circumstances of the death of the employee in that case while attending a company picnic. The affidavits established that attendance by employees was not compulsory; that no customers were present; that no business was conducted or intended to be conducted; and that the employee was not asked to perform any service for his employer at said gathering. The verified motion and affidavits attached thereto were never controverted and the trial court sustained the motion. Under that factual situation no issue was presented and the court correctly sustained the motion. This is not the situation in the instant appeal where the case was fully tried and conflicting evidence was presented, as above related.
*183 Appellant's Points 2, 3 and 4 are sustained.
In his supplemental brief appellant has presented his fifth point of error in which he contends that the trial court erred in overruling his motion for summary judgment. As above related, appellant's motion for summary judgment was not filed nor presented to the court until several months following the trial of the case and long after the jury had been discharged but no order of mistrial had been entered. The motion for summary judgment was supported by a lengthy affidavit of Clevenger as well as answers to requests for admissions of fact. No counter affidavits were filed in opposition to this motion. We agree with appellee that the action of the court in overruling the motion does not constitute error.
In the first place, we do not believe that appellant's motion for summary judgment was timely filed. While it was made under the provisions of Rule 166-A, T.R.C.P., and such rule does provide that a motion for summary judgment may be made "at any time after the adverse party has appeared or answered," said rule is a part of Rule 166, T.R.C.P., which governs pre-trial procedures and appears in a section of the rule designated as "Section 8 Pre-Trial Procedure." Said Rule 166-A, T.R.C.P. is modeled substantially after Rule 56 of the Federal Rules of Civil Procedure. Since the Texas rule is modeled on the federal rule we believe that federal decisions construing the purposes for engrafting a summary judgment technique into American jurisprudence are relevant. We find numerous federal cases reflecting the idea that the practice was designed to enable the trial court to make prompt disposition of lawsuits which by their very nature were susceptible of conclusion in summary fashion, without the necessity of resorting to all the procedures involved in a plenary trial. New Hampshire Fire Ins. Co. v. Scanlon, 362 U.S. 404, 80 S. Ct. 843, 4 L. Ed. 2d 826; Sartor v. Arkansas Natural Gas Corp., 5th Circuit, 134 F.2d 433; Whitaker v. Coleman, 5th Circuit, 115 F.2d 305; Securities & Exchange Commission v. Payne, Dist. Ct., Southern District, New York, 35 F. Supp. 873.
McDonald, in his treatise, "Texas Civil Practice," Cumulative Supplement, Vol. 4, § 17.26.2, concludes that under the provisions of Rule 166-A of the Texas Rules of Civil Procedure, said motion should be filed and called to the attention of the court "in advance of trial." Of course, the trial court may defer until a later time his disposition of the motion timely filed. This is often done, as illustrated by the decision of the Fifth Circuit in Woods v. Robb, 171 F.2d 539.
The very essence of the summary judgment rule is to avoid the necessity of a trial on the merits. To say that a motion may be timely filed after the case has been completely tried before a jury is to defeat the very purpose of the rule.
However, and assuming arguendo, that the motion was timely filed, we are of the opinion that the trial court was justified in overruling same because the record brought before the court, which included all of the testimony given, and especially the portion outlined above, demonstrated the existence of controverted facts which would defeat the granting of the motion. The absence of controverting affidavits is not mandatory if there are other matters of record sufficient to establish that said motion is not well taken. Ragsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467; Freeberg v. Securities Investment Co. of St. Louis, Tex. Civ.App., 331 S.W.2d 825; Simpson v. City of Abilene, Tex.Civ.App., 388 S.W.2d 760; Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508; McKay v. Dunlap, Tex.Civ. App., 244 S.W.2d 278; Pridgen v. Denson, Tex.Civ.App., 298 S.W.2d 276; Boroughs v. Williamson, Tex.Civ.App., 330 S.W.2d 638.
In Burnham Chemical Co. v. Borax Consolidated, 9th Circuit, 170 F.2d 569 the trial judge waited until after the introduction of *184 testimony before sustaining a motion for summary judgment. The court held that the trial judge was authorized and should have considered the testimony in the record, as well as affidavits of the parties attached to said motion, in arriving at his judgment.
The complete record before the court demonstrated issuable facts on the question of course and scope of employment and therefore the trial judge was justified in overruling appellant's motion for summary judgment. Appellant's fifth point is overruled.
The judgment of the trial court is reversed and remanded.
Reversed and remanded.
NOTES
[1] "Thereupon, the plaintiff filed his Motion for Separate Trial and Summary Judgment and thereupon the defendant moved the Court to enter judgment for the defendant to the effect that Plaintiff take nothing and that the defendant have its costs by reason of there being no issue raised in the case with respect to course of employment and the Court having heard such motions as well as having reconsidered the motion for an instructed verdict which was made after both sides closed, the Court is of the opinion that defendant's position is well taken and plaintiff's position is not well taken and that defendant is entitled to judgment as a matter of law on the ground that plaintiff was not within the course and scope of his employment at the time of his accidental injury concerned herein and that a judgment should be entered herein denying plaintiff's motion for separate trial and summary judgment and denying plaintiff any recovery in said cause and that all costs herein incurred be taxed against the plaintiff, and it is so ordered.
"It is therefore ordered, decreed and adjudged that the plaintiff, Hiram C. Clevenger, take nothing of and from the defendant, Liberty Mutual Insurance Company." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573587/ | 553 F. Supp. 794 (1982)
John H. PADGETT and Suzanne Padgett
v.
UNITED STATES of America.
No. SA-80-CA-141.
United States District Court, W.D. Texas, San Antonio Division.
December 22, 1982.
Phil Hardberger, James E. Conley III, Hardberger & Herrera, San Antonio, Tex., for plaintiffs.
Mary Ann Murphy, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SUTTLE, Senior District Judge.
This action was brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and the National Influenza Immunization Program of 1976, 42 U.S.C. § 247b. The plaintiffs, John H. Padgett and Suzanne Padgett, seek compensatory damages for injuries alleged to have resulted from Mr. Padgett's inoculation with the swine influenza vaccine. The parties have stipulated that John Padgett developed Guillain-Barre Syndrome (GBS) on March 10, 1977, 116 days, or 16 weeks, after his inoculation with the swine influenza vaccine on November 14, 1976. The dispositive issue for this Court is causation.[1]
This action was filed on February 7, 1979, in the United States District Court for the District of Columbia for coordinated pretrial proceedings in In Re Swine Flu Immunization Products Liability Litigation, M.D.L. No. 330, Misc. No. 78-0040 (D.D.C.1979). On February 29, 1980, the parties stipulated to transfer of this action to this court for local discovery and for trial. A non-jury trial on the issues of liability and damages was held from June 14 to 18 and August 30 to 31, 1982. The court now enters its findings of fact and conclusions of law in the form of this written memorandum.
I. PLAINTIFF'S MEDICAL HISTORY
Mr. Padgett was 30 years of age at the time of his inoculation with the monovalent swine influenza vaccine on November 14, 1976, at the local high school in Seguin, Texas.
On March 4, 1977, the plaintiff called his family physician, LeRoy Weiss, M.D., and reported to Dr. Weiss the symptoms of a cold or the flu. Dr. Weiss advised him to come to his office for a bicillin injection, which he did. On March 7, 1977, the plaintiff *795 called Dr. Weiss and informed him that the first injection had not relieved his symptoms. Dr. Weiss recommended that he return for another bicillin injection, which was administered by Dr. Weiss' nurse.
Dr. Weiss' medical records for the plaintiff's March 4 and 7, 1977, visits contain Dr. Weiss' impression that the plaintiff's condition was an upper-respiratory infection (URI).
On March 8, 1977, the plaintiff visited a general practitioner in Seguin, Texas, Joseph B. Gastring, M.D., and gave a history of "fever on and off for eight days, from 100 to 101 in the p.m., malaise, medication and fever." Dr. Gastring also noted that a swine influenza vaccination had been administered to the plaintiff on November 14, 1976. His impression was "viral and/or nonpyogenic sinusitis."
The medical records of Dr. Gastring are closest to the date of the URI, and the only medical records in which Mr. Padgett himself estimated the onset of his URI. He estimated that his fever had been of eight days' duration. This court specifically finds that the symptoms of the plaintiff's URI began on March 1, 1977.
On March 10, 1977, Mr. Padgett experienced the onset of neurological symptoms of GBS. He awoke with numbness of the face and tingling of his tongue and hands. The plaintiff went to Dr. Gastring's office and complained of generalized numbness and difficulty breathing. He had difficulty with balance and areflexia in his lower extremities. Dr. Gastring told the plaintiff that he probably had Guillain-Barre Syndrome, a form of temporary paralysis, but he did not have any opinion as to the severity of it. Dr. Gastring took chest x-rays, told the plaintiff to continue taking antibiotics, take off from work, go home, rest, and call if anything major developed.
The plaintiff returned home and awoke the next morning, March 11, 1977, with difficulty getting out of bed, difficulty walking, difficulty breathing, and extreme weakness. His wife called Dr. Gastring, who referred her to Walter F. Buell, M.D., a neurologist in San Antonio. Dr. Buell admitted plaintiff to Santa Rosa Hospital.
The plaintiff's condition was diagnosed as Guillain-Barre Syndrome shortly after admission. He was hospitalized with GBS at the Santa Rosa Hospital for five months from March 11, 1977, to August 11, 1977. He became totally paralyzed during the first stages of the disease and could breathe only with the assistance of a respirator. A tracheostomy had to be performed.
The paralysis became so complete that Mr. Padgett could not control his urine or hands or even blink his eyes. Once he lost control of his eyelids, he lost his sole source of communication, as he had worked out a system of blinks as signals. After 13 weeks he was taken off the respirator and put in intensive care. He had to endure extensive rehabilitation, which was extremely painful.
The plaintiff eventually returned to work on a limited basis in October of 1977. In March of 1978 he went back to work on a full-time basis but his job was changed as he was considered a risk to drive. The plaintiff had to have an operation after the five months in Santa Rosa Medical Center to remove a bladder stone caused by the catheterization. His total medical bills are more than $43,000.00. He still has weakness in his feet and foot drop.
II. GUILLAIN-BARRE SYNDROME
Guillain-Barre Syndrome is an acutely evolving, ascending paralytic disease of the peripheral nervous system[2] of unestablished etiology. Although the precise mechanism of GBS is unknown, it is generally thought that the disorder represents an aberrant immune response.
In GBS patients, lymphocytes attack the myelin, the fatty substance that surrounds or "insulates" the peripheral nerves. The resulting "shorting out," or demyelination, of the nerves impairs their ability to conduct *796 electrical impulses from the brain that control the reflexes and movement of certain muscles.
Attempts to isolate a viral or microbial agent responsible for GBS have failed. A respiratory, gastrointestinal infection or other infectious illness precedes the onset of symptoms of GBS within three weeks in approximately 60 percent of GBS patients. In many cases, no preceding event can be identified.
III. EXPERT TESTIMONY ON CAUSATION
The plaintiffs called Martin Lewis, M.D., a pathologist and Chairman of the Department of Pathology at Loyola University in Chicago; Donald V.T. Bear Ph.D., Professor of Economics at the University of California at San Diego; and Joseph B. Gastring, M.D., a general practitioner in Seguin, Texas.
The government called Thomas M. Mack, M.D., an epidemiologist who is Professor of Epidemiology in the Department of Pathology and Family and Preventive Medicine at the University of Southern California, Los Angeles, California; Edward A. Neuwelt, M.D., a neuroimmunologist and former Assistant Professor of Neurosurgery and Biochemistry at the University of Texas Medical Center at Dallas, currently in clinical and research practice in Portland, Oregon; W. Alan Hauser, M.D., a neuroepidemiologist who is Associate Professor of Neurology at the Gertrude A. Sergievsky College of Physicians at Columbia University in New York; Walter F. Buell, M.D., the plaintiff's treating neurologist and Associate Professor of Neurology at University of Texas Medical School in San Antonio, Texas; and LeRoy Weiss, M.D., the plaintiff's family physician and a general practitioner in Seguin, Texas. The government also called, by videotape deposition, several physicians who testified in the multidistrict proceedings.
IV. PLAINTIFFS' EVIDENCE ON MEDICAL CAUSATION
The plaintiffs offered three pieces of evidence in an effort to show that Mr. Padgett's GBS was caused by his swine influenza vaccination 16 weeks earlier: (1) the videotape deposition testimony of Dr. Lewis; (2) the deposition testimony of a general practitioner, Dr. Gastring; and (3) the testimony of Donald V.T. Bear, Ph.D.
A. PLAINTIFFS' EXPERT, MARTIN LEWIS, M.D.
Martin Lewis, M.D., testified for the plaintiffs on causation. Dr. Lewis is a pathologist. He is not a neurologist or an epidemiologist. A review of his curriculum vitae reveals that nearly all of his publications are on cancer.
Although his testimony centered on neuroimmunology, he has never authored a single article on GBS, peripheral neuropathy (which includes GBS), or autoimmune reactions and GBS. Nor has he written on neurological disorders following vaccination. Quite simply, Lewis has not published on the subject of neuroimmunology.
Dr. Lewis based his belief that the swine flu shot caused the plaintiff's GBS on two factors. First, he testified that the swine flu shot primed or sensitized the plaintiff's immune system and that the URI the plaintiff developed in March of 1977 was a secondary response building upon the previous response and resulted in a rapid onset of the GBS. (Lewis 29:14-23) Second, Dr. Lewis testified that it was inconceivable from what he knows about GBS that an infection 6 days before the onset of the GBS could be the prime cause of the GBS. (Lewis 30:12-16)
1. Dr. Lewis' Sensitization Theory Is Speculative
The basis for Dr. Lewis' sensitization theory is that the priming factor (the swine flu vaccine) and the secondary factor (the URI) contain the same or similar proteins. (Lewis 168:14-20) However, he admitted that he did not know what proteins were in the swine flu vaccine:
I have no idea what the protein was that gave rise to this, nor does anyone else for that matter ...
*797 Lewis 169:25-170:1. See also 168:14-169:5. Dr. Lewis assumed that the proteins in the vaccine and the URI were the same because "[i]t's the best assumption I can make." (Lewis 170:1-4)
Dr. Lewis also testified that his proposed primary and secondary immune responses were caused by the same or similar virus. (Lewis 34:20-25) However, he did not identify the virus in the vaccine or the URI, or give any basis for his assumption that the two were similar or identical.
The immunologist who testified for the Plaintiffs' Steering Committee during the MDL proceedings, Joseph Bellanti, M.D., characterized the plaintiffs' sensitization theory as "speculative." (Bellanti 458:15-459:1) Dr. Hauser, the defendant's expert neuroepidemiologist, testified that there is no support in the medical literature for the sensitization theory, and that the Michigan epidemiologic study refutes it. (Hauser 81:9-82:6).[3]
2. Dr. Lewis' Testimony That the Plaintiff's URI Occurred Too Near the Onset of GBS to Have Been the Cause Is Directly Contrary to the Medical Literature
The other basis of Dr. Lewis' opinion was that it was inconceivable that a URI with onset six days before GBS could have been the prime or sole cause of the GBS. (Lewis 30:12-16) He at first testified that, for the URI to have precipitated the plaintiff's GBS, it should have occurred 2 to 3 weeks (14-21 days) before the onset of the plaintiff's GBS. (Lewis 143:22-144:6) When confronted with his testimony in Alvarez v. United States, 495 F. Supp. 1188 (D.Colo. 1980), that he would expect to see the infectious illness occur 10 to 14 days before the onset of the GBS for it to be the only cause of the GBS (Lewis 145:25-146:22), Lewis agreed that 10 days was a reasonable period of time for the URI to cause the GBS. (Lewis 145:3-8; 162:17-21)
Dr. Lewis had assumed, based on a conversation with the plaintiff the day before his videotape trial deposition was taken, that the URI in this case had onset 6 days before the GBSon March 4, 1977 (Lewis 156:7-13), rather than March 1, 1977, as this court has found.
As a last resort, Dr. Lewis testified that patients usually recover from the infectious illness before the onset of GBS. (Lewis 145:3-7) When asked for support for his contention that the URI or other infectious illness must have cleared before the onset of the GBS for the URI to have caused the GBS, he could point only to Dr. Arnason's Chapter 56 in Dyck, et al. Peripheral Neuropathy at p. 1110-2 (U.S. Exhibit 6; Lewis 162:22-23):
Approximately half the patients give a history of an antecedent acute infectious illness that has usually cleared by the time neuropathic symptoms begin. Most commonly the antecedent illness is described as influenza-like with fever; sometimes patients mention an acute dysenteric episode. Less commonly an earlier episode of low back pain is recalled.
The interval between the prodromal infectious episode and the onset of neuropathic symptoms is variable; most frequently it is one to three weeks. On occasion the interval between infection *798 and neuropathy may be less than one week. In most instances the agent responsible for the prodromal illness remains unidentified. (Citations omitted)
In summary, Dr. Lewis' sensitization theory is speculative, and his contention that the URI occurred too close to the onset of the plaintiff's GBS is not supported by and is contrary to the medical literature.
B. PLAINTIFFS' EXPERT, DR. GASTRING, M.D.
The plaintiffs read into the record the deposition testimony of Mr. Padgett's general practitioner, Dr. Gastring. Dr. Gastring is not a neurologist. Mr. Padgett's was only the second case of GBS he had seen in his entire career. Dr. Gastring referred the plaintiff to Dr. Buell, a neurologist, for the care and treatment of his GBS.
On direct examination Dr. Gastring opined that the plaintiff's GBS was caused by the swine flu vaccine. On cross-examination, he demonstrated lack of familiarity with the precipitating events of GBS and the time interval between the precipitating events and the onset of GBS. (Gastring 349:20-350:16) Dr. Gastring's lack of knowledge of GBS was further demonstrated by his testimony that GBS is a communicable disorder (Gastring 343:23-344:6), which it is not.
The most telling evidence of Dr. Gastring's lack of familiarity with GBS was the fact that, when he diagnosed it in Mr. Padgett on March 10, 1977, he sent him home, even though Mr. Padgett was having difficulty breathing. It is most inadvisable to send home a GBS patient who is having difficulty breathing. A physician with knowledge of GBS would have placed the plaintiff in intensive care that day because of his respiratory difficulty. (Hauser 42:5-43:1)
After Dr. Gastring's knowledge of GBS was tested on cross-examination and it became fairly obvious that he did not know very much about GBS, he testified that he had no opinion on whether plaintiff's GBS was caused by the swine flu vaccine. (Gastring 346:8-10 and 357:10-15) Accordingly, the court finds that Dr. Gastring's testimony is of no aid in establishing causation.
V. DEFENDANT'S TESTIMONY ON CAUSATION
Walter F. Buell, M.D., the plaintiff's treating neurologist, testified that, based on his education, clinical experience, and knowledge of GBS, the swine influenza vaccination did not cause the plaintiff's GBS. (Buell 290:12-19; 314:11-15; 315:14-18) He stated that the plaintiff's URI appeared to be the precipitating event. (Buell 297:19-23)
W. Alan Hauser, M.D., a neuroepidemiologist from Columbia University, testified that the swine influenza vaccination did not cause or contribute to the plaintiff's GBS. (Hauser 78:4-14) He stated that Dr. Lewis' testimony that the plaintiff's URI occurred too close to the time of onset to have been solely responsible for the GBS was not supported by the medical literature. (Hauser 80:18-81:3) He knew of no medical evidence to support Dr. Lewis' sensitization theory. (Hauser 81:8-82:6)
Edward A. Neuwelt, M.D., is a neuroimmunologist and author of the text Neuwelt, Clark, Clinical Aspects of Neuroimmunology (1978). He testified that, because the swine influenza vaccine was a killed vaccine as opposed to a live vaccine, there were no live particles to sustain an infection for more than a period of a few days. (Neuwelt 69:20-70:4) Therefore, there was no probability that the antigens that Dr. Lewis alleges sensitized the immune system would remain in the body for more than a few days. (Neuwelt 70:5-7) Dr. Neuwelt knew of no experimental or theoretical basis to support the sensitization theory. (Neuwelt 91:15-94:19)
Dr. Neuwelt testified that the most common precipitating events in GBS are: URI's, GI's, common colds, influenza, and other viral and bacterial infections. (Neuwelt 73:8-25) He testified that GBS may have onset as few as three days after the preceding infectious illness, although it usually *799 takes four to seven days to occur (Neuwelt 76:3-6; 77:5-14), and can occur up to two months prior to the onset of the GBS. (Neuwelt 76:6-14) Dr. Neuwelt rejected Dr. Lewis' notion that the URI occurred too close to the onset of the GBS for it to have been the sole cause, explaining that it is inconsistent with the medical literature on GBS and standard immunologic data that has been known for fifty years. (Neuwelt 77:15-24; 94:20-95:24) He also testified that it made no difference whether the plaintiff's URI had cleared when he developed GBS. (Neuwelt 90:24-91:11)
Dr. Neuwelt testified that the swine influenza vaccination did not cause or contribute to the plaintiff's GBS and that the sole precipitating event was the plaintiff's URI. (Neuwelt 88:2-8) He characterized the scientific evidence in support of his opinion as "overwhelming." (Neuwelt 88:9-11) As a neuroimmunologist, he knew of no clinical or experimental data that would support a relationship of a killed antigen inciting an immune response against one's own body 16 to 17 weeks later. (Neuwelt 88:12-89:15)
Besides these live witnesses, the defendant put on several other expert witnesses by multidistrict videotape deposition. Each of these eminent experts gave his opinion as to the period of increased likelihood of contracting GBS following a swine influenza vaccination.
Peter J. Dyck, M.D., Professor of Neurology at the Mayo Medical School, estimated six weeks. (Dyck 37:19-25) Barry G.W. Arnason, M.D., Chairman of the Department of Neurology at the University of Chicago, estimated nine weeks at the outside. (Arnason 51-52) Alexander Langmiur, past Professor of Epidemiology at Harvard Medical School, estimated ten weeks. Neal Nathanson, M.D., Chairman of the Department of Microbiology at the University of Pennsylvania Medical School and formerly editor of the American Journal of Epidemiology, estimated ten weeks. Paul F. Wehrle, M.D., Hastings Professor of Pediatrics at the University of Southern California specializing in immunization and epidemiology, estimated 60 days.
VI. ULTIMATE FINDING ON MEDICAL ASPECTS OF CAUSATION
The court specifically finds the expert testimony presented by the defendant more persuasive on the medical aspects of causation in this case. The court rejects Dr. Lewis' sensitization theory as speculative.
VII. EPIDEMIOLOGY
The National Influenza Immunization Program began on October 1, 1976. Before the vaccine administration began, a nationwide surveillance system was established to rapidly identify illness temporally related to vaccination. By December 2, 1976, when over 35 million doses of vaccine had been administered, two clusters of GBS in recent inoculees had been reported to the Center for Disease Control (CDC) in two states: Minnesota (four cases) and Alabama (three cases).
Following identification of the two clusters, CDC initiated an epidemiologic investigation to evaluate the possibility of a relationship between the GBS and the swine flu vaccine. By December 15, 1976, data from four states suggested that the incidence of GBS in vaccinees was approximately seven times greater than the incidence in non-vaccinees. This led to the termination of the National Influenza Immunization Program on December 16, 1976, and an expansion of the surveillance program for GBS. The results of the surveillance program showed an increased risk of GBS up to ten weeks after inoculation; however, the risk was not statistically significant after eight weeks. Schoenberger, et al., Guillain-Barre Syndrome Following Vaccination in the National Influenza Immunization Program, United States, 1976-1977, A.J. Epi. 160:105, 1979.
Epidemiology is the study of the patterns and causes of disease in human populations. Epidemiologists investigate factors or events that are associated with disease in an effort to determine which of the factors or events are causing the disease.
*800 Epidemiologists are the professionals who are trained to study the cause and effect relationship. They are trained to work with groups of people and populations, analyze reports of disease in relation to the populations, determine incidence rates in the groups, and interpret the differences in various incidence rates. Epidemiologists are qualified to evaluate the level of association, and explanations for the association other than causality.
There are three components in evaluating causation of disease: (1) the level of the association between an event and the disease; (2) the biologic credibility of the purported association; and (3) whether there is an alternative explanation for the purported causality that has more credibility than that of causation. In evaluating the first componentthe strength of association chance must be excluded. If the association is not explained by chance alone, then it may be explained by a causal relationship or some other relationship. In evaluating the second component of causalitybiologic credibilitythe purported association is compared with medical knowledge on the subject. In evaluating the third component of causalitywhether there is an alternative explanation for the purported causalityepidemiologists must exclude three alternative explanations: chance, confounding, and bias. Chance has been previously explained. Confounding, not applicable here, would explain a statistically significant relationship between lung cancer and yellow fingers.
Bias is an error in the actually observed rate of a condition that comes about by virtue of the means of counting or the means of establishing the criteria; i.e., an irregularity in the surveillance mechanism. Bias may come from the people who have the disease, the physicians diagnosing or reporting it, or the persons performing the surveillance. For example, if a radio station announces that it wishes to count the number of cases of cancer in a community in relation to a chemical dump site, epidemiologists expect that more people who live near the dump site will respond to the call than people who live far away from the dump site. The conclusion could be drawn by the people doing the study that there is a relationship between living near the dump site and developing cancer when in fact the association resulted from increased motivation to report and not causation.
The strength of the association between GBS and the swine influenza vaccination is very highon the order of a seven-fold increase for all periods combined, according to the Schoenberger study. That there is a tremendous increase in the relative risk concentrated primarily within the first five weeks after vaccination implies causality. But the fact that a temporal association exists between vaccination and GBS also suggests that at some point the temporal association becomes so attenuated that causation cannot be attributed to the vaccine.
The level of association between an eventsuch as vaccinationand a diseasesuch as GBSis determined by comparing risks in comparable populations. Assuming 100% reporting of all GBS cases, the relative risk to a vaccinee as opposed to a non-vaccinee is determined by dividing the attack rate among vaccinees in a given population by the attack rate among non-vaccinees in that population. For example, if the attack rate among vaccinees three weeks after inoculation were 4 per million and if the attack rate among non-vaccinees were 1 per million, the relative risk to a vaccinee three weeks after inoculation would be 4. Of course, this computation assumes that there is a 100% reporting of GBS cases in both the vaccinated and unvaccinated segments of the population that we are studying.
From the relative risk, we can calculate the probability that a given case of GBS was caused by vaccination. The probability is equal to the relative risk minus one, divided by the relative risk. In the example above, then, the probability that vaccination caused GBS in a three-week vaccinee would be (4-1)/4, or ¾. In other words, in a large population of three-week vaccinees, 25% of the GBS cases would have occurred in the absence of vaccination and 75% *801 would not have occurred but for the vaccination. A relative risk of 2 or greater, then, means that the probability that vaccination caused a particular case of GBS is better than 50%. Hence, a relative risk of 2 or greater would indicate that it was more likely than not that vaccination caused a case of GBS.
To obtain an ideal calculation of the relative risk of vaccination, however, we need 100% reporting of all GBS cases in both vaccinees and non-vaccinees. In an imperfect world, such ideal reporting is nonexistent. To correct for these imperfections, the plaintiffs' expert, Dr. Bear, made certain assumptions. The court finds that these assumptions are epidemiologically unsound and also contrary to common sense.
A. PLAINTIFF'S EXPERT, DONALD V.T. BEAR, Ph.D.
The plaintiffs called Donald V.T. Bear, Ph.D., Professor of Economics at the University of California at San Diego. Dr. Bear is an economist with qualifications in statistics.
Dr. Bear analyzed the CDC raw data underlying the Schoenberger study and documented a dropoff in the reporting of GBS cases after December 18, 1976. Dr. Bear assumed that there was complete reporting of vaccinated and unvaccinated GBS cases prior to December 18, 1976. Based on a purely mathematical analysis of the data, he concluded that, after December 18, 1976, 26% more unvaccinated GBS cases were reported to CDC than vaccinated GBS cases. Dr. Bear adjusted the CDC raw GBS data based on these assumptions. In making these adjustments, however, he did not consider whether the publicity surrounding the development of GBS in recent vaccinees in the fall of 1976 or medicolegal implications had any effect on the efficiency of reporting GBS cases to CDC.
This court specifically finds that, although Dr. Bear's mathematical calculations are beyond reproach, the assumptions underlying his calculations are riddled with error, and thus his conclusions are not credible.
Dr. Bear is an economist. He is not a medical doctor, biostatistician, or epidemiologist; nor has he had any training in medicine, biostatistics, or epidemiology. Dr. Bear has no training or experience in evaluating biologic credibility of curves such as the curves of his study, and cannot testify on biologic causation. He has never been involved in an epidemiologic surveillance for disease and has no experience in the design of epidemiologic studies. There is no issue as to Dr. Bear's ability to perform mathematical calculations. However, he lacks the specific education, training, and experience necessary to properly evaluate the length of risk of GBS from the swine influenza vaccination. Bear does not know whether his study is consistent with standard epidemiologic principles because he does not know what they are. (117:18-118:5)
Bear admitted that he is not qualified to evaluate or assess motivational factors in reporting (105:17-106:14), and that he is not competent to assess the behavior of physicians in a medical milieu or assess the manner in which physicians went through the reporting procedure. (113:17-114:12) He has no training in excluding or evaluating sources of bias in an epidemiologic surveillance; he can merely attempt to quantify statistically, as he has attempted to do here. (112:2-15)
Dr. Bear's two ultimate assumptions are the result of an attempt to reconstruct incomplete data on the incidence of GBS in both vaccinees and non-vaccinees after December 18, 1976. First, he assumes that there was complete reporting of GBS cases in both vaccinees and non-vaccinees whose onset of symptoms was before December 18, 1976. (170:4-14) Second, he assumes that after that date 26% more of the actual GBS cases in non-vaccinees were reported than the actual GBS cases in vaccinees. (155:14-22)
The source of Dr. Bear's first assumptionthat is, the completeness of reporting of vaccinated and unvaccinated cases prior to December 18, 1976is the unpublished version of Dr. Langmuir's paper. (36:5-17) The passage he relies on is as follows:
*802 More interesting is the concurrence of observed and expected cases during the declining weeks through January. There is no sign of under-reporting. Apparently cases of GBS following vaccine continued to be reported even though reporting of cases among the unvaccinated was believed to have fallen off.
Plaintiffs' Exhibit 1, p. 15 (emphasis added). Dr. Langmuir's paper does not state that there was complete reporting of the vaccinated and unvaccinated cases until December 18, 1976.
Bear's second assumption forms the basis for his "reporting factor," the largest manipulation or adjustment of the CDC raw data made by him: Bear assumed that after December 18, 1976, 26% more unvaccinated GBS cases were reported to CDC than vaccinated cases.
It is undisputed that after December 18, 1976, there was an underreporting of GBS cases in both vaccinees and non-vaccinees. However, Dr. Bear has reconstructed data for this crucial period under the assumption that the cases in vaccinees were more underreported than the cases in non-vaccinees.
The reporting factor is Bear's largest adjustment to the data. By his own admission, it is critical to his analysis to properly estimate his reporting factor. (157:19-158:6) He also admitted that, if there were in reality more efficient reporting of vaccinated GBS cases (the opposite of his assumption), the results of his analysis would be skewed to a higher relative risk for vaccinated GBS cases. (165:5-22)
To account for his belief that unvaccinated cases were reported more efficiently than vaccinated ones, Bear multiplied the reported unvaccinated cases by a lower number (reporting factor) than the vaccinated cases. This calculation increased the attack rate for non-vaccinees by a lesser amount than the attack rate for vaccinees. This, in turn, artificially increased the ratio of the attack rate among vaccinees to the attack rate among non-vaccinees, skewing the results to a higher relative risk for vaccinees.
Bear's second assumptionthat after December 18, 1976, 26% more unvaccinated GBS cases were reported to CDC than vaccinated onesis epidemiologically unsound and contrary to common sense. Because the hypothesis of the association between the swine influenza vaccine and GBS was known, as was the legal liability of the federal government, and because of the tremendous media publicity surrounding the appearance of clusters of GBS among recent vaccinees, this court specifically finds that there was a greater efficiency of reporting of vaccinated GBS cases. Since more vaccinated GBS cases were reported, Bear's adjustment for his assumptions regarding underreporting artificially lowered the unvaccinated GBS attack rate and raised the vaccinated GBS attack rate, resulting in an artificially longer and progressively higher period of relative risk.
B. DEFENDANT'S EXPERTS IN EPIDEMIOLOGY
The defendant called Thomas M. Mack, M.D., Professor of Epidemiology in the Department of Pathology and Family and Preventive Medicine at the University of Southern California. The defendant also called W. Alan Hauser, M.D., a neuroepidemiologist and Associate Professor of Neurology at the Gertrude H. Sergievsky College of Physicians and Surgeons at Columbia University. Based on the testimony of these experts, the court rejects the assumptions of Dr. Bear and finds his conclusions unworthy of belief.
Everyone agrees that there was not 100% reporting of GBS cases after December 18, 1976. However, the court agrees with the government's epidemiological experts and finds that, throughout the period of surveillance, vaccinated cases were less underreported than unvaccinated ones.
The Center for Disease Control is an advisory body having only the ability to request that the states report GBS cases to it. The states reported GBS cases to CDC in their own different styles. The call from CDC to report cases came at a time when the limited resources of state and local *803 health departments were strained by the swine flu inoculation program itself. CDC received complaints from state health departments that were burdened with time-consuming reporting requirements and were competing for limited resources for other state health department functions. Similarly, the call for surveillance came at a time when CDC was still administering the swine flu program.
Not only did the states look for GBS cases with varying degrees of efficiency, but the physicians reported the cases with varying degrees of efficiency. Some GBS cases were reported through semi-public or public facilities such as large university hospitals, which automatically report cases required to be reported. Other GBS cases were reported by physicians. Some physicians are opposed to reporting cases in general on the basis of physician-patient confidentiality and will not even report cases of venereal disease. The largest number of physicians fall somewhere in between the automatic reporting at large medical centers and those who will not report diseasethat is, they report under some circumstances and not under others. The issue then becomes what motivates physicians to report disease.
When the first reports appeared of clusters of GBS in two states, there was a request by CDC to the states to report cases of GBS with onset from October of 1976 on, and presumably a request from the states to the physicians and hospitals in each state to do the same thing. At the same time, there was a tremendous amount of media publicity about the possible association between GBS and the swine influenza vaccination. The GBS-swine flu vaccine question was also discussed with much interest by practicing physicians.
Under the circumstances existing at the time, there was an association in the physicians' minds between GBS and the swine flu vaccine. The hypothesis CDC sought to test by the epidemiologic surveillance was known by the physicians reporting GBS cases to the state health departments.
Some physicians reported GBS in patients who had been vaccinated in the belief that the patients would derive a long-term benefit from documenting a case that was or may have been due to the government's error. There was general knowledge that the government had assumed the vaccine manufacturers' legal liability. Reporting illness in vaccinated persons might help the vaccinated patient's potential welfare. It is a common experience among epidemiologists that, if something happens to one who has had an immunization, it is much more likely to be reported because the patient had the immunization.
Diagnostic considerations also affected the comparability of the attack rates of GBS in the vaccinated with the unvaccinated. Each state applied its own diagnostic criteria for the GBS cases. Most required only: (a) diagnosis of GBS by a physician and (b) objective evidence of muscle involvement. Some states required diagnosis by a neurologist. No diagnostic criteria were applied to the 1098 cases in the Schoenberger study to ensure that they met acceptable clinical standards for diagnosis of GBS. Applying uniform diagnostic criteria to cases before including them in an epidemiologic study is standard epidemiologic procedure.
Under the diagnostic criteria employed by most states, a number of other neurologic disorders could have been included as GBS cases, including acute myelopathies, botulism, myasthenia gravis, porphyria, acute peripheral neuropathies, neuropathies due to toxins, strokes, and multiple sclerosis.
Mild cases of GBS were much more susceptible to over-diagnosis of GBS and misdiagnosis of GBS. Because there was a higher frequency of mild GBS cases reported after 7 weeks from the start of the swine flu program, the inclusion of non-GBS cases in late weeks had profound effects on the relative risk calculations for the late weeks, skewing them in favor of higher relative risks.
In summary, because of the publicity and various medico-legal implications, the vaccinated *804 GBS cases were reported with greater relative frequency than the unvaccinated cases. Dr. Bear's analysis is devoid of credibility because it assumes the opposite of this fact. In addition, the various epidemiologic studies done on the CDC raw data have tended to result in higher and longer periods of relative risk associated with vaccination than is actually the case.
VIII. FINAL CONCLUSIONS
The medical theories advanced by the plaintiffs to show that the swine influenza vaccination caused or contributed to Mr. Padgett's GBS are speculative and not supported by the medical literature. Dr. Lewis' sensitization theory lacks a medical and scientific basis and is not generally accepted in the present state of medical and scientific knowledge. Dr. Lewis' testimony that the plaintiff's URI could not have been the sole precipitating event of the plaintiff's GBS because it occurred too close to the onset of the GBS and did not clear before the onset of GBS is contrary to the medical literature.
GBS is thought to be precipitated by various infectious illnessesmost often upper respiratory infections and gastrointestinal infections that occur within four weeks of the onset of GBS. The plaintiff's GBS was precipitated by his upper respiratory infection, whose onset was ten days before the onset of GBS.
The assumptions underlying Dr. Bear's analysis are erroneous. There was an underreporting of GBS cases reported to CDC. However, the underreporting of unvaccinated GBS cases was greater in relative frequency than the underreporting of vaccinated cases, the opposite of the assumption made by Dr. Bear.
Dr. Bear's use of reporting factors based on his assumptions regarding underreporting resulted in longer periods of relative risk being associated with vaccination. Dr. Bear showed an increased risk of GBS in late onset weeks by adjusting his data according to erroneous assumptions regarding the effect of underreporting. His conclusion that there is an increased risk up to eighteen weeks after inoculation conflicts with the medical literature on GBS and lacks biologic credibility.
The analysis and logic employed by Dr. Mack is based on sound epidemiologic principles and experience. The increased incidence of GBS as a result of the swine influenza vaccination ends at most ten weeks after inoculation. Since the plaintiff's GBS occurred sixteen weeks after his inoculation, the vaccination did not cause or contribute to plaintiff's GBS.
The plaintiffs have failed to sustain their burden of proving that the swine influenza vaccination administered to John Padgett caused or contributed to his GBS. The Clerk is directed to enter judgment in favor of the defendant, also awarding it the costs of defending this action.
NOTES
[1] The Final Pretrial Order of the transferee court, paragraph IX, provides that, where the United States stipulates that a plaintiff developed GBS following inoculation with the swine influenza vaccine, no theory of liability need be established by the plaintiff. Plaintiffs therefore need only prove causation to recover.
[2] The central nervous system consists of the brain, brain stem, and the spinal cord. The peripheral nervous system begins where the nerves leave the spinal column, and extends throughout the body.
[3] In this case, Dr. Lewis' theories on causation are identical to those he advanced in Alvarez v. United States, 495 F. Supp. 1188 (D.Colo.1980) (Appendix 1). In Alvarez the court dismissed plaintiff's case and wrote:
Similarly, Dr. Lewis' theory of an immunologic sensitization is speculative. On the other hand, the gastrointestinal infection which preceded Mrs. Alvarez's paralysis is an event commonly associated with GBS.
Id., at 1206. Dr. Lewis also testified for the plaintiff in Swafford v. United States, No. 79-F-1070 (D.Colo.1980). The court dismissed the case and wrote:
This Court recognizes that we are dealing with a dynamic and constantly evolving field of medicine. We also recognize that every scientific theory must have its first day in court. However, the theories propounded by Drs. Poser and Lewis do not bear the imprimatur of the medical community. At the present state of medical knowledge their conclusions are hypotheses and somewhat speculative. While both doctors have impressive credentials, we are of the view that their opinions do not reflect the more probable state of events.
Slip Op. at 8. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585055/ | 187 P.3d 752 (2008)
NAVARRE
v.
STATE, DEPT. OF SOCIAL AND HEALTH SERVICES.
No. 81002-8.
Supreme Court of Washington, Department II.
July 9, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573474/ | 17 So. 3d 372 (2009)
STATE ex rel. Nick SCOTT
v.
STATE of Louisiana.
No. 2008-KH-2196.
Supreme Court of Louisiana.
August 12, 2009.
*373 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573451/ | 17 So. 3d 643 (2009)
Governor Bob RILEY et al.
v.
Robert T. HUGHES and David Marzette.
1080006.
Supreme Court of Alabama.
February 6, 2009.
*644 Kenneth D. Wallis II and Henry T. Reagan II, Office of the Governor, Montgomery; and Albert L. Jordan and Annemarie C. Axon of Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, for appellants.
W. Troy Massey, Montgomery, for appellees.
LYONS, Justice.
Governor Bob Riley and four trustees appointed by Governor Riley to the Board of Trustees of Alabama A & M University David Slyman, Jr., Leroy C. Richie, Edward E. May, and Rev. Clyde C. McNeil (hereinafter referred to collectively as "the appointees") appeal from a judgment entered against them in an action filed by Robert T. Hughes and David Marzette (hereinafter referred to collectively as "the taxpayers"). Governor Riley and the appointees argue that the taxpayers do not have standing to maintain the action and that, therefore, the trial court lacked subject-matter jurisdiction. Because we also conclude, but on a different basis from Governor Riley and the appointees, that the trial court did not have subject-matter jurisdiction over this action, we vacate the judgment, dismiss the action, and dismiss this appeal.
I. Factual Background and Procedural History
The trial court summarized the facts underlying this case in its judgment:
"On February 8, 2008, while the legislature was in session, Governor Bob Riley appointed defendants David Slyman, Jr., Edward E. May and Willie Clyde McNeil[1] to full six (6) year terms as trustees, said terms expiring on January 31, 2014. It is unclear from the record what date Leroy C. Richie was initially appointed by Governor Riley but his exact appointment date was subsequent to that of Slyman, May and McNeil.
"On May 7, 2008, the confirmations committee of the Alabama Senate rejected the appointments of Slyman, May, McNeil and Richie on a unanimous vote of 8-0, thus creating four (4) vacancies on the Alabama A & M Board of Trustees.
"On June 9, 2008, during a recess of the Alabama legislature, Governor Riley reappointed Slyman, May and McNeil as *645 trustees, `effective immediately' with terms expiring January 31, 2014. On that same date June 9, 2008 Leroy C. Richie was reappointed by Governor Riley `effective immediately' to a term expiring January 31, 2012."
Although the taxpayers' complaint is entitled "Verified Quo Warranto Complaint and Emergency Request for Temporary Restraining Order," the body of the complaint states:
"1. This is an action under the Declaratory Judgment Act, and Section 16-49-20, Code of Alabama, 1975 declaring that the actions of Governor Bob Riley in `reappointing' `ad interim' David Slyman, Jr., Leroy C. Richie, Edward E. May and Rev. Clyde C. McNeil to the Board of Trustees of Alabama A & M University, on June 9, 2008, after said individuals had been unanimously rejected (8-0) by the Alabama Senate on May 7, 2008, during its last regular session, violates Section 16-49-20, Code of Alabama, Alabama law and a 17 year old Attorney General's opinion which held that:
"`... To allow the continued nomination and renomination of an individual who has been affirmatively rejected by the Alabama Senate would defeat the clear intent of Section 16-50-20 (a similar provision for Alabama State University's Board of Trustees)'
"See [Attorney General's] Opinion 91-00351 from Walter Turner to then Senator Charles Langford, dated August 14, 1991, which is attached hereto. If not repudiated by this honorable court, the Governor's `reappointments' would strip the Senate of its `veto' power (its role of providing advice and consent) over the Governor's appointments...."
The taxpayers' initial complaint did not contain any assertions concerning their standing to bring the action. Shortly thereafter, the taxpayers amended their complaint, but the amended complaint still did not contain any assertions as to standing. Governor Riley and the appointees filed an answer and a motion to dismiss in which they raised the issue of the taxpayers' standing to bring the action. The taxpayers then filed a second amended complaint, in which they addressed the standing issue as follows:
"2. ... Plaintiffs, as taxpayers, allege that allowing the `reappointed' defendants to vote on the university budget, expenditures, personnel, buildings, bond issues, etc., when they are not legally entitled to a vote on said board of trustees, leaves the plaintiffs liable as taxpayers to replenish the public treasury for the deficiency caused by the misapplication of public funds.
"....
4. Plaintiffs allege that, as taxpayers, they will be adversely affected if the 4 reappointed defendants are allowed to vote on budgets and university expenditures if they are not legally entitled to sit on said trustee board."
The trial court held a hearing in the case during which it heard argument from the lawyers for the parties. At the conclusion of that hearing, the lawyer for the taxpayers offered several exhibits into evidence, consisting of the letters of appointment of the appointees and a stipulation of the parties, stating, in pertinent part, that the taxpayers are alumni of Alabama A & M University and that Marzette is the financial secretary for the National Alabama A & M University Alumni Association. The trial court entered a final judgment on September 19, 2008, in which it concluded, without addressing the issue of the taxpayers' standing, that Governor Riley's "purported trustee reappointments are not effective until and unless confirmed by the *646 Alabama Senate." The Governor and the appointees appealed.
II. Analysis
Governor Riley and the appointees argue, as they have throughout this proceeding, that the taxpayers do not have standing to bring the underlying action. Lack of standing defeats subject-matter jurisdiction. "When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction." State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999). We conclude that the trial court lacked subject-matter jurisdiction, but on a different basis than standing.
Both parties describe this action as governed by the Declaratory Judgment Act. However, the exclusive remedy to determine whether a party is usurping a public office is a quo warranto action pursuant to § 6-6-591, Ala.Code 1975,[2] and not an action seeking a declaratory judgment. See Ex parte James, 684 So. 2d 1315, 1317 (Ala.1996). A declaratory judgment will be declined where such relief is contrary to public policy. State Farm Mut. Auto. Ins. Co. v. Cardwell, 250 Ala. 682, 685, 36 So. 2d 75, 77 (1948) ("Mr. Borchard in his work on Declaratory Judgments writes that the declaration will be refused where in the opinion of the court it is inexpedient and contrary to public policy...."). A declaratory-judgment action cannot be employed where quo warranto is the appropriate remedy because the declaratory judgment would violate public policy.
"This remedy [quo warranto] `looks to the sovereign power of the state with respect to the use or abuse of franchises which are special privileges created by its authority, and which must, as a principle of fundamental public policy, remain subject to its sovereign action in so far as the interests of the public, or any part of the public, are affected by their usurpation or abuse.'
"Our statute has extended the right to institute such proceeding to a person giving security for costs of the action. But, in such case, the action is still prerogative in character, brought in the name of the State, on the relation of such person, who becomes a joint party with the State. The giving of security for the costs of the action is the condition upon which the relator is permitted to sue in the name of the State. Without such security, he usurps the authority of the State.
"But this is not the only method of invoking the authority of the State in the protection of franchises it has granted in the interest of the public.
"`The judge of the circuit court may direct such action to be brought when he believes that any of the acts specified in the preceding section can be proved, and it is necessary for the public good.' Code, § 9933 [now § 6-6-591(b)].
"Thus is committed to the judicial department the institution of such proceedings, the same authority said to have the inherent power and duty to suppress the unlawful practice of law for the public good....
*647 "....
"As indicated, it is the policy of the law of Alabama that [quo warranto] proceedings should be had in the name of the State, and instituted in the manner designated by statute.
"To sanction a private action inter partes with the same objective would operate a virtual repeal of the quo warranto statute.
"....
"The Declaratory Judgment Law was never intended to strike down the public policy involved."
Birmingham Bar Ass'n v. Phillips & Marsh, 239 Ala. 650, 657-58, 196 So. 725, 732 (1940) (citations omitted).
Where a controversy presented in a declaratory-judgment action is not justiciable, this Court may notice the defect ex mero motu:
"`"[J]usticiability is jurisdictional," Ex parte State ex rel. James, 711 So. 2d 952, 960 n. 2 (Ala.1998); hence, if necessary, "this Court is duty bound to notice ex mero motu the absence of subject matter jurisdiction."' Baldwin County [v. Bay Minette], 854 So.2d [42,] 45 [(Ala.2003)] (quoting Stamps [v. Jefferson County Bd. of Educ., 642 So.2d [941,] 945 n. 2 [(Ala.1994)]). If we determine that a complaint fails to state a justiciable claim, we are obliged to conclude that the trial court lacked jurisdiction over that complaint; such a complaint therefore would not require the filing of a responsive pleading."
Bedsole v. Goodloe, 912 So. 2d 508, 518 (Ala.2005).
In Ex parte Sierra Club, 674 So. 2d 54 (Ala.1995), the trial court set aside a consent judgment entered in a declaratory-judgment action that purported to determine the legality of appointments to the Alabama Environmental Management Commission. The trial court held that it lacked subject-matter jurisdiction to enter the consent order, stating:
"`The relief sought by Sierra was precisely the type of relief for which quo warranto lies, to test their title to the office of Commissioner and to oust them if they were found to be wrongfully holding that office. Sierra does not claim any interest in the office; therefore, an action for declaratory judgment was not the proper remedy.'"
674 So.2d at 56 (quoting trial court's order). This Court affirmed the trial court's judgment, finding a lack of justiciability:
"In Talton v. Dickinson, 261 Ala. 11, 72 So. 2d 723 (1954), the Court held that qualified electors could not use a declaratory judgment action to determine the eligibility of a nominee for public office. The private citizens `failed to show by their complaint any justiciable rights in the premises to invoke the jurisdiction of the court for a declaratory judgment.' 261 Ala. at 12, 72 So.2d at 724. The Court cited Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999 (1929), in support of its position; in Dietz, the Kentucky Court of Appeals noted that the appellants in that case sought `merely a declaration of disqualification of the named defendants,' and it held: `In the absence of a justiciable controversy requiring a declaration of the rights of the plaintiffs,... the court has no jurisdiction to enter a binding judgment.' (As quoted in Talton, 261 Ala. at 14, 72 So.2d at 726.) The Talton Court held that `a proceeding in quo warranto, Title 7, § 1133 et seq., [Ala.Code of 1940,] is the exclusive remedy to determine whether or not a party is usurping a public office.' 261 Ala. at 14, 72 So.2d at 726. See also Akers v. State ex rel. Witcher, 283 Ala. 248, 250, 215 So. 2d 578 (1968) (`Quo warranto is the proper procedure *648 to test whether or not a party is eligible to hold public office.').
"In Reid v. City of Birmingham, 274 Ala. 629, 150 So. 2d 735 (1963), the Court held that residents of the City of Birmingham who challenged an election to change the City of Birmingham's form of government had no `interest such as will make this action present a justiciable controversy' for purposes of a declaratory judgment action. 274 Ala. at 639, 150 So.2d at 744. It cited Talton in holding: `[Q]uo warranto, not declaratory judgment, is the exclusive remedy to determine whether or not a party is usurping a public office.' 274 Ala. at 638, 150 So.2d at 743."
674 So.2d at 57 (emphasis added).
The failure of Governor Riley and the appointees to assert the unavailability of a declaratory-judgment action as a substitute for a quo warranto action does not constitute a waiver of the jurisdiction issue and therefore does not preclude this Court from noticing a jurisdictional defect lack of justiciability. We are "`duty bound to notice ex mero motu the absence of subject-matter jurisdiction.'" Baldwin County v. Bay Minette, 854 So. 2d 42, 45 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So. 2d 941, 945 n. 2 (Ala.1994)). We therefore are not confined to the arguments of the parties in our subject-matter-jurisdiction analysis because subject-matter jurisdiction cannot be waived by the failure to argue it as an issue.
"`On questions of subject-matter jurisdiction, this Court is not limited by the parties' arguments or by the legal conclusions of the trial and intermediate appellate courts regarding the existence of jurisdiction. Rather, we are obligated to dismiss an appeal if, for any reason, jurisdiction does not exist. See Ex parte Smith, 438 So. 2d 766, 768 (Ala.1983) ("Lack of subject-matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu." (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So. 2d 606, 608 (1958))).'
"Ex parte Alabama Dep't of Human Res., 999 So. 2d 891, 894-895 (Ala.2008)."
Championcomm.net of Tuscaloosa, Inc. v. Morton, 12 So. 3d 1197, 1199 (Ala.2009).
We have not overlooked the title to the original complaint filed by the taxpayers, which described the action as a "quo warranto complaint." However, the body of the complaint alleges that the action is brought under the Declaratory Judgment Act. Even if we were to rely on the description in the title of the complaint as controlling over the description of the action in the body of the complaint and thus view this action as governed by the statutory remedy of quo warranto set forth in § 6-6-591, no security for costs accompanied the complaint. The absence of such security is a jurisdictional defect. See Cook v. Lloyd Noland Found., Inc., 825 So. 2d 83, 88 (Ala.2001) ("`The giving of security for the costs of the litigation "is a condition on which the right to proceed in the name of the State is given to individuals."... Otherwise stated, it "is a condition precedent to the jurisdiction of the court."'" (quoting Brannan v. Smith, 784 So. 2d 293, 297 (Ala.2000), quoting in turn State ex rel. Radcliff v. Lauten, 256 Ala. 559, 561, 56 So. 2d 106, 106-07 (1952))).
Our resolution of this case on the foregoing basis pretermits our consideration of the challenge by Governor Riley and the appointees to subject-matter jurisdiction based on lack of standing. Because of the unavailability of a remedy by declaratory judgment and the absence of security for costs if the action is treated as one for quo *649 warranto, the trial court did not have subject-matter jurisdiction.
Any action taken by a trial court without subject-matter jurisdiction is void. Property at 2018 Rainbow Drive, 740 So.2d at 1029. Furthermore, "a void order or judgment will not support an appeal." Gallagher Bassett Servs., Inc. v. Phillips, 991 So. 2d 697, 701 (Ala.2008). Because the trial court lacked subject-matter jurisdiction, its judgment is void and will not support this appeal.
III. Conclusion
For the foregoing reasons, the judgment in favor of the taxpayers is vacated and their action is dismissed. Further, because a void judgment will not support an appeal, this appeal is dismissed.
JUDGMENT VACATED; ACTION DISMISSED; AND APPEAL DISMISSED.
COBB, C.J., and WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.
BOLIN and MURDOCK, JJ., concur in the result.
NOTES
[1] Apparently this is the appointee we refer to as "Clyde C. McNeil."
[2] Section 6-6-591 states, in pertinent part:
"(a) An action may be commenced in the name of the state against the party offending in the following cases:
"(1) When any person usurps, intrudes into or unlawfully holds or exercises any public office, civil or military, any franchise, any profession requiring a license, certificate, or other legal authorization within this state or any office in a corporation created by the authority of this state ...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573369/ | 396 S.W.2d 396 (1965)
Ben Herbert PHELPER, Appellant,
v.
The STATE of Texas, Appellee.
No. 37771.
Court of Criminal Appeals of Texas.
March 10, 1965.
Rehearing Denied April 14, 1965.
Certiorari Denied December 6, 1965.
*397 Grier H. Raggio, Robert C. Benavides, Dallas, for appellant.
Henry Wade, Dist. Atty., John Nelms, Mike Everett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
Certiorari Denied December 6, 1965. See 86 S. Ct. 387.
DICE, Commissioner.
Appellant was convicted under Art. 527, Vernon's Ann.P.C. for unlawfully and knowingly having in his possession obscene pictures and his punishment was assessed at a fine of $1,000.
The state's evidence shows that appellant lived with his wife and step-son in the city of Richardson. In the early part of November, 1963, when the witness James Bartley was in the home delivering milk, appellant showed him some pictures of nude women. Subsequent to seeing the pictures, Bartley had a conversation with Detective Bob Smith of the Richardson Police Department. On November 7th Detective Smith who had some experience in photography met the appellant in a drug store and the two became engaged in a conversation relative to photography. In the conversation appellant told the detective that he took pictures and requested him to come to appellant's home and see his photographs so that he could recommend a place where he might sell or distribute them. The following day Detective Smith went to the home where appellant showed him between one and two hundred pictures which were colored slides of different girls. Of the pictures exhibited only one appeared to be obscene, it being a photograph of a woman with her pubic hair exposed. On such occasion appellant emphasized that he was interested in selling the pictures and thought the detective could use some of his contacts in helping him sell them.
After leaving appellant's home, Detective Smith had a meeting with his Chief of Police and Postal Inspector R. H. Robinson was later called. In a meeting on November 12th with the Inspector, a buyer for appellant's photographs was set up under the name of Garrett who was to correspond with appellant relative to the pictures. On December 5th Detective Smith returned to appellant's home and appellant showed him *398 some "series" pictures of the same girl in sequence of undressing. At that time appellant stated he was mailing the pictures to a man by the name of Garrett with whom he had had correspondence. On December 13th Detective Smith again met appellant in the drug store and appellant informed him that he was sending some more pictures to Garrett.
The state's proof further shows that on January 22nd Detective Smith again saw appellant in the drug store and introduced him to Postal Inspector Harry D. Holmes. After they had discussed going for some coffee the three went outside to where Postal Inspector Robinson and Detective Burleson were seated in an automobile. They then got in the car and the five proceeded to drive to the police station. On the way to the station Robinson and Holmes identified themselves as postal inspectors and told appellant they wanted to talk to him about the pictures After arriving at the police station appellant proceeded to sign and execute a written consent to the search of his home by Inspector Holmes without a search warrant. Appellant then accompanied Inspectors Robinson and Holmes and Officers Smith, Burleson and Robbins to his home where a search was made. In the search the officers found sixteen polaroid pictures on a bed and numerous other pictures in a night stand which were photographs of men and women in the nude. Some of the pictures showed the parties engaged in the act of sexual intercourse and other unnatural sex acts.
Testifying in his own behalf appellant stated that the reason he consented to the search of his home was because of threats of the officers and the representations made to him that they had a search warrant. He further swore that he did not sign the written consent for the search until after the search had been completed, and they had returned to the police station. Appellant admitted possessing the photographs found by the officers in his home but stated that he took the pictures upon the encouragement and inducement of Detective Smith and a letter he had received from Garrett.
Appellant's testimony with reference to his reason for executing the written consent to search was sharply disputed by the officers as well as his claim that he was induced to take the pictures by them. Detective Smith testified that while he did have in his possession a search warrant for appellant's house he did not advise appellant of the warrant until after he had signed the written consent to search. He swore that appellant signed the consent before the search was made. He also denied having induced appellant to take and possess the photographs found as a result of the search.
The Court submitted to the jury in his charge the disputed issues relative to appellant's execution of the written waiver and consent, and instructed the jury that if they believed from the evidence or if they had a reasonable doubt thereof, that appellant did not wilfully give his consent to the search prior to the time of the search, or if he signed the waiver to search as a result of threats or after he was told by the officer that they had a search warrant, to wholly disregard the pictures in question and acquit him. The defense of entrapment was also submitted under appropriate instructions.
The jury by their verdict resolved the disputed issues against the appellant.
We first overrule appellant's contention that the evidence is insufficient to support the conviction because no proof was offered by the state that the pictures introduced in evidence were obscene which term is defined in Sec. 3 of Art. 527, supra, as whether to the average person applying community standards involving a territory or geographic area not less than the State of Texas the material taken as a whole appeals to prurient interest. When testimony was offered by the state as to what the pictures portrayed appellant objected on the ground that the pictures "spoke" for themselves. The trial court agreed with *399 such contention and sustained appellant's objection. The pictures introduced in evidence showing men and women in the nude engaged in acts of sexual intercourse are clearly obscene as that term is defined in the statute.
It is insisted that the court erred in admitting the pictures in evidence because they were obtained as the result of an illegal search The attack upon the search is predicated upon the contention that the search warrant which the officers had obtained was invalid under the decision in Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723. It is also contended that appellant's arrest by the officers was unlawful and for this reason the search was illegal.
We need not pass upon the validity of the search warrant as the evidence shows that the officers did not search appellant's home under the authority of such warrant. Nor need we pass upon the validity of appellant's arrest as we do not have before us the search of a person incident to an arrest. The fact issues as to the validity of appellant's written consent to search his house were fairly submitted to the jury by the court. By their verdict the jury found that appellant voluntarily consented to the search. By such consent appellant waived any question as to the legality of the search. Ellithorpe v. State, 167 Tex. Cr.R. 266, 320 S.W.2d 350; Lucas v. State, Tex.Cr.App., 368 S.W.2d 605.
We find no error in the trial court's failure to make an independent finding upon the issue as to whether appellant voluntarily executed the written consent to the search. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, relates to written confessions of an accused and is not here applicable.
Complaint is made to the court's action in permitting the State to prove the identity of the persons in the pictures which, among other things, revealed that one of the women in the photographs was the appellant's wife engaged in an act of sexual intercourse with a man by the name of James Stockwell. Objection was also made to certain jury argument of state's counsel when he stated that appellant had prostituted his own wife. Appellant's objection to the testimony showing the identity of the persons in the pictures was on the ground that it was highly inflammatory and constituted proof of extraneous offenses. In his brief he also insists that such testimony was in violation of Art. 714 Vernon's Ann.C.C.P. which prohibits the wife from giving testimony against her husband. The identity of the persons in the pictures was clearly a part of the res gestae and admissible as such. Fite v. State, 163 Tex. Crim. 279, 290 S.W.2d 897; Kerrigan v. State, 167 Tex. Crim. 601, 321 S.W.2d 884; Bills v. State, 168 Tex. Crim. 369, 327 S.W.2d 751. Proof of the identity of appellant's wife and Stockwell in the pictures was also admissible to rebut appellant's defense of entrapment in view of Stockwell's testimony that he had not seen appellant and his wife since the summer of 1962, and it was not until November 1963 that Detective Smith first talked to appellant and began the investigation. Watson v. State, 164 Tex. Crim. 593, 301 S.W.2d 651; Ivey v. State, Tex.Cr.App., 212 S.W.2d 146.
Appellant's remaining complaints are to certain comments by the trial court which he insists were in violation of Art. 707 V.A.C.C.P.
The first comment occurred when appellant objected to the admission in evidence of certain photographs on the ground that the affidavit for the search warrant was void and the Court stated: "We are not operating on that Mr. Benevides. I think I have made that pretty clear", and during the cross-examination of appellant's wife by state's counsel with reference to the objects taken from the home when an objection was made by appellant's counsel, the court stated: "You opened it up on the hundred objects taken".
*400 To offend against the statute, Art. 707, supra, there must be found in the court's remarks a benefit to the state or an injury to the accused. Hackett v. State, 172 Tex. Cr.R. 414, 357 S.W.2d 391. We find neither benefit nor injury in the court's comments and overrule the contention.
The judgment is affirmed.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573389/ | STATE OF LOUISIANA IN THE INTEREST OF K.J.C.
No. 2009 KJ 0658
Court of Appeals of Louisiana, First Circuit.
September 11, 2009.
Not Designated for Publication
HILLAR C. MOORE, III., District Attorney, GAIL D. ADKINS, DYLAN C. ALGE, Counsel for Plaintiff/Appellee State of Louisiana, Office of District Attorney.
JOSEPH K. SCOTT, III., Counsel for Defendant/Appellant K. J. C.
Before: DOWNING, GAIDRY AND McCLENDON, JJ.
DOWNING, J.
K.J.C., a child, was alleged to be delinquent by petition #94385 based on one count of simple criminal damage to property (damage between $500 and $49,999.99) (count I), a violation of La. R.S. 14:56; and one count of simple burglary of an inhabited dwelling (count II), a violation of La. R.S. 14:62.2 (R. 20). He denied the allegations and, following the presentation of the State's case at an adjudication hearing, moved for judgment of acquittal on counts I and II. (R. 4, 12, 223). The juvenile court granted judgment of acquittal in part on count I, finding the State had not proven that the damage was over $500, but denied judgment of acquittal on count II. (R. 12, 229). Following the completion of the adjudication hearing, K.J.C. was adjudged delinquent on count I (damage less than $500), and delinquent as alleged on count II. (R. 12-13, 255). Following a disposition hearing, on count I, the court placed the child in the custody of the Department of Public Safety and Corrections for six months; on count II, the court placed the child in the custody of the Department of Public Safety and Corrections for one year to run concurrently with the disposition imposed under count I, but consecutively with the dispositions imposed under petition #94342[1] (R. 12-13, 262). The child now appeals, challenging the sufficiency of the evidence to support the adjudication of delinquency on count II. (Defense brief, p. 5). For the following reasons, we affirm the adjudication of delinquency and disposition on counts I and II.
FACTS
The offenses occurred on two sides of a duplex which shared a common wall on Holt Drive in Baton Rouge. (R. 158). On November 5 and 6, 2008, one side of the duplex, 829 Holt Drive, was vacant. (R. 159, 181-82). On November 5 and 6, 2008, the other side of the duplex, 827 Holt Drive was inhabited by Marco Deleon, Pedro Hernandez, and four other men. (R. 152, 203). The men were employed in a roofing and carpentry business owned by Marco's cousin, Jose Deleon, who lived across the street. (R. 152-53, 203). Jose also stored his tools at 827 Holt Drive. (R. 153).
On November 5, 2008, at approximately 7:00 a.m., the inhabitants of 827 Holt Drive went to work with Jose. (R. 154, 185). When they returned, they noticed that a hole had been kicked through the wall from 829 Holt Drive to 827 Holt Drive. (R. 188). Through the hole, Pedro saw two people breaking windows and doors in 829 Holt Drive. (R. 188-89). He also saw a yellow motorcycle which had been driven through the wall into 829 Holt Drive. (R. 186). Thereafter, Pedro saw the two people in the backyard of 829 Holt Drive. (R. 189). They tried to talk to him, but he did not speak English.[2] (R. 189). He identified the child in court as one of the two people he had seen inside of 829 Holt Drive. (R. 190-91, 195). He indicated he was familiar with the child because he lived in the neighborhood, and the child and the other person who had damaged 829 Holt Drive had previously tried to sell him cell phones and drugs. (R. 195). Pedro covered the hole with paneling. (R. 186, 191).
Marco indicated he looked through the hole between 829 Holt Drive and 827 Holt Drive at approximately 10:00 p.m. (R. 208). He saw the child, another person, a broken closet, and a motorcycle in 829 Holt Drive. (R. 208-09). The child and the other person were breaking windows. (R. 209).
On November 6, 2008, the inhabitants of 827 Holt Drive went to work with Jose as usual, but at approximately 2:00 p.m., Marco and Pedro returned to 827 Holt Drive to pick up a trailer. (R. 155, 187, 204). Pedro indicated he heard noises inside 827 Holt Drive, but did not enter the house because he was afraid the intruders had weapons. (R. 191-92). He did not call the police because he did not speak English. (R. 192). Marco indicated he heard human voices and noises like things being thrown around inside 827 Holt Drive, but did not enter because he was afraid. (R. 205, 207). Pedro and Marco went back to work with the trailer. (R. 191-92, 207). When Pedro came back after work, 827 Holt Drive "looked like a garbage dump." (R. 192). Pedro's computer, his computer router, his watch, and an air compressor were missing. (R. 192-93, 209). Marco's car stereo, his "boom box," and a roofing gun were also missing. (R. 204). Pedro saw the yellow motorcycle he had seen the day before, lying across the street from the duplex. (R. 194). Marco indicated he never gave anyone, other than the inhabitants of 827 Holt Drive, permission to enter 827 Holt Drive or remove any of its contents. (R. 210).
Baton Rouge City Police Corporal Phillip Brownleader investigated the burglary of 827 Holt Drive and claims that the child and "Craig" had committed the offense. (R. 118, 120, 127). Corporal Brownleader went to the child's residence, advised him of his rights and, in the presence of someone he believed was the child's aunt, questioned him concerning the offense. (R. 128). The child stated he was with Craig, but Craig "did the damage" and "was in the house." (R. 145).
At the adjudication hearing, the child denied "robbing" 827 Holt Drive.[3] (R. 230). He indicated he lived only two minutes from the house. (R. 234). He claimed that at approximately 2:00 p.m. on the day of the burglary, "Brandon" told him that he (Brandon) had robbed the house. (R. 230-32). He conceded he had given Craig's name to Officer Brownleader on November 6, 2008, but claimed he only told the officer that Craig tapped on the window in the back yard. (R. 231-32). He claimed he had seen Craig running on Goodwood Boulevard at approximately 1:00 p.m. on the day of the burglary. (R. 235, 237).
Damages to 829 Holt Drive included broken windows, kicked-in walls, and holes in the walls from being struck by the closet rail. (R. 178). Additionally, a hole was kicked through the wall from 829 Holt Drive into the master bedroom of 827 Holt Drive. (R. 159-60, 177). An insurance company subsequently paid $6,900 for the damages to 829 Holt Drive. (R. 180).
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the child argues the juvenile court erred in denying the motion for acquittal due to the dearth of evidence regarding the identity of the perpetrator of count II and an absolute absence of proof regarding his intent at the time of the offense. (Defense brief, pp. 7-9). In assignment of error number 2, he argues the evidence was insufficient to support the adjudication on count II due to the absence of physical evidence, positive identification, clear confession, or co-defendant identification. (Defense brief, pp. 9-10). He does not challenge the adjudication of delinquency on count I.
When the State charges a child with a delinquent act, it has the burden of proving each element of the offense beyond a reasonable doubt. La. Ch. Code art. 883. On appeal, the applicable standard of review is whether or not, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. This standard of review applies to juvenile proceedings in which a child is adjudicated a delinquent. However, in juvenile proceedings, the scope of review of this court extends to both law and facts. La. Const, art. V, § 10(B); State in the Interest of D.F., XXXX-XXXX, pp. 4-5 (La. App. 1st Cir. 6/6/08), 991 So. 2d 1082, 1084-85, writ denied, XXXX-XXXX (La. 3/27/09), 5 So. 3d 138.
The Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), standard of review incorporated in La. Code Crim. P. art. 821[4] is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. State in the Interest of D.F., XXXX-XXXX at p. 5, 991 So.2d at 1085. The testimony of the victim alone is sufficient to prove the elements of the offense. State in the Interest of D.M., 97-0628, p. 6 (La. App. 1st Cir. 11/7/97), 704 So. 2d 786, 790. When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State in the Interest of L.C., 96-2511, p. 3 (La. App. 1st Cir. 6/20/97), 696 So. 2d 668, 670. Once the crime itself has been established, a confession alone may be used to identify the accused as the perpetrator. State in the Interest of D.F., XXXX-XXXX at p. 6, 991 So.2d at 1085.
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. However, the defendant's mere presence at the scene is not enough to "concern" him in the crime. Only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State in the Interest of D.F., XXXX-XXXX at p. 5, 991 So.2d at 1085. However, "[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intention." State v. Anderson, 97-1301, p. 3 (La. 2/6/98), 707 So. 2d 1223, 1225 (per curiam).
Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60. La. R.S. 14:62.2.
At the adjudication hearing, in regard to count II, the juvenile court found that 827 Holt Drive was an inhabited dwelling, an unauthorized entry was made into the dwelling, and items were taken. (R. 254). The court stated that the identity of the perpetrator was at issue. (R. 254). The court noted that the evidence established beyond a reasonable doubt that on the day before the burglary of 827 Holt Drive, K.J.C. took part in the damaging of 829 Holt Drive, including kicking a hole from that side of the duplex into 827 Holt Drive. (R. 254-55). The court noted that on the day of the burglary, K.J.C. stated Craig committed the crime, but he now claimed that Brandon committed the crime. (R. 255). The court found it was hard to imagine why, if Brandon was actually the perpetrator, K.J.C. would not have provided his name, rather than Craig's name, to the police. (R. 255). The court also found that some of the evidence seemed to place K.J.C. in the unit on the day of the burglary. (R. 255). The court concluded that the State had excluded any reasonable hypothesis of innocence, and the evidence supported beyond a reasonable doubt that K.J.C. was one of the two young people who burglarized the residence at 827 Holt Drive. (R. 255).
Any rational trier of fact, viewing the evidence concerning count II in the light most favorable to the State, could have found, proven beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, the essential elements of simple burglary of an inhabited dwelling and K.J.C's identity as a perpetrator of that offense. Additionally, after undertaking our state's constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication of delinquency based on K.J.C's committing simple burglary of an inhabited dwelling. Testimony from Pedro and Marco established that 827 Holt Drive was inhabited at the time of the offense, and that the entry made into the home by kicking a hole in the wall from the empty side of the duplex where K.J.C. was seen committing count I the previous day, was unauthorized. Further, the fact that Marco heard "voices" inside the home during the burglary established unauthorized entry by more than one perpetrator. The intent of the perpetrators to commit a theft was established by the fact that the home was left in disarray and several valuable items were missing. See State v. Tran, 97-640, p. 12 (La. App. 5th Cir. 3/11/98), 709 So. 2d 311, 317. K.J.C.'s identity as a perpetrator of the offense was established by his statement to Corporal Brownleader which implicated K.J.C, as well as Craig, at least as a principal to the burglary. See State v. Rogers, 428 So. 2d 932, 934 (La. App. 1st Cir. 1983) ("[I]t is not necessary in a burglary prosecution to prove that one charged as a principal made an unauthorized entry. It is sufficient to show that he aided and abetted one who entered unauthorized."). (Citations omitted).
These assignments of error are without merit.
DECREE
For the above mentioned reasons, we affirm the adjudication of delinquency and disposition on count I and count II.
ADJUDICATION OF DELINQUENCY AND DISPOSITION ON COUNT I AND COUNT II AFFIRMED.
GAIDRY, J., dissenting and assigning reasons.
I must respectfully dissent because I do not believe that the State carried its burden of proving K.J.C.'s identity as the perpetrator. A review of the record does not place K.J.C. in the side of the duplex that was burglarized, nor does the testimony as to his statement amount to an admission of guilt.
NOTES
[1] The child separately appeals from his adjudications of delinquency under petition #94342. See Stale in the interest of K.C. XXXX-XXXX (La. App. 1st Cir. __/__/09). ___ So.3d ___
[2] Pedro testified at trial through a Spanish-language interpreter. (R. 185).
[3] Defense counsel confused the addresses for 827 and 829 Holt Drive. (R. 230). He, however, questioned the child concerning whether or not he had "robbed" the house where "all the Mexican guys lived[.|" (R. 230).
[4] Pursuant to La. Ch. Code art. 104, "[w]here procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with ... [t]he Code of Criminal Procedure in a delinquency proceeding ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573415/ | 66 S.W.3d 265 (2001)
HARRIS COUNTY FLOOD CONTROL DISTRICT, Texas Department of Transportation, and Brazoria Drainage District No. 4, Petitioners,
v.
Doyle ADAM, et al., Respondents.
No. 99-0404.
Supreme Court of Texas.
September 20, 2001.
*266 James A. Newsom, Munisteri Sprott Rigby Newsom & Vincent, Houston, Benjamin H. Best, Pearland, Meredith Bishop Parenti, Atty. Gen., Austin, Sandra D. Hachem, Harris County Asst. Atty., Jay S. Siskind, Asst. County Atty., Michael P. Fleming, Harris County Atty., Houston, Susan Desmarais Bonnen, Atty. Gen., Randall M. Ward, Atty Gen., John B. Lay, Atty. Gen., Dan Morales, Atty. Gen., Gregory S. Coleman, Weil, Gotshal & Manges, Linda Eads, Atty. Gen., Andy Taylor, Locke Liddell & Sapp, John Cornyn, Atty. Gen., Grady Click, Atty. Gen., Austin, for Petitioner.
Dennis C. Reich, Linda L. Laurent, Robert J. Binstock, Reich & Binstock, Houston, C. Benton Musslewhite, Newton B. Schwartz, Houston, Samuel J. Lee, II, Angleton, Charles B. Musslewhite, Law Offices of Charles B. Musslewhite, Jr., Houston, for Respondent.
PER CURIAM.
Some two hundred plaintiffs sued three governmental entities, who are petitioners here, complaining of property damage from flooding caused by petitioners' activities. The trial court granted summary judgment for two of the defendants and issued an order severing that judgment from the main case, thereby making the judgment final in the severed case. The severance order contained a "Mother Hubbard" clause"All other relief not specifically granted is denied"and taxed costs against the plaintiffs. Sometime later, the defendants remaining in the original cause filed pleas to the jurisdiction arguing that the Mother Hubbard clause in the severance order made the order a final judgment in the original cause. The trial court overruled the pleas, and the court of appeals affirmed, holding that the severance order was final in the severed cause only, not in the original cause. 988 S.W.2d 423. The court of appeals was correct that the severance order was not a final judgment in the original cause. The obvious purpose of the order was to sever claims that had been adjudicated into a separate cause, not to adjudicate the claims remaining in the original cause. For the reasons we have since explained in Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001), the inclusion of a Mother Hubbard clause in the severance order did not make it a final judgment in the original cause. But the court of appeals was incorrect in suggesting that the Mother Hubbard language made the judgment in the severed cause final. The judgment in the severed cause was final because it disposed of all parties and issues in that cause, Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.1995) (per curiam), not because of the Mother Hubbard language in the severance order, Lehmann, 39 S.W.3d at 192. Finding no other error in the court of appeals' decision, the petitions for review are denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573425/ | 396 S.W.2d 714 (1965)
STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant,
v.
Julia F. FOELLER et al., On Exceptions of Wellsville Firebrick Company, a corporation, and New Florence Firebrick Company, a corporation, Respondents.
No. 51228.
Supreme Court of Missouri, Division No. 2.
December 13, 1965.
*715 Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for appellant.
Walter D. McQuie, Jr., Montgomery City, William J. Kenney, Kenney, Stevens, Hill & Clark, Pittsburgh, for respondents.
PRITCHARD, Commissioner.
In this condemnation case of a portion of land for the right of way for Interstate Highway 70 in Montgomery County, Missouri, respondents recovered judgment for $82,000 for the taking of 100,000 tons of their subsurface mineral rights to New Florence Flint clay. The clay, described as high quality, is used in the manufacture *716 of superduty fire brick. Appellant contends that the judgment is excessive as a matter of law by $52,000. We thus have jurisdiction of the appeal.
By Point II, appellant insists that the trial court erred in overruling its timely motion to strike the opinion testimony of market value of respondents' witnesses Weiss, McCarthy and Arthur on the ground that their opinions were not based upon proper elements of damage and had no correlation with the established market value of the undeveloped mineral property. Before we review the testimony of these witnesses we set out other background facts.
Although respondent New Florence Firebrick Company (herein called "New Florence") once engaged in the manufacture of bricks, it now merely holds as its chief assets clay reserves which it leases exclusively to its sister corporation, respondent Wellsville Firebrick Company (herein called "Wellsville"). On May 1, 1922, New Florence acquired title from one Gilbert (its officer) to fire clay and flint rock deposits, and an easement for the mining thereof, to what was known as the Kobush 80 in Montgomery County, Missouri. This rectangular tract, lying north and south, formerly adjoined old U. S. Highway 40 which is now the north outer road to newly constructed Interstate 70. In the northwest corner of the tract are the clay deposits, the value of which is in controversy. They underly 3.18 acres, the total area taken, and an area to its south. It is not disputed here by appellant that there exists and was taken (actually and by rendering it unminable because of the necessity for subjacent support to the right of way) 100,000 tons of "New Florence Flint" fire clay which is usable in respondents' business.
On April 2, 1962, New Florence leased to Wellsville said mineral rights, and such lease was subsequently extended, the last term of which extended beyond the date of taking, September 6, 1963. The consideration for the lease was that Wellsville should pay New Florence 30¢ per ton for the fire clay removed thereunder. Wellsville, located 7 or 8 miles north of New Florence, is a refractories plant which produces about 100 different refractories products for the steel, metallurgic, glass and other types of heavy industry. The clay deposit in question lies about 3 miles south of New Florence, and has an overburden of sand, rocks, coal and dirt averaging 50 feet in depth. The procedure for mining clay, 20,000 tons of which are used by Wellsville each year, is first to remove the overburden by stripping down to the clay. The specific selections of clay are segregated at the pit into various types and qualities. It is not stockpiled, but is mined in small quantities, then hauled to Wellsville where it is ground and combined into what tests show are the proper percentages of materials, and then it is made directly into brick.
Mr. Russell Weiss testified that he is Vice President in charge of operations for Wellsville, and is Assistant Treasurer of New Florence. He has been employed for 30 years in the refractories business. Among others, one of his duties has been concerned with all acquisitions of clays. Clay mining is done generally within a 30-mile area in, around and about Wellsville, with a larger proportion mined in Montgomery County. New Florence Flint clay is a true flint clay with very low impurities and a relatively high melting point; it has plasticitythe ability to be formed of itself without the addition of other more or less impure types of clay; it is used for superduty and high fired superduty refractories products. It is found mostly in an area centered on the town of New Florence, and within an area of 5 or 6 miles to its south, with some little bit to the north of the town. The clay deposit is a reserve which has been procured, drilled and proved as to quantity and quality, and which is awaiting mining at the earliest date upon which the type of clay is required, and which could not be obtained elsewhere. Wellsville has reserves because experience has indicated that it is becoming increasingly *717 difficult to find high quality clays such as is in the deposit.
Concerning initial acquisitions of clay deposits, and arrangements with landowners therefor, Mr. Weiss testified that at the time exploratory drilling is started, a lease is made, or a stipulation as to payment, for the right to go upon, mine and remove any clay found. For New Florence Flint clay the price, depending on the location, number of feet of overburden and other factors, will normally be in and around 30¢ per ton. The lease-contract agreement is entered into usually before any knowledge is available as to quality or quantity of the clay. Testing of the Kobush 80 began in 1958 and was completed early in 1962.
Mr. Weiss testified that as a part of his duties as Vice President of Wellsville he takes part, and has for 20 years, in the acquisition of minerals and mining rights and the negotiating of leases and instruments called warranty deeds for fire clay, being directly concerned therewith. He has discussed the question of acquisition of mining rights with persons in other refractories plants, and thought that, based on his own job duties and contract with persons in other plants, he had an idea of the value of fire clay, mining rights and minerals. He was then permitted to testify that in his opinion the fair and reasonable market value of the minerals and mining rights in and under the Kobush 80 immediately prior to the taking was about $300,000, and after the taking the value was $6,000 for 2,000 tons of clay remaining. He was then asked what factors he took into account in arriving at his valuation before the taking of the property. He answered that there were a great number of factors in addition to the 30¢ per ton which would have to be paid for royalties. The first mentioned was the location of the propertythe proximity of the deposit to plants, in this case it being almost centrally located from almost all of the refractories companies located in east central Missouri. The second was the very important factor of scarcity of the type of clay"[E]ach year it assumes a greater and greater importance. The difficulty of finding a pit of this size is very much greater in 1963 than it would have been five years previous." The third factor was the quality of the clay, in this case excellent. "Any of the refractories plants in East Central Missouri would consider this to be an attractive pit and valuable mining property." The fourth factor was the overburden on the clay deposit, in this case around 50 feet. This would be somewhere around 300,000 tons as against a recovery of clay of 100,000 tons, a 3 to 1 ratio. The instant property contains less overburden than some properties presently being mined. The fifth factor entering into the matter of the market value of the clay was testified by Mr. Weiss to be the costs of finding new clay.
On cross-examination Mr. Weiss was referred to answers to interrogatories made by him in which he had listed the sales, leases or transactions he believed to have any value in determining the fair market value of the condemned pit. He was asked if he considered any sales or acquisitions in arriving at his valuation aside from those listed on the interrogatory answer, to which he answered "I would say no, no other sales or acquisitions." The interrogatory answer showed that Wellsville had four properties leased "of 25 cents, 25 cents, 10 cents and 25 cents and 15 cents and 30 cents per ton, is what you pay for it, isn't it?" Mr. Weiss answered, "Those are the royalty payments, yes." He testified further that he based his opinion on a great variety of factors, and prefaced those by saying "In addition to the royalty payments." In acquiring mining rights from farmers he considered the proximity factor and the overburden, but not the scarcity and quality of the clay, 25¢ and 30¢ is considered to be a relatively standard and fair royalty payment. For 100,000 tons of clay $30,000 would be all the landowner would ever get.
Robert J. McCarthy is Executive Vice President of respondent companies. He had been continuously employed in the firebrick *718 business since 1939, going with respondents in 1960. He was familiar with the Kobush 80 and the fire clay pit in the northwest corner thereof, and had seen all the maps and drill records on the property. Harbison-Walker Company was mining similar clay on property adjacent to the Kobush 80 and all companies were prospecting and mining in the area where the New Florence clay is found. 30¢ a ton royalty is the sum that is set forth in the lease arrangement between New Florence and Wellsville. Royalty payments to landowners are usually, and in respondents' case always, arranged prior to any drilling or testing. The figure of 30¢ per ton is the current accepted royalty in the refractories industries in the area for this particular kind of clay under these particular conditions. The 30¢ royalty relates to economic value. It is the first step of a long series of things which happen to determine value. He testified further that he was acquainted with the reasonable market values of minerals in place, under the ground, known as New Florence clay and the mining rights attendant to those minerals in place. The cost of finding clay, related to the number of tons discovered, would be in excess of $1.00 per ton. He gave his opinion that the value before the taking of the minerals was $306,000, afterward $6,000. The factors considered by him were: The 30¢ per ton royalty paid; the total quantity of clay; the kind or quality of the clay, and that pits of this size are almost unheard of in the New Florence area which is the only place this kind of clay is found; the proximity of the clay deposit to other refractories plants in the area (because "the farther away you have to go to get it, the more its going to cost you to haul it back to your plant"); the cost of finding clay.
On cross-examination McCarthy testified that his opinion was not based in any way on any sales or acquisitions of any kind of New Florence flint other than the 30¢ royalty figure. He did not personally know of any other transactions or sales of New Florence flint, by deed, other than the straight royalty arrangements.
J. B. Arthur, a consultant to Kaiser Refractories at Mexico, Missouri, testified that flint clays in the New Florence vicinity are now very scarcethey are getting pretty well worked out and used up. "There are still reserve deposits owned by all of the larger companies which have not been mined." He gave his opinion that the market value of the clay deposit was $135,000 before the taking and nothing thereafter. He testified that he knew what the clay was worth delivered at plants in the district, and what they were paying for it; the quantity and quality of the clay; the overburden; its location from Mexico, Vandalia, Farber, Wellsville and Fulton, where the firebrick plants are located; what the rates are for hauling the clay there; what the going rates are for mining the claytaking the burden off and hauling the clay in. He testified further that "I know just about exactly what they are paying for flint clays delivered in these plants and putting those altogether, I considered the worth of it there, that is in proportion to all of those things added together."
Under the argument of Point II, appellant says that loss of business or future profits is not compensable. It cites Accomac Realty Co. v. City of St. Louis, 347 Mo. 1224, 152 S.W.2d 100; St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529; Tate v. State Highway Commission, 226 Mo.App. 1216, 49 S.W.2d 282. These cases do set forth that very general rule, but we are unable to ascertain, and appellant nowhere points out, how they are applicable to the case at bar. In our reading of the record, and in the briefs of the parties, we do not find any allusion or reference in the testimony of any witness that the damages for taking was based upon respondents' loss of profits. Appellant says, "Further, the increased cost of doing business caused by condemnation is not a recoverable item of damages." We find nothing in the record that the increased cost of doing business was a factor taken into account *719 by witnesses unless it could be said that the cost of finding clay deposits, as testified to by two witnesses, was improperly used as a factor. Appellant does not specifically so state. Certainly there was testimony that there is considerable expense connected with locating, testing and evaluating clay deposit, and such expense would be a factor in determining the market value of the instant clay deposit. Appellant's cited cases, State ex rel. State Highway Commission v. Cox, 336 Mo. 271, 77 S.W.2d 116, and State ex rel. Kansas City Power and Light Company v. Salmark Home Builders, Inc., Mo., 375 S.W.2d 92, have no such issue.
Although appellant's third argument in its brief relates to the well-established rule that market value is not the value to the condemnee but the price the property would bring if offered for sale on the market, it ties that rule to no testimony in the case. All three of respondents' witnesses testified that the damages they assessed related to market value. None testified that such damages related to the value of the clay property to condemnees.
The parties join in an issue in their briefs on the general rule (see Union Electric Company v. Jones, Mo., 356 S.W.2d 857; Missouri Edison Company v. Gamm, Mo.App., 379 S.W.2d 166) that "Mineral deposits are not to be valued separately but only as they enhance the value of the land." Such is the rule where there is no severance into separate estates of surface and mineral rights. Where there is a mineral deed, the subsurface rights conveyed create a separate, distinct interest apart from the surface rights. See Gordon v. Million, 248 Mo. 155, 154 S.W. 99, 101 [1]; Young v. Young et al., 307 Mo. 218, 270 S.W. 653, 654 [1], 39 A.L.R. 734; Groves v. Terrace Mining Company, Mo., 340 S.W.2d 708, 710 [3, 4]; 4 Nichols, Eminent Domain, 3rd Ed., § 13.22 [1], p. 422. Appellant admits in its brief that respondents have a property interest for which compensation is due in addition to the surface interest previously obtained from another party. In the trial court both parties treated the condemned mineral rights to the clay as an estate separate from the surface, and the issue was the value of the clay in place.
One real and meritorious question in this case is whether the fact that two of the witnesses, Weiss and McCarthy, did not base their opinions upon evidence of any sales of New Florence flint clay on a market, but gave other factors as a basis for such opinions, renders their testimony inadmissible upon appellant's timely objection thereto.
The evidence establishes that the instant mineral deposits consist of rare, high quality New Florence flint clay. Companies in east central Missouri engaged in the refractories business are in competition for clay deposits of this type. Consequently, once the mining rights and easements therefor are acquired, the companies do not sell them, but hold them in reserve for future use in the production of the heat resistant fire bricks for various industries requiring them. There can be no question but that there is an existing demand for this type of fire brick clay in the area of all the refractories plants. Wellsville itself uses 20,000 tons per year of New Florence flint clay. The highest and best use of the clay for superduty fire brick is established by the evidence, as is also the fact that proved clay deposits such as this have not been bought and sold in place upon the market. It is not disputed that the amount of usable clay is 100,000 tons and that it has some value to respondents for which they are entitled to compensation.
In United States v. 287.89 Acres of Land, Etc. (U.S.D.C.Pa.), 241 F. Supp. 456, there was involved the condemnation of reserve stock clay deposits for which there had been no sales in the vicinity. The court there said, loc. cit. 241 F. Supp. 462 [1, 2], "The law seems well settled that opinions of witnesses as to value of minerals in place need not be based on sales of the same or similar mineral deposits." The court quoted from United States v. Miller, 317 U.S. 369, 374, *720 63 S. Ct. 276, 280, 87 L. Ed. 336, 147 A.L.R. 55 (loc. cit. 241 F. Supp. 462), "`Where, for any reason, property has no market resort must be had to other data to ascertain its value; and, even in the ordinary case, assessment of market value involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety. It is usually said that market value is what a willing buyer would pay in cash to a willing seller. Where the property taken, and that in its vicinity, has not in fact been sold within recent times, or in significant amounts, the application of this concept involves, at best, a guess by informed persons.'" This case is in point with the case at bar, and we approve the statement of the court (loc. cit. 241 F. Supp. 463), "Although the quality of the evidence requires considerable speculation and conjecture, the fact finder is nonetheless obligated to reach a standard of value dictated by the nature of the case. `In this estimation the owner is entitled to have consideration given' to the capabilities of the clay and the present and expected future demand therefor, `and to any and every use to which it may reasonably be adapted or applied. And this rule includes the adaptation and value of the property for any legitimate purpose or business, even though it has never been so used, and even though the owner has no present intention to devote it to such use.' 4 Nichols, Eminent Domain, 4th ed., § 12.2 [3], pp. 61-62; Boom Company v. Patterson, 98 U.S. 403, 25 L. Ed. 206." See also Phillips v. United States (9th Cir.), 243 F.2d 1; United States v. Silver Queen Mining Company (10th Cir.), 285 F.2d 506.
The factors given by all witnesses, Weiss, McCarthy and Arthur: the proximity to refractories plants, the scarcity of the clay, its quality and use of mining, the costs of finding it, and the original cost of the royalty to the landowner, are all matters which a willing seller would urge upon and bargain with a willing buyer if the sale thereof were contemplated. Certainly the jury could find, based upon these reasonable factors, that there exists a market value for the clay over and above the initial royalty payments. Witness Arthur stated additionally that he knew what the clay was worth delivered at the plants in the district, the quantity and quality of the clay, its overburden, its location from plants, hauling rates, and taking the overburden off and hauling the clay. The reasonable construction which the jury could place upon his testimony is that the clay was worth $135,000 in place (the value at the plants, less hauling and mining expense, resulting in the value at the mine), and not its value at refractories plants after mining and hauling expense. All of these witnesses testified to their knowledge of acquisition of clay deposits, the customs of the refractories industries in holding and using the clay, that they knew of the instant deposits, and that in their opinions it had value, to which they were permitted to testify. As was said in Montana Railway Company v. Warren et al., 137 U.S. 348, 11 S. Ct. 96, 34 L. Ed. 681, "It is difficult to lay down any exact rule in respect to the amount of knowledge a witness must possess, and the determination of this matter rests largely in the discretion of the trial judge. (Citing cases) The witnesses whose testimony is complained of all testified that they knew the land and its surroundings, and many of them that they had dealt in mining claims situated in the district, and had opinions as to the value of the property. It is true some of them did not claim to be familiar with sales of other property in the immediate vicinity, and the want of that means of knowledge is the specific objection made in the supreme court of the territory to the competency of those witnesses. But the possession of that means of knowledge is not essential. It has often been held that farmers living in the vicinity of a farm whose value is in question, may testify as to its value, although no sales have been made to their knowledge of that or similar property. Indeed, if the rule were as stringent as contended, no value could be established in a community until there had been sales of the property in question, or similar property." The trial court did not err in refusing *721 to strike the opinion testimony of these three witnesses, and appellant's Point II is overruled.
By Point III appellant contends that the trial court erred in giving Instructions Nos. 1, 2 and 3 for respondents and refusing appellant's Instructions Nos. 8, 9 and 10, for the reason that respondent's given instructions authorized the jury to value mineral deposits separately and did not limit the value to the amount the deposits enhance the value of the land.
Instruction No. 1 told the jury that appellant had taken the fire clay and mining rights of respondents under 3.18 acres of land and a drainage easement under .18 acres of land under which respondents owned the fire clay and mining rights, and that the verdict must be for respondents, and that in assessing just compensation the jury should consider all the evidence under the instructions of the court. The instruction then told the jury that such just compensation is the difference in the fair market value of the fire clay and mining rights immediately before and immediately after the appropriation.
Instruction No. 2 told the jury that it might take into consideration the value of the fire clay and mining rights actually appropriated, and the damages to the remainder of such rights by reason of the appropriation and construction of the highway.
Instruction No. 3 told the jury that the term "fair market value" meant the actual value of the fire clay and mining rights in and under the tract of land, that is, "the price which such fire clay and mining rights would bring when offered for sale by one willing but not obligated to sell them, and is bought by one willing or desirous to purchase them but is not compelled to do so." This instruction went on to tell the jury that the fire market value did not mean a forced sale, but what respondents, wanting to sell, could have obtained upon the market from parties who wanted to buy on September 6, 1963, and would give them the full value for the highest and best use of such fire clay and mining rights.
Refused Instruction No. 8 told the jury that the damage to respondents was the difference in the fair, reasonable market value of the whole of respondents' property on the date of appropriation and the fair, reasonable market value of the remaining portions of the property in its then condition. This is essentially the same definition as is set out in Instruction No. 1, but with the word "property" substituted for the words "fire clay and mining rights."
Refused Instruction No. 9 told the jury that the sole property rights appropriated were the ownership and easement for mining and removal of fire clay, and that the fair, reasonable market value of respondents' property rights in the land was the fair reasonable market value which the fire clay and flint rocks and appurtenant easements added to the market value of the land.
Refused Instruction No. 10 defined "fair market value" essentially the same as Instruction No. 3, substituting the word "property" for the words "fire clay and mineral rights."
We hold that the trial court did not err in the giving of said instructions and in the refusal of appellant's requested instructions. As stated above, the sole interest of respondents was the fire clay deposit and the right to mine it. It was a separate estate from the surface right, the interest in which had been previously acquired by appellant separately. In 293.080 Acres of Land, Etc. v. United States (W.D.Pa.), 169 F. Supp. 305, 311, the court quoted from the Georgia Kaolin Co. v. United States cases [5 Cir., 214 F.2d 284, 286] that "`there can be no recovery for both the value of the land and its mineral deposits as two separate items,'" and then stated that the rule "refers to mineral deposits in place in which the title to the mineral is in the same person as the fee title." See again the exception to the general rule where the mineral deposit is itself subject to condemnation, 4 *722 Nichols, Eminent Domain, 3rd Ed., § 13.22 [1], p. 422. We find no reference in the instructions authorizing the valuation of the in-place minerals based on the price they would bring after mining and exploitation as argued. In this "separate estate" situation, it would have been improper to limit the value of the clay deposits to that amount their value would add to the value of the bare land, as submitted in appellant's refused Instruction No. 9. Point III is overruled.
Appellant says that the verdict is excessive and is not supported by the evidence, and that all the competent, admissible evidence shows that the respondents are entitled to a maximum of $30,000. The argument developed under this Point IV is tied to the amount which respondents' witnesses testified was paid by it and competing refractories companies in the acquisition of clay mining rights, 30¢ per ton. Appellant argues: (1) "Is it not fair for the clay companies to sell through condemnation for the same price they themselves have set as the maximum market value they would pay for a warranty deed for the identical interests?"; and (2) "While there may be a subjective value in excess of 30¢, while there may be opportunities to produce profit over 30¢, while there may be income lost and business incentive flustrated, this is the maximum market value and this amount only reached when `four or five or six firebrick manufacturers are bidding against each other for the right to go in and mine.' This is the market place, the established market value. This is what the citizens of Missouri receive for undeveloped New Florence clay under conditions most advantageous to them."
We have already ruled that the testimony of witnesses Weiss, McCarthy and Arthur was competent. The question is whether respondents are bound by their own evidence of the amounts paid landowners for the right to go upon land and remove the clay. We rule against appellant on this point. Although the going, usual price paid landowners for initial mining rights is some evidence of value if not too remote, it is not conclusive. City of St. Louis v. Turner, 331 Mo. 834, 55 S.W.2d 942, 945 [3]; State ex rel. State Highway Commission v. Henderson, Mo.App., 381 S.W.2d 10, 11 [1, 2]. The jury here could reject that evidence, and respondents are not bound by the evidence as to what is generally paid landowners for the right to mine fire brick clay. Especially is this true in view of the witnesses' testimony that a lease-contract is entered into before any knowledge is available as to quality or quantity of the clay; that the amounts paid were royalty payments; "the 30¢ royalty relates to economic value. It is the first step in a long series of things which happen to determine value"; that the 30¢ a ton royalty does not have any effect on what the clay is worth (witness, Arthur). Each witness testified that the royalty payment was a factor considered as bearing on market value. This initial payment for mining rights does not bind respondents thereto, but they were entitled to show, as they did, other factors bearing upon the market value of the clay for its highest and best use: superduty fire brick. The jury was thus entitled to consider also the location and size of the pit, proximity to refractories plants, scarcity, overburden, and cost of finding and proving clay deposits.
The last point we consider is appellant's Point I, in which it contends that the trial court erred in sustaining respondents' objections to Interrogatories 4, 5, 6, 7 and 8, which objections were filed more than 10 days after service thereof. We attach no importance to the delay in objecting for more than 10 days as provided by Civil Rule 56.01, V.A.M.R. inasmuch as appellant did not itself comply with Civil Rule 61.01 by moving for an order compelling answers. The matter was ruled by the trial court and the question is whether appellant was entitled to have the interrogatories answered, and if so, was the trial court's failure to require answers prejudicial to appellant?
*723 Interrogatories objected to were as follows: "(4) Give the County, Township, Range, Section, and Quarter-Quarter section of each property where Wellsville, New Florence, or Chicago companies own mineral rights and the consideration paid for their rights. (5) Give the above information on all parcels in which the above companies have any mineral leases. (6) List the drillings or tests and dates conducted on those parcels listed in questions numbered 4 and 5, and the approximate quality and quantity of clay in each. (7) Indicate which of the above pits are presently being mined. (8) List all the acquisition of fire clay by outright purchase, advance royalty agreement or lease of Wellsville, New Florence or Chicago companies, including the following information: (a) Type of acquisition, purchase, lease, advance royalties, etc. (b) Price. (c) Approximate amount of clay in tons. (d) Type of clay. (e) If any option was given in advance, the date of said option. (f) Date and type test made. (g) Result of test; type clay; approximate tons. (h) Date of acquisition. (i) Consideration paid."
The relevant inquiry, for which appellant did obtain answers, related to the acquisition and mining of New Florence flint clay, the type in issue in this case. It is obvious that the questions objected to had no relevancy to such issue, and if answers were required, it would have imposed a great burden upon respondents to inspect their records, and those of a parent Chicago company to provide the extensive requested information, wherever located and whatever type of clay. See State ex rel. the Kroger Company v. Craig, Mo. App., 329 S.W.2d 804, 810. The trial court did not err in sustaining the objection to the above interrogatories. Point I is overruled.
The judgment is affirmed.
BARRETT and STOCKARD, CC., concur.
PER CURIAM.
The foregoing opinion by PRITCHARD C., is adopted as the opinion of the Court.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2484879/ | 67 So.3d 206 (2011)
WHITE
v.
STATE.
No. 1D10-6548.
District Court of Appeal of Florida, First District.
August 4, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573535/ | 553 F.Supp. 14 (1982)
PHILLIPS & JACOBS, INC., Plaintiff,
v.
COLOR-ART, INC., Agent Harold Klemmetsen, Defendant,
v.
TRUST COMPANY BANK OF COBB COUNTY, Garnishee and Third Party Plaintiff,
v.
UNITED STATES of America, Third Party Defendant by Interpleading on Behalf of Trust Co. Bank of Cobb County.
Civ. A. No. C80-1904-A.
United States District Court, N.D. Georgia, Atlanta Division.
June 14, 1982.
Cotton, Katz, White & Palmer, Atlanta, Ga., for plaintiff.
*15 J. Al Cochran, Smyrna, Ga., for garnishee and third party plaintiff.
Asst. U.S. Atty., Atlanta, Ga., Curtis L. Muncy, Atty., Tax Div., Dept. of Justice, Washington, D.C., for U.S.
ORDER
ROBERT H. HALL, District Judge.
This matter came before the Court on the motion for summary judgment of the United States of America. Counsel for Phillips & Jacobs, Inc., Color-Art, Inc., and Trust Company Bank of Cobb County have failed to respond to the motion for summary judgment of the United States. Pursuant to Local Federal Rule 91.2, a failure to file a response to a motion indicates that there is no opposition to the motion. The Court, having considered the memorandum of law and other documents submitted by the United States in support of its motion for summary judgment and the pleadings on file, hereby makes the following findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure:
FINDINGS OF FACT
1. This is an interpleader action brought by the Trust Company Bank of Cobb County (Trust Company Bank) to interplead the amount of $9,707.32, which the taxpayer-defendant, Color-Art, Inc., had on deposit with Trust Company Bank as of October 6, 1980.
2. This action was originally commenced in the State Court of Cobb County, State of Georgia, on or about October 6, 1980. Pursuant to the Petition for Removal of the United States filed on November 4, 1980, and 28 U.S.C., Sections 1444 and 1446, this action was removed from the State Court to this Court.
3. On the following dates and in the following amounts the United States assessed withholding income and FICA taxes, interest, and penalties, against the taxpayer-defendant, Color-Art, Inc., and gave notice and demand for payment of such amount: on March 19, 1979, in the amount of $4,752.98 in tax, $1,212.01 in penalties, and $107.56 in interest; on April 9, 1979, in the amount of $4,872.25 in tax, $755.20 in penalties, and $55.93 in interest; on September 24, 1979, in the amount of $12,575.06 in tax, $2,348.07 in penalties, and $190.78 in interest; on June 9, 1980, in the amount of $5,631.64 in tax, $426.50 in penalties, and $116.41 in interest; on June 30, 1980, in the amount of $4,824.02 in tax, $289.44 in penalties, and $96.74 in tax.
4. Notices of Federal Tax Lien were filed with the Clerk of Superior Court, Cobb County, Georgia, on August 3, 1979, in the amount of $16,058.17, on November 16, 1979, in the amount of $2,884.30, and on May 22, 1980, in the amount of $11,190.14.
5. On August 28, 1980, the plaintiff, Phillips & Jacobs, Inc., caused a summons of garnishment to be served upon Trust Company Bank, by which it sought, as a judgment creditor of the taxpayer-defendant, Color-Art, Inc., to garnish all property of Color-Art, Inc. which was in the possession of Trust Company Bank.
6. On September 12, 1980, a Notice of Levy was served upon Trust Company Bank by the United States.
CONCLUSIONS OF LAW
1. This action was brought under 28 U.S.C., Section 2410(a)(5), and is properly before this Court pursuant to 28 U.S.C., Section 1444. The Court has jurisdiction over the parties and the subject matter.
2. In deciding whether the plaintiff, Phillips & Jacobs, Inc., or the defendant, United States of America, is entitled to the fund interplead it is necessary for this Court to look to state law to determine the nature of the legal interest and to federal law to determine the consequences attaching thereto. Aquilino v. United States, 363 U.S. 509, 513-514, 80 S.Ct. 1277, 1280, 4 L.Ed.2d 1365 (1960); Randall v. Nakashima, 542 F.2d 270, 273 (5th Cir.1976); United States v. Citizens and Southern National Bank, 538 F.2d 1101, 1105 (5th Cir.1976), cert. denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977).
*16 3. It is settled law in Georgia that a person who places money in a bank on general deposit loses title to the money and creates a creditor-debtor relationship with the bank. The funds deposited are transformed into a chose in action. United States v. Citizens and Southern National Bank, supra at 1105; Macon National Bank v. Smith, 170 Ga. 332, 153 S.E. 4 (Ga.1930); Fulton County v. Wright, 146 Ga. 447, 91 S.E. 487 (Ga.1917).
4. A chose in action is property or rights to property to which a federal tax lien will attach. United States v. Citizens and Southern National Bank, supra at 1105; United States v. Hubbell, 323 F.2d 197, 200 (5th Cir.1963); Internal Revenue Code of 1954, Section 6321.
5. All monies placed on deposit by the taxpayer-defendant, Color-Art, Inc., with Trust Company Bank created in the taxpayer-defendant a chose in action to which a federal tax lien would attach. United States v. Citizens and Southern National Bank, supra at 1105; United States v. Hubbell, supra at 200.
6. A federal tax lien arises upon assessment and demand, and attaches to all property or rights to property of the taxpayer, including property acquired after the date of the assessment. Internal Revenue Code of 1954, Sections 6321 and 6322; Glass City Bank v. United States, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56 (1945).
7. A properly filed Notice of Federal Tax Lien validates a tax lien as to purchasers, holders of a security interest, and judgment lien creditors. Internal Revenue Code of 1954, Section 6323.
8. The United States holds a federal tax lien valid as against purchasers, holders of security creditors, and judgment creditors as of August 3, 1979, November 16, 1979, and May 22, 1980, the dates of the filing of the Notices of Federal Tax Lien by the United States.
9. Under Georgia law a judgment creditor may not create a lien upon a debtor's chose in action except by way of summons of garnishment. Georgia Code, Section 39-113; Kilgore v. Buice, 229 Ga. 445, 192 S.E.2d 256 (Ga.1972); General Lithography Company v. Sight and Sound Projection Production, Inc., 128 Ga.App. 304, 196 S.E.2d 479 (Ga.App.1973).
10. When the plaintiff, Phillips & Jacobs, Inc., on August 28, 1980, caused a summons of garnishment to be served upon Trust Company Bank the United States held a valid federal tax lien on all property and rights to property, including the chose in action of the taxpayer-defendant, Color-Art, Inc., which is superior to and entitled to priority over any lien created by the summons of garnishment of the plaintiff, Phillips & Jacobs, Inc.
11. There exists no genuine dispute as to any material fact and the United States is entitled to judgment in its favor awarding it the interplead fund as a matter of law. Rule 56(c) of the Federal Rules of Civil Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584716/ | 233 P.3d 767 (2010)
LOWERY
v.
STATE.
No. 102288.
Court of Appeals of Kansas.
July 9, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573437/ | 17 So. 3d 1239 (2009)
BURKHALTER
v.
STATE.
No. 5D08-3338.
District Court of Appeal of Florida, Fifth District.
September 15, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573446/ | 553 F. Supp. 328 (1982)
ROCKWELL INTERNATIONAL CORP.
v.
COSTRUZIONI AERONAUTICHE GIOVANNI AGUSTA, S.p.A. and S.N.F.A.
Civ. A. No. 81-3984.
United States District Court, E.D. Pennsylvania.
December 22, 1982.
*329 David L. Steck, Rawle & Henderson, Philadelphia, Pa., Joseph K. Powers, Bigham, Englar, Jones & Houston, New York City, for plaintiff.
James J. Donohue, and Mark L. Parisi, White & Williams, Philadelphia, Pa., Elliott M. Kroll, Kroll, Killarney, Pomerantz & Cameron, New York City, for defendant S.N.F.A.
Richard L. Goerwitz, Jr., Swartz, Campbell & Detweiler, Philadelphia, Pa., for Rudolph V. Pino, Speiser & Krause, P.C., New York City, for defendant Agusta.
MEMORANDUM
GILES, District Judge.
This products liability suit arises from a helicopter crash over the Ohio River on January 16, 1981. The owner of the helicopter, Rockwell International Corporation ("Rockwell"), sues both the manufacturer, Costrozioni Aeronautiche Giovanni Agusta, S.p.A. ("Agusta") and the maker of an allegedly defective component part, SNFA. Both defendants are foreign corporations. Agusta has voluntarily submitted to the jurisdiction of this court, but SNFA moves to dismiss for lack of personal jurisdiction. For the reasons outlined below, SNFA's motion to dismiss shall be denied.
FACTS
SNFA, a French corporation with no apparent place of business in the United States, designs and manufactures ball bearing assemblies. These assemblies, along with accessories and replacement parts are sold by SNFA to its Italian subsidiary, Somecat, S.p.A. Somecat is SNFA's exclusive distributor in Italy, who, in turn, sells the ball bearings and replacement parts to Agusta which is also an Italian corporation.[1] Agusta incorporates custom made SNFA bearings into its A-109 helicopter. Agusta then sells the helicopters to its United States distributor, Atlantic Aviation Corporation in Wilmington, Delaware. The chain of distribution is completed when Atlantic sells to the ultimate consumer. Replacement *330 parts for the ball bearing assemblies go through the same chain of distribution.[2]
Rockwell, a Delaware corporation with its principal place of business in Pennsylvania,[3] purchased an A-109 helicopter from ... Atlantic in October of 1977. Almost a year later, Rockwell bought seven replacement tail rotor drive shaft bearings from Atlantic. These bearings were designed, tested and manufactured by SNFA and had gone through the chain of distribution previously outlined. They were installed in the helicopter on April 2, 1979. On January 16, 1981, the bearings and the rotor drive shaft failed while the helicopter was flying over the Ohio River. The pilot was unable to maintain directional control and the helicopter crashed. Rockwell sues defendants under theories of negligence and the breach of express and implied warranties.
The ball bearings manufactured by SNFA are custom designed for the Agusta A-109 helicopter. They cannot be used in any other helicopter model. Agusta buys all bearings for the A-109 from SNFA. During the design and testing of the ball bearings, SNFA worked closely with Agusta engineers and was aware that the A-109 helicopter was targeted for the executive corporate transport market in the United States and Europe. SNFA has advertised its bearings in the World Aviation Directory, a publication widely circulated throughout Europe, Canada and the United States. In addition, it has an exclusive agreement with Air Supply Company, a division of Garrett Corporation, located in California. This agreement allows Air Supply to promote and sell SNFA's precision bearings throughout the continental United States. SNFA has also sold turbine engine bearings directly to General Electric Corporation and Garrett Corporation. The engines into which these bearings are incorporated are marketed throughout the United States.
DISCUSSION
In deciding SNFA's motion to dismiss for want of personal jurisdiction, I must accept as true all of plaintiff's wellplead allegations of fact, viewing all reasonable inferences in the light most favorable to the non-moving party. See Hollinger v. Wanger Min. Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). See also Empire Abrasive Equipment Corp. v. H.H. Watson, 567 F.2d 554, 557 (3d Cir.1977); Van Naarden v. Grassi, 488 F. Supp. 720, 722 (E.D.Pa.1980). Once a defendant properly challenges the court's personal jurisdiction, the plaintiff has the ultimate burden of proving that the non-resident defendant's activities with the forum state permit the exercise of jurisdiction. See Strick Corp. v. A.J.F. Warehouse Distributors, Inc., 532 F. Supp. 951, 953 (E.D.Pa.1982); Boysen v. Treadway Inn of Lake Harmony, Inc., 53 F.R.D. 96, 98 (E.D. Pa.1971), aff'd per curiam, 463 F.2d 247 (3d Cir.1972).
Rule 4(e) of the Federal Rules of Civil Procedure permits a federal district court to exercise personal jurisdiction over a nonresident to the extent allowed by the law of the state where the court sits. Western Union Telegraph Co. v. T.S.I. Ltd., 545 F. Supp. 329, 332 (D.N.J.1982). Pennsylvania's long arm statute, Pa.Cons.Stat.Ann. tit. 42 § 5322 (Purdon 1981) permits the exercise of personal jurisdiction "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact" with Pennsylvania allowed under the Constitution. Pa. Cons.Stat. tit. 42 § 5322(b). Where the state long-arm statute is written so broadly, the Third Circuit has failed to first examine the precise statutory language, instead focusing directly upon the constitutional due process requirements. Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1058 (3d Cir. 1982); DeJames v. Magnificance Carriers Inc., 654 F.2d 280, 284 (3d Cir.), cert. denied, *331 454 U.S. 1085, 102 S. Ct. 642, 70 L. Ed. 2d 620 (1981) (interpreting New Jersey long arm rule); Western Union, 545 F.Supp. at 332. Therefore, I must determine whether SNFA has sufficient "minimum contacts" with Pennsylvania "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Miliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 342, 85 L. Ed. 278 (1940)).
Plaintiff's cause of action arises out of a specific forum-related act. The thrust of the inquiry is upon whether there are sufficient contacts with the forum state arising from that "transaction" so as to justify the assertion of personal jurisdiction over the defendant. See Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588 (3d Cir.1982). In order to conclude that the exercise of jurisdiction is permissible, three criteria must be satisfied. See Lacovara v. Merrill, Lynch, Pierce, Fenner and Smith, Inc., et al., 551 F. Supp. 601 at 603 (E.D.Pa.1982). First, the cause of action must arise from defendant's activity within the state. I find that this element is satisfied. Rockwell's cause of action is traced from the sale of the ball bearings by SNFA, through its chain of distribution, to the apparent malfunction that allegedly caused the helicopter to crash. The sale,[4] malfunction and injury all occurred within Pennsylvania.
The second requirement is that the non-resident defendant purposely availed itself of the privilege of acting within the forum, thus invoking the benefits and protections of the forum's laws. See Hanson v. Denkla, 357 U.S. 235, 246, 78 S. Ct. 1228, 1235, 2 L. Ed. 2d 1283 (1958). Specifically, a corporation must engage in activities within the forum such that it is reasonably foreseeable[5] that it could be "haled into court there." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). As the Court noted in World-Wide Volkswagen, when the sale of a product is not an isolated occurrence, but comes about through the effort of the manufacturer to enter a market in other geographic areas, it is reasonable to subject that entity to suit where the allegedly defective merchandise has caused injury. Where a defendant has injected its product into the "stream of commerce" with the desire and expectation that it would be purchased in the forum state, the reach of due process is not exceeded when that state asserts in personam jurisdiction. See World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. at 567, citing Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N.E.2d 761 (1961).
Defendant argues that it has not purposefully availed itself of the privileges of conducting business within Pennsylvania. It maintains that it has confined its sales to the European market and that it is solely Agusta, which has purposefully availed itself of the United States and Pennsylvania market. This contention misses the mark. While SNFA's involvement in the sale and distribution of the ball bearing may be once or twice removed from Agusta's final sale to Rockwell, SNFA's purposeful availment, critical in the minimum contacts analysis, actually took place at an earlier point. That occurred when SNFA decided to enter and exploit the international "executive corporate transport market," and toward that end, began to work closely with Agusta's engineers to develop the ball bearings for the A-109 with the knowledge that the *332 A-109 was to be marketed throughout the continental United States. Moreover, because the ball bearings are custom-made, SNFA intended its products to be an inseparable part of the marketing plan of Agusta.
In World-Wide Volkswagen, the Supreme Court drew a distinction between a local or regionalized dealer and a manufacturer or major distributor. Except for a rare sale, the local dealer generally confines the market he serves to a limited area. However, the marketing territory and the sale of a product by a manufacturer or distributor is not intended to be so confined. The sale of its product to a distant state is not simply an isolated occurrence, but instead, arises from the corporation's affirmative efforts to serve, directly or indirectly, the largest possible market for its product. See World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. at 567, citing Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N.E.2d 761 (1961). See also Tedford v. Grumman American Aviation Corp., 488 F. Supp. 144, 146 (N.D.Miss.1980) (overhauler of aircraft engines who remanufactured engine, delivered it into stream of commerce, with expectation that it would be purchased and used by someone engaging in agricultural pursuits).
The distinction between a dealer or distributor seeking to serve a limited market, and a manufacturer seeking to serve a larger market, was recognized by the Superior Court of Pennsylvania in Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Super. 544, 426 A.2d 628 (1980). In quoting from Developments Jurisdiction, 73 Harv.L.Rev. 909, 929 (1960), the court noted:
It does not seem desirable to subject the California dealer who has sold tires to a Pennsylvania tourist to jurisdiction in Pennsylvania. However, it does seem that jurisdiction should be upheld over a California tire manufacturer who cannot be thought of as doing business within the state. While it is foreseeable by both defendants that their wares will be used in Pennsylvania, one is set up to do business locally whereas the other depends upon foreign consumption. Thus, it would seem unreasonable to force the local dealer to be prepared to defend suits on a nation-wide scale, while the national manufacturer which depends upon a national market can be so prepared.
284 Pa.Super. at 554-55, 426 A.2d at 633.
In DeJames v. Magnificance Carriers, Inc., 654 F.2d 280 (3d Cir.) cert. denied, 454 U.S. 1085, 102 S. Ct. 642, 70 L. Ed. 2d 620 (1981), the plaintiff, a New Jersey longshoreman, sued for personal injuries which he sustained while working on defendant's vessel while it was moored to a pier in the forum state. Defendant, Hitachi, a Japanese corporation, had converted the ship in Japan so that it would be capable of transporting automobiles. DeJames argued that the conversion work done by Hitachi had, in effect, made Hitachi the "manufacturer of the vessel," and therefore, amenable to jurisdiction under the stream of commerce doctrine. Focusing upon the indirect marketing scheme and the consequent economic benefits derived from residents of the forum, the Third Circuit explained:
The stream-of-commerce theory developed as a means of sustaining jurisdiction in products liability cases in which the product had traveled through an extensive chain of distribution before reaching the ultimate consumer. Under this theory, a manufacturer may be held amenable to process in a forum in which its products are sold, even if the products were sold indirectly through importers or distributors with independent sales and marketing schemes. Courts have found the assumption of jurisdiction in these cases to be consistent with the due process requirements identified above: by increasing the distribution of its products through indirect sales within the forum, a manufacturer benefits legally from the protection provided by the laws of the forum state for its products, as well as economically from indirect sales to forum residents.
654 F.2d at 285.
It is more appropriate to characterize SNFA as a manufacturer, competing in an *333 international market rather than as a local French dealer. The DeJames court did not accept plaintiff's argument that Hitachi was a manufacturer, and consequently, it declined to apply the stream of commerce theory to that case. However, the distinctions which the DeJames court drew, firmly place SNFA within the line of stream of commerce situations. First, although Hitachi did not utilize the owners of the ship it "manufactured" as distributors of its product, SNFA and its subsidiary, clearly did so. They had to distribute the product through Agusta's distribution system; the bearing was uniquely designed for incorporation into Agusta's helicopter. Second, unlike Hitachi, SNFA took full advantage of an indirect marketing scheme. Finally, while Hitachi received no economic benefit, either directly or indirectly from the forum state, the same cannot be said of SNFA. By virtue of the sale of the bearing in question, defendant derived, at a minimum, an indirect pecuniary benefit from Pennsylvania.
In Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980), the stream of commerce doctrine was applied to impose jurisdiction over a non-resident defendant like SNFA. A Japanese cigarette lighter manufacturer, Tokai-Seiki, and its exclusive American distributor, Scripto, were sued for injuries sustained when a Texas consumer was seriously burned by the lighter's alleged malfunctioning. The Japanese manufacturer, which produced, sold and delivered millions of the lighters to Scripto in Japan, was held reasonably to know or expect that the sales through its exclusive distributorship system would be nation-wide. The Fifth Circuit found these facts sufficient to impose in personam jurisdiction. The court held that the lighter manufacturer should have known that its products would reach Texas, and any or all other states, in the normal course of the distribution chain. Nothing in the facts of Oswalt indicated to the court that Tokai-Seiki has attempted in any way to limit the states in which its lighters could be sold. Given the distribution arrangement, the manufacturer's conduct and connection with the forum were such that it could reasonably have anticipated being haled into court there. Id. 616 F.2d at 198-200. See also Noel v. S.S. Kresge Co., 669 F.2d 1150, 1155 (6th Cir.1982); Cooper Industries, Inc. v. J & J Fabrics, Inc., 212 U.S.P.Q. 433, 434 (1980). The case at bar is analogous. Given the distribution system, SNFA had ample reason to know and expect that its bearing, as a unique part of a larger product, would be marketed in any or all states, including the Commonwealth of Pennsylvania. Like the manufacturer in Oswalt, SNFA did not in any way attempt to restrict its market or limit the states in which its bearings could be sold.
SNFA argues that although it may have been foreseeable that its bearings would find their way into any given state, under World-Wide Volkswagen, foreseeability alone is insufficient to establish minimum contacts. 444 U.S. at 295, 100 S.Ct. at 566. While it is true that this kind of foreseeability is not determinative, it is noted that SNFA chose to participate in a nation-wide marketing chain. This makes the sale of products incorporating its bearings, not merely foreseeable, but affirmatively welcomed.[6] By virtue of having a component specifically designed for the Agusta helicopter, SNFA had a "stake in," and expected to derive definite benefit from sales of the Agusta A-109 (and replacement parts) in the United States. See Stabilisierungs-fonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 203, 205 (D.C.Cir.1981). Cf. Jacobs v. Lakewood Aircraft Service, Inc., 493 F. Supp. 46, 48 (E.D.Pa.1980). Thus, I find that the second *334 requirement is satisfied because SNFA did "purposely avail itself" of the privilege of doing business in Pennsylvania.
The final prong of the analysis focuses upon whether the exercise of jurisdiction was reasonable and fundamentally fair. SNFA designed and manufactured a component that was incorporated into a product which was intended to be, and was, in fact, sold in both Europe and the United States. Where that component allegedly fails and causes injury in the very market in which the product was expected to be sold, it is not unreasonable or unfair to require the defendant to be subject to suit in that forum.
Moreover, a manufacturer or major distributor should not be allowed to profit from the sale of its product in a state, while simultaneously insulating itself from liability by establishing an indirect and multi-faceted chain of distribution. See Poyner v. Erma Werke GMBH, 618 F.2d 1186, 1190 (6th Cir.) cert. denied sub nom. Insurance Co. of North America v. Poyner, 449 U.S. 841, 101 S. Ct. 121, 66 L. Ed. 2d 49 (1980). Simply because a business operation is structured in such a way as to avoid direct activity in the Commonwealth of Pennsylvania would not prevent the state courts from imposing personal jurisdiction upon the non-resident defendant. Crucible, Inc. v. Stora Kopparbergs Bergslags AB, 403 F. Supp. 9, 12 (W.D.Pa.1975).
As the Third Circuit aptly stated in DeJames:
Underlying the assumption of jurisdiction in these cases is the belief that the fairness requirements of due process do not extend so far as to permit a manufacturer to insulate itself from the reach of the forum state's long-arm rule by using an intermediary or by professing ignorance of the ultimate destination of its products.
654 F.2d at 285. See also Poyner, 618 F.2d 1186, 1189, quoting Volvo of America Corp. v. Wells, 551 S.W.2d 826, 828 (Ky.App.1977); Novinger v. E.I. duPont deNemours & Co., Inc., 89 F.R.D. 588, 594 (M.D.Pa.1981).
Accordingly, I find that this court may properly exercise in personam jurisdiction over defendant SNFA, and defendant's motion to dismiss is denied.
NOTES
[1] Agusta presently has an office within the Eastern District of Pennsylvania.
[2] Through Somecat, SNFA has supplied Augusta with approximately 2,200 bearings for use as both original and replacement equipment in the A-109 helicopter.
[3] Subject matter jurisdiction is based upon diversity of citizenship, 28 U.S.C. § 1332 (1976). Since Rockwell is suing for over a million dollars, the amount in controversy requirement is satisfied.
[4] The bearings were shipped "FOB Pittsburgh" by Atlantic to Rockwell's facility in Pittsburgh. They were billed to Rockwell and paid for in Pittsburgh. For tax purposes, the sale was a Pennsylvania transaction.
[5] As the Supreme Court emphasized in World-Wide Volkswagen, the kind of foreseeability that is crucial is not the mere likelihood that a product would come into the forum State. If that were the type of foreseeability involved then "(e)very seller of chattels would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel. 444 U.S. at 296, 100 S.Ct. at 566. Necessarily, the mobility of the product cannot be determinative in the foreseeability analysis.
[6] In no way is this observation based upon the "mobile" character of the helicopter. The argument that the inherent mobility of the automobile made it foreseeable that the product would turn up in any state, was precisely the impetus for World-Wide Volkswagen's qualification of the "foreseeability" factor of the minimum contacts test. Regardless of the type of end-product into which SNFA's part was incorporated, the fact that SNFA chose to sell the custom-designed bearing to a company such as Agusta, which utilized a multi-national distribution system, makes the sale and incident in Pennsylvania more than fortuitous. Compare DeJames v. Magnificance Carriers, Inc., 654 F.2d at 286. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573480/ | 66 S.W.3d 157 (2001)
STATE of Missouri, Plaintiff-Respondent,
v.
Michael BELL, Defendant-Appellant.
No. 23909.
Missouri Court of Appeals, Southern District, Division Two.
December 31, 2001.
Motion for Rehearing and Transfer Denied January 18, 2002.
Application for Transfer Denied February 26, 2002.
*160 Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Attorney General, Jefferson City, for respondent.
KENNETH W. SHRUM, Judge.
Michael Bell ("Defendant") appeals his jury conviction for first-degree robbery (§ 560.020), for which he was sentenced to fifteen years' imprisonment.[1] In four points relied on, Defendant charges the trial court committed reversible error when it refused to (1) dismiss the charges because of the State's delay in filing them, (2) give Defendant relief on his speedy trial request, (3) grant a mistrial when a witness alluded to Defendant's prior bad conduct or involvement in other crimes, and (4) allow evidence about why the State dismissed charges against another participant in the subject crimes. For the reasons outlined below, all points are denied and the judgment affirmed.
FACTS
Shortly after midnight on June 6, 1998, Kellett's Oil, a gas station in Sikeston, Missouri, was robbed and the clerk working there was shot and subsequently died. Based primarily on information provided by Michael Hatcher ("Hatcher"), who admitted to taking part in the robbery, the State ultimately charged Defendant on November 24, 1999, with the following crimes: Murder in the first degree (§ 565.020), armed criminal action (§ 571.015), and robbery in the first degree (§ 569.020).
Summarized, Hatcher's at-trial testimony about Defendant's involvement was that near midnight on June 5, 1998, Defendant, Hatcher, Orlandis Farr ("Farr"), and Darius Nicholson ("Nicholson") agreed to rob Kellett's Oil. Hatcher, who was driving, parked in an alley. The four persons then donned caps and bandanas to cover their faces and walked to the gas station to carry out their planned robbery. During the robbery, Hatcher heard a gun shot and when he looked back, he saw Defendant and Nicholson running from the station. Hatcher also saw that the clerk had been shot and was lying on the floor. As the four robbery participants fled, they discarded their caps and bandanas.
Details about the investigative efforts of law enforcement officials and how they learned Defendant was implicated, included the following. At or near the scene, officers located a set of tire tracks, a blue bandana, a handgun, and ball caps in an alley. Also, a red bandana and a white t-shirt were found on a nearby street. It was learned that the bullet that killed the clerk came from the handgun found in the alley. Then in July 1998, police officers talked with suspects being held in Cape Girardeau concerning a robbery similar to that at Kellett's Oil. They gave officers information that led them to Hatcher and Nicholson.
When officers first talked to Hatcher, he denied involvement, but based on the information from the Cape Girardeau suspects, Hatcher was arrested and his automobile was seized. It was later learned that the tread pattern on at least one tire *161 of Hatcher's car matched that taken from the tire tracks in the alley. Confronted with the tire evidence, Hatcher finally conceded he was in the vehicle the night of the robbery, but claimed he did not participate. Later, Hatcher told officers he would talk and identify the shooter if the prosecutor would give him a "deal" for ten years. After receiving an indication that he might receive that deal from the prosecutor, Hatcher told detectives that he, Nicholson, and "some guy from Malden" (who Hatcher was later able to identify as Farr from a high school yearbook picture) were involved in the robbery and murder. It was not until September 15, 1998, that Hatcher identified Defendant as one of the participants. His at-trial explanation for the delay was that he knew Defendant better than Farr and considered Defendant a friend and therefore was hesitant to name Defendant as a participant.
By his own admission, Hatcher had some difficulty telling the truth or relaying a complete story to investigators. During interviews with detectives and while testifying at his deposition and at preliminary hearings for Nicholson and Defendant, Hatcher lied or gave inconsistent statements about his realization that the others intended to commit the robbery, his level of involvement in the robbery, from where he obtained his bandana and who was wearing a bandana, his knowledge of Nicholson having a gun, and his whereabouts on that evening. In a letter he wrote the prosecutor from jail, Hatcher promised he would "do a better job testifying" and that he could "guarantee" a "definite conviction" if the prosecutor would promise him a "120 shock period" (referencing sentencing pursuant to § 559.115).
On November 24, 1999, the State charged Defendant, Farr, and Nicholson each with one count of murder in the first degree, armed criminal action, and robbery in the first degree.[2] The State pursued the armed criminal action and robbery in the first degree charges against Defendant and Farr as co-defendants, but elected to proceed against them on a murder in the second degree charge instead of murder in the first degree. The trial was held August 15-18, 2000. The jury acquitted Defendant and Farr of the murder in the second degree and armed criminal action charges, but convicted both of them on the robbery in the first degree charge. This appeal followed.
DISCUSSION
POINT I: DELAY IN FILING INFORMATION
Defendant's first point maintains the trial court erred when it refused to grant his motion to dismiss the information because of the State's delay in filing the charges. Defendant claims the State had learned from Hatcher that Defendant was allegedly involved in the robbery and murder as early as September 1998, but failed to charge Defendant with any crime until November 24, 1999. Defendant further claims that he was prejudiced by the delay because he was unable to establish an alibi defense due to the passage of time, unavailability of a witness, and dimming of memories.
A delay in filing an information or procuring an indictment may violate a defendant's constitutional due process rights. United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971). However, it is not the length of the delay that is dispositive, but whether *162 the accused suffered substantial prejudice due to the delay. Id. at 325. A short delay may be prejudicial in some circumstances whereas in others a long delay may not prove to be detrimental to an accused's constitutional rights. Id.
In considering if a delay in filing an information infringes on an accused's constitutional rights, the issue "is not whether [the] delay should have happened but rather whether [the] delay justifies the dismissal of charges against the [accused] under the due process clause of the Fifth and Fourteenth Amendments." State v. Griffin, 848 S.W.2d 464, 467[2] (Mo.banc 1993). "[T]he test for determining whether... delay [in filing an information] requires the dismissal of charges is whether 1) the defendant was prejudiced by ... [the] delay which 2) was intended by the prosecution to gain a tactical advantage over the defendant." Id.
Before an information will be dismissed because of delay in its filing, Defendant must show both elements of the above test. State v. Palmer, 726 S.W.2d 447, 448 (Mo.App.1987). The "inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). Delay in filing an information "is prejudicial if it impairs the defendant's ability to defend himself." State v. Clark, 859 S.W.2d 782, 786[2] (Mo.App.1993).
Here, Defendant claims that prejudice to him of constitutional dimension resulted from the delay in filing of charges because he and the people he was with during the early morning of June 6, 1998, "were simply unable to recall" the events of an "ordinary day 18 months prior" to his arrest. In his only illustration, Defendant claims "his then-girlfriend moved to Atlanta during the time between the robbery and the filing of charges and was unavailable as a witness." Continuing, Defendant insists he "was prejudiced by the delay and ... resultant inability to present an alibi defense because had he been able to do so, the jury would have had something to compare to Hatcher's story and a reason to disbelieve it." He says the record is "clear that Hatcher was completely incapable of telling the same story twice[;]" that Hatcher "admitted to over twenty outright lies, `misunderstandings[,]' failures to tell the `whole truth[,]' and a `not for real' lie." With that assertion made, Defendant concludes his prejudice argument by saying, "[i]t was ... clear that the only evidence the state had to connect [Defendant] to the robbery was Hatcher's testimony. If [Defendant] had been able to establish his whereabouts, the jury would have discounted Hatcher's story and acquitted [Defendant]."
Initially, we note that the prejudice Defendant must show to prevail on his first point has to be more than the real prospect of prejudice that normally attends any extended delay in criminal proceedings, i.e., that memories will dim, witnesses will become inaccessible, and evidence will be lost. Clark, 859 S.W.2d at 786. To have any chance of success, Defendant "must do more than speculate; he must indicate the nature of possible evidence which could be adduced." Id. Defendant has not met that burden here. Although he claims his former girlfriend had moved to Atlanta and was unavailable as a witness, he offers no clue as to why she was unavailable or what her testimony might have been. Lack of presence in the jurisdiction does not make a witness unavailable. State v. Robinson, 696 S.W.2d 826, 831 (Mo.App.1985). To meet his burden, Defendant needed to show that the witness was indeed unavailable and to make an offer of proof regarding what her *163 testimony would have been. Clark, 859 S.W.2d at 786; Robinson, 696 S.W.2d at 831. Defendant, however, made no such effort.
As for the dimming of his own memory, Defendant testified he could not recall his whereabouts on the night of the robbery. He also testified, however, that he knew he would not have been with Hatcher on that night because they did not get along. Defendant explained his dislike for Hatcher stemmed from the fact that he believed Hatcher had sexual intercourse with Defendant's girlfriend. From this we discern that Defendant could remember associated events and through such testimony was able to present exculpatory evidence, i.e., evidence from which the jury could infer that whenever the crime was committed, Defendant was not a participant because he would not associate with Hatcher.
In addition, the mother of Defendant's girlfriend testified about Defendant's whereabouts on the night of the robbery. She remembered a day in June 1998 when there was yellow tape around Kellett's Oil. She testified that Defendant stayed at her house the night before and he was there on that morning and had taken her daughter (Defendant's then girlfriend) to work that morning sometime between 5 and 6 a.m. Therefore, the memory of at least one of Defendant's witnesses had not dimmed, and the testimony of the mother of Defendant's then-girlfriend may have also provided Defendant with an alibi.[3]
Further, Defendant's testimony revealed there was not a fifteen-month delay from the time law enforcement officers were told of Defendant's alleged participation in the crime and Defendant learning that officers viewed him as a suspect. Specifically, Defendant testified that sometime in March or April 1999, he was approached by the investigator of the public defender representing Nicholson. Based on the investigator's question, Defendant became aware of the importance of knowing his whereabouts on June 6, 1998. Although Defendant was not charged until November 1999, he was aware that an investigation was being conducted, as well as the fact that Hatcher had named him as part of that investigation, much earlier than November 1999.
As to Defendant's argument that Michael Hatcher was not credible and could not tell a consistent story, the jury was fully aware of Hatcher's history of untruthfulness, half-truths, and deception. For instance, at trial, Defendant's counsel got Hatcher to admit that he lied to detectives during the early stages of the investigation; he lied under oath during an October 21, 1998, preliminary hearing; he wrote to the Scott County prosecutor and offered to "fix the problems" that he might have caused; and he promised the prosecutor he "could do a lot better" the next time he testified. Defendant's argument that if he could have shown his whereabouts the night of the crime, the jury would have discounted Hatcher's story and acquitted Defendant, fails for two reasons. First, it is speculative, and second, it fails to recognize that the reliability, credibility, and weight of Hatcher's testimony was for the jury to decide. State v. Sumowski, 794 S.W.2d 643, 645[3] (Mo.banc 1990); State v. Idlebird, 896 S.W.2d 656, 661[6] (Mo.App.1995). The defense presented ample evidence that Hatcher had not always told the truth to law officers; the jury was, therefore, free to consider that evidence in deciding if Hatcher was truthful *164 when he testified about Defendant's involvement in the crime.
In summary, Defendant simply has not shown he suffered prejudice to the extent that his constitutional due process rights were infringed because of the State's delay in filing the information. Accordingly, Point I is denied.[4]
POINT II: LACK OF SPEEDY TRIAL
Defendant's second point on appeal is that the trial court erred in refusing to dismiss the charges because he was denied a speedy trial. Defendant filed his motion for speedy trial on January 6, 2000. Once Defendant filed his motion for speedy trial, the trial court was required to "set the case for trial as soon as reasonably possible thereafter." § 545.780. "Neither the failure to comply with this section nor the state's failure to prosecute shall be grounds for the dismissal of the ... information unless the court also finds that the defendant has been denied his constitutional right to a speedy trial." Id.
"`The right to a speedy trial guarantees to a criminal defendant that the state will move fast enough to assure the defendant of the early and proper disposition of the charges against him.'" State v. Williams, 34 S.W.3d 440, 446 (Mo.App.2001) (citation omitted); see also Marion, 404 U.S. at 313. Orderly expedition of the case, and not mere speed, is the essential requirement behind a speedy trial. Marion, 404 U.S. at 313. The protection of the right to a speedy trial attaches at the point of a formal indictment or arrest. State v. Fleer, 851 S.W.2d 582, 596[37] (Mo.App.1993). Deprivation of the right to a speedy trial is not considered per se prejudicial to Defendant. Barker v. Wingo, 407 U.S. 514, 521, 92 S. Ct. 2182, 2187, 33 L. Ed. 2d 101 (1972).
In analyzing whether an accused's right to a speedy trial has been violated, appellate courts balance the four factors listed in Barker, i.e., "(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) the prejudice to the defendant." State v. Bolin, 643 S.W.2d 806, 813 (Mo.banc 1983).
In this instance, there was an eight and one-half month delay in the trial. A delay of that length is presumptively prejudicial; consequently, no further discussion of the first factor is necessary. State v. Farris, 877 S.W.2d 657, 660 (Mo.App.1994).
As to the second factor (reason for the delay), we note that this case was originally set for trial for June 2000, but on April 19, 2000, was continued to August 2000. The State makes no claim that the delay was caused by unavailability of witnesses (which would not have been assessed against the State, State v. Raine, 829 S.W.2d 506, 512 (Mo.App.1992)), but rather claims that the reasons for the delay were related to docket issues and court scheduling. Such reasons for delay are weighed against the State, but not heavily when, as here, there is no evidence that the delay was deliberately intended to hamper the defense. Id. We find none of the delay attributable to Defendant.
*165 Regarding the third factor, i.e., Defendant's assertion of his right to a speedy trial, we note he made his request forty-three days after being charged. Although this was not immediate, neither did Defendant wait several months to assert his right, which has been found to weigh against an accused. Fleer, 851 S.W.2d at 597. We weight this factor favorably to Defendant. State v. Holmes, 643 S.W.2d 282, 288 (Mo.App.1982).
The fourth and final factor to be considered is whether Defendant was prejudiced by the delay in trial. Missouri courts have considered this the most important factor of the four. Farris, 877 S.W.2d at 663. Analysis of this factor is based on three components: "(1) prevention of oppressive pretrial imprisonment; (2) minimization of the defendant's anxiety and concern; and (3) limitation of the possible impairment of the defense." State v. Davis, 903 S.W.2d 930, 937[29] (Mo.App.1995). The last of the three components is considered most vital to the analysis. Id.
Defendant was imprisoned for ten months prior to trial. In his brief, Defendant does not assert that he suffered any anxiety or concern. However, Defendant does assert that he was impaired in his defense. Similar to arguments made by Defendant on his first point relied on, Defendant claims that he was prejudiced in his ability to establish an alibi defense, his memories and the memories of his witnesses dimmed due to the lapse of time, and witnesses became inaccessible.
As Defendant's claims of prejudice are the same, our analysis and conclusion are the same as discussed in Point I. Defendant failed to meet his burden to show prejudice occurred due to any delay. He was able to present evidence that may have related to an alibi defense, his testimony showed he had memories of why his whereabouts would not have included being with Hatcher on the night in question, and he neither showed his girlfriend was unavailable as a witness due to her move to Atlanta nor made an offer of proof regarding her expected testimony. Considering no factor is weighed heavily against the State and considering the fourth factor (which is most important) is weighed against Defendant, we find no violation of his right to a speedy trial. Point II is denied.
In his third point on appeal, Defendant claims the trial court abused its discretion and committed reversible error in overruling Defendant's motion for mistrial. During cross-examination of Detective Croker by co-defendant Farr's counsel, Croker was asked questions as to why he did not act more quickly upon information given to him by Hatcher about Defendant and Farr. During his testimony, the following exchange occurred:
"Q. (by Farr's counsel): Now, after you had gathered this information and gotten the name of Orlandis Farr, you told us that you done some investigation as far as Orlandis Farr was concerned, right?
"A. (by Croker): Yes, ma'am.
"Q. But you didn't do any investigation as far as Michael Bell was concerned, right?
"A. Well, there was investigations, but they were moreMichael Bell would have been fairly easy to locate.
"Q. But you never located him?
"A. Well, I seen him, but Michael Bell has never been a talker, so I thought that would be a waste of time."
Later, under recross-examination by Defendant's counsel, the following exchange occurred:
"Q. (by Defendant's counsel): Okay. Now, you said you couldn't find Mister Farr, but a little while ago you said *166 Mister Bell was easy to find. You could have picked him up without a warrant, couldn't you?
"A. (by Croker): On a 20 hour hold, yes, sir.
"Q. And you could have picked him upyou had asked for warrants but you didn't pick him up?
"A. That's correct.
"Q. And he wasn't arrested for over a year? Correct?
"A. That's correct.
"Q. It's because you knew you had a bad case, right?"
At this question, the prosecutor objected and the objection was sustained.
Later, on redirect of Croker by the prosecutor, the following occurred:
"Q. (Prosecutor): You were asked about not attempting to talk to Michael Bell. Is there a reason why you didn't try to talk to Michael Bell?
"A. (by Croker): He generally don't talk to us."
Finally, defense counsel again asked Croker, "[t]he fact is, you were concerned that you had a bad case, correct?" Thereon, the prosecutor objected and a bench conference took place outside the hearing of the jury during which Defendant's counsel contended that the State had opened the door and that his line of questioning of Croker should have been allowed. The trial court agreed with the State that it was improper for Defendant's counsel to ask questions about or refer to "the bad case thing." The trial court, however, then expressed concern that Croker's responses that Defendant generally did not talk to the police could imply that Defendant was "committing all kinds of crimes," and that the responses came "close to suggesting uncharged conduct."
Defendant then asked the trial court to advise the jury that the responses should be stricken and for the jury to disregard them. The court directed the prosecutor not to "delve into the issue any further," and indicated that it would instruct the jury to disregard any comments from Croker "about not talking to [Defendant] because he generally did not talk to [the police]." Defendant then moved for a mistrial, which was immediately denied. The court then instructed the jury as it had said it would.
Initially, we note Defendant failed to make a timely objection to the comments about which he now complains. "[T]o preserve an allegation of error on appeal there must be a proper objection and ... an adverse ruling." State v. Perry, 954 S.W.2d 554, 559[2] (Mo.App.1997). "Failure to object at the earliest opportunity to the admission of evidence ... constitutes a waiver of the claim." State v. Cosby, 976 S.W.2d 464, 467[4] (Mo.App.1998). Thus, our review of this point is confined to plain error and we will grant relief "only when the error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected." State v. McCracken, 948 S.W.2d 710, 713[2] (Mo.App.1997); Rule 30.20.
Had this claim of error been preserved, we would analyze the prejudicial effect of Croker's comments using five factors. State v. Smith, 934 S.W.2d 318, 320 (Mo.App.1996). The factors are: "(1) whether the statement was, in fact, voluntary and unresponsive ... or whether the prosecution `deliberately attempted to elicit' the comments; (2) whether the statement was singular and isolated, and whether it was emphasized or magnified by the prosecution; (3) whether the remarks were vague and indefinite, or whether they made specific reference to *167 crimes committed by the accused; (4) whether the court promptly sustained defense counsel's objection to the statement,... and instructed the jury to disregard the volunteered statement; and (5) whether in view of the other evidence presented and the strength of the state's case, it appeared that the comment `played a decisive role in the determination of guilt.' "Id. (quoting State v. Silas, 885 S.W.2d 716, 720 (Mo.App.1994)).
This record does not contain evidence that supports a finding of the existence of any one of the five factors. First, there is no evidence the State made a deliberate effort to elicit from Croker the subject remark, i.e., "[Defendant] has never been a talker." The initial comment by Croker came in response to a question from co-defendant Farr's lawyer. The other similar remark by Crokerto which Defendant did not timely objectwas elicited in an apparent attempt to explain away the "bad case" remark that co-defendant Farr's lawyer had injected in the case during cross-examination.
Second, there is no evidence that the prosecution emphasized the statements in any way. In fact, defense counsel may have highlighted it by twice making reference to the State's alleged "bad case," including once after the State's objection was sustained.
As to the third factor, the statements may have left an impression that Defendant had committed other crimes or had other run-ins with law enforcement, but the statements themselves were vague and indefinite. We are confirmed in that belief by the fact that defense counsel apparently did not initially recognize the "non-talker" remarks as references to Defendant's prior crimes or bad conduct, thus explaining why he did not timely object and seek relief.
The fourth factor is not implicated here since Defendant never timely objected to Croker's remarks. Moreover, despite the lack of timely objection, the court gave Defendant relief by instructing the jury to disregard Croker's remarks. "Ordinarily a trial court cures errors in matters presented to the jury by instructing the jury to disregard the offending matter." State v. White, 856 S.W.2d 917, 920[3] (Mo.App.1993).
As to the fifth factor, Croker's reference to Defendant as a non-talker could not have had a decisive role in the determination of Defendant's guilt. This follows because Defendant himself put evidence of his prior convictions and bad conduct before the jury. He first did this during voir dire by telling the jury he had a prior conviction. Then, as Defendant testified he told the jury he had been "locked up" in 1997, that he was in his "probation office" when arrested for this crime, and he had previously served time in the department of corrections.
As there is no evidence to support the "prejudice" factors, Defendant's point fails. Defendant has not demonstrated any error, much less a manifest injustice or miscarriage of justice from the trial court's refusal to grant a mistrial because of Croker's responses as to why he had not interviewed Defendant. Defendant's third point is denied.[5]
Defendant's fourth and final point is that the trial court abused its discretion by refusing to allow Defendant *168 to present evidence on why the State dismissed charges against Nicholson. Defendant subpoenaed Judge Fred Copeland, who had presided over Nicholson's case before it was dismissed on September 28, 1999. During the pre-trial conference, the State filed a motion to quash the subpoena issued to Judge Copeland, and the trial court granted that motion. A trial court is accorded broad discretion regarding its rulings on evidentiary issues and the admissibility of evidence. State v. Hayes, 15 S.W.3d 779, 785[8] (Mo.App.2000). We will disturb the trial court's ruling only upon a clear showing of an abuse of discretion. Id. at 785[9].
Defendant claims that Judge Copeland's testimony would have been relevant and provided the jury with evidence that Defendant was not charged for fifteen months, that the State "didn't have anything and ... still have nothing" on which to base their case against Defendant, and that would explain why memories would be dimmed. Defendant also argues that the testimony was relevant and necessary to the establishment of a defense to the charges and to explain Croker's testimony as to why he did not interview Defendant. Further, Defendant asserts that the evidence was relevant to and would bolster his pre-indictment delay claim by showing that if the State had a good case against Defendant, he would have been indicted sooner. The State argues that the charges were dropped against Nicholson because of the new information about additional participants. The State further claims that the case against Nicholson was dropped so that it could be refiled in Scott County against Nicholson, Defendant, and Farr. This in fact took place on November 24, 1999.
The disposition of someone else's case is considered irrelevant to the issue of whether a defendant is guilty or innocent. State v. Douglas, 917 S.W.2d 628, 631[7] (Mo.App.1996). Evidence is only admissible if it is relevant. State v. Weaver, 912 S.W.2d 499, 510[13] (Mo.banc 1995). Defendant has not shown the evidence was relevant; that it logically tended "to prove a fact in issue or corroborate relevant evidence that bears on the principal issue." Id.
Defendant was not prejudiced by the exclusion of this evidence. The trial court did not abuse its discretion by refusing to allow evidence from Nicholson's dismissal hearing. Defendant's fourth point is denied.
The judgment is affirmed.
PARRISH, J., concurs.
RAHMEYER, J., concurs.
NOTES
[1] All statutory references are to RSMo 2000 unless otherwise stated.
[2] The State had previously filed charges against Nicholson based on his participation in these crimes. The State, however, dismissed those charges on September 28, 1999. At that time, neither Defendant nor Farr had been charged.
[3] We agree that the effectiveness of this witness' alibi testimony was lessened by her inability to say Defendant was definitely at her house during the established time of the robbery.
[4] We have thoroughly reviewed the record regarding the second prong of the test for prejudicial delay and find nothing to indicate that the State willfully intended to cause delay or that the delay was purposeful or aimed at creating a tactical advantage for the prosecution. Because there is no evidence that a "tactical advantage was sought or achieved" by the State, Defendant's first point fails for this additional reason. State v. Scott, 621 S.W.2d 915, 918 (Mo.1981). Moreover, we note that the State's prosecution of Defendant after "`investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.' "Id. at 917 (citation omitted).
[5] The point also fails because a trial court's ruling that is adverse to an accused regarding unrelated misconduct or other crimes will not lead to reversal if such evidence is merely cumulative. State v. Alexander, 875 S.W.2d 924, 931[11] (Mo.App.1994); State v. Teal, 624 S.W.2d 122, 126 (Mo.App.1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573485/ | 396 S.W.2d 855 (1965)
UNITED SERVICES LIFE INSURANCE COMPANY, Petitioner,
v.
Joan Flores DELANEY, Respondent.
No. A-10671.
Supreme Court of Texas.
December 1, 1965.
*856 Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for petitioner.
Horace P. Shelton, Jr., San Antonio, for respondent.
NORVELL, Justice.
This is a suit for a declaratory judgment brought under the provisions of the Uniform Declaratory Judgments Act (Article 2524-1, Vernon's Ann.Tex.Stats.) by United Services Life Insurance Company against Joan Flores Delaney, the beneficiary named in an insurance policy issued by United Services covering the life of her deceased husband, Robert H. Delaney. The trial court dismissed the suit for want of jurisdiction. The Court of Civil Appeals affirmed, holding that under the facts and circumstances of this case, the suit was one instituted for the purpose of procuring an advisory opinion and hence was a proceeding over which the judicial branch of government had no jurisdiction. 386 S.W.2d 648. We affirm the judgments of the lower courts.
History of the Litigation
The litigation of which the present suit is a phase is highly involved, but a recitation of the circumstances that brought about the filing of the present proceedings is essential to an understanding of the jurisdictional problem presented.
The insurance policy which is the subject matter of this suit was issued by petitioner United Services on October 1, 1957. On May 8, 1959, the insured, Lieutenant Robert H. Delaney, died of injuries received as the pilot and only occupant of an aircraft owned and operated by the United States government. The policy contained the following clause:
"Limitation Due to Aviation Hazard"
"If this policy shall become a claim by death of the insured due to any service, training, travel, flight, ascent or descent in, on, or from any species of aircraft at anytime, except death resulting from travel as a passenger on an aircraft owned and operated by the United States Government or as a passenger on a scheduled passenger air service regularly offered between specified airports, the liability of the company under this policy shall be limited to the premiums paid hereunder or to the then net reserve at time of death, if greater; any provision in this policy to the contrary notwithstanding."
The company asserted that this limitation was applicable to the case and denied liability. Mrs. Delaney thereupon filed suit in the United States District Court for the Western District of Texas. On December 27, 1961, the judge of said court handed down his opinion supporting the proposition that Lieutenant Delaney's death was covered by the policy. 201 F. Supp. 25. Judgment was rendered awarding Mrs. Delaney a recovery.
*857 In the course of his opinion the District Judge said:
"The plaintiff claims that she is entitled to judgment, because when the insured was killed, he was a `passenger' in an aircraft owned and operated by the United States government; therefore, his death was clearly within one of the exceptions to the aviation rider. The case of Continental Casualty Co. v. Warren (1953), 152 Tex. 164, 254 S.W.2d 762, 764, decided by the Supreme Court of Texas, is cited in support of that position. There, the Court, in holding that the pilot was covered by a policy indemnifying the insured for loss resulting from injury sustained in consequence of `riding as a passenger' in a specified airplane owned by the insured and piloted by an authorized person, said that the words `as a passenger' could be construed to mean `as an occupant,' and concluded that the special rule of construction governing insurance cases requires that exceptions and words of limitations be strictly construed against the insurer, and favors a solution that would include rather than exclude the pilot. There is no language in the aviation rider involved herein which would compel a different conclusion, and `the intent of the policy to exclude the pilot is not so certain as to make it wholly unreasonable to say that he was included.'"
Upon appeal to the Fifth Circuit Court of Appeals, the case was referred to a panel of three judges and the judgment of the District Court was affirmed by a vote of two to one. 308 F.2d 484 (1962). The majority agreed with the District Court and held that, "After a close study of that case [Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, 1953] we conclude that the principles of law established by it control the decision of this case and we affirm the judgment of the court below." The dissenting judge was of the opinion that the Delaney case could be distinguished from Warren. It is evident, however, that he did not consider that Warren was a sound decision. He said:
"I would hold the parties to the plain meaning of everyday words used in their ordinary sense in an unambiguous contract. I decline to aid and abet in the verbocide of the good word `passenger'".
Upon rehearing, this case was considered by the Court of Appeals en banc, along with the case of Paul Revere Life Insurance Company v. First National Bank, Administrator, 5 Cir., 328 F.2d 483. By a vote of five to four, the Court, relying upon Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971, and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058, invoked the so-called "abstention doctrine". In concluding its opinion the Court said:
"[E]ach of the appellants can, and should, promptly initiate a proceeding in a Texas court seeking a declaratory judgment for the determining of the meaning of the pertinent clauses of the respective insurance contracts, with a review of such judgment by a court of last resort of the State of Texas.
"An order will be entered in each of the appeals staying further proceedings in this Court until the courts of Texas shall have been afforded an opportunity to determine the issues to be submitted. This Court will retain jurisdiction for the purpose of taking such further action as may be required."
In the Paul Revere Life Insurance Company case, the Supreme Court of the United States denied a petition for certiorari, 377 U.S. 935, 84 S. Ct. 1335, 12 L. Ed. 2d 798. *858 Mr. Justice Douglas was in favor of granting the writ.[1]
The minority took the position that, "The mandate from Congress that we decide diversity cases, Title 28 U.S.C.A., § 1332; Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 64 S. Ct. 7, 88 L. Ed. 9, makes plain our duty to decide these matters," and pointed out that Texas, unlike Florida, has made no provisions for the certification by federal courts of doubtful questions to its Supreme Court for resolution. Judge John R. Brown filed a special concurring opinion in answer to the dissent in which he expressed the opinion that the Uniform Declaratory Judgments Act, Art. 2524-1, provides a Texas solution for the problem of allowing a state court to decide a question of Texas law involved in a case pending in the federal Court of Appeals.
Opinion
The question of whether or not the federal court should stay its hand in diversity cases[2] pending state action is a federal question which was settled insofar as this case is concerned by the action of the Supreme Court of the United States in denying the petition for certiorari in the Paul Revere Life Insurance case.[3]
There are serious difficulties on the state side of the question. The Uniform Declaratory Judgments Act (Article 2524-1) provides a plenary remedy. A court having jurisdiction to render a declaratory judgment has power to determine issues of fact, issues of state law and issues of federal law if such questions be involved in the particular case. It was not intended to provide for the piecemeal trial of a lawsuit. It is the obvious purpose of the federal Court of Appeals to secure a decision upon an issue of state law so that it may thereafter render a final judgment between the parties. See, East Coast Lumber Terminal, Inc. v. Town of Babylon, 2 Cir., 174 F.2d 106, 8 A.L.R. 2d 1219 (1949), 73 Harvard L.Rev. 1358, 1. c. 1360. We have a situation therefore in which a cause or at least portions thereof are pending in two courts, *859 one of which (the state court) is not empowered to render a final enforceable judgment. The Declaratory Judgment procedure is ill adapted to accomplish the objective sought by the federal appellate court.[4]
From a state standpoint, a fatal impediment to the Texas court's assuming jurisdiction of this litigation in the present posture of the case arises from constitutional considerations. In Douglas Oil Co. v. State (Whiteside case),[5] 81 S.W.2d 1064 (Tex.Civ.App.1935), Chief Justice McClendon writing for the Austin Court of Civil Appeals, discussed at some length the nature and history of advisory opinions. He pointed out that in a few states advisory opinions have been given by judicial tribunals in the absence of constitutional authority and that in a small number of states advisory opinions have been given without either supporting constitutional or statutory authorization. However, the opinion stated that:
"The giving of advisory opinions is generally recognized as a nonjudicial function; and except as noted above has not been practiced in any of the American states. An authorizing provision was proposed in the Federal Constitutional Convention, but was defeated; and the Supreme Court of the United States has always declined to recognize it as within its constituent authority. This view, held also by the state courts except as noted, is a necessary conclusion from the constitutional separation of the powers of government into the three departments, executive, legislative, and judicial, and the essentially implicit deduction that, absent express constitutional authorization, none of these departments may exercise any of the powers inherently pertaining to another."
There are numerous Texas authorities which hold that the giving of advisory opinions is not a judicial function. In Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958), this Court said, "It is well settled that [Texas] courts will not give advisory opinions." See also, California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, affirming Puretex Lemon Juice, Inc. v. California Products, Inc., 324 S.W.2d 449 (Tex.Civ.App.1959); Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955); *860 Orange Independent School District v. West Orange Independent School District, 390 S.W.2d 81 (Tex.Civ.App.1965, ref. n. r. e.).
The present suit was originally filed in the district court but it is readily apparent from the order of the Circuit Court that the purpose of its directive is to obtain a decision by this Court upon a point of Texas law so that under the doctrine of Erie Railway Company v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, the federal court may render a judgment in accordance therewith.
We have no doubt that, in keeping with the Erie decision, the federal court would render a judgment in keeping with our interpretation of Texas law in this case, but the question is not one of comity, nor of federal policy. It is a question of the power, authority and jurisdiction of the state courts under the Texas Constitution. In Board of Water Engineers v. City of San Antonio, supra, we pointed out that as a prerequisite to the declaratory judgment process, "(a) there shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought." (Italics supplied.) If the state court is to entertain a suit for declaratory relief, it must have the power and jurisdiction to settle the controversy by entry of a final judgment. This is not a case in which a federal suit has been stayed in order that some other and different lawsuit pending in the state courts may be determined. Here, in effect, the same suit is pending in both the state and federal courts by reason of a directive which contemplates that the final judgment will be rendered by a federal court. The Circuit Court's reservation of jurisdiction to render final judgment renders these proceedings advisory in nature.
The leading case upon the point is Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), opinion by Chief Justice Cureton. The 43rd Legislature adopted two acts. One related to a judicial stay of foreclosure of liens. Acts 1933, 43rd Leg., Ch. 102, p. 225, Article 2218b, Vernon's Ann. Tex.Stats. The other related to the certification of constitutional questions by the district and county courts to the Courts of Civil Appeals. Acts 1933, 43rd Leg., Ch. 71, p. 147, Article 1851a, Vernon's Ann. Tex.Stats.
Acting under the provisions of the latter act, the judge of one of the district courts of Tarrant County certified to the Fort Worth Court of Civil Appeals the question of whether or not the act providing for a judicial stay order (Art. 2218b) was constitutional. In turn, the Court of Civil Appeals certified the question to this Court. The certificate was dismissed for want of jurisdiction. This Court held the 1933 Act of the Legislature was unconstitutional in that it sought to vest the Courts of Civil Appeals with a non-judicial function contrary to the Texas Constitution.
The certification act which was held invalid provided that any district or county court should be empowered to certify to the Court of Civil Appeals any question or questions of the constitutionality of "any law or any order, rule or regulation of any officer, board or other State Commission." The act also provided that the Court of Civil Appeals could in its discretion "forth-with certify said question or questions immediately to the Supreme Court * * *." Section 4 of the act provided that, "The trial court may hold the trial of said cause in abeyance until its questions have been certified and answered. * * *"
This Court said:
"It is obvious that the purpose of this act is to obtain before judgment in the trial court the advice of the Court of Civil Appeals and the Supreme Court as to `the constitutionality of any law or any order, rule or regulation of any officer, board, or other State Commission,' which may be involved in any case pending but undetermined in a trial court." (Emphasis is that of Chief Justice Cureton.)
*861 It was held that before a power could be classified as judicial under our constitution, the trial tribunal must have the authority to hear the facts, to decide the issues of fact made by the pleadings, to decide the questions of law involved, and possess the power to enter a judgment on the facts found in accordance with the law as determined by the court. It follows that a tribunal which is not empowered to render a final judgment is not functioning in a judicial capacity. Since the federal court will enter the final decree, any decision we may make in this case will be advisory in nature.
As to the Texas appellate courts, it was directly held in Morrow that the constitutional provisions relating to this Court and the Courts of Civil Appeals do not authorize said courts to render advisory opinions. It was said:
"We think the plain reading of the Constitution concludes the question that the Supreme Court and the Courts of Civil Appeals may exercise only these two classes of jurisdiction. Yett v. Cook, 115 Tex. 175, 180, 268 S.W. 715, 281 S.W. 843. Neither is given any advisory power by the organic law and since not given, under the rule expressio unius est exclusio alterius it is denied and can not be conferred by the Legislature. 15 Corpus Juris, p. 785, § 79; Madison's Journal of the Const.Conv. (Scott's Ed.) pp. 558, 559; Marshall's Life of Washington, chap. 6; Spark's Life of Washington, vol. 10, pp. 359, 542; Thayer's Mem. Advisory Opinions, 13; Story on the Const. (5th Ed.) § 1571; State [ex rel. Mille Lacs County Treasurer] v. Dike, 20 Minn. 363 (Gil. 314); Rice v. Austin, 19 Minn. 103 (Gil. 74), 18 Am.Rep. 330; In re Senate of State, 10 Minn. 78 (Gil. 56); State v. Baughman, 38 Ohio St. 455; Rogers v. Kennard, 54 Tex. 30; State v. Moore, 57 Tex. 307; Arnold v. Leonard, 114 Tex. 535, 540, 273 S.W. 799; 4 Michie's Digest, p. 395, § 10."[6]
We are aware of the fact that the Supreme Court of Louisiana in Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845 (1961) in effect rendered an advisory opinion in the form of a declaratory judgment pursuant to a directive of the United States Supreme Court. The majority opinion frankly acknowledged that an advisory opinion was called for. It was said that:
"To us it is evident that in this action, instituted pursuant to the directive of the United States Supreme Court under the Louisiana Declaratory *862 Judgments Act, we are called upon to render only an advisory opinion. * * This case is unusual, however, in that the highest court in the land deems it `advisable' for us to render such an opinion. Therefore, out of respect for, and as a courtesy to, that court, we proceed to do so, in the hope that our opinion will be of some assistance to the United States Supreme Court in its solution of the fundamental question raised in the litigation pending in the federal courts."
The majority opinion also recognized that the case was pending in two courts of different jurisdictions at the same time. It is said:
"We are mindful, however, that the interpretation of this reservation is for the United States courts, and not for us in this proceeding, even though Leiter's petition in this suit, after praying for an interpretation of Act 315 of 1940 as outlined in the opinion of the Supreme Court, asks the court to declare that Act 315 of 1940 applies to the mineral reservation in the deed to the government. * * * The interpretation of the contract is for the United States courts."
Because of this circumstance, the Louisiana opinion is highly tentative in nature. For example, it is said:
"If the United States Supreme Court construes the reservation as one establishing a servitude for a certain time or of specific duration * * * then Act 315 of 1940 is not applicable and if applied would be unconstitutional. * * *
"If the United States Supreme Court concludes * * * that the reservation does not establish a servitude for a certain time or of specific duration but establishes one of uncertain and indefinite duration, and that it was the intention of the parties to fix by contract the period of liberative prescription, then Act 315 of 1940 is applicable and constitutional."
Perhaps the Leiter case presents a more usual litigable situation than does the present case. In Leiter it was conceded that there were questions for federal court decision and perhaps, depending upon the federal action taken, there might be questions involving interpretation of state law. Here, the parties seemingly treat the case as involving a question of state law only, such question being whether or not the decision of this Court in Continental Casualty Company v. Warren, 152 Tex. 164, 254 S.W.2d 762, should be followed. However, the circumstance that there seems to be no disputed fact issue or question of federal law involved should not obscure the controlling factors in the case. Should we here answer the question which is propounded to us upon the theory that we have a declaratory judgment case before us, we would be compelled, as a logical proposition, to take the same position as that taken by the majority of the Louisiana court. That position recognizes that a tribunal of the judicial branch of government may constitutionally render an advisory opinion and, consequently, in the usual case (i. e. one involving fact issues), we would trim the plenary remedy of declaratory judgment to something less than the rendition of a final judgment in a lawsuit by eliminating all decisions involving fact issues and questions of federal law. We believe it axiomatic that in diversity cases, no federal court can constitutionally cede to a state court, jurisdiction to decide fact issues or questions of federal law. What the Louisiana court did in Leiter was to adopt an advisory opinion practice.[7]*863 The Louisiana majority opinion contains no discussion of constitutional questions and we must necessarily assume that under the Louisiana decisions, no constitutional inhibition against the advisory opinion is recognized. We have a contrary situation existing in this state. In Douglas Oil Co. v. State (Whiteside case), 124 Tex. 232, 76 S.W.2d 1043 (1934), this Court dismissed a certified question from a Court of Civil Appeals because, "The certificate calls upon the Supreme Court to give an advisory opinion, which is not permitted. Morrow v. Corbin, 122 Tex. 553, 62 S.W.(2d) 641."
Since the rendition of advisory opinions by courts is unauthorized by our constitution, it is undoubtedly sound law to say that the directive of a federal court could no more operate to vest this Court with jurisdiction to render an advisory opinion than it could empower this Court to try and determine a criminal case contrary to the peculiar provisions of the Texas Constitution which vest that jurisdiction in the Court of Criminal Appeals. Under our judicial set-up, some matters are settled by constitutional provision, others are determined by statute, while still others are controlled by court decisions or court promulgated rules. We are here confronted with a constitutional lack of power.
Any action we might take in this proceeding could not operate as res judicata in the federal court. It is a rule of general application that the pendency of an in personam action in a state court is not a ground for abatement or injunctive relief against the prosecution of the same suit in a federal court. This, because, "Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case." Kline v. Burke Construction Co., 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A.L.R. 1077 (1922). Obviously, any answer which we should give as to the bindingness of our holding in Continental Casualty Company v. Warren would not control federal court action under the doctrine of res judicata. Actually what we are called upon to do is to answer a question and not render a judgment. As above stated, this case is now pending in two separate courts at one and the same time[8] with the power vested in one court only (the Circuit Court of Appeals) to render a final judgment. The rule of Erie Railroad Company v. *864 Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487 (1938) is involved, but that doctrine is essentially one of precedent or stare decisis and wholly unrelated to res judicata.
While in a one point case involving a matter of state law, some apparent plausibility may be marshalled to support an argument along lines suggested by the rule of res judicata, such argument wholly fails when applied to a case involving fact issues or questions of federal law. This, for the reason that the state court cannot under a procedure such as adopted in this case render a conclusive judgment as to such issues. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964).
Seemingly both litigating parties are agreed that some form of effective communication should exist between the state and federal courts relating to cases involving questions of state law which come within the ambit of the Erie doctrine. However, the declaratory judgment procedure, necessitating as it does, the filing of a suit in a trial court and the prosecution of an appeal to an intermediate appellate court and thence to this Court, is highly cumbersome, expensive and time consuming. The process is rather like burning a house to roast a pig. A certified question practice, which in the light of the Texas experience,[9] might be expected to present some attendant and vexatious problems, seems more advisable. The federal courts are only interested in decisions of this Court relating to questions of Texas law. As a practical matter, the question should come directly to this Court from either the Supreme Court of the United States or one of the Circuit Courts of Appeals. Because of the Texas Constitution and the decisions of this Court construing some of its provisions, it would be necessary to amend our fundamental law in order to accomplish the ends desired. However, if reform be advisable and the need for change be substantial, the legislative power is generally responsive even though constitutional amendment may be involved.[10]
Conclusion
For the reasons above stated, we hold that the trial court properly refused to assume jurisdiction of this case and the Court of Civil Appeals correctly affirmed its decision. The judgments of both courts below are affirmed.
CALVERT, C. J., and HAMILTON and STEAKLEY, JJ., dissenting.
POPE, J., not sitting.
STEAKLEY, Justice (dissenting).
Whether or not we agree in principle, the Federal Court of Appeals, while retaining jurisdiction "for the purpose of taking such further action as may be required," is standing by in a diversity case, in which no federal question is to be decided and no fact question is to be resolved, while the parties obtain an adjudication under our declaratory judgment procedure of a question of local law. I would test the question of whether the judgment of our courts would be advisory only, and hence whether or not we have jurisdiction, by two considerations: First, whether our courts in the declaratory judgment proceeding can enter final judgment granting the relief sought, and, second, whether the judgment of our *865 courts will conclusively settle and terminate the controversy between the parties.
As to the first, this is simply a proceeding to obtain a declaration under local law of the legal rights of an insurance company and the beneficiary of a policy issued by the company. There is no impediment to state jurisdiction in the fact that a suit involving the same subject matter is pending in a federal court. It was held in Kline v. Burke Construction Co., 260 U.S. 226, 232, 43 S. Ct. 79, 82, 67 L. Ed. 226 (1922):
"Where a suit is strictly in personam, in which nothing more than a personal judgment is sought, there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined; and this because it neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with law."
This was reaffirmed in McNeese v. Board of Education, etc., 373 U.S. 668, 673-674 n. 5, 83 S. Ct. 1433, 1436, 10 L. Ed. 2d 622 (1963):
"And we held in Kline v. Burke Constr. Co. * * * a suit in personam based on diversity of citizenship could continue in the federal court even though a suit on the same cause of action had been started in the state court: `Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending * * *.'"
For an explication of the above rule, see Hart & Wechsler, The Federal Courts and the Federal System 1073-74 (1953); Gowen & Izler, Abstentation in Diversity Cases, 43 Tex.L.Rev. 194, 207 (1964).
Contrary, then, to the disparagement in the majority opinion, it is not a directive of a federal court which vests our courts with jurisdiction to declare the rights of the parties in this proceeding but, to the contrary, that which does so is the filing of a suit invoking the provisions of the Texas Declaratory Judgments Act, Article 2524-1, Vernon's Annotated Civil Statutes. The Act has been upheld by this Court and has been given a liberal construction to accomplish its purposes. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837 (1945); Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 57 A.L.R. 2d 97 (1955). Apparently the majority in its reliance upon Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), is of the view that the giving of consequential relief is essential to an exercise of the judicial function and prerequisite to the existence of jurisdiction in a court to enter a declaratory judgment. It is probably true that the later-enacted Texas Declaratory Judgments Act will not stand a literal application of the conditions to jurisdiction enumerated in Morrow in deciding the problem there presented. But the Texas Act is written in express contemplation of utilization of its procedures in situations where consequential relief cannot be given.
Borchard in his work on Declaratory Judgments 25 (2d ed. 1941), speaks of a declaratory judgment action as differing "in form in no essential respect from any other action, except that the prayer for relief does not seek execution or performance from the defendant or opposing party." The Supreme Court of Indiana speaks in terms of a declaratory judgment being "none the less an exercise of judicial power even though it does not carry with it, by force of the judgment itself, consequential relief." Rauh v. Fletcher Savings and *866 Trust Co., 207 Ind. 638, 194 N.E. 334, 336 (1935).
This Court delineated the true advisory opinion situation in California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960), as one where an actual and real dispute was not before the court and a concrete case was not present; as a consequence, a judgment by the court would settle nothing and be binding on no one. But the situation before us here is as expressed by the Supreme Court of Michigan: "When an actual controversy exists between parties, [and] is submitted in formal proceedings to a court, the decision of the court is binding upon the parties and their privies and is res adjudicata of the issue in any other proceeding in court in which it may be involved, what else can the decision be but the exercise of judicial power?" Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 229 N.W. 618, 620, 68 A.L.R. 105 (1930).
The second of the conditions to jurisdiction which I pose is also present. Under the circumstances of this caseno federal or fact questionsthe final judgment of our courts will be conclusive and further action in the federal courts may be only in accordance therewith. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487 (1938); West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S. Ct. 179, 85 L. Ed. 139 (1940); Clay v. Sun Insurance Office, Ltd., 363 U.S. 207, 80 S. Ct. 1222, 4 L. Ed. 2d 1170 (1960). The last word on a question of local law is the state forum. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). This is res judicata in principle if not in the conventional sense. Indeed, the Fifth Circuit Court of Appeals in its subsequent opinion in Clay [Sun Insurance Office, Ltd. v. Clay, 319 F.2d 505 (1963)], in reasoning to another problem, stated the view that an adjudication of the state court "in litigation inter parties during a federal court abstention" would constitute "a binding determination which became the law of the case and res judicata." A decision in the state court even on a federal question is res judicata where the litigant, though going to the state court involuntarily, does not reserve his right to return to the federal forum for a final adjudication. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964); Propper v. Clark, 337 U.S. 472, 69 S. Ct. 1333, 93 L. Ed. 1480 (1949).[1] The right of a litigant in a diversity case to a federal determination of federal or of fact questions may, in the abstention situation, be protected either by a reservation of jurisdiction by the federal court or by a reservation of such right by the litigant. But even in such circumstances neither the federal court nor a litigant can prevent the binding force of a decision of a state court on a question of local law. It was said in Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S. Ct. 1464, 1469, 89 L. Ed. 2079, 2086, 160 A.L.R. 1231 (1945):
"Here we are dealing with a right to recover derived not from the United States but from one of the States. When, because the plaintiff happens to *867 be a non-resident, such a right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic. But since a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, it cannot afford recovery if the right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State."
Policy considerations seem to have fathered the majority holding. The declaratory judgment procedure is described as "highly cumbersome, expensive and time consuming"; a certified question practice is said to be "more advisable" and "the question should come directly to this Court from either the Supreme Court of the United States or one of the Circuit Courts of Appeals." These are policy considerations, as is the question of whether this proceeding represents a sensible accommodation between the federal and state judicial systems. But I fail to see the relevance of these matters to the problem of jurisdiction. Nor do I feel that our decision here should be influenced by jurisdiction or policy problems which may be presented in the abstention case involving federal or fact questions where our courts will have only a fragment of a case pending in the federal courts. This is the "one point case involving a matter of state law" which gives the majority some pause [majority opinion page 864]. What is decided by our courts will terminate the controversy between the parties and in my view will be res judicata as to the entire case. Clearly, the judgment will be a decision made in adversary litigation in our courts and will leave nothing for the federal courts to decide.
CALVERT, C. J., and HAMILTON, J., join in this dissent.
NOTES
[1] As to abstention in diversity cases, Mr. Justice Douglas stated his position in a dissenting opinion delivered in Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 80 S. Ct. 1222, 4 L. Ed. 2d 1170, as follows:
"The situations where a federal court might await decision in a state court or even remand the parties to it should be the exception not the rule. * * * Some litigants have long purses. Many, however, can hardly afford one lawsuit, let alone two. Shuttling the parties between state and federal tribunal is a sure way of defeating the ends of justice. The pursuit of justice is not an academic exercise. There are no foundations to finance the resolution of nice state law questions involved in federal court litigation. The parties are entitledabsent unique and rare situations to adjudication of their rights in the tribunals which Congress has empowered to act."
[2] Mrs. Delaney is a resident of Bexar County, Texas. United Services Life Insurance Company is incorporated under the laws of the District of Columbia.
[3] The wisdom and practicability of the "abstention doctrine" particularly in diversity cases is a much mooted question as is evidenced by the opinions filed by the members of the Court of Appeals in this case. There exists a considerable literature concerning the doctrine. For example, see, Consequences of Abstention by a Federal Court, 73 Harvard L.Rev. 1358 (1960); The Abstention Doctrine Reconsidered, 37 Tex. L. Rev. 815 (Charles A. Wright, 1959); Federal Procedural Reform and States' Rights to a More Perfect Union, 40 Tex. L. Rev. 211 (Charles E. Clark, late Circuit Judge, 2d Cir. 1961); AbstentionCertified QuestionsJusticiabilityFederal Proceedings Postponed Until State Court Determines Uncertain State Law, 40 Tex. L. Rev. 1041 (Gurney R. Miller, Jr., 1962, Case Note; Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845, 1961; Sun Ins. Office, Ltd. v. Clay, Fla., 133 So. 2d 735, 1961); Federal Court Abstention in Diversity of Citizenship Litigation, 43 Tex. L. Rev. 194 (Charles L. Gowen and William H. Izlar, 1964); Study of the Division of Jurisdiction Between State and Federal Courts, Tentative Draft No. 3, American Law Institute, Commentary, § 1371 (1965).
[4] In Pickens v. Hidalgo County Water Control and Improvement District No. 16, 284 S.W.2d 784 (Tex.Civ.App.1955, no wr. hist.) it was said:
"A court will not grant a declaratory judgment if the same issues between the same parties were involved in another cause pending at the time of the filing of the declaratory proceedings."
See also, California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); Smith v. Garrison, 303 S.W.2d 506 (Tex.Civ.App.1957, no wr. hist.); Southern Traffic Bureau v. Thompson, 232 S.W.2d 742 (Tex.Civ. App.1950, ref. n. r. e.); Joseph v. City of Ranger, 188 S.W.2d 1013 (Tex.Civ. App.1945, ref. w. o. m.); 19 Tex.Jur.2d 152, Declaratory Relief, § 13.
[5] The Whiteside case is one of three causes relating to the proper method of constructing block 194, G. C. & S. F., in Pecos County, Texas. The other two cases are generally referred to as the California case [Douglas Oil Co. v. State, 122 Tex. 377, 61 S.W.2d 807] and the Smith-Turner case [Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792]. The judgment of the Court of Civil Appeals in the Whiteside case (81 S.W.2d 1064) was reversed by the Supreme Court under the name and style of Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 (1936). However, much of the opinion of the Court of Civil Appeals was adopted as the opinion of the Supreme Court. In the course of the litigation, a legal snarl developed with reference to certified question practice. The Supreme Court opinion (128 Tex. 324, 98 S.W.2d 993) contains citations to numerous opinions rendered in the course of this litigation. One certified question was dismissed because it called for an advisory opinion. See, Douglas Oil Co. v. State (Whiteside case) 124 Tex. 232, 76 S.W.2d 1043 (1934).
[6] Chief Justice Cureton discussed at some length the old certified question practice involving the Courts of Civil Appeals and the Supreme Court. This practice was largely rendered obsolete by the Legislature in 1953. See, Articles 1728 and 1821, Vernon's Ann.Tex.Stats., as amended in 1953, New Legislation, Norvell and Peace, 16 Texas Bar Journal 581 (1953), Appellate Procedure in Texas, §§ 23.1 to 23.3, incl., Certification of Questions. In discussing the dissenting opinion of Chief Justice Stayton in Darnell v. Lyon, 85 Tex. 455, 22 S.W. 304, 960, Chief Justice Cureton described it as being "perhaps the strongest opinion he ever wrote, in which he held the certification statutes void" and further said, "Suffice it to say that we think the opinion was and is unanswerable; that the majority of the court at that time did not attempt its refutation, nor has any subsequent court endeavored to answer it." In Morrow v. Corbin, the Court in effect assumed that the practice had a constitutional basis,"The question being one of practice in which the power has been consistently exercised for a long period of time, with no substantive right of the citizen involved, we will presume that there existed then and that there exists now a constitutional basis for the law, although elusive to us, and sustain the statute." As relating to the history of the certified question practice, see opinion on rehearing in Akers v. Epperson, 172 S.W.2d 512, l. c. 517 (Tex.Civ.App.1942), certified question answered 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028. Since Morrow v. Corbin, the old certified question cases afford no support for the practice suggested in this case.
[7] In the American Law Institute's Study of the Division of Jurisdiction between State and Federal Courts, Tentative Draft No. 3 (April 15, 1965) Commentary, § 1361, it is said:
"The Leiter Minerals litigation remains unresolved, Leiter Minerals, Inc. v. United States, 329 F.2d 85 (5th Cir. 1964), more than eleven years after it was commenced and seven years after abstention was ordered. Leiter Minerals, Inc. v. United States, 352 U.S. 220 [77 S. Ct. 287, 1 L. Ed. 2d 267] (1957)."
Mr. Gurney R. Miller, Jr., in his case note relating to Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845, contained in 40 Tex. L. Rev. 1041, regards the action of the Louisiana Court as being an assumption of jurisdiction even though the court recognized that no justiciable controversy existed. He contends that the effect of the use of the abstention doctrine and the modified and curtailed declaratory judgment procedure adopted in Leiter is to "place the state courts in the role of an advisory committee (and that) this role should not be accepted."
[8] In his dissenting opinion in Darnell v. Lyon, 85 Tex. 455, 22 S.W. 304 (1893), which was approved in Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), Chief Justice Stayton in speaking of concurrent jurisdiction of appellate courts under the Texas Constitution said:
"A court is said to have jurisdiction concurrent or co-ordinate with that possessed by another, when each has power, under the same facts and conditions, to determine and enforce the right of a litigant, and the general rule, when such jurisdiction is possessed by two or more courts, is for the one first acquiring jurisdiction of a particular cause to retain it; but there is no instance, under the constitution of this state, in which two courts can exercise concurrent or co-ordinate appellate jurisdiction."
See also, comments of Chief Justice McClendon relating to Morrow v. Corbin and Darnell v. Lyon contained in Douglas Oil Co. v. State (Whiteside case), 81 S.W.2d 1064 (Tex.Civ.App.).
[9] Akers v. Epperson, 172 S.W.2d 512, 517 (Tex.Civ.App.1942). Also, see the Whiteside case mentioned in Footnote 5, supra.
[10] The State of Florida has devised a statutory system embracing the certified question device. Evidently the Florida Constitution authorizes such action by its Legislature. See, Sun Ins. Office, Ltd. v. Clay, Fla., 133 So. 2d 735 (1961); Consequences of Absention by a Federal Court, 73 Harvard L.Rev. 1358, lc. 1368.
[1] In Propper the Supreme Court of the United States said that although the federal district court could compel parties before it to litigate in an appropriate state court some narrow issue of state law, "* * * as the state court could reasonably require complete adjudication of the controversy, [if the state court did so] the District Court would perhaps be compelled to stay proceedings in the state court to protect its own jurisdiction. 28 U.S.C.1948 ed. § 2283. Otherwise in sending a fragment of the litigation to a state court, the federal court might find itself blocked by res judicata with the result that the entire federal controversy would be ousted from the federal courts where it was placed by Congress." See the concurring opinion in England. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573599/ | 224 S.W.3d 477 (2007)
John D. HAGBERG, Appellant,
v.
THE CITY OF PASADENA, Appellee.
No. 01-05-00466-CV.
Court of Appeals of Texas, Houston (1st Dist.).
February 15, 2007.
*479 Peggy M. Campbell, Barnes Law Firm, Peter Kelly, Moore & Kelly, P.C., for Appellant.
Dean G. Pappas, Mary M. Markantonis, Dean G. Pappas & Associates, P.C., Houston, for Appellee.
Panel consists of Justices TAFT, ALCALA, and HANKS.
OPINION
ELSA ALCALA, Justice.
John D. Hagberg appeals the trial court's order denying his attorney's fees incurred in defending this suit, which was filed by the City of Pasadena and sought to overturn a Texas Workers' Compensation Commission ("TWCC") determination in Hagberg's favor. After the suit had been pending for almost one year, the City moved for and was granted a nonsuit. The trial court also denied Hagberg's request for attorney's fees by a separate order. In a single issue on appeal, Hagberg contends that the trial court erred by not awarding attorney's fees because the Texas Workers' Compensation Act ("the Act") makes an award of fees mandatory for a claimant who prevails on an issue appealed by the insurance carrier.[1]See TEX. LAB.CODE ANN. § 408.221(c) (Vernon 2006). We conclude that the trial court erred by denying Hagberg's request for attorney's fees because Hagberg was the prevailing party under section 408.221 of the Act. See id. Accordingly, we reverse and remand.
Background
Hagberg was injured while working for the City. He received an impairment rating of 20%, which entitled him to receive Supplemental Income Benefits (SIBS). The City disputed Hagberg's impairment rating before the TWCC. After a benefit review conference, a hearing officer found Hagberg's impairment rating to be 20%. The City sought review by an appeals panel of the TWCC, which upheld the hearing officer's decision.
In February 2004, the City filed the underlying suit seeking to reverse the TWCC's determination of Hagberg's impairment rating. Hagberg's answer to the City's lawsuit asserted a general denial to the claims and requested attorney's fees. Less than one month before the February *480 2005 trial date, and after the case had been on file for over 11 months, the City filed a "Motion for Non-Suit."
Before the trial court ruled on the motion, Hagberg filed a "Motion for Approval of Attorney's Fees." In its response, the City challenged the request for attorney's fees by making two arguments, arguments which it also asserted in its response to Hagberg's motion for new trial and in its response in this appeal. First, the City claimed that there was no "prevailing party" because it nonsuited the lawsuit, and therefore the Act's provision that provides for an award of attorney's fees for the "prevailing party" was not met. Second, the City asserted that Hagberg's pleadings requesting attorney's fees were insufficient to constitute a claim for affirmative relief because he did not request attorney's fees by counterclaim or by naming any particular statute. The trial court granted the City's nonsuit and denied Hagberg's request for attorney's fees without stating the reason for its ruling.
Hagberg filed a motion for new trial that asserted that he was entitled to attorney's fees because (1) he requested attorney's fees in his answer to the lawsuit and (2) section 408.221 of the Act makes the award of attorney's fees mandatory for him, as the prevailing party in the lawsuit. Citing a decision from the El Paso Court of Appeals, Hagberg asserted that his pleadings were sufficient to request attorney's fees because attorney's fees for the prevailing party are mandatory under the Act. See Rodriguez v. Ysleta Indep. Sch. Dist., 68 S.W.3d 699, 700 (Tex.App.-El Paso 2001, pet. denied) ("Absent a mandatory statute or contract providing for attorney's fees, a party must specifically plead for it to invoke the trial court's jurisdiction to render judgment for attorney's fees."). The trial court denied the motion for new trial filed by Hagberg.
Waiver of Appeal
The City asserts that Hagberg has waived his appellate challenge to the trial court's order. The City contends that by limiting his issue on appeal to the sole complaint that the trial court erred by not finding him the "prevailing party" in the lawsuit, Hagberg has failed to challenge the second ground that the City asserted in its motion to dismiss, concerning the sufficiency of Hagberg's pleadings requesting attorney's fees.
We must construe the briefing requirements of the Texas Rules of Appellate Procedure liberally. TEX.R.APP. P. 38.9; see also Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997)). "The statement of an issue or point will be treated as covering every subsidiary question that is fairly included." TEX.R.APP. P. 38.1(e). Even though a specific point on appeal may not be recited within the statement of the issue presented, that point is not waived if it is raised within the body of the brief. See Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 n. 1 (Tex.2004). "[I]t is our practice to construe liberally points of error in order to obtain a just, fair, and equitable adjudication of the rights of the litigants." Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).
Although we construe issues presented liberally, failure to raise an issue on appeal waives error on the issue. Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (quoting San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990), for the "well-established rule that grounds of error not asserted by points of error or argument in the court of appeals are waived"). Further, "[a]n issue raised for the first time in a reply brief is ordinarily *481 waived." N.P. v. Methodist Hosp., 190 S.W.3d 217, 225 (Tex.App.-Houston [1st Dist.] 2006, pet. denied); see also Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex.1996) (holding issue waived when authority to support argument cited for first time in reply brief). Moreover, when a judgment or order may have been based upon grounds not challenged on appeal, a court of appeals must normally affirm. Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.) "Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment." Id.
Hagberg's original brief to this Court asserts, in a single issue, that the "trial court erred in denying [Hagberg's] Motion for New Trial and Motion for Reconsideration of Court Order Denying Attorney's Fees Pursuant to 408.221(c), Tex. Lab.Code, because John D. Hagberg is the prevailing party for purposes of assessing attorney's fees under TEX. LAB.CODE. § 408.221." Within his sole issue in his original brief, Hagberg asserts that section 408.221 makes mandatory an award of attorney's fees for the prevailing party. Hagberg's original brief states that
in September, 2001, TEX. LAB.CODE. § 408.221 was amended by the Texas Legislature to include the following section [that states that] ... [a]n insurance carrier that seeks judicial review ... of a final decision of a commission appeals panel regarding compensability or eligibility for or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees ... if the claimant prevails on an issue on which judicial review is sought by the insurance carrier . . . .
(Emphasis in brief). Hagberg's original brief asserts that it is undisputed that he met two of the three conditions precedent for requiring the carrier to pay his attorney's fees under the Act because the insurance carrier sought judicial review of a final decision of a TWCC appeals panel and the only issue appealed was Hagberg's impairment rating. His original brief further contends that having met two of the three conditions precedent for an award of attorney's fees, the only remaining unresolved question is whether he is the prevailing party. Hagberg's position on appeal is that he met all of the conditions precedent for an award of attorney's fees under the Act, which makes attorney's fees mandatory for the prevailing party. Hagberg thus implicitly argues in his original brief what he more expressly asserted in his motion for new trial and in his reply briefthat no pleadings are necessary to obtain an award of attorney's fees "when there is statutory authority providing for attorney's fees."
Although we agree with the City that the better practice is for an appellant to assert a separate issue for each of the grounds in the trial court's order, we cannot agree that Hagberg has waived his right to appeal the trial court's order. Construing the briefing requirements liberally to obtain a just, fair, and equitable adjudication of the rights of the litigants here, we conclude that Hagberg's sole issue fairly included the subsidiary issue that no pleadings were necessary for the conditions of the Act to be satisfied. See TEX.R.APP. P. 38.9, 38.1(e); Sterner, 767 S.W.2d at 690. Hagberg clearly asserted to the trial court and within his arguments to this Court that he met all of the conditions required by the statute. We hold that Hagberg has not waived error by asserting his complaint to the trial court's order through one appellate issue. See Tex. Dep't of Transp., 146 S.W.3d at 642 n. 1.
*482 Attorney's Fees Under Section 408.221
Hagberg contends that the trial court erred by failing to award him attorney's fees under section 408.221 of the Act because he was the prevailing party under the TWCC's determination, and he remained the prevailing party by virtue of the City's nonsuit of its appeal of the TWCC decision.
A. Sufficiency of the Pleading for Attorney's Fees
The City challenges Hagberg's pleading that requests attorney's fees by asserting that in the pleading Hagberg failed to allege sufficient facts to support a claim for attorney's fees, and that it should have been in the form of a counterclaim that included reference to a statute that provides for attorney's fees. Hagberg contends that no pleadings are necessary because the Labor Code makes an award for attorney's fees mandatory for the prevailing party.
In Texas, a pleading is sufficient if it gives fair and adequate notice to the opposing party, sufficient for that party to prepare a defense. See Bowen v. Robinson, No. 01-05-00605-CV, 2006 WL 2192792, at *2 (Tex.App.-Houston [1st Dist.] Aug. 3, 2006, pet. filed); Greene v. Young, 174 S.W.3d 291, 300 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Here, the City's lawsuit for judicial review is part of the comprehensive and exclusive statutory scheme established in the Act. See TEX. LAB.CODE ANN. § 408.001(a); Richards v. Tex. A & M Univ. Sys., 131 S.W.3d 550, 557 (Tex.App.-Waco 2004, pet. denied); Payne v. Galen Hosp. Corp., 4 S.W.3d 312, 315 (Tex.App.-Houston [1st Dist.] 1999), aff'd, 28 S.W.3d 15 (Tex.2000).
The City's lawsuit is the appeal of a decision by an appeals panel of the TWCC, which is authorized by Chapter 410, Subchapter G of the Texas Labor Code. TEX. LAB.CODE ANN. §§ 410.301-.308 (Vernon 2006). The Act provides that in a suit for "judicial review under Subchapter G, Chapter 410, of a final decision of the appeals panel regarding compensability ... or the amount of, income ... benefits," an insurance carrier "is liable for reasonable and necessary attorney's fees ... as a result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier...." Id. § 408.221(c). Otherwise, the claimant's attorney's fees are to be paid from the claimant's recovery. Id. § 408.221(b). In either circumstance, "[a]n attorney's fee . . . for representing a claimant before the . . . court under this subtitle must be approved by the . . . court." Id. § 408.221(a).[2]
*483 Hagberg's pleading specifically requests the trial court to approve his reasonable attorney's fees. Hagberg's request for attorney's fees contained in his answer to the lawsuit filed by the City stated,
It was necessary for [Hagberg] to retain [counsel] to represent [him] before the court. [Hagberg] asks the court to approve [his] reasonable attorney's fees and to authorize [him] to pay his attorney the amount shown to be reasonable.
This language follows section 408.221(a), requiring the trial court's approval. See id. Because Hagberg requested approval of his fees as required by the Act, and the City's suit is governed by the Act, we conclude that the City had fair notice that Hagberg was seeking attorney's fees. See Dean Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex.App.-Amarillo 2005, pet. denied) (concluding that even though request for attorney's fees was only general in nature, it was reasonable to construe that claimant was seeking attorney's fees incurred in defending against carrier's suit for judicial review). We hold that Hagberg's request for attorney's fees in his answer to the City's lawsuit seeking to reverse the TWCC's impairment rating was sufficient to place the City on notice that he was seeking attorney's fees under the Labor Code.
The City further contends that upon filing of the nonsuit, the litigation ended, and thus the trial court could not award attorney's fees. Specifically, the City contends that Hagberg's answer did not constitute a claim for affirmative relief, and therefore Hagberg's motion for attorney's feesfiled after the City's motion for nonsuitcame too late to allow the trial court to act on it.
A nonsuit does not affect a pending claim for affirmative relief or motion for attorney's fees. TEX.R. CIV. P. 162; Lentino v. Frost Nat'l Bank, 159 S.W.3d 651, 654 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (citing BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840, 842 (Tex.1990)). Having determined that the pleadings in Hagberg's answer were sufficient to place the City on notice that he was requesting attorney's fees under the Act, we further hold that the pleadings were a request for affirmative relief that remained pending, despite the motion for nonsuit that was filed by the City. See Anderson, 178 S.W.3d at 453 (holding pleading requesting attorney's fees constituted claim for affirmative relief that remained pending after opposing party's nonsuit).
B. "Prevailing Party"
The City asserts that there is no prevailing party when there is a nonsuit of a lawsuit, as here. Hagberg responds that the procedural posture of this lawsuit is different from an ordinary lawsuit because the City filed the lawsuit to challenge an award in his favor by the TWCC appeals panel, which became final and enforceable after the nonsuit, thus making him the prevailing party.
The Act does not define "prevailing party." See TEX. LAB.CODE ANN. §§ 401.001-506.002 (Vernon 2006). Statutory construction is a question of law, which we review de novo. See Dodge v. Durdin, 187 S.W.3d 523, 527 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Harris County v. Williams, 981 S.W.2d 936, 938 (Tex.App.-Houston [1st Dist.] 1998, pet. denied)). The goal in construing a statute is to give effect to the legislature's intent. Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.2000). We must interpret a statute as written and attempt to ascertain the legislature's intent from the plain language of the statute. Id. We consider each section and word in connection with the entire statute to ascertain its meaning and promote the statute's purpose. *484 See Dodge, 187 S.W.3d at 527; see also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). In examining the Act, we should construe it liberally in favor of injured workers. Pac. Employers Ins. Co. v. Torres, 174 S.W.3d 344, 346 (Tex.App.-El Paso 2005, no pet.) (citing Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000)).
When a party nonsuits a legal action, the parties are put back in the same positions as before the filing of the suit. Parker v. JPMorgan Chase Bank, 95 S.W.3d 428, 432 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (citing Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962); Milner v. City of Leander, 64 S.W.3d 33, 37 (Tex.App.-Austin 2000, no pet.)). The nonsuit by the City places the parties back in the same positions as before the filing of the suit, which means that Hagberg has a final decision in his favor by the TWCC appeals panel. The nonsuit here differs from the ordinary nonsuit of a case, because the effect of this nonsuit is to make final a decision by the appeals panel of TWCC, which is "binding upon [the carrier] during the pendency of the appeal." Anderson, 178 S.W.3d at 454; see also Torres, 174 S.W.3d at 347. "[E]ven though the trial court, because of [the] nonsuit, did not render a judgment on the merits of the case, the effect of [the] nonsuit was to make TWCC's award final and enforceable." Anderson, 178 S.W.3d at 454; see also Torres, 174 S.W.3d at 347. Hagberg is in the same position by the nonsuit of the case as he would have been if he had prevailed on the merits. Torres, 174 S.W.3d at 345; Anderson, 178 S.W.3d at 451-52.[3] We therefore agree with the three courts of appeals that have recently held that when an insurance carrier files a lawsuit appealing the decision of a TWCC appeals panel and subsequently nonsuits the lawsuit, the worker is the prevailing party who is entitled to attorney's fees under section 408.221 of the Labor Code. Am. Home Assurance Co. v. McDonald, 181 S.W.3d 767, 767-68 (Tex.App.-Waco 2005, pet. denied) McDonald, 181 S.W.3d at 767; Anderson, 178 S.W.3d at 454-55; Torres, 174 S.W.3d at 346-47.[4]
The City relies on the decision in Cigna Insurance Company of Texas v. Middleton, *485 63 S.W.3d 901 (Tex.App.-Eastland 2001, pet. denied). In Middleton, the court held that the worker was not the prevailing party. Id. at 903. The procedural posture of Middleton, however, is unlike the procedural posture here. See id. at 902-03. Although Middleton involves a similar statute under the Act, section 408.147, and the lawsuit similarly concerns a lawsuit filed by an insurance carrier of an appeals panel decision in favor of the worker, the procedural posture of the case differs from Hagberg's position. See id.; see also TEX. LAB.CODE ANN. § 408.147(c) (Vernon 2006). In Middleton, the parties agreed to a settlement and both parties nonsuited their claims. Middleton, 63 S.W.3d at 902-03. Here, however, there is no settlement and the only nonsuit is by the City. The effect of the City's nonsuit was to make final the decision in favor of Hagberg. Middleton, therefore, is procedurally distinguishable. See id.
We hold that when an insurance carrier files a lawsuit appealing the decision in favor of the worker by the TWCC appeals panel under section 408.221 of the Labor Code, and subsequently dismisses the lawsuit, the employee is the prevailing party entitled to attorney's fees. See McDonald, 181 S.W.3d at 768; Anderson, 178 S.W.3d at 455; Torres, 174 S.W.3d at 346-47.
We sustain Hagberg's sole issue in this appeal.
Conclusion
We reverse the trial court's order denying Hagberg's attorney's fees and remand this cause to the trial court for a determination of reasonable and necessary attorney's fees.[5] All motions pending before this Court in this cause are denied.
NOTES
[1] The definition of "insurance carrier" under the Texas Workers' Compensation Act includes "a governmental entity that self-insures," such as the City. TEX. LAB.CODE ANN. § 401.011(27)(D) (Vernon 2006).
[2] The Labor Code, in pertinent part, states,
§ 408.221. Attorney's Fees Paid to Claimant's Counsel
(a) An attorney's fee, including a contingency fee, for representing a claimant before the division or court under this subtitle must be approved by the commissioner or court.
(b) Except as otherwise provided, an attorney's fee under this section is based on the attorney's time and expenses according to written evidence presented to the division or court. Except as provided by Subsection (c) or Section 408.147(c), the attorney's fee shall be paid from the claimant's recovery.
(c) An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier....
(d) In approving an attorney's fee under this section, the commissioner or court shall consider: [factors to consider listed].
TEX. LAB.CODE ANN. § 408.221(a)-(d) (Vernon 2006).
[3] The facts in American Home Assurance Co. v. McDonald, 181 S.W.3d 767 (Tex.App.-Waco 2005, pet. denied), Dean Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex.App.-Amarillo 2005, pet. denied), and Pac. Employers Ins. Co. v. Torres, 174 S.W.3d 344, 345 (Tex.App.-El Paso 2005, no pet.) are similar to the facts here. In each case, the insurance carrier filed suit against the worker to appeal the TWCC's appeals panel decision that was in favor of the worker. See McDonald, 181 S.W.3d at 767; Anderson, 178 S.W.3d at 452; Torres, 174 S.W.3d at 345. Also similar to the facts here, each of the workers answered the lawsuit and requested attorney's fees under section 408.221 of the Texas Labor Code. See McDonald, 181 S.W.3d at 767-68; Anderson, 178 S.W.3d at 452; Torres, 174 S.W.3d at 345. The method for requesting attorney's fees differed, however, because Torres and Anderson requested attorney's fees in their answers to the lawsuit, as here, but McDonald counterclaimed for attorney's fees. See McDonald, 181 S.W.3d at 767; Anderson, 178 S.W.3d at 452; Torres, 174 S.W.3d at 345. But in every case, as here, after the lawsuit was pending for many months, the insurance carrier filed a nonsuit. See McDonald, 181 S.W.3d at 768; Anderson, 178 S.W.3d at 452; Torres, 174 S.W.3d at 345. Unlike the decision here, the trial courts awarded attorney's fees to Torres, McDonald, and Anderson, respectively. See McDonald, 181 S.W.3d at 768; Anderson, 178 S.W.3d at 452; Torres, 174 S.W.3d at 345. However, in Anderson, the trial court rendered judgment for Anderson for her attorney's fees, but found that Anderson was not the prevailing party and thus, the fees should be paid out of Anderson's recovery. Anderson, 178 S.W.3d at 452.
[4] The trial court did not have the benefit of these decisions when it entered its order.
[5] The trial court "must" approve attorney's fees and "shall" consider certain factors in making the determination of reasonable and necessary attorney's fees. TEX. LAB.CODE ANN. § 408.221(a), (d). Here, because the trial court denied Hagberg's attorney's fees, it has done neither. See Air Routing Int'l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 700 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (remanding for determination of reasonable and necessary attorney's fees when trial court erroneously denied fees because trial court had not yet made determination of reasonable and necessary fees). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736113/ | 727 N.W.2d 34 (2006)
MALZEWSKI
v.
RAPKIN (ROGGENSACK, J., DISSENTS)
No. 2005AP1007
Supreme Court of Wisconsin
December 5, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573434/ | 17 So. 3d 81 (2009)
Kelly McKINLEY, Plaintiff-Appellant,
v.
Jacqueline SCOTT, Defendant-Appellee.
No. 44,414-CA.
Court of Appeal of Louisiana, Second Circuit.
July 15, 2009.
*82 Mark Daniel Frederick, Shreveport, for Appellant.
Cook, Yancy, King, Galloway by Samuel William Caverlee, Kristina G. Gustavson, Jason B. Nichols, Shreveport, for Appellee.
Before WILLIAMS, DREW and LOLLEY, JJ.
DREW, J.
Kelly McKinley appeals a judgment dismissing her legal malpractice suit against Jacqueline Scott as untimely under La. R.S. 9:5605. We affirm.
FACTS
Kelly McKinley ("McKinley") hired Jacqueline Scott ("Scott") to handle a criminal matter for her on July 7, 2006. McKinley was alleged to have stolen funds from her former employer. Scott was initially hired to negotiate a settlement with the former employer in an attempt to avoid McKinley being prosecuted.
Scott agreed to represent McKinley in negotiations with her former employer for a fee of $5,000. This agreement was memorialized in a letter from Scott to McKinley dated July 11, 2006. McKinley paid a $2,000.00 retainer to Scott in July of 2006, and then paid an additional $24,398.50 later that month. Scott returned $20,000.00 shortly after receiving the second payment. McKinley later received a check for $1,398.50, allegedly after she filed a complaint with the Louisiana Attorney Disciplinary Board.[1] This left $5,000.00 retained by Scott.
McKinley was formally charged with felony theft in October of 2006. Later that month, Scott enrolled as McKinley's counsel and McKinley entered a plea of not guilty.[2]
By letter dated May 30, 2007, McKinley fired Scott. In this letter, McKinley demanded a billing statement and the return of the unearned balance of her retainer account. McKinley wrote that she was terminating the attorney-client relationship partly because: (i) she had not received a detailed statement of the services for which she was charged; (ii) Scott had failed to investigate or research in order to corroborate McKinley's statements that contradicted her accusers' statements; (iii) Scott had failed to subpoena her former employer's records; (iv) Scott's office had failed to return her phone calls; (v) McKinley was kept waiting for an unreasonable amount of time during office visits, and Scott and her associates were unprepared when they met with McKinley during *83 these visits; (vi) Scott and her associates were late for her court appearances: (vii) Scott had failed to take action in apparently a separate legal action involving the allegedly illegal use of her personal information for the purposes of obtaining a credit report and contacting her creditors; and (viii) Scott had failed to return her phone calls to discuss a May 2007 article in the Caddo Inquisitor[3] which McKinley believed corroborated her statements and contradicted her accusers' statements.
Pursuant to McKinley's request, Scott sent an invoice to her on June 19, 2007. Termed a "rough itemization" by Scott, this invoice showed 53.85 billable hours at a rate of $275.00 per hour, for a total charge of $14,168.40. Nevertheless, Scott eventually returned all but $5,000.00 to McKinley.
McKinley filed suit against Scott on June 18, 2008. McKinley alleged that Scott: (i) failed to exercise due diligence in advising her to plead guilty; (ii) failed to make all reasonable and competent efforts in preparing her defense; (iii) failed to communicate with appropriate employees of the Caddo Parish District Attorney's office; (vi) intentionally misled McKinley into thinking that Scott had consulted with the prosecutor assigned to the case; (v) failed to perform competent services, (vii) wrongly advised her not to seek employment; (viii) failed to account for client funds or return unused client funds; (ix) failed to safeguard client property; (x) refused to tender file materials; and (xi) failed to comply with the Rules of Professional Conduct. McKinley further alleged that Scott attempted to defraud her by charging an excessive fee when McKinley requested the return of her funds, submitting a false invoice, and converting McKinley's funds without earning them. In her petition, McKinley specifically asserted the application of La. R.S. 9:5605.1, which provides for the interruption of prescription on a claim of theft or misappropriation of a client's funds by an attorney when the client has filed a complaint with the Office of Disciplinary Counsel, Louisiana Attorney Disciplinary Board ("LADB"), alleging the theft or misappropriation of the client's funds.
Scott filed the exception of prescription, arguing that McKinley's suit was untimely under La. R.S. 9:5605. The trial court sustained Scott's exception. McKinley contends on appeal that her allegations of fraud preclude the application of La. R.S. 9:5605, prescription was interrupted when she filed a complaint against Scott with the LADB, and the trial court should have allowed her to amend her complaint in order to remove the grounds for the exception of prescription.
DISCUSSION
The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So. 2d 1355 (La.1992). However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id.
When evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, XXXX-XXXX (La.1/19/05), 892 So. 2d 1261.
La. R.S. 9:5605
La. R.S. 9:5605, which governs legal malpractice actions, provides in relevant parts:
*84 A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B.... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
* * *
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
McKinley contends that the allegations of fraud in her petition triggered the application of La. R.S. 9:5605(E). The peremptive period referred to in Subsection (E) refers to the three-year peremptive period only; the presence of fraud notwithstanding, the one-year peremptive period is always applicable. Dauterive Contractors, Inc. v. Landry & Watkins, XXXX-XXXX (La. App. 3d Cir.3/13/02), 811 So. 2d 1242. Therefore, we examine McKinley's claims in light of the one-year peremptive period.
Under La. R.S. 9:5605, an action should not be found perempted if it is brought within one year of the date of discovery and the record shows that the claimant was reasonably unaware of malpractice prior to the date of discovery and the delay in filing suit was not due to willful, negligent, or unreasonable action of the client. Teague v. St. Paul Fire & Marine Ins. Co., XXXX-XXXX (La.2/1/08), 974 So. 2d 1266. This discovery exception is inapplicable after three years from the date of the alleged malpractice. Id.
The "date of discovery" from which prescription or peremption begins to run is the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant. Id.
McKinley had knowledge of the facts forming the basis for her legal malpractice action no later than May 30, 2007, when she sent the certified letter terminating Scott's services. This letter stated essentially the same allegations that were incorporated in her petition filed June 18, 2008. McKinley's letter accused Scott of being negligent in preparing for McKinley's defense and attacked Scott's professional services in general.
McKinley contends that she was unaware of her possible fraud claim until she received the invoice from Scott on June 19, 2007. This contention is without merit. McKinley's fraud claims were part and parcel of her malpractice claims. We note that she admitted as much in her appellate brief, when her attorney wrote, "[McKinley] *85 specifically alleged fraudulent acts that were malpractice including the failure to safeguard, account for, and return unused client funds." We further note that money was indeed at issue in her May 30 letter, as McKinley requested a detailed billing statement and the unearned balance of her retainer account, and averred that her client fund account included a $4,437 overage.
McKinley had one year from May 30, 2007, to file suit against Scott. Accordingly, her malpractice action filed on June 18, 2008, was untimely. The trial court was not clearly wrong in granting the exception.
La. R.S. 9:5605.1
McKinley argues that her legal malpractice action was timely filed pursuant to La. R.S. 9:5605.1 because prescription was suspended or interrupted when she filed a complaint with the LADB on August 9, 2007. La. R.S. 9:5605.1 reads:
A. Notwithstanding the provisions of R.S. 9:5605, prescription of a claim of theft or misappropriation of funds of a client by the client's attorney shall be interrupted by the filing of a complaint with the Office of Disciplinary Counsel, Louisiana Attorney Disciplinary Board, by the client alleging the theft or misappropriation of the funds of the client.
B. The record of the hearing of the Office of Disciplinary Counsel, Louisiana Attorney Disciplinary Board, held to review the claim of theft or misappropriation of the funds of the client may be admissible as evidence in the civil action brought to recover the stolen or misappropriated funds, and in such action, the court may award reasonable attorney fees to the client.
Although Scott admitted that a complaint was filed, McKinley never introduced a copy of it into the record, so the trial court was without the benefit of knowing exactly what was alleged in the complaint. In addition, although McKinley alleged that Scott failed to return unused funds, she did not allege that funds were actually stolen or misappropriated from her client account. What was at issue was apparently in the nature of a fee dispute, and Scott has returned all but $5,000.00 of the amounts advanced to her. This is not a situation where an attorney absconded with her client's settlement funds. McKinley failed to establish that La. R.S. 9:5605.1 applied so as to make her claim timely.
Request to Amend Petition
McKinley argues on appeal that the district court erred in sustaining the exception of prescription without allowing her leave to amend her petition in order to remove the grounds of the exception. La. C.C.P. art. 934 provides:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.
The right to amend one's petition is qualified by the restriction that the objections to the petition be curable; further, the decision to allow amendment is within the discretion of the trial court. Broussard v. F.A. Richard & Associates, Inc., 1999-10 (La.App. 3d Cir.5/5/99), 740 So. 2d 156, writ denied, XXXX-XXXX (La.6/4/99), 744 So. 2d 625.
*86 Permitting McKinley to amend her petition would not change the fact that her May 2007 letter to Scott showed she was obviously aware of her malpractice claim and that Scott had retained more funds than McKinley thought she was entitled. The trial court did not abuse its discretion in denying leave to amend.
CONCLUSION
At appellant's costs, the judgment is AFFIRMED.
NOTES
[1] The complaint was allegedly filed on August 9, 2007.
[2] In April of 2007, trial was set for July 23, 2007.
[3] A weekly newspaper that provides detailed coverage of local criminal matters. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573597/ | 553 F. Supp. 362 (1982)
TRANSCARIBBEAN MOTORS TRANSPORT, INC., Plaintiff,
v.
UNION DE TRONQUISTAS DE P.R., LOCAL 901 Affiliated to International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants.
Civ. No. 80-1925CC.
United States District Court, D. Puerto Rico.
December 27, 1982.
*363 Rafael Cuevas Kuinlam, Hato Rey, P.R., for plaintiff.
Pedro J. Varela, Hato Rey, P.R., for defendants.
OPINION AND ORDER
CEREZO, District Judge.
On October 16, 1980 this Court issued a preliminary injunction against the defendant Union, its officers, agents, employees' representatives, members and all persons in active concert or participation with them enjoining them from striking or otherwise obstructing plaintiff's operations of cargo transport and delivery. It was the Court's opinion that the arbitration clause of the collective bargaining agreement compelled the Union to arbitrate its claim that the company should negotiate the closing of a certain warehouse. The Court of Appeals, 657 F.2d 260 (1st Cir.1981), reversed this opinion and set aside the preliminary injunction. It held that the Union's claim against the employer was not one of those specifically enumerated in section 10 of Article XIII of the agreement for which arbitration was compulsory, that it was a "complaint regarding the interpretation of the agreement" covered by sections 1 through 6 of the same article and that, given the existence of a compulsory arbitration *364 clause, sections 5 and 6, providing for submission of this type of claims to an arbiter, must be construed as voluntary.
On January 18, 1982 defendant moved this Court for dismissal of the action or a stay of the proceedings claiming that the matters pending before the Court whether the Union violated the "no-strike" clause contained in the collective bargaining agreement and whether said strike caused any damages to plaintiff are covered by the compulsory grievance procedure outlined in sections 1 through 6 of Article XIII of the agreement and the same have been voluntarily submitted by plaintiff to arbitration. Plaintiff opposed defendant's motion contending that it is not required to exhaust the grievance and arbitration procedures of the collective bargaining agreement since the mandatory arbitration clause contained therein is not broad enough to cover its claim. Additionally, it alleges that although the Court of Appeals ruled that the defendants' strike was not in violation of the mandatory arbitration clause of the agreement, it did not pass upon the illegality of said strike under the "no-strike, no-lockout" clause of the same.[1] It further argues that where a collective bargaining agreement contains an express "no strike" promise by the Union the same does not have to be coterminous with an arbitration clause, and that a hearing should be held in this case to determine the parties' true intentions in negotiating a "no-strike, no-lockout" clause.
It has been held that where an arbitration clause is broad enough to encompass the employer's complaint that the union has violated the no-strike clause of the collective bargaining agreement, the employer is required to arbitrate before pursuing its remedies under Section 301(a) of the Taft-Hartley Act, 29 U.S.C.A. Section 185(a). See: Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers Intnl., 370 U.S. 254, 82 S. Ct. 1346, 8 L. Ed. 2d 474 (1962). An action for damages arising from an arbitrable dispute must be stayed pending arbitration of said dispute. Id. In certain cases the action must be dismissed without prejudice where there is no problem of a statute of limitation and the issues presented to the arbitrator could obviate the need for future litigation. See: General Dynamics Corp. v. Industrial Union of Marine and Shipbuilding Workers of America, 469 F.2d 848, 854 (1st Cir.1972) cited in Pilot Freight Carriers, Inc. v. International Brotherhood of Teamsters, 659 F.2d 1252, 1259 (4th Cir.1981). On the other hand, where a particular dispute is not covered by the arbitration clause of the agreement, an aggrieved party may file an action for damages under Section 301(a) of the Taft-Hartley Act and the action may not be stayed or dismissed pending arbitration of some related grievance, where the arbitrator's award will not determine any issues in the damage suit. See: Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241-245, 82 S. Ct. 1318, 1320-22, 8 L. Ed. 2d 1581 (1962).
Plaintiff's contention is that it is not required to arbitrate its claim that the strike was in violation of the no-strike provision of the collective bargaining agreement since the mandatory arbitration clause of the agreement covers only employees' grievances and does not cover the company's claim for damages due to an illegal strike. Defendant alleges that although this is so, the steps outlined in sections 1 through 6 of Article XIII are mandatory and that the issue has been submitted to an arbitrator pursuant to section 6 of said article.
Plaintiff's grievance that the strike violated the no-strike clause of the collective bargaining agreement is not subject to mandatory arbitration since it does not concern any "disciplinary action, disputes *365 as to seniority rights ... (or) the existence or nonexistence of rules and procedures which if changed affect time and wages or working conditions." Article XIII, Section 10, of the Collective Bargaining Agreement. On February 5, 1982 the parties submitted the following issues to Arbitrator Benito Aponte of the Bureau of Conciliation and Arbitration of the Puerto Rico Labor Department for his consideration: (1) To determine whether the language of Article XVI, Sections 7, 8, 9 and 10 and Article XXIII[2] of the existing Collective Bargaining Agreement satisfy the obligation of the company to negotiate the effects of a partial closing on the working conditions of the employees, thus excusing the company from negotiating the effects of the closing of the particular warehouse and, in the event that the company did not comply with its obligation, that the arbitrator shall establish the adequate remedy (Union's submission rephrased); and (2) Whether the company was obligated to bargain on September 1980 the effects of this shutdown on the working conditions of the warehouse employees and, assuming it had the obligation, whether the company refused to negotiate and the damages suffered, if any, by the warehouse employees due to the company's failure to undertake this obligation (plaintiff's submission rephrased). A reading of these submissions shows that only the grievances of the Union and the warehouse employees regarding plaintiff's refusal to negotiate the effects of a partial shutdown are to be considered by the arbitrator. Plaintiff's claims that the Union violated the "no-strike" clause of the collective bargaining agreement and the damages caused by said violation were not submitted to arbitration. A previous unilateral submission encompassing "each and every one of the controversies between the company and the Union, which appear from the Opinion and Order of October 15, 1980" cannot be considered as that required by section 6, Article XIII of the agreement which expressly provides for a consensual procedure. See Court of Appeals' opinion issued in this case, 657 F.2d 260.
Having concluded that plaintiff's claims are not subject to mandatory arbitration and that the same have not been submitted to arbitration pursuant to the alternative, non-compulsory arbitration clause, dismissal of this action would be proper only if plaintiff lacked a cause of action on the merits. Since "[t]he propriety of an award of monetary damages resulting from a work stoppage ... depends on the determination whether the union is under a contractual duty not to strike," United States Steel Corp. v. United Mine Workers, 548 F.2d 67, 72 (3rd Cir.1976), cert. den. 431 U.S. 968, 97 S. Ct. 2926, 53 L. Ed. 2d 1063 (1977), dismissal of this action would be proper if, upon deciding that the union was not required to arbitrate its claim that plaintiff must negotiate the effects of a partial closing, the Court of Appeals implicitly decided that the strike did not violate the collective bargaining agreement.
Plaintiff alleges that the principle of coterminous application of arbitration and no-strike clauses of a collective bargaining agreement should not be applied to agreements containing an express no-strike clause. The principle of coterminous application of an arbitration clause and a duty not to strike prescribes that a union may not engage in a strike over disputes which the parties have agreed to submit to final and binding arbitration, although the agreement does not expressly prohibit such a strike since this no-strike obligation is generally the "quid pro quo" for an undertaking by the employer to submit grievance disputes to the process of arbitration" Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 248, 90 S. Ct. 1583, 1591, 26 L. Ed. 2d 199. See: Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 380-384, 94 S. Ct. 629, 638-40, 38 L. Ed. 2d 583 (1974); Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S. Ct. 571, 7 L. Ed. 2d 593 (1962). The duty not to strike *366 and the arbitration clause are thus referred to as having a "coterminous application." This duty not to strike is not to be inferred, however, "beyond the area which it has been agreed will be exclusively covered by compulsory arbitration." Lucas Flour, 369 U.S. at 106, 82 S.Ct. at 578. For this reason and applying this principle some courts have held that an implied no-strike obligation is not violated by a sympathy strike. See: United States Steel Corp. v. United Mine Workers, 548 F.2d at 72-74.
A different situation arises where the parties have expressly agreed on a no-strike clause as well as to arbitrate their differences. In Gateway Coal, the Supreme Court stated 414 U.S. at page 382, 94 S.Ct. at page 639;
[A]n arbitration agreement is usually linked with a concurrent no-strike obligation, but the two issues remain analytically distinct. Ultimately, each depends on the intent of the contracting parties. It would be unusual, but certainly permissible for the parties to agree to a broad mandatory arbitration provision yet expressly negate any implied no-strike obligation.... Absent an explicit expression of such an intention, however, the agreement to arbitrate and the duty not to strike should be construed as having a coterminous application.
Some Circuits have held that this principle, which has been regarded as a rule of contract interpretation, does not apply to collective bargaining agreements with an express no-strike clause where the language of the agreement or other evidence reveal the parties' intention that each clause be separately applied. Pacemaker Yacht Co. v. N.L.R.B., 663 F.2d 455, 457-460 (3rd Cir. 1981); W-I Canteen Service, Inc. v. N.L. R.B., 606 F.2d 738, 743-744 (7th Cir.1979); Iowa Beef Processors, Inc. v. Amalgamated Meat Cutters, 597 F.2d 1138, 1144-1145 (8th Cir.1979), cert. den. 444 U.S. 840, 100 S. Ct. 79, 62 L. Ed. 2d 52. In Delaware Coca-Cola Bottling Co. v. Gen. Teamster Local Union, 624 F.2d 1182 (3rd Cir.1980), the Third Circuit Court of Appeals applied the principle in a case of an express no-strike clause and held that the no-strike clause of the collective agreement in question did not apply to sympathy strikes which were not arbitrable under the contract. Id., at pp. 1185-1187. Nevertheless, this decision was reached after a trial on the merits and the Court's application of the principle was based on the absence of other evidence tending to demonstrate the contrary.[3] The First Circuit applied this principle to an express no-strike clause situation in N.L.R.B. v. C.K. Smith & Co., Inc., 569 F.2d 162 (1st Cir.1977), cert. den. 436 U.S. 957 (1978). In that case the Court of Appeals held that a sympathy strike did not violate the no-strike clause of the agreement where the strike was not over an arbitrable matter and the strike itself was not arbitrable. It should be noted that the no-strike clause was contained within the provisions of the contract entitled "Grievance Procedure" which may have been the basis for applying the rule.
In the present case plaintiff contends it should be permitted to present extrinsic evidence before the Court determines whether or not the parties intended to apply the clauses coterminously. At no moment has plaintiff informed the Court what specifically was its intention when it negotiated these clauses with the Union. It has referred in general terms to a distinct "quid pro quo." A reading of the no-strike clause in this case, however, shows that this is not a broad, general clause; that the Union's promise not to strike was very narrowly drawn and of limited scope.[4] Under the terms of the present no-strike clause, the Union bound itself not to strike insofar as it would solve its complaints pursuant to the provisions of the agreement. Clearly, if *367 the Union's grievance fell outside the scope of the compulsory provisions of the agreement for resolution of disputes so that it could not be required to utilize those proceedings to solve its complaint, it could not be required to abide by the other part of its promise. Therefore, a reading of the no-strike clause in this case clearly establishes that the Union's promise not to strike is coterminous with its duty to arbitrate. We have reached this conclusion after a careful consideration of all the provisions of the collective bargaining agreement. We can see no need to hold a trial or even a hearing to determine what plaintiff may have given in exchange for this no-strike promise;[5] whatever that may have been it cannot have the effect of broadening the scope of said promise.
For these reasons, it is ORDERED that the remaining claims of the complaint be dismissed for failure to state a cause of action.
SO ORDERED.
NOTES
[1] The Court of Appeals set aside the preliminary injunction on the ground that the dispute originating the strike was not arbitrable. We note here that the injunction could not issue even if the Court found that the issue of whether the strike violated the no-strike clause of the agreement was arbitrable. See: Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S. Ct. 3141, 49 L. Ed. 2d 1022 (1976); Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass., ___ U.S. ___, 102 S. Ct. 2673, 73 L. Ed. 2d 327 (1982).
[2] Article XVI of the Collective Bargaining Agreement covers employees' seniority rights. The sections cited deal with the effects of reduction and/or increase of personnel. Article XXIII covers compensation for removal without cause.
[3] See Pacemaker Yacht Co., 663 F.2d 457-460 where the Third Circuit later explains its ruling in Delaware Coca-Cola Bottling Co. and distinguishes the facts.
[4] Article XIV, Section 1 of the collective bargaining agreement provides: "Waiver to Strikes. The Union obliges itself to solve complaints pursuant to provisions of the agreement herein and in those terms makes a waiver as to strikes." (Emphasis ours.)
[5] It appears that this may have been the no-lockout promise contained in section 2 of Article XIV of the collective bargaining agreement, entitled "Waiver to Strikes and Lockouts." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573592/ | (2008)
UNITED STATES of America, Plaintiff,
v.
Ronald Edward GILLETTE aka Gary Lee Brown, Defendant.
Crim. No. 2007-0050.
District Court, Virgin Islands, D. St. Croix.
April 7, 2008.
MEMORANDUM
FINCH, District Judge.
THIS MATTER comes before the Court on Defendant Ronald Gillette's Motion for Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Count 1 of the Superseding Indictment charges Gillette with failing to register under the Sex Offender Registration Notification Act in violation of 18 U.S.C. § 2250(a). Gillette claims that prosecuting him under this law would violate the Ex Post Facto Clause.
I. THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
The Sex Offender Registration and Notification Act, (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006, (the Walsh Act), Pub.L. 109-248, 120 Stat. 587 (2006), created a national system for registration of sex offenders. To implement this system, SORNA requires every sex offender to register and keep the registration current in each jurisdiction in which he lives, works, or is a student. See 42 U.S.C. § 16913(a). Pursuant to SORNA, a sex offender who is required to register under SORNA, who travels in interstate commerce, and knowingly fails to register or update a registration as required under SORNA may be imprisoned for up to ten years.[1] 18 U.S.C. § 2250(a). Upon signing the Walsh Act, President George Bush stated that "these improvements will help prevent sex offenders from evading detection by moving from one state to the next." 2006 U.S.C.C.A.N. S35, S36 (2006).
Between 1994 and July 27, 2006, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub.L. 103-322, tit. XVII, 108 Stat. 2038, (1994), made a sex offender's first offense a misdemeanor, reserving the maximum 10-year sentence for second and subsequent offenses. 42 U.S.C. § 14072(g)(3), (i). With the enactment of the Walsh Act, the maximum penalty for a sex offender's first offense for failure to register was increased to ten years imprisonment. 18 U.S.C. § 2250(a).
II. FACTS
On November 10, 1983, Gillette was convicted in New Mexico of child molestation offenses related to sexual activity with a 12 year old boy. He was sentenced to 27 years imprisonment and served 18 years. In 2003, Gillette took up residence in St. Croix, Virgin Islands. According to Gillette, he has not relocated from St. Croix, Virgin Islands since then. The Government has failed to prove otherwise; it has presented no evidence to suggest that Gillette traveled in interstate commerce subsequent to July 27, 2006.
III. DISCUSSION
A. 18 U.S.C. § 2250 is Punitive and Onerous, Barring its Retrospective Application
Article 1, § 9 of the U.S. Constitution states that "[n]o Bill of Attainder or ex post facto Law shall be passed." "Since the enactment of the Constitution, the purpose of the Ex Post Facto Clause has been to prevent government from enacting statutes with `manifestly unjust and oppressive' retroactive effects." United States v. Madera, 474 F. Supp. 2d 1257, 1262 (M.D.Fla.2007) (quoting Colder v. Bull, 3 U.S. (3 Dall.) 386, 391, 1 L. Ed. 648 (1798) (Chase, J.)). Therefore, "the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). "[A] statute will not violate the ex post facto clause if it is designed to be nonpunitive and regulatory and the plaintiff cannot establish by the clearest proof that the state's choice was excessive in relation to its legitimate regulatory purpose." United States v. Carr, 2007 WL 3256600, at *2 (N.D.Ind. Nov.2, 2007). "As a consequence, the legal analysis properly begins with a consideration of whether the statute is criminal or civil." United States v. Kent, 2008 WL 360624, at *3 (S.D.Ala. Feb.8, 2008).
The Government encourages the Court to find, as other district courts have found, that retrospective application of SORNA does not violate the Ex Post Facto Clause because SORNA is civil in nature and nonpunitive. The district courts that have found that retrospective prosecution under SORNA does not violate the Ex Post Facto Clause have misconstrued the Supreme Court's decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). See, e.g., Carr, 2007 WL 3256600; United States v. Hulen, 2007 WL 2343885 (W.D.Ark. Aug.15, 2007); United States v. Manning, 2007 WL 624037 (W.D.Ark. Feb.23, 2007); United States v. Templeton, 2007 WL 445481 (W.D.Okla. Feb.7, 2007); Madera, 474 F. Supp. 2d 1257. "Smith is not comparable to the instant case." United States v. Smith, 481 F. Supp. 2d 846, 852 (E.D.Mich.2007).
In Smith, involving a § 1983 action, the Supreme Court was asked to "decide whether the registration requirement is a retroactive punishment prohibited by the Ex Post Facto Clause." Smith, 538 U.S. at 89, 123 S. Ct. 1140. In fact, "[t]he only issue before the court was whether the registration and notification scheme, by itself, violated ex post facto." Kent, 2008 WL 360624, at *4. "Nothing in the Smith case indicates that the respondents were facing criminal prosecutions or jail time for failing to comply with the registration and notification scheme." Id. at *4.
The Alaska Sex Offender Registration Act, (ASORA), analyzed in Smith, contains two components: a registration requirement and a notification system. Smith, 538 U.S. at 89, 123 S. Ct. 1140. A sex offender who knowingly fails to comply with ASORA is subject to criminal punishment. Id. The Supreme Court noted that ASORA, itself, however, "imposes no physical restraint, and so does not resemble the punishment of imprisonment which is the paradigmatic affirmative disability or restraint." Id. at 100, 123 S. Ct. 1140. Indeed, ASORA "does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences." Id. "Smith referenced two statutes that provide criminal penalties for failing to register under [ASORA] ... [but] did not address what impact, if any either of those two statutes had on its analysis." Kent, 2008 WL 360624, at *3.
The Supreme Court observed that the registration requirement is related only to the sex offender's past offenses. "The regulatory scheme applies only to past conduct.... The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation." Smith, 538 U.S. at 105, 123 S. Ct. 1140.
In contrast, prosecution for failure to register, in the Supreme Court's eyes, is a separate and distinct offense: "A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's offense." Id. at 101-102, 123 S. Ct. 1140.
Smith precludes any ex post facto attack upon SORNA's registration and notification requirements. United States v. Pitts, 2008 WL 474244, at *3 (M.D.La. Feb.14, 2008). However, the Supreme Court never touched on whether punishing a sex offender for failing to comply with registration requirements established subsequent to the sex offender's failure to register under some previous regime would violate the Ex Post Facto Clause. The Supreme Court ruled only that it did not violate the Ex Post Facto Clause to require a sex offender to comply with ASORA's registration requirements, in that such compliance did not constitute punishment. United States v. Deese, 2007 WL 2778362, at *4, n. 7 (W.D.Okla. Sept.21, 2007) (recognizing that "[a]t issue in Smith was whether the registration itself and the resulting publication of that informationconstituted punishment"). Thus, Smith does not even remotely stand for the proposition that retrospective punishment for failure to register, under ASORA or SORNA, is permissible under the Ex Post Facto Clause. United States v. Sallee, 2007 WL 3283739, at *3, n. 7 (W.D.Okla. Aug.13, 2007) (noting that Smith did not address criminal penalties associated with failure to register as sex offender, but only whether registration, itself, constitutes punishment); Deese, 2007 WL 2778362 at *4, n. 7 (same).
Unlike ASORA, 18 U.S.C. § 2250 is neither civil in nature nor nonpunitive; it imposes a possible ten year sentence. United State v. Bonner, 2007 WL 4372887, at *2 (S.D.Ala. Dec. 11, 2007). Even if the Walsh Act, as a whole, may be considered a civil regulatory scheme, there is no justification for viewing § 2250 in the context of the complete statutory regime, since the other provisions of the Walsh Act do not alter the fact that § 2250 is both "punitive and more onerous than its predecessor." Kent, 2008 WL 360624, at *4-5. "The Government's attempt to hide the enhanced penalties in § 2250 under the greater `civil' purpose of SORNA runs afoul of the longstanding rule that `the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal.'" Smith, 481 F.Supp.2d at 853 (quoting Burgess v. Salmon, 97 U.S. 381, 385, 24 L. Ed. 1104 (1878)). Moreover, the structure of the Walsh Act, unlike ASORA, "tends to show that Congress intended for portions of the Act to be civil and for others to be criminal." Kent, 2008 WL 360624, at *5. Indeed, Congress selected "criminal" for failure to register by including "the felony failure to register violation in Title 18 of the Federal Code: Crimes and Criminal Procedure." Smith, 481 F.Supp.2d at 852-53.
"§ 2250 is clearly a criminal, punitive statute." Kent, 2008 WL 360624, at *3. "Therefore, 18 U.S.C. § 2250 is subject to an ex post facto analysis." Bonner, 2007 WL 4372887, at *2.
A law violates the Ex Post Facto Clause if it (1) punishes as a crime an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a defendant of a defense available at the time the act was committed. See Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). The ex post facto prohibition is not driven by "an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." United States v. Aldrich, 2008 WL 427483, at *4 (D.Neb. Feb.14, 2008) (quoting Weaver v. Graham, 450 U.S. 24, 29-30, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981)). Thus, when a law applies to events occurring before its enactment and disadvantages the offender by increasing the punishment for the crime, it violates the United States Constitution. Weaver, 450 U.S. at 29, 101 S. Ct. 960.
Accordingly, the Court first considers whether Gillette would be punished for conduct that predated the Act, and second whether Gillette's possible punishment has been increased because of the Act.
When Gillette traveled to the Virgin Islands in 2004, he was required to register as a sex offender within ten days of his move pursuant to 42 U.S.C. § 14072(g)(3). The offense of failure to register is complete "on the 11th day after the defendant travels in interstate commerce from one jurisdiction to another," if the defendant has not registered. Sallee, 2007 WL 3283739, at *3 (quoting Smith, 481 F.Supp.2d at 852). Therefore, Gillette's criminal conduct of failing to register predated SORNA.
Second, when Gillette moved to the Virgin Islands, assuming it was his first offense for failure to register, his failure to register was punishable as a misdemeanor under 42 U.S.C. § 14072(f), with a maximum sentence of one year in prison. That same failure to register is now punishable by up to ten years in prison. Increasing the punishment from a maximum imprisonment of one year to up to ten years, clearly increases the punishment for the crime. See Deese, 2007 WL 2778362, at *3 ("Subjecting defendant who traveled in interstate commerce prior to the effective date of SORNA to a ten-fold increase in punishment clearly `disadvantage[s] the offender affected by it.'").
The two critical elements for a criminal law to be ex post facto are present here. First, it is being applied retrospectively, to an event occurring before its enactment. Gillette moved to the Virgin Islands and failed to register as a sex offender before SORNA's enactment. Second, it disadvantages the offender affected by it. It subjects Gillette to a possible ten-year period of imprisonment, an increase from the maximum one-year sentence he would otherwise be facing. Aldrich, 2008 WL 427483, at *5 (concluding that § 2250 is retroactive and increases defendant's punishment).
Although requiring Gillette to comply with SORNA does not implicate the Ex Post Facto Clause, see Bonner, 2007 WL 4372887, at *2 (agreeing that Smith supports position that SORNA registration requirements are not violation of Ex Post Facto Clause), punishing him pursuant to the punishment scheme of 18 U.S.C. § 2250 based on conduct which predates the Walsh Act violates the Ex Post Facto Clause.
B. Failure to Register Must Occur in Conjunction with Interstate Travel.
The Government contends that even when a defendant only traveled in interstate commerce prior to the enactment of SORNA, because his failure to register occurred after the enactment of SORNA, he is subject to prosecution because the criminal activity was not completed until after SORNA became effective. "[W]here an offense `straddles' begins before and ends afterthe effective date of a statute, that statute may be applied to the defendant without violating ex post facto." Ambriz v. Pliler, 1998 WL 827695, at *4 (N.D.Cal. Nov.20, 1998).
Some district courts have reached this conclusion. For example, the court in Pitts reasoned that the criminal act with which the defendant was charged was failure to register or update his registration after enactment of the Walsh Act. Pitts, 2008 WL 474244 at * 3. In other words, the offense of failing to register was not completed until the sex offender knowingly failed to register under SORNA, and the sex offender could only knowingly fail to register under SORNA after it went into effect. Carr, 2007 WL 3256600, at *1. Based on this "straddle" theory, such courts have found that the prosecution did not violate the Ex Post Facto Clause. Pitts, 2008 WL 474244 at *3.
The court in Pitts reasoned that "[l]imiting the reach of the statute only to those who travel in interstate commerce after enactment of the statute would be clearly contrary to, the intent of the Congress to create a comprehensive national database of sex offenders and offenders against children for the protection of the public." Id. Although the jurisdictional element of 18 U.S.C. § 2250 refers to one who "travels in interstate or foreign commerce," the court found that this "element applies to all those who have subjected themselves to congressional jurisdiction by virtue of having traveled in interstate commerce." Id. at *4.
The Court disagrees that Congress intended the statute to reach sex offenders who had not traveled in interstate commerce subsequent to enactment of the Walsh Act and that the interstate travel element is only a jurisdictional element. The objective of § 2250 is to penalize sex offenders who move between states without registering. As reflected in President George Bush's Statement upon signing the Walsh Act, one of the goals of SORNA was specifically related to curbing the negative effects of sex offenders traveling among the states: "[T]hese improvements will help prevent sex offenders from evading detection by moving from one state to the next." Statement by President George W. Bush upon Signing H.R. 4472, 2006 U.S.C.C.A.N. S35, *S36 (2006). The fact sheet disseminated in conjunction with the Walsh Act emphasized that "[t]he bill will integrate the information in State sex offender registry systems and ensure that law enforcement has access to the same information across the United States, helping prevent sex offenders from evading detection by moving from State to State." Fact Sheet: The Adam Walsh Child Protection and Safety Act of 2006, 2006 U.S.C.C.A.N. S35, *S36 (2006).
A goal of SORNA is to curb evasion of the registration statute by sex offenders who travel interstate by severely punishing them for failing to register after making such a move. SORNA emphasizes alerting the public that a sex offender is residing in its midst, particularly when the sex offender is new to the community, having moved recently from another state. Congress used the present tense of the verb "travel" because Congress intended that the travel element of the conduct occur in conjunction with the lack of registration for the crime to be consummated.
Unlike other statutes, the element of interstate travel was not just incorporated in the statute as a "jurisdictional hook." In enacting § 2250, Congress did not exercise its Commerce Clause power as broadly as it did in 18 U.S.C. § 922(g), in which Congress asserted jurisdiction over felons who possess any firearm "in or affecting commerce." Bonner, 2007 WL 4372887, at *3. "[T]he word `affecting' would include past or present effects; it would include possession of a gun that did travel interstate before the felon possessed it." Id. (quotation omitted). By contrast, the "travels in interstate commerce" language of 18 U.S.C. § 2250 "clearly shows an intent to base federal jurisdiction on the act of traveling in commerce, not on the effect past travel may have had on commerce." Id.
Because Congress' intent, as reflected in the plain language of § 2250, was to connect the component of interstate travel with the registration requirement, interstate travel that occurred when § 2250 did not require registration, is not sufficient to fulfill the "travel" element of the crime of failing to register. Therefore, the crime does not "straddle" the enactment of SORNA, and may not be applied to Gillette without violating the Ex Post Facto Clause. "Under the plain wording of the statute, in order for a violation to occur, both the travel and the failing to register have to occur after the effective date of the statute." Kent, 2008 WL 360624, at *10.
C. Failure to Register is Not a Continuing Offense.
Another argument that the Government presents in favor of applying 18 U.S.C. § 2250 to Gillette is that Gillette's offense is continuing, and therefore the Ex Post Facto Clause is avoided. Under the continuing offense theory, Gillette is not being held accountable for preSORNA conduct, but for remaining unregistered after the passage of SORNA. See Carr, 2007 WL 3256600, at *3. "[W]hen a crime involves a continuing violation, application of a law enacted after the crime begins does not implicate the ex post facto clause." United States v. Boyd, 149 F.3d 1062, 1068 (10th Cir.1998).
In support of its position, the Government points to other statutes the violations of which have been considered to be continuing offenses. In cases such as United States v. Mitchell, 209 F.3d 319, 322-23 (4th Cir.2000) (involving violation of 18 U.S.C. § 922(g)(9)), cited by the Government, and United States v. Gillies, 851 F.2d 492, 495 (1st Cir.1988) (involving violation of 18 U.S.C. § 922(g)(1)), courts have determined that the interstate commerce element of federal firearm possession crimes does not criminalize the interstate movement of a firearm. Rather the interstate element of the statute identifies "what kind of a gun felons may not possess, and it provides the jurisdictional basis for a federal law." Gillies, 851 F.2d at 495. The conduct prohibited is the unlawful possession of a firearm, which occurs when the defendant possesses a firearm that has traveled in interstate commerce. Mitchell, 209 F.3d at 322-23.
Similarly, the Eighth Circuit in United States v. Russell, 186 F.3d 883, 885-86 (8th Cir.1999), relied upon by the Government, recognized that a federal statute criminalizing failure to pay child support, the Deadbeat Parents Punishment Act (DPPA), 18 U.S.C.A. § 228, does not criminalize the mere accumulation of past due support obligations. Like the firearm statute, it identifies what kind of obligation the defendant must willfully fail to pay to be subject to prosecution. The crime is continuing, making the defendant subject to prosecution for as long as he fails to pay the support obligation. Id. at 886, n. 4.
Unlike the firearm and child support statutes, the interstate element of § 2250 does not identify a particular kind of sex offender. Rather, it refers to particular conduct of a sex offenderthe interstate travel of the sex offender. Although, like firearm possession and non-payment of child support, non-registration continues as long as a sex offender has not registered, failure to register occurs on a specific date, triggered by the sex offender's interstate travel. Because the registration requirement is tied to the time of travel, the crime is not a continuing offense. The obligation of the sex offender under § 2250 is not merely to register, but to register within a particular period after traveling interstate. But see, e.g. Carr, 2007 WL 3256600, at *3 ("[I]t is not relevant that the Defendant's obligation to register began before passage of SORNA. What is relevant is that the Defendant remains unregistered ... after the passage of SORNA.").
The Government's reference to the rationale of United States v. Gray, 876 F.2d 1411 (9th Cir.1989) in concluding that failure to appear in violation of 18 U.S.C. § 3146(a) is a continuing offense is compelling. The court found that failure to appear was a continuing offense, in part, because of the continued threat to society. Gray, 876 F.2d at 1419. A sex offender who fails to register also presents a continuing threat to society.
However, the court in Gray did not examine the ex post facto ramifications of passing a new law which increased the punishment that could be imposed upon a defendant who, prior to the law's enactment, had failed to appear. Although failure to appear was considered a continued offense for tolling the statute of limitations, the court did not determine that failure to appear was a continuing offense, immunizing it from the Ex Post Facto Clause.[2]
Nothing in the express language of SORNA imposes a continuing duty to register or update a registration should the offender fail to do so within the prescribed time periods. See United States v. Stinson, 507 F. Supp. 2d 560, 569 (S.D.W.Va. 2007). However, the court in United States v. Dixon, 2007 WL 4553720 (N.D.Ind. Dec. 18, 2007) found that violation of § 2250 is a continuing offense because "SORNA requires the roaming sex offender to re-register periodically and so,... creates a continuing obligation."[3]Dixon, at *3, 2007 WL 4553720. Although this update requirement could make § 2250 susceptible to being considered a continuous offense, under the rule of lenity, the Court must choose the less harsh interpretation. See Smith, 481 F.Supp.2d at 851, n. 1 (citing Pasquantino v. United States, 544 U.S. 349, 383, 125 S. Ct. 1766, 161 L. Ed. 2d 619 (2005)). As stated in Stinson, "even if the Court were to find a continuing duty to register or update a registration, the Court finds it should not be treated as a continuing offense for ex post facto purposes." Stinson, 507 F.Supp.2d at 569.
Finally, the plain language of SORNA indicates that Gillette's failure to register is not a continuing offense. Critically, the second element of § 2250 uses the present tense of the verb "travels." United States v. Wilson, 2007 WL 3046290, at *2 (D.Utah Oct.16, 2007). "The verb choice indicates that Congress intended to punish a sex offender's failure to register in connection with the individual's interstate travel. Because traveling interstate is necessarily an element which can and must be completed to prosecute under SORNA, the crime cannot be continuous." Id. "[A] violation of § 2250 is not a continuing offense but, rather, is complete when the defendant travels in interstate commerce and then fails to register within the prescribed time period." Stinson, 507 F.Supp.2d at 569-70; see Sallee, 2007 WL 3283739, at *3; Smith, 481 F.Supp.2d at 852; see also Aldrich, 2008 WL 427483, at *4 ("Failing to register is a one-time offense, not a continuing violation."). Thus, Gillette's failure to register under SORNA cannot qualify as a continuous crime because he, a sex offender, completed all of the elements of the crime when he traveled interstate to the Virgin Islands and did not register. Because the crime was completed before SORNA's enactment, the Ex Post Facto Clause bars his prosecution.
IV. CONCLUSION
To succeed in a prosecution of 18 U.S.C. § 2250, the Government must show that the defendant both traveled in interstate commerce and failed to register as required after July 27, 2006. Because Gillette committed the crime of failing to register before the effective date of SORNA, and SORNA increases the punishment for such crime, prosecution under 18 U.S.C. § 2250 would violate the Ex Post Facto Clause. Since failure to register is not a continuing offense, Gillette has not violated SORNA since its enactment. For these reasons, the Court grants Gillette's Motion for Judgment of Acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.
NOTES
[1] Title 18 U.S.C. § 2250(a) provides, in relevant part: Whoever
(1) is required to register under the Sex Offender Registration and Notification Act;
....
(2)(B) travels in interstate or foreign commerce...; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.
[2] In finding that failing to register for the draft was not a continuing offense for statute of limitations purposes, the Supreme Court considered the purpose of a statute of limitations:
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the fardistant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
Toussie v. United States, 397 U.S. 112, 114-115, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970).
Because the purpose and application of the Ex Post Facto Clause is different from that of the statute of limitations, an offense could be a continuing offense under the statute of limitations, but not a continuing offense under the Ex Post Facto Clause. Thus, this Court's determination that failure to register is not `a continuing offense for ex post facto purposes does not mean that prosecution of a sex offender would be precluded, who, after SORNA, travels interstate and fails to register, and whose crime remains undetected until after the running of the applicable statute of limitations.
[3] SORNA includes a provision requiring that a sex offender periodically appear in person to verify registry information. 42 U.S.C. § 16916. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573594/ | 224 S.W.3d 823 (2007)
Michael Charles FULLER, Appellant,
v.
The STATE of Texas, Appellee.
No. 06-06-00008-CR.
Court of Appeals of Texas, Texarkana.
Submitted March 28, 2007.
Decided May 15, 2007.
*826 Judy Hodgkiss, The Moore Law Firm, LLP, Paris, for appellant.
Gary D. Young, Lamar County & Dist. Atty., Deborah Moore, Asst. County Atty., Paris, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice CARTER.
A jury convicted Michael Charles Fuller of one count of sexual assault of a child and two counts of indecency with a child, namely, J.W., his girlfriend Connie Moore's then-fifteen-year-old daughter. The jury assessed punishment at eight years', five years', and five years' confinement, respectively, and the trial court sentenced Fuller to those terms, to run concurrently. Fuller raises nine issues on appeal.
I. Speedy Trial
In issues eight and nine, Fuller asserts speedy trial violations. Over four years elapsed between the filing of the indictment and Fuller's trial.
Extended governmental delay in prosecuting entitles a defendant to relief based on the right to a speedy trial. See Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). If a violation of the speedy trial right is established, the only possible remedy is dismissal of the prosecution. Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973). In determining whether an accused has been denied his or her right to a speedy trial, a court must use a balancing test "in which the conduct of both the prosecution and the defendant are weighed." Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
The factors to be weighed in the balance include, but are not necessarily limited to, (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her speedy trial right, and (4) the prejudice to the defendant resulting from the delay. See id. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Id. at 533, 92 S. Ct. 2182; Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim.App.2003). However, if the defendant fails entirely to raise the speedy trial issue "at or prior to trial" and only raises the issue on appeal, the defendant does not preserve the error for review. Wade v. State, 83 S.W.3d 835, 838 (Tex.App.-Texarkana 2002, no pet.).
Fuller never raised the speedy trial issueby requesting a trial date or by seeking dismissal of the caseuntil after the trial was concluded.[1] Fuller waived any *827 speedy trial violation by not objecting at or prior to trial, and we may not consider the issue for the first time on appeal. Accordingly, these points of error are overruled.
II. Legal Sufficiency
In issue five, Fuller asserts that the evidence was legally insufficient to support the sexual assault conviction. As indicted and charged in count three, the State had to prove that Fuller intentionally or knowingly caused J.W.'s sexual organ to contact Fuller's mouth. See TEX. PENAL CODE ANN. § 22.011(a)(2)(C) (Vernon Supp.2006).[2]
A. Standard of Review
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.App.1999). We are required to "defer to the jury's credibility and weight determinations" in our legal sufficiency review. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).
B. Discussion
J.W. testified that, when she was about fifteen years old, she and Fuller, who was dating J.W.'s mother and living with the family, "were watching TV as usual, and he just started the oral sex." On another occasion in her testimony, J.W. stated that "[t]he oral sex happened." When the State asked J.W. to specify the acts involved, J.W. testified, "He got on top of me and he was pulling my shorts down, and I'm trying to get him off of me, but he wouldn't move. I couldn't move him. And he started the oral sex." As further evidence, the State introduced, over defense objection, a letter in which J.W. wrote that Fuller pulled her panties down and "began licking rough."
Fuller testified in his defense and denied having oral sex with J.W. Fuller also produced two witnesses who testified that J.W. had "said nothing happened" and had "said that she would do whatever she could to get [Fuller] away from her mother." We defer to the jury's credibility and weight determinations, implicit in the verdict, that J.W.'s story was credible despite the testimony of Fuller and other defense witnesses. See id.
Still, Fuller asserts that J.W.'s testimony is too vague to constitute legally sufficient evidence because the term "oral sex" could just as easily reference contact between J.W.'s mouth and Fuller's genitals, which would be contact not charged. However, the jury was entitled to make reasonable inferences from the evidence. See Hooper v. State, 214 S.W.3d 9 (Tex. Crim.App.2007). The inference that Fuller's was the active mouth rises from combining J.W.'s testimony about oral sex with the letter referencing Fuller's "rough licking" and is more than reasonable.
Additionally, Fuller contends that, even if the inference is made that it was his mouth to her body, the State never defined what J.W. meant by "oral sex" so as to include the required element of contact to her sexual organ. In other words, J.W. *828 could understand that "oral sex" means "kissing" or that Fuller's mouth touched J.W.'s anus, thigh, or some other nonsexual organ part. We find that the jury could reasonably infer that J.W.'s use of the term "oral sex" was consistent with its common and plain meaning. "Oral sex" is "oral stimulation of the genitals." Merriam-Webster's Collegiate Dictionary 872 (11th ed.2006) (referring also to two synonymous entries: "cunnilingus" and "fellatio"); see also Donoho v. State, 643 S.W.2d 698, 700 (Tex.Crim.App.1982) (oral sex denotes contact between mouth and naked genitals); Gagliardo v. State, 78 S.W.3d 469, 475 (Tex.App.-Tyler 2001, pet. ref'd) ("reciprocal oral sex" legally sufficient). J.W.'s testimony serves as sufficient evidence of contact between mouth and genitals.
We find, on a review of the full record, and viewing all of the evidence in the light most favorable to the verdict, that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The evidence is legally sufficient; the point of error is overruled.
III. Ineffective Assistance of Counsel
In issues one and two, Fuller claims ineffective assistance of counsel pervaded the entire defense, discussing numerous discrete examples, and urges that we reverse and remand for a new trial.
A. Standard of Review
The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). To prevail on this claim, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689, 104 S. Ct. 2052; Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App.1999). To meet the burden on the first prong, the appellant must prove by a preponderance of the evidence that the attorney's representation objectively fell below the standard of prevailing professional norms; to meet the burden on the second prong, the appellant must show 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. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002).
In determining if counsel's performance was deficient, our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. 2052; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In the absence of direct evidence of counsel's reasons for the challenged conduct, we will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001). A full inquiry into the strategy or tactics of counsel should be made only if, from all appearances after trial, there is no plausible basis in strategy or tactics for counsel's actions. See Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981); Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim.App.1980); Stenson v. State, 695 S.W.2d 569, 571 (Tex.App.-Dallas 1984, no pet.).
When, as here, ineffective assistance is raised on direct appeal, appellate *829 counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.[3]Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App.2003); cf. Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003). Nonetheless, some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." Massaro, 538 U.S. at 508, 123 S. Ct. 1690; Freeman, 125 S.W.3d at 506; see also Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.App.2005); Thompson, 9 S.W.3d at 814 n. 6. "[W]hen no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did." Andrews, 159 S.W.3d at 102. A claim of ineffective assistance of counsel, on an undeveloped record on direct appeal, should, nonetheless, "be entertained and upheld if supported by the record." Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim.App.1998).
B. Discussion
1. General Evidentiary Matters (Hearsay, Leading, Relevancy, Sidebar Comments, Badgering)
Fuller complains his counsel was ineffective in not objecting to the State's repeated badgering of and sidebar comments about Fuller. Fuller testified in his defense at both the guilt/innocence and punishment phases of the trial. Fuller's counsel made no objections in this lengthy exchange during the State's cross-examination of Fuller:
Q. [by the State] You take [J.W.] other places by herself?
A. [by Fuller] Yes.
Q. Like where?
A. To her boyfriends.
Q. You did that without her mom. You've been dying to say this, by the way. You've been trying to say that since you hit the witness stand. All right. So you tooklet's golet's get it out in the air. Connie did not like [J.W.]'s boyfriend?
A. No.
Q. She didn't want her to see him?
A. No.
Q. You would help [J.W.] get out of the house and go see the boyfriend. Is that right?
A. That's right.
Q. You allowed her to go do something her mom would not approve of; is that right?
A. Her momher mom
Q. Yes or no. Mr. Fuller, you've been dying to trash [J.W.] since you walked in this courtroom. I gave you your chance. You said it. Now, let's talk about the truth. All right. You allowed [J.W.] to do stuff her mother would not approve of. Yes or no?
A. No.
*830 Q. You didn't take her to see her boyfriend
A. I took her to see her boyfriend.
Q.when Connie would not approve it? Did you tell Connie?
A. Connie said she didn't care.
Q. Oh, she didn't care. So why was it such a big deal for you to tell this jury all day? You've been dying since 1:30 to tell this jury that you snuck her out of the house to see her boyfriend. If it wasn't such a big deal, why have you been dying to say it?
A. To tell the truth.
Q. Which you have never done a day in your life?
(Emphasis added.) Fuller asserts that not only was an objection required here, but that this questioning was so calculated to inflame the jury that a mistrial was in order. While the State's conduct here is objectionable, on the record on direct appeal it is difficult to find that Fuller has met his burden. Although counsel's reasons for not objecting do not appear in the record on direct appeal, his conduct could have been part of a plausible trial strategy to avoid emphasizing the matter to the jury or avoid having the jurors believe that Fuller was hiding something from them.
Fuller also asserts that counsel was ineffective by failing to object to the State's "badgering" of Fuller for his alleged failure to advise the State of exculpatory evidence. The prosecutor noted that "[i]t's only on the day of trial that these people [defense witnesses] show up" and that none of the defense witnesses had talked to the State in the past four years, and asked Fuller: "don't you think it would be important to turn it [his defense theory] over to the state?" Fuller frames the issue as the State's comments on Fuller's post-arrest silence, citing Bhakta v. State, 981 S.W.2d 293 (Tex.App.-San Antonio 1998, pet. ref'd), and Nixon v. State, 940 S.W.2d 687 (Tex.App.-El Paso 1996, pet. ref'd). These cases are distinguishable from Fuller's cited authority. Bhakta reversed a judgment in which the prosecutor attempted to impeach the defendant's trial testimony by asserting, during closing arguments, that the defendant should have given a statement in his defense to the officers on the scene at his arrest. Bhakta, 981 S.W.2d at 295. The Nixon case also involved the State's attempt to impeach the defendant's credibility by noting the defendant had failed to give a written custodial statement. Nixon, 940 S.W.2d at 692. The prosecutor here did not exclusively reference custodial situations, but referenced the entire four-year period between Fuller's arrest and trial. Moreover, the State questioned not Fuller's own silence, but Fuller's defense witnesses' silence during that period. Thus, although the State's questioning may be objectionable, it may be objectionable by implying defense misconduct (i.e., implying Fuller did not comply with some duty to disclose evidence) rather than by implicating Fuller's own post-arrest silence. Since the State did not comment on Fuller's own post-arrest silence, Fuller's counsel had no reason to object on that basis, and Fuller has failed to meet his burden under the first prong.
Fuller further asserts that counsel was ineffective by (1) not objecting to J.W.'s hearsay testimony that she had "heard about [Fuller] through friends, and it just wasn't a good reputation that he had through the public" and that she "heard" from a friend at school that Fuller was cheating on her mother; (2) not objecting to the State's use of leading questions in the direct examination of several of the State's witnesses; and (3) not objecting to the State's improper impeachment of defense witness Wallace through an "onslaught of attack," which included hostile *831 and rude questions regarding Wallace's child visitation and support payment history (both good), and misdemeanor convictions for marihuana possession, criminal mischief, and assault. Counsel's reasons for not objecting do not appear in the record on direct appeal, and his conduct could have been part of a plausible trial strategye.g., to not draw the jury's attention to the matters, to not give the jury the impression that witnesses had something to hide, or to not appear to the jury to be trying the case on technicalities. Because we can imagine plausible trial strategies for counsel's choices, Fuller has failed to rebut the presumption of competence on this complaint as presented on direct appeal.
Additionally, Fuller complains his counsel failed to object to hearsay testimony from police officer Lee Foreman regarding Fuller's alleged commission of an extraneous offense. Foreman testified that, in connection with the earlier offense, he had arrested Fuller pursuant to a warrant and participated in the investigation by recovering a shell casing. We disagree that the complained-of testimony was clearly hearsay and, thus, Fuller's counsel did not fall below an objective standard of reasonableness for not objecting.
2. Failure to Object to Jury Acquittal as "Extraneous Offense" or "Bad Act"
Fuller complains of a more glaring deficiency at the punishment phase of the trial. Fuller's counsel failed to object to the introduction, through several witnesses, of evidence that Fuller was actually guilty of possessing drugs in 1992, even though Fuller had been acquitted of that charge by a jury. In fact, much of the punishment phase of Fuller's trial was focused on relitigating this earlier offense.
The Fifth Amendment guarantee against double jeopardy contains a collateral estoppel rule which provides that, "when an 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." Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); see also U.S. Const. amend. V. The precluded issue must be the same as that determined in the prior proceeding. See Ex parte Taylor, 101 S.W.3d 434, 441-42 (Tex.Crim.App.2002). There are "no hard and fast rules concerning which factual issues are legally identical and thus barred from relitigation in a second criminal proceeding. As Professor Wright concludes: `If an ordinary person would expostulate, `But that's a different issue,' probably it is.'" Id. at 442 (citing 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4417 (2d ed.2000)).
The State elicited testimony regarding Fuller's actual possession of the drugs with no objections from Fuller's counsel from Connie (who testified that Fuller had boasted he "got off" or had beaten the rap by flushing the drugs down a toilet); from arresting officer Shane Boatwright (who testified to hearsay from another officer and Connie that Fuller had drugs on him that night in 1992); from investigating officer Tim Moree (who testified to the large amount of drugs found at the time of Fuller's 1992 arrest); and from officer Lee Foreman (who identified substances in photographs from the 1992 offense as crack cocaine and testified to the street value of Fuller's alleged drugs, although he was not an officer in 1992 and did not become a narcotics officer until 2000). Additionally, Fuller's counsel did not object to the State's cross-examination of Fuller, during the punishment phase, about the 1992 drug arrest of which he was acquitted. The State urged the jury to reject *832 community supervision now because Fuller had already "skated by off that drug case . . . he got by with it." The jury was given the instruction that it may only consider extraneous offense evidence if it believed beyond a reasonable doubt that Fuller committed the offense or bad act.
While the State's actions suggest a double jeopardy collateral estoppel rule violation, the record presented on direct appeal does not contain the record of the prior proceeding. In order to apply the collateral estoppel rule to preclude relitigation of the same issue, appellate courts "must examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matters to determine whether a rational fact finder could have grounded its decision on" a different fact. Doty v. State, No. 03-03-00668-CR, 2005 WL 1240697, at *4 (Tex.App.-Austin May 26, 2005) (mem. op., not designated for publication), pet. dism'd, improvidently granted, No. PD-1159-05 (Tex.Crim.App. March 21, 2007), available at http://www.cca.courts.state.tx. us/ opinions/HTMLOpinionInfo.asp?OpinionID=15160. Because we have no record of the earlier proceeding, the record as presented on this direct appeal does not allow a finding that the admission of this evidence was objectionable. Accordingly, Fuller has not met his burden that counsel had no plausible strategy in not objecting.
3. Testimony of Complainant's Truthfulness
Fuller asserts counsel was ineffective by not objecting to the State's "bolstering" of J.W.'s truthfulness and credibility through both experts and lay witnesses. Indeed, the State called, in addition to J.W., only four witnesses, each of whom testified, in some manner, that J.W. was telling the truth. Three of these witnesses testified to the specific truthfulness and credibility of J.W.'s allegations. On a review of the applicable authority, and the details of the testimony to which Fuller's counsel failed to object, we find that this is one of those rare cases in which the record on direct appeal is sufficient to decide counsel had no plausible trial strategy for not objecting to the inadmissible testimony and that his conduct was deficient. See Andrews, 159 S.W.3d at 103.
a. Applicable Law
"[E]xpert testimony that a particular witness is truthful is inadmissible under Rule 702." Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App.1993). An expert may not offer a direct opinion on the truthfulness of a child complainant's allegations. Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997). Moreover, an expert is not permitted to give an opinion that the complainant or class of persons to which the complainant belongs (such as child sexual assault victims) is truthful. Yount, 872 S.W.2d at 712; cf. Schutz, 957 S.W.2d at 70 (testimony about children's ability to accurately perceive or remember is allowable, but not a particular child's tendency to do these things). This is because experts on child sexual abuse "are not human lie detectors. Nor are they clairvoyant." Yount, 872 S.W.2d at 710 (quoting John E.B. Meyers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L.Rev. 1, 121 (1989)). Instead of experts, it is jurors who must draw "conclusions concerning the credibility of the parties in issue." Yount, 872 S.W.2d at 710. The Texas Court of Criminal Appeals found that "[v]irtually every jurisdiction which has addressed, in the context of a child sexual assault case, the admissibility of direct testimony as to the truthfulness of the child complainant, has held that such direct testimony is inadmissible." Id. at 711 n. 8 (citations omitted).
*833 Moreover, the defense does not "open the door" to otherwise inadmissible expert opinion testimony on the truthfulness of a complainant's allegations by cross-examining the complainant herself or the complainant's mother. See Schutz, 957 S.W.2d at 72.
Nonexpert testimony may be offered to support the credibility of a witness in the form of opinion or reputation, but "the evidence may refer only to character for truthfulness or untruthfulness." TEX.R. EVID. 608(a)(1). A lay witness may not, under Rule 608, testify to the complainant's truthfulness in the particular allegations. See Schutz, 957 S.W.2d at 72. Further, evidence of truthful character may only be offered "after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." TEX.R. EVID. 608(a)(2).
b. The Teacher's Testimony
The State, in its case-in-chief, introduced lay opinion testimony from J.W.'s eighth-grade science teacher (now the high school principal) that, generally, J.W. is a credible and truthful person. The teacher also, however, testified that he has "a feel" for the students, that he is usually right in his feelings and impressions, that he knows who is credible and who is not, and that J.W. is credible.
Assuming, without deciding, that this testimony did not exceed the bounds of acceptable evidence of truthful character under Rule 608, the testimony would have been admissible only after J.W.'s character for truthfulness had been attacked. See TEX.R. EVID. 608(a); see also Schutz, 957 S.W.2d at 76. The State, however, introduced this testimony not in rebuttal, but in its case-in-chief. The State asserts that Fuller "attempted" to impeach J.W. while cross-examining her. The State does not assert that this "attempt" was successful; indeed, the record indicates that, on being asked if she had given a different account of her allegations to others, J.W. denied ever giving an earlier inconsistent account. Allowing the State to pre-emptively "rebut," through lay opinion testimony, attacks on its complaining witnesses solely on the basis of the cross-examination of that witness is inconsistent with the Schutz finding that the defense does not "open the door" for the same testimony by an expert by cross-examining the complainant herself. See Schutz, 957 S.W.2d at 72.
The State further asserts that, since Fuller denied the accusations in voir dire and his opening statement, J.W.'s credibility was attacked from the start so as to allow rebuttal evidence bolstering J.W.'s credibility during the State's case-in-chief. However, a defensive theory of fabrication (as opposed to recent fabrication) which generally denies the charges against a defendant is not the equivalent of an attack on the victim's general character for truthfulness so as to warrant the admission of character testimony. Cf. Stitt v. State, 102 S.W.3d 845, 848 (Tex.App.-Texarkana 2003, pet. ref'd). The State points us to no testimony indicating that, at the time of the teacher's testimony, Fuller had impeached J.W. by any means. As such, the teacher's testimony did "bolster" J.W., without objection from Fuller's counsel.
c. Connie's Testimony
Fuller claims counsel was ineffective for not objecting to the State's bolstering of J.W.'s truthfulness and testimony through her mother, Connie. The State asked Connie several times if she believed J.W.'s allegations to be true, and Connie testified that she believed J.W. and her allegations. During direct examination of Connie, the State's second witness (after J.W. herself), the State asked:
*834 Q. As you sit here now, do you believe your daughter?
A. Yes, I do.
The State, on redirect, asked:
Q. Having heard all the evidence, you know, heard what [J.W.] had to say, what she told the police, having heard the defendant's excuses for his conduct, do you believe it happened?
A. Yes, I do.
This testimony, as sought by the State, goes to the truth of the specific allegations and is expressly inadmissible. See Schutz, 957 S.W.2d at 76.
d. Huff's Testimony
After presenting Lieutenant Danny Huff as an expert in child sexual assault investigations, the State asked Huff:
Q. [by the State] Do you issue arrest warrants when you don't believe them to be true?
A. [by Huff] No.
Q. Because you have reasonable suspicion, is that all you had?
A. I'm sorry?
Q. Do you end your investigation at reasonable suspicion or do you have a stronger belief?
A. Yeah, we have awe haveI'm not sure exactly the words you say, but we're very comfortable with the evidence that we have, the information that we have to proceed to an arrest.
Q. Okay. The legal burden is reasonable suspicion?
A. Right.
Q. That doesn't mean that's all you have?
A. No.
Q. And in this case is that all you had was a reasonable suspicion?
A. No, not really.
Q. Did you have beyond a reasonable doubt?
A. I felt we did. I felt that we did.
(Emphasis added.) The prosecutor later continued this line of questioning:
Q. [by the State] Did you make a determination whether [J.W.] was credible prior to filing the arrest warrant?
A. [by Huff] I did.
Q. Did you find her credible?
A. Yes, sir.
Q. Would you have filed it if you did not find her to be credible?
A. No, sir.
(Emphasis added.) In closing arguments, the prosecutor reminded the jury that Huff had found J.W. credible and he "believed her beyond a reasonable doubt."
The State asserts Huff's testimony was not objectionable since Huff only testified to the "process of conducting an investigation" into J.W.'s allegations, not into the truth of J.W.'s allegations. The State calls Huff's testimony regarding J.W.'s credibility "foundational and procedural" in the explanation of describing the process of his investigation and determination of reasonable suspicion against Fuller. In support, the State cites Martinez v. State, 186 S.W.3d 59, 66 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd), and Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995). These cases analyze police officers' testimony about how the officers came to suspect the accused, not for the truth of the accusations against the accused. The situation here is distinguishable. First, the identity of the alleged perpetrator was never in question. Second, while Huff did testify to investigation procedure, the State also elicited from Huff testimony about the truthfulness of J.W.'s allegations. This is inadmissible. See Schutz, 957 S.W.2d at 76.
*835 e. Hunt's Testimony
Similarly, Fuller's counsel did not object to testimony by Stephanie Hunt, a Child Advocacy Center forensic interviewer, that J.W. was truthful. Again, the State asserts that Hunt was only articulating the methodology she used in assessing the case. Hunt testified that J.W. told her what happened regarding the sexual abuse. The State asked Hunt to explain her expertise in discerning truthfulness, and to apply it to J.W.'s allegations:
Q. [by the State] Your 250 interviews that you've done personally and 100 or moreseveral hundreds or more that you've helped participate in, do you kind of get a feel for when someone is being truthful with you?
A. [by Hunt] We have some things we look for as far as how consistent are the statements and the mannerisms of the child that we're speaking to. We have some things like that, that I look for.
. . . .
Q. Simply because a child comes forward and says I've been sexually abused, does the Child Advocacy Center, and you in particular, automatically believe that child contrary to anything else that is said or done?
A. No, we do not.
. . . .
Q. And based on that interview [with J.W.] and conduct that you witnessed and how she described what happened, did you form an opinion as to whether she was being truthful with you?
A. Yes, I did.
Q. And what was that opinion?
A. I saw nothing in her demeanor and nothing in the information that she gave me that indicated that she was not being truthful with me.
(Emphasis added.) The State's elicitation of Hunt's testimony regarding her expertise in determining truthfulness and credibility, and her particular determination of J.W.'s truthfulness, are express error per Schutz, 957 S.W.2d at 69, and Yount, 872 S.W.2d at 710 (child sex investigators are not lie detectors and are not to supplant the jury's role in judging witnesses' credibility). Further the State argued to the jury that Hunt had found the complainant to be credible and truthful.
f. Discussion: Ineffective Assistance of Counsel
With deference to counsel's performance, and in trying to imagine a strategic motivation for his conduct, we note that, throughout the trial, defense counsel's tactic seems to have been to allow, without objection, the State's witnesses to testify to the credibility and truthfulness of J.W.'s allegations and then, on cross-examination, to explore the foundation for that witness' belief in the credibility, believability, or truthfulness of J.W.'s allegations. But, lack of a proper foundation is not the problem with the offensive testimony; it is inadmissible whether properly founded or not. Not surprisingly, counsel's "tactic" resulted in only more bolstering. It was, in essence, no strategy. See Vasquez v. State, 830 S.W.2d 948, 950 n. 3 (Tex.Crim. App.1992) (finding ineffective assistance on direct appeal because counsel's failure to request instruction on the only defense raised by the evidence "would not have been acceptable strategy"); cf. Robertson v. State, 187 S.W.3d 475, 484 (Tex.Crim. App.2006) (on record developed for ineffective assistance claim, counsel's misguided and legally misinformed strategy to introduce evidence of defendant's otherwise inadmissible prior convictions, when only issue was defendant's credibility, constitutes deficient performance since such evidence "could serve no strategic value").
*836 On similar facts, three courtsTexarkana, Dallas, and El Pasohave found failure to object to the repeated elicitation and offer of this type of testimony to constitute ineffective assistance of counsel when presented on direct review. See Sessums v. State, 129 S.W.3d 242 (Tex.App.-Texarkana 2004, pet. ref'd) (aggravated sexual assault of a child); Miller v. State, 757 S.W.2d 880 (Tex.App.-Dallas 1988, pet. ref'd) (aggravated sexual assault of a child); Garcia v. State, 712 S.W.2d 249 (Tex.App.-El Paso 1986, pet. ref'd) (burglary with attempt to commit indecency with a child). In all three of those cases, as in the one now before us, the victim's credibility was the only real issue at trial and counsel repeatedly or entirely failed to object to the introduction of testimony on the truthfulness and credibility of the victim's allegations. See Sessums, 129 S.W.3d 242; Miller, 757 S.W.2d 880; Garcia, 712 S.W.2d 249. Although the court in the Garcia case did have the benefit of evidence developed at a post-trial hearing on the ineffective assistance claim, both the Sessums and Miller cases assessed the ineffective assistance claim on the bare and undeveloped trial records on direct appeal. Compare Sessums, 129 S.W.3d 242, and Miller, 757 S.W.2d 880, with Garcia, 712 S.W.2d 249.
At oral argument, the State argued that the sole defense strategy was to walk the fine line between showing that the victim was lying and not alienating the jury through "trashing" the victim. We do not see how the failure to object to inadmissible testimony from all of the witnesses that the victim was truthful would play any role in a strategy of attempting to prove the complainant was lying. Where counsel's strategy is premised on an incorrect understanding of the law, we need not defer to that as a reasonable strategy. Cf. Robertson, 187 S.W.3d at 484. We have previously stated, in regard to pervasive testimony about the truthfulness of a complainant's allegations: "There is no conceivable strategy or tactic that would justify allowing this testimony in front of a jury." Sessums, 129 S.W.3d at 248. Indeed, as our sister court has stated, "we can glean no sound trial strategy in defense counsel's failure to object to the extensive, inadmissible testimony concerning the only real issue at trialcomplainant's credibility." Miller, 757 S.W.2d at 884.
Fuller's counsel's conduct in allowing the State unfettered and unchecked bolstering of the victim was so outrageous that no competent attorney would have engaged in it. See Thompson, 9 S.W.3d at 814; cf. Goodspeed v. State, 187 S.W.3d 390, 396 (Tex.Crim.App.2005) (Holcomb, J., dissenting) ("I do not believe there is anything [trial counsel] could say under these circumstances to show that his actions were the product of a sound trial strategy."). Given the context of the trialthat Fuller's entire defense was that J.W.'s allegations were false and, yet, Fuller's counsel allowed every State's witness to testify to the truthfulness and credibility of J.W.'s allegationsand judging counsel's performance by the totality of the representation, the record affirmatively demonstrates counsel's conduct falls outside the wide range of reasonable representation and is objectively deficient.
Moreover, these deficiencies denied Fuller a fair trial. See Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App.1986). In the prejudice question, we examine counsel's errors not as isolated incidents, but in the context of the overall record. Ex parte Menchaca, 854 S.W.2d 128, 132 (Tex. Crim.App.1993). These were not isolated incidents; counsel's errors pervaded and prejudiced the entire defense. Cf. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim.App.1992) ("[I]solated instances in *837 the record reflecting errors of omission or commission do not render counsel's performance ineffective. . . ."). Counsel even failed to object when the State emphasized the objectionable testimony to the jury during closing argument. During closing argument, the State told the jury that J.W.'s teacher knows kids of good quality; that Huff, with "many, many years experience" "said that he believedbelieved her beyond a reasonable doubt. That's credible"; that Hunt is experienced in these matters, that she has trained others "to pick up on whether people are being credible," and that J.W. "was credible and truthful to her"; and, finally, that "Character, that's what this case is about. It's about character, the type of person that you have." In both Miller and Sessums, the courts considered, in assessing prejudice, that the State had emphasized to the jury, during closing argument, the various witnesses' belief in the complainants' truthfulness and credibility. See Sessums, 129 S.W.3d at 248; Miller, 757 S.W.2d at 884.
This case was a swearing match between the complainant and Fuller, who denied that he had oral sex with the complainant or exposed himself to her. The State summarized the issue when it asked Fuller, "Does it boil down to your word versus [J.W.'s] word?" Fuller's response was, "My word, yeah, the truth, yes." Markeith Wallace, who had fathered a child by J.W., testified J.W. told him that nothing happened between her and Fuller. Joyce Allen testified that J.W. at first told her she had been raped by Fuller, but on further questioning, J.W. said only that Fuller accidentally walked in on her while she was taking a shower. She further testified J.W. said she would do whatever she could to get Fuller away from her mother. In addition, J.W. signed an affidavit of nonprosecution stating, "I believe that justice will be better served if all charges arising out of this transaction are dismissed. . . ." The only real issue in this case was the credibility of the witnesses, in particular the complaining witness, J.W. The State's case-in-chief consisted of the testimony of J.W. and four witnesses, each of whom testified in some manner that J.W. was a truthful and credible witness. Under these circumstances, we find, as in Miller and Sessums, there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. We find that Fuller's counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Strickland, 466 U.S. at 686, 688, 104 S. Ct. 2052; Sessums, 129 S.W.3d at 248 ("[T]here is a reasonable probability that, but for counsel's error in failing to object to extensive, inadmissible, and critical testimony, the result of the proceeding would have been different.").
IV. Conclusion
Fuller's points of error concerning legal sufficiency and speedy trial are overruled. Fuller has met his burden on the points of error asserting ineffective assistance of counsel; those points of error are sustained. Since the ineffective assistance issue is dispositive, we need not address Fuller's remaining points of error.
We reverse the judgment and remand the case for a new trial.
NOTES
[1] Fuller was incarcerated from December 2001 to April 2002 and then again from May 2005 through trial in December 2005. On October 4, 2005, with still no trial setting, Fuller wrote a letter from jail to the judge requesting release on personal recognizance because the "state was not ready" and "this case is forty-five months old and since my jury trial was passed over again." Indeed, in the letter, while Fuller dances around the issue of the lengthy delay, he ultimately seeks only one remedy: release from custody. He never asks for trial, and he never asks that the case be dismissed. Neither did Fuller's trial counsel raise the issue.
[2] Although the sexual assault statute has been amended several times since Fuller was indicted in November 2001 for acts alleged to have occurred on or about May 1, 2001, no changes have been made to the subsection relevant to this appeal.
[3] Fuller did file a pro se motion for new trial to develop evidence on the ineffective assistance of counsel claim. His first court-appointed appellate attorney requested a hearing on the motion, but the court scheduled the hearing for a date four days after the last date on which such a hearing must be held. See State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 48-49 (Tex.Crim.App.1987). Counsel did not object. Counsel later withdrew for unrelated reasons, and the court appointed Fuller a second appellate counsel shortly before the scheduled hearing. When this second counsel applied for a bench warrant to deliver Fuller to the hearing, the court noted that the motion for new trial had been overruled by operation of law. No hearing was ever held. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573645/ | 396 S.W.2d 440 (1965)
John H. KELSEY et al., Appellants,
v.
Perry H. CORBETT et al., Appellees.
No. 5716.
Court of Civil Appeals of Texas, El Paso.
October 13, 1965.
Rehearing Denied November 17, 1965.
Stubbeman, McRae, Sealy & Laughlin & F. H. Pannill, Midland, for appellants.
Deaderick, McMahon & McKim and Connell Ashley, Odessa, Kerr, FitzGerald & Kerr, Midland, for appellees.
Gibson, Spence & Gibson, Austin, amicus curiae.
*441 PRESLAR, Justice.
John H. Kelsey and others, tax-payers and taxable property owners within the District of Pecos County Water Control and Improvement District No. 2, appellants herein, brought this suit as plaintiffs, seeking a judgment declaring that neither the plaintiffs nor their property interests were subject to the ad valorem taxes levied and assessed for the purpose of payment of interest and principal, past and future, on bonds issued by such Improvement District. Named as defendants were Pecos County Water Control and Improvement District No. 2, Perry H. Corbett and J. Folse Roy, the original purchasers and present hloders of the bonds, and Dan L. Crump, Tax Assessor and Collector for Pecos County, and others.
Pecos County Water Control and Improvement District No. 2 was formed by an election held in 1955, and it is conceded by all parties hereto that all proceedings relating to the formation of such District and the approval of its bonds are, on their face, letter-perfect. The plaintiff-appellants quite frankly concede in their brief in this court that their position is:
"(a) There were no resident property taxpaying qualified voters who had rendered their property for taxes so as to be qualified to votein fact, there were no inhabitants at all in the area constituting the purported district;
"(b) The persons who did vote at the election to create a district and at the election to authorize the issuance of the bonds were imported from outside the district for the sole purpose of casting ballots at this fictitious election, and were neither residents of nor owners of property within the purported district, and
"(c) The defendants who are the original purchasers and present claimants of the bonds knew at all material times, and particularly at and prior to their purchase of the bonds that there were no resident property tax-paying qualified voters who had rendered their properties for taxes who did or could have voted at the elections and therefore knew, or were on notice, that the elections were fictitious."
Plaintiffs went to trial on their Third Amended Original Petition, all of which, except paragraph 2 thereof, they specifically dismissed with prejudice; and paragraph 2 simply adopted their Second Amended Original Petition; so that, in effect, they went to trial on their Second Amended Original Petition. An analysis of that petition shows that they allege only that there was (1) no such legal entity as Pecos County Water Control and Improvement District No. 2; and (2) that they, the plaintiffs, were not obligated to pay the bonds and their property not subject to them.
At the conclusion of all the evidence the trial court withdrew the case from the jury and rendered judgment contrary to the plaintiffs' position and upholding the validity of the District. In that action we think the trial court was correct for two reasons: first, that the plaintiffs' suit was, in essence, an election contest which they could not maintain in such a proceeding; and second, the plaintiffs could not question the existence of the District, as quo warranto was the sole exclusive remedy.
Plaintiffs sought to show that at the time the District was formed in 1955 there were no residents within the physical boundaries of the District, and that those who voted for the formation of the District and for the issuance of the bonds thereof were not property-owning residents of the District. As stated, an election was held, and such election proceedings were in all things valid on their face, and were approved by the Commissioners Court of Pecos County. In effect, plaintiffs are attacking the qualifications of those who voted in the election. This they seek to do by suit filed some six years after such election, and not in conformity with the *442 Election Code. In all their contentions plaintiffs come back to this one proposition that there were no residents of the District and those who voted in it were not qualified, so that it can be said that that is the true basis of their lawsuit. Almost the same proposition was before the Commission of Appeals in Slater v. Ellis County Levee Improvement District No. 9, 120 Tex. 272, 36 S.W.2d 1014, where the following question was certified to the court:
"First Question.
"Did the trial court err in sustaining appellees' special exception to that portion of appellants' answer which set up the fact that no legal bond election was held in said district because the true facts, of which the commissioners court had actual knowledge, were that none of the parties who voted therein were property holders or qualified voters within said district, and because the judges and clerks who held said election were not qualified voters within said district?"
In answering the question the court said: "The remedy given by the statutes (articles 3041 to 3075) for contesting elections of this character for irregularities or fraud is exclusive of all others." (Citing numerous authorities). Such articles 3041 to 3075 were, in 1951, replaced by Articles 9.01 to 9.38 of the Election Code of the State of Texas, V.A.T.S. Article 9.36 of such Election Code provides:
"* * * If no contest of said election is filed and prosecuted in the manner and within the time herein provided for, it shall be conclusively presumed that said election as held and the result thereof as declared are in all respects valid and binding upon all courts * * *."
The record in the case before us indicates that no election contest was filed in regard to this District. The matters sought to be litigated in this suit could be heard only in an election contest brought in the time and manner provided by the statutes.
The proceedings for the formation of this District being in all things regular on their face, and it having operated as a corporation under such proceedings, only the State can now question its existence. Walling v. North Central Texas Municipal Water Authority, 162 Tex. 527, 348 S.W.2d 532, is the latest pronouncement by our Supreme Court restating this rule of law:
"* * * When a body has acted and has been dealt with as a corporation after attempting to comply with the requirements of a valid statute authorizing its creation as such, only the State may question its corporate existence on the ground that the law was not followed. La Salle County Water Improvement Dist. No. 1 v. Guinn, Tex. Civ.App., 40 S.W.2d 892, wr.ref.; Kuhn v. City of Yoakum, Tex.Com.App., 6 S.W.2d 91; Bowen v. Board of School Trustees, Tex.Civ.App., 16 S.W.2d 424 (no wr.)."
Clearly, plaintiffs sought to question the existence of Pecos County Water Control and Improvement District No. 2 and cannot, under the above authorities, do so; and the judgment of the trial court was in that respect correct.
In its judgment the trial court allowed the County Attorney of Pecos County attorney's fees for representing the Tax Assessor-Collector of said County, and taxed such fees as costs of court against appellants. We see no basis for such allowance of attorney's fees, since the Tax Assessor-Collector was not in the true position of a stakeholder but was, in fact, a party defendant. Unless it can be said that the attorney's fees are due by some statute, there can be no basis for them, and we see no such statutory basis here. The contention seems to be that such fees were by stipulation or agreement, but we do not construe the stipulation to be that one party would pay the attorney's fees of his *443 adversary. The propriety of such an arrangement would raise a serious question. We construe the stipulation to be that if, in fact, attorney's fees were allowable, the court could then decide the amount. That part of the judgment allowing such attorney's fees and taxing same as cost is reversed and here rendered.
All other assignments of error have been considered, are found to be without merit, and are accordingly overruled.
Except for the allowance of attorney's fees, the judgment of the trial court is in all things affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577286/ | 35 So. 3d 995 (2010)
STATE of Florida, Appellant,
v.
Keith Joseph McKNIGHT, Appellee.
No. 5D09-2743.
District Court of Appeal of Florida, Fifth District.
May 21, 2010.
*996 Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.
PER CURIAM.
The State appeals the downward departure sentence imposed on Keith McKnight ["McKnight"]. We reverse.
McKnight was charged by information with driving while license cancelled, suspended or revoked as a habitual traffic offender, a third-degree felony, and driving *997 under the influence, a misdemeanor. He has an extensive prior record and the State filed a notice of its intent to seek habitual offender status.[1]
On July 14, 2009, a status conference was held for the two offenses and the associated violation of probation. The court offered McKnight a withhold of adjudication on count one and two years of probation on count two. The State objected that such a sentence would be an impermissible downward departure. The computation of McKnight's criminal punishment code scoresheet reflected 114.4 total sentence points, with a resulting lowest permissible prison sentence of 62.55 months. McKnight readily agreed to the offer and was sentenced accordingly. The trial court further found that, although McKnight qualified as a habitual felony offender, the designation was not necessary for the protection of the public.
As its basis for the downward departure, the court said:
The reasons for the downward departure is that the defendant, prior to coming into court, relied upon the Court's not directionssuggestion that he use all best efforts to get a license, and by goodness, he has in fact got a license.
A downward departure sentence less severe than the lowest permissible sentence shown on the criminal punishment code scoresheet "is prohibited unless there are circumstances or factors that reasonably justify the downward departure." § 921.0026(1), Fla. Stat. (2009). At a minimum, the trial court must impose the lowest permissible sentence calculated according to the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure. See e.g., § 921.002(1)(f) & (3), Fla. Stat. (1999); State v. Henderson, 766 So. 2d 389, 390 (Fla. 2d DCA 2000). Section 921.0026(2) sets forth the circumstances under which a departure from the lowest permissible sentence is reasonably justified. The statutory list of mitigating factors is not exclusive and the trial court may impose a downward departure sentence for reasons not delineated in section 921.0026. See State v. Stephenson, 973 So. 2d 1259, 1263 (Fla. 5th DCA 2008); State v. Bray, 738 So. 2d 962, 963 (Fla. 2d DCA 1999).
In evaluating a nonstatutory mitigating circumstance, a reviewing court must consider the reasons given in light of the stated legislative sentencing policy. State v. Geoghagan, 27 So. 3d 111, 115 (Fla. 1st DCA 2009); Rafferty v. State, 799 So. 2d 243, 248 (Fla. 2d DCA 2001) (during sentencing, question trial court should ask is whether nonstatutory reasons given for downward departure meet legislative policy for departing downward in sentencing); State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998). As noted in Chestnut, because the first purpose of sentencing is to punish, a downward departure from the permissible sentence is discouraged and adequate justification is required. Id. Second, the mitigating factors expressly authorized by the Legislature mainly focus on the offense itself: the nature of the crime, the defendant's level of criminal involvement or participation, the mental capacity or state of mind of the defendant. Id.
The trial court's first reason for downward departurethat McKnight followed the judge's suggestion and obtained a valid licensedoes not resemble any of the statutorily authorized grounds for departure. It goes against the legislative policies of punishment and of increasing the severity of the punishment for repeat crimes. *998 McKnight has three prior convictions for driving while license cancelled, suspended or revoked. According to the police report, at the time McKnight was stopped for the DUI, his license was suspended and he was intoxicated at the time he was driving.
The second basis for the court's downward departure, that McKnight has previously received substantial prison time, also goes against legislative policy. The trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines. See State v. Sachs, 526 So. 2d 48, 50 (Fla.1988); Stephenson, 973 So.2d at 1264. Nor will an offender's work status or length of previous sentences support downward departure. See Geoghagan, 27 So.3d at 115; State v. Chapman, 805 So. 2d 906, 908 (Fla. 2d DCA 2001); State v. Nathan, 632 So. 2d 127, 128 (Fla. 1st DCA 1994); State v. Lacey, 553 So. 2d 778 (Fla. 4th DCA 1989).
According to the record, McKnight is gainfully employed cleaning septic tanks and he had previously paid substantial restitution for treatment of a prior victim's injuries. The trial court expressed the view that it made more sense for McKnight to "continue to be a law-abiding, tax-paying, contributing member of society," and not to be a "drag" on the citizens of Florida by being incarcerated for several years. The state legislature has established different priorities in its sentencing policy, however, and has chosen not to repose that kind of downward sentencing discretion in the state's judges.
Because the trial court failed to articulate valid reasons for the downward departure sentence, the downward departure sentence is vacated. On remand, McKnight may be permitted to withdraw his plea, if he chooses to do so, or be resentenced within the guidelines.
SENTENCE VACATED and REMANDED.
GRIFFIN, SAWAYA and LAWSON, JJ., concur.
NOTES
[1] Thirteen prior felonies and thirteen prior misdemeanors appear in the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917957/ | 993 A.2d 955 (2010)
296 Conn. 1
Nilsa RODRIGUEZ
v.
Mark J. TESTA et al.
No. 18389.
Supreme Court of Connecticut.
Argued December 10, 2009.
Decided May 4, 2010.
*957 Andre M. Mura, Washington, DC, pro hac vice, with whom was Lori D. McHugh, for the appellant (plaintiff).
Cesar A. Noble, Hartford, with whom, on the brief, was Yelena Akim, for the appellee (defendant Daimler Chrysler Financial Service America Trust).
ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.
ZARELLA, J.
The principal issue in this appeal is whether 49 U.S.C. § 30106,[1] also known as the Graves Amendment,[2] preempts state law imposing vicarious liability on the lessor of an uninsured motor vehicle for damages caused by the negligent acts of the lessee or an agent thereof. The plaintiff, Nilsa Rodriguez, claims that the trial court improperly granted the summary judgment motion of the defendant Daimler Chrysler Financial Service America Trust (Daimler Chrysler) because the Amendment does not preempt General Statutes § 14-154a[3] under the circumstances of this case. The plaintiff also claims that the Amendment is an unconstitutional exercise of Congressional power under the commerce clause of the United States constitution. See U.S. Const., art. I, § 8, cl. 3. Daimler Chrysler responds that the trial court properly granted its summary judgment motion because the Amendment is constitutional and a lessor's failure to insure a vehicle in accordance with § 14-154a (b)(1) does not trigger the Amendment's savings clause, which excludes from preemption state laws imposing liability on lessors for, inter alia, failure to meet "financial responsibility or liability insurance requirements...." 49 U.S.C. § 30106(b)(2) *958 (2006).[4] We agree with Daimler Chrysler that the Amendment preempts § 14-154a under the facts of this case and that the Amendment is constitutional. Accordingly, we affirm the judgment of the trial court.
The following undisputed facts[5] and procedural history are relevant to our resolution of this appeal. On July 9, 2006, the plaintiff was involved in a motor vehicle accident in which a vehicle operated by the named defendant, Mark J. Testa, struck her vehicle. Testa's company, Bright Lighting, Inc., had leased the vehicle from Daimler Chrysler for a term of thirty-nine months, but the vehicle was not insured by Daimler Chrysler at the time of the accident.
Thereafter, the plaintiff commenced this action against Testa, Daimler Chrysler and three other defendants.[6] In her amended complaint, the plaintiff alleged in part that Daimler Chrysler, as owner and lessor of the vehicle, was liable for Testa's negligent operation of the vehicle under the theory of vicarious liability set forth in § 14-154a. Daimler Chrysler filed a motion for summary judgment, arguing that the state law was preempted by the Graves Amendment, and the trial court granted the motion. Relying in part on Farmers Texas County Mutual v. Hertz Corp., 282 Conn. 535, 543-44 n. 9, 923 A.2d 673 (2007), and Moncrease v. Chase Manhattan Auto Finance Corp., 98 Conn.App. 665, 668 n. 1, 911 A.2d 315 (2006), the court concluded that "[t]he law on the question of the effect of [the Amendment] is well settled. Connecticut can no longer impose vicarious liability on the owner of a rented or leased vehicle." (Internal quotation marks omitted.) The court further concluded that the Amendment was constitutional, as there was "a clear, self-evident relation between interstate commerce and the leasing of motor vehicles." The court thus determined that, because there was no genuine issue of material fact and the plaintiff did not allege negligence or criminal wrongdoing on the part of Daimler Chrysler to bring her claim outside the scope of the Amendment; see 49 U.S.C. § 30106(a)(2) (2006); Daimler Chrysler had met its burden of establishing that it was entitled to judgment as a matter of law.
On January 9, 2009, the plaintiff filed a motion for articulation of the trial court's ruling. In its response, the court explained that examples of negligence or criminal wrongdoing that would establish Daimler Chrysler's liability under state law would be the leasing of a vehicle "with bald tires, faulty brakes, a sticky gas pedal or any other known mechanical [defect]" that was "the proximate cause of the accident." The court further explained that, because "leased vehicles may be driven across state lines," Congress has authority under the commerce clause of the United States constitution to adopt laws regulating *959 such vehicles. This appeal followed.[7]
We begin with the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... Our review of the trial court's decision to grant [Daimler Chrysler's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198-99, 931 A.2d 916 (2007). Issues of statutory construction and constitutional interpretation are also matters of law subject to our plenary review. See, e.g., Honulik v. Greenwich, 293 Conn. 641, 668, 980 A.2d 845 (2009) (constitutional interpretation); Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8, 976 A.2d 668 (2009) (statutory construction).
I
The plaintiff first claims that the trial court improperly granted Daimler Chrysler's summary judgment motion because the Graves Amendment does not preempt her state law claim. The plaintiff contends that the two cases on which the trial court relied did not address the preemptive scope of the Amendment in relation to Connecticut law. She also contends that the trial court improperly construed the Amendment's savings clause, which excludes from preemption those state laws that impose liability on motor vehicle lessors for failure to comply with state financial responsibility or liability insurance requirements. The plaintiff claims that § 14-154a (b)(1) is such a law because it provides that a long-term lessor[8] that obtains bodily injury liability insurance of not less than $100,000 per person and $300,000 per occurrence may avoid vicarious liability for the lessee's negligent conduct, thus encouraging such lessors to provide the specified coverage for their vehicles. Daimler Chrysler replies that the trial court properly granted its summary judgment motion because § 14-154a is not the type of financial responsibility or liability insurance law that qualifies for exemption from preemption under the savings clause. We agree with Daimler Chrysler.
"The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution." (Internal quotation marks omitted.) Hackett v. J.L. G. Properties, LLC, 285 Conn. 498, 504, 940 A.2d 769 (2008). The supremacy clause of the United States constitution provides in relevant part: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. "[S]tate law is pre-empted under the [s]upremacy [c]lause... in three circumstances. First, Congress *960 can define explicitly the extent to which its enactments pre-empt state law.... Preemption fundamentally is a question of congressional intent ... and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one."
"Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the [f]ederal [g]overnment to occupy exclusively. Such an intent may be inferred from a scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it, or where an [a]ct of Congress touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.... Where ... the field which Congress is said to have pre-empted includes areas that have been traditionally occupied by the [s]tates, congressional intent to supersede state laws must be clear and manifest...."
"Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the [c]ourt has found pre-emption where it is impossible for a private party to comply with both state and federal requirements ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (Citations omitted; internal quotation marks omitted.) English v. General Electric Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990); see also Hackett v. J.L.G. Properties, LLC, supra, 285 Conn. at 504, 940 A.2d 769.
The Graves Amendment was enacted by Congress on August 10, 2005,[9] as part of a comprehensive transportation bill entitled the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (act), Pub.L. No. 109-59, 119 Stat. 1144 (2005). "The [a]ct deals generally with motor vehicle safety, primarily providing billions of dollars in funding allocations for transportation projects." Meyer v. Nwokedi, 777 N.W.2d 218, 222 (Minn. 2010). The Amendment was included in the act as a tort reform measure intended to bar recovery against car rental and leasing companies on the basis of vicarious liability. See, e.g., Garcia v. Van guard Car Rental USA, Inc., 540 F.3d 1242, 1244 (11th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1369, 173 L.Ed.2d 591 (2009); Green v. Toyota Motor CreditCorp, 605 F. Sup.2d 430, 434 (E.D.N.Y.2009). The Amendment contains a preemption clause and two savings provisions. The preemption clause in subsection (a) provides in relevant part: "An owner of a motor vehicle that rents or leases the vehicle to a person ... shall not be liable under the law of any State ... by reason of being the owner of the vehicle ... for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if
"(1) the owner ... is engaged in the trade or business of renting or leasing motor vehicles; and
"(2) there is no negligence or criminal wrongdoing on the part of the owner...." 49 U.S.C. § 30106(a) (2006).
*961 The savings provisions in subsection (b) provide in relevant part: "Nothing in this section supersedes the law of any State..."
"(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or
"(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law." 49 U.S.C. § 30106(b) (2006).
The parties do not dispute that Daimler Chrysler is engaged in the trade or business of leasing motor vehicles, is the owner of the vehicle involved in the accident, is not subject to allegations of negligence or criminal wrongdoing, and that the leased vehicle was uninsured. Rather, they dispute whether Daimler Chrysler is vicariously liable under § 14-154a because it constitutes the type of "financial responsibility or liability insurance [requirement]" that the savings clause was intended to exclude from preemption. Thus, our first task is to determine the meaning of the phrase "financial responsibility or liability insurance requirements," as that phrase is used in the savings clause.
"With respect to the construction and application of federal statutes, principles of comity and consistency require us to follow the plain meaning rule... because that is the rule of construction utilized by the United States Court of Appeals for the Second Circuit.... Moreover, it is well settled that [t]he decisions of the Second Circuit Court of Appeals carry particularly persuasive weight in the interpretation of federal statutes by Connecticut state courts.... Accordingly, our analysis of the pertinent federal [provision] begins with the plain meaning of the statute. United States v. Ripa, 323 F.3d 73, 81 (2d Cir.2003); [see also] In re Caldor Corp., 303 F.3d 161, 167-68 (2d Cir.2002) ( [a]s long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute ...). If the meaning of the text is not plain, however, we must look to the statute as a whole and construct an interpretation that comports with its primary purpose and does not lead to anomalous or unreasonable results." (Citation omitted; internal quotation marks omitted.) Dark-Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 571, 887 A.2d 848, cert. denied, 549 U.S. 815, 127 S.Ct. 347, 166 L.Ed.2d 26 (2006).
Because there is no Second Circuit decision interpreting the savings clause, we turn to Garcia v. Vanguard Car Rental USA, Inc., supra, 540 F.3d at 1242, an Eleventh Circuit decision, for guidance. In that case, the court examined the language in the savings clause, the terms of which are not defined elsewhere in the act, and concluded that Congress had "used the term `financial responsibility law[s]' to denote state laws which impose insurance-like requirements on owners or operators of motor vehicles ... but permit them to carry, in lieu of liability insurance per se, its financial equivalent, such as a bond or self-insurance." Id., at 1247. The court reasoned, under the principle of noscitur a sociis,[10] that the statutory context strongly implied that financial responsibility is closely linked to insurance requirements because both savings provisions, namely, *962 49 U.S.C. § 30106(b)(1), which exempts from preemption laws "imposing financial responsibility or insurance standards," and 49 U.S.C. § 30106(b)(2), which exempts from preemption laws penalizing the "failure to meet the financial responsibility or liability insurance requirements under State law," strongly imply that "financial responsibility is closely linked to insurance requirements." Garcia v. Vanguard Car Rental USA, Inc., supra, at 1247. The court further observed that "the most common legal usage of the term `financial responsibility' is [in reference] to state laws which require either liability insurance or a functionally equivalent financial arrangement.... Likewise, Black's Law Dictionary defines financial responsibility only to include requirements that motorists have proof of `insurance or other financial accountability.' " Garcia v. Vanguard Car Rental USA, Inc., supra, at 1247-48, quoting Black's Law Dictionary (8th Ed.2004). The court also noted that an insurance treatise on which the plaintiffs in that case relied not only suggested a meaning similar to that in Black's Law Dictionary, but indicated that "financial responsibility" laws "may be used to refer to statutes which suspend a motorist's license or vehicle registration if [the motorist] fail[s] to satisfy a judgment resulting from an accident." Garcia v. Vanguard Car Rental USA, Inc., supra, at 1248, citing 7A G. Couch, Insurance (3d Ed. Rev.2005) § 109:34, p. 109-46. The court thus concluded that "the import of the Graves Amendment is clear. States may require insurance or its equivalent as a condition of licensing or registration, or may impose such a requirement after an accident or unpaid judgment. 49 U.S.C. § 30106(b)(1) [2006]. They may suspend the license and registration of, or otherwise penalize, a car owner who fails to meet the requirement, or who fails to pay a judgment resulting from a collision.[11] 49 U.S.C. § 30106(b)(2) [2006]. They simply may not impose such judgments against rental car [or leasing] companies based on the negligence of their lessees. 49 U.S.C. § 30106(a) [2006]." Garcia v. Van guard Car Rental USA, Inc., supra, at 1249.
To our knowledge, no other federal court has considered the meaning of the term "financial responsibility" laws, as that term is used in the savings clause. Courts in at least two other states have done so, however, and have relied on Garcia in concluding that "financial responsibility" laws are laws that impose insurance like requirements on the owners of motor vehicles. Meyer v. Nwokedi, supra, 777 N.W.2d at 224 (adopting Garcia analysis and adding that "the phrase `financial responsibility' appears to modify the word `requirement[s]' in the ... savings clause, thereby supporting the conclusion that `financial responsibility' refers to insurancelike requirements"); see also West v. Enterprise Leasing Co., 997 So.2d 1196,1197-98 (Fla.App.2008) (adopting Garcia analysis); Vargas v. Enterprise Leasing Co., *963 993 So.2d 614, 621 (Fla.App.2008) (concluding that term "financial responsibility," as used in Amendment's savings clause, "denote[s] a minimum level of compulsory [automobile] insurance [coverage] or its equivalent"). We agree with the well reasoned analysis in Garcia and with that court's conclusion that the "financial responsibility or liability insurance requirements" to which the savings clause refers consist of insurance like requirements imposed on business entities engaged in the trade or business of renting or leasing motor vehicles. See Garcia v. Vanguard Car Rental USA, Inc., supra, 540 F.3d at 1247. Accordingly, we likewise conclude that the savings clause preserves those state statutes that impose liability on a lessor for failure to satisfy such requirements.
Our next task is to determine what kind of state insurance like requirements satisfies the definition of a financial responsibility law and thus falls within the scope of the savings clause. Two recent cases from other jurisdictions are instructive on this issue. In Garcia, the plaintiffs had argued that the disputed Florida law was a financial responsibility law that fell within the savings clause because the law "induce[d]" car rental companies to ensure that their lessees were adequately insured. Id., at 1248. The court initially observed that the Florida statute[12] accomplished its purpose of reducing a lessor's exposure to liability if the lessee complied with certain requirements for liability insurance. Id. The court, however, rejected the plaintiffs' argument, explaining that "not every inducement to lease only to the insured thereby becomes a financial responsibility law.... [F]inancial responsibility laws are legal requirements, not mere financial inducements imposed by law. Moreover, the inducement [that the plaintiffs relied] upon is ... premised upon the very vicarious liability [that] the ... Graves Amendment seeks to eliminate." (Emphasis added.) Id.
Even more recently, in Meyer v. Nwokedi, supra, 777 N.W.2d at 218, the Supreme Court of Minnesota considered whether a Minnesota statute[13] fell within *964 the savings clause because the statute limited liability for car rental companies that had obtained insurance coverage in excess of the minimum amount required of all vehicle owners under state law. Id., at 223-24. Like the court in Garcia, the Minnesota court determined that the state law did not impose liability for failure to meet insurance like requirements or liability insurance requirements for two reasons. Id., at 225-26. First, the legislature used "`if ... then ...' language" providing that, "if" the owner has a certain amount of coverage, "then" the owner will not be vicariously liable beyond a certain limit. Id., at 225. In other words, nothing in the statute requires rental vehicle owners to maintain insurance in the designated amount. See id. Second, the last portion of the statute provides that nothing in the statute changes the obligation of rental vehicle owners to comply with the requirements of compulsory insurance, which would be rendered superfluous if the first portion of the statute was construed to be a requirement. Id. The court thus read the Minnesota statute as "allowing insurers to provide extra coverage regardless of any provisions that impose minimum coverage requirements." (Emphasis in original.) Id., at 226.
The Connecticut statute at issue in the present case provides in relevant part: "Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." General Statutes § 14-154a (a). Such an owner may be shielded from vicarious liability under § 14-154a (b)(1), however, "if the total lease term is for one year or more and if, at the time damages are incurred, the leased vehicle is insured for bodily injury liability in amounts of not less than one hundred thousand dollars per person and three hundred thousand dollars per occurrence...."
The plaintiff claims that § 14-154a falls within the savings clause because the statute imposes liability on long-term lessors that fail to carry the bodily injury insurance coverage specified by the statute at the time of the accident. Daimler Chrysler disagrees on the ground that the statute does not create an affirmative duty to obtain such coverage. We find the analyses in Garcia and Meyer persuasive and conclude for similar reasons that the state provision in the present case does not fall within the savings clause[14] because the statute uses the same conditional language used in the Florida and Minnesota statutes. See footnotes 12 and 13 of this opinion.
The Connecticut statute specifically provides in subsection (b)(1) that, "if" the leased or rented vehicle is insured for a certain amount, the provisions of subsection (a) subjecting the owner to vicarious liability will not apply. See General *965 Statutes § 14-154a (b)(1). This is the same kind of inducement language that was found in Garcia to fall short of the legal requirement necessary to come within the savings clause. "A policy is a voluntary policy ... when, in fact, the procurement of the policy is not required by [law]." 7A G. Couch, supra, § 109:70, at p. 109-101. The interpretation that the plaintiff advances would require the court to "suppl[y] language that the legislature did not use, such as `shall have' or `requirement.'" Meyer v. Nwokedi, supra, 777 N.W.2d at 225. "When statutory language is clear and unambiguous we must presume that it meant what it said." Trankovich v. Frenish, Inc., 47 Conn.App. 628, 631, 706 A.2d 998 (1998). "It is well settled that a statute must be applied as its words direct." (Internal quotation marks omitted.) All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). Accordingly, lack of the word "shall" and use of the word "if" in subsection (b)(1) renders that provision conditional rather than mandatory.
To the extent the plaintiff claims that § 14-154a is an integral part of Connecticut's comprehensive motor vehicle law imposing on owners a responsibility for maintaining insurance on their vehicles because subsection (b)(1) purportedly requires lessors to obtain the insurance coverage specified in the statute to avoid vicarious liability, the plaintiff misunderstands that the conditional language in that provision does not impose a legal requirement because it does not mandate that lessors procure such coverage as a prerequisite to conducting business. It merely gives them the option to do so. Thus, a lessor is not in violation of the law if it chooses not to obtain the specified coverage. The difference between the legal effect of the if-then language in subsection (b)(1) and the mandatory language in other portions of the statutory scheme is striking when the statute is compared with statutory provisions that do impose insurance requirements on the owners or operators of motor vehicles. See, e.g., General Statutes § 14-112(a) ("[t]o entitle any person to receive or retain a motor vehicle operator's license or a certificate of registration of any motor vehicle ... the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars" [emphasis added]); General Statutes § 38a-371 (a)(1) ("[t]he owner of a private passenger motor vehicle required to be registered in this state shall provide and continuously maintain throughout the registration period security in accordance with sections 38a-334 to 38a-343, inclusive" [emphasis added]).
The plaintiff, citing Universal Underwriters Ins. Co. v. Paradis, 50 Conn.Supp. 486, 500, 940 A.2d 918 (2006), aff'd, 285 Conn. 342, 940 A.2d 730 (2008), also claims that the Graves Amendment preserves the state vicarious liability law embodied in § 14-154a because the financial responsibility laws to which the savings clause refers include laws that require the procurement of insurance policies in the "minimum amounts specified by statute." According to the plaintiff, these policies must be different from those required for the registration and operation of motor vehicles because the qualifying language in the savings provision of 49 U.S.C. § 30106(b)(1), which refers to laws "imposing financial responsibility or insurance standards ... for the privilege of registering *966 and operating a motor vehicle," is absent from the savings provision of 49 U.S.C. § 30106(b)(2), which does not refer to laws concerning the registration or operation of motor vehicles but to laws imposing liability "for failure to meet the financial responsibility or liability insurance requirements under State law."
This argument fails for several reasons. First, as we previously discussed, § 14-154a (b)(1) does not impose an insurance requirement on the owners of rented or leased vehicles but presents them with an option to choose additional coverage if they seek to avoid vicarious liability. Second, for owners seeking to avoid vicarious liability, the optional coverage provision in subsection (b)(1) of the state statute imposes a minimum level of coverage in excess of that required for the registration and operation of motor vehicles in Connecticut. See General Statutes § 14-112(a).[15] Third, as the court in Garcia explained, the savings provision of 49 U.S.C. § 30106(b)(1) excludes from preemption state laws that "may require insurance or its equivalent as a condition of licensing or registration, or may impose such a requirement after an accident or unpaid judgment"; Garcia v. Vanguard Car Rental USA, Inc., supra, 540 F.3d at 1249; whereas the savings provision of 49 U.S.C. § 30106(b)(2) preserves state laws that "suspend the license and registration of, or otherwise penalize, a car owner who fails to meet the requirement, or who fails to pay a judgment resulting from a collision." (Emphasis added.) Garcia v. Vanguard Car Rental USA, Inc., supra, at 1249. Because § 14-154a (b)(1), unlike § 14-112(a),[16] does none of those things, it cannot be deemed to be preserved.
Fourth, and perhaps most significantly, the plaintiff's interpretation of § 14-154a ignores the effect of the Graves Amendment on the statute's underlying purpose. As we previously noted, subsection (a) of the state statute imposes vicarious liability on the owners of leased or rented vehicles for the negligent acts of their lessees or renters, whereas subsection (b)(1) shields certain lessors from vicarious liability if they obtain the designated coverage. The inducement in subsection (b)(1) is predicated on the vicarious liability imposed *967 by subsection (a) because a failure to exercise the option of obtaining additional coverage would continue to expose the lessor to vicarious liability. Thus, the plaintiff's interpretation of § 14-154a would render the Amendment meaningless because it would maintain the potential for vicarious liability that Congress intended to preempt under the Amendment. The court in Garcia noted as much when it explained, with respect to the Florida statute, that, "[i]f [it had] construe[d] the Graves Amendment's savings clause as [the plaintiffs suggested], it would render the preemption clause a nullity. Every vicarious liability suit would be rescued because it could result in a judgment in favor of an accident victim, even though the judgment is premised on the very vicarious liability the Amendment seeks to eliminate. The exception would swallow the rule." Garcia v. Vanguard Car Rental USA, Inc., supra, 540 F.3d at 1248. Accordingly, we conclude that the Graves Amendment preempts § 14-154a because the state statute does not impose liability on lessors for their failure to meet the type of insurance like requirements contemplated under the savings clause.
II
The plaintiff claims in the alternative that the Graves Amendment is unconstitutional because it regulates state imposed liability for harm irrespective of whether the intrastate activity is directed at the channels or instrumentalities of interstate commerce. She claims that liability is not commerce or any other sort of economic enterprise and that the link between vicarious liability and its purported effect on interstate commerce is attenuated at best. Daimler Chrysler responds that the Amendment is a valid exercise of Congressional power under the commerce clause. We agree with Daimler Chrysler.
The constitution of the United States, article one, § 8, provides in relevant part: "The Congress shall have Power ... To regulate Commerce ... among the Several States...." The United States Supreme Court has identified "three broad categories of activity that Congress may regulate under its commerce power.... First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce...." (Citations omitted.) United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
Neither the United States Supreme Court nor the Second Circuit has ruled on the constitutionality of the Graves Amendment. Numerous other federal courts have done so, however, and all but one district court have found it to be a proper exercise of the commerce power granted to Congress by the United States constitution. See, e.g., Garcia v. Vanguard Car Rental USA, Inc., supra, 540 F.3d at 1253; Kersey v. Hirano, Docket No. WDQ-08-1041, 2009 WL 2151845, *2 (D.Md. July 15, 2009); Green v. Toyota Motor CreditCorp, supra, 605 F. Sup.2d at 435; Stampolis v. Provident Auto Leasing Co., 586 F. Sup.2d 88, 94 (E.D.N.Y.2008); Flagler v. Budget Rent A Car System, Inc., 538 F. Sup.2d 557, 559 (E.D.N.Y.2008); Berkan v. Penske Truck Leasing Canada, Inc., 535 F. Sup.2d 341, 345 (W.D.N.Y.2008); Jasman v. DTG Operations, Inc., 533 F. Sup.2d 753, 757 (W.D.Mich.2008); Dupuis *968 v. Vanguard Car Rental USA, Inc., 510 F. Sup.2d 980, 985 (M.D.Fla.2007); Seymour v. Penske Truck Leasing Co., L.P., Docket No. 407CV015, 2007 WL 2212609, *2 (S.D.Ga. July 30, 2007). Contra Vanguard Car Rental USA, Inc. v. Huchon, 532 F. Sup.2d 1371, 1382 (S.D.Fla.2007) (Graves Amendment is unconstitutional); Vanguard Car Rental USA, Inc. v. Drouin, 521 F. Sup.2d 1343, 1351 (S.D.Fla. 2007) (same).
These courts generally have concluded that the Graves Amendment fits within the second category of activity that Congress may regulate under its commerce power because car rental companies are "instrumentalities of, and things in, interstate commerce" and "should not be subjected to state by state regulatory regimes that can dramatically burden their operations even if only on an intrastate basis." (Internal quotation marks omitted.) Green v. Toyota Motor CreditCorp, supra, 605 F.Supp.2d at 435; see also Stampolis v. Provident Auto Leasing Co., supra, 586 F.Supp.2d at 95; Flagler v. Budget Rent A Car System, Inc., supra, 538 F.Supp.2d at 559-60. They also have concluded that the Amendment fits within the third category because "vicarious liability laws may, in the aggregate, adversely affect the motor vehicle leasing market." Green v. Toyota Motor CreditCorp, supra, at 435; see also Stampolis v. Provident Auto Leasing Co., supra, at 104; Flagler v. Budget Rent A Car System, Inc., supra, at 560. This is because leasing companies may cease doing business in states with vicarious liability laws or may increase the cost of leasing cars to consumers in those and other states. Green v. Toyota Motor Credit-Corp, supra, at 435-36. Accordingly, we join the overwhelming majority of federal courts that have considered the question and concluded that the Amendment is constitutional.
Insofar as the plaintiff claims that liability is not commerce and that the Graves Amendment seeks to regulate state tort law rather than the rental car market, her claim has no merit. As the court in Garcia noted when the plaintiffs made a similar claim, this is "a distinction without a difference" because the state tort law preempted by the Amendment regulates the rental car market, and the effect of the Amendment is to deregulate that market. Garcia v. Vanguard Car Rental USA, Inc., supra, 540 F.3d at 1252. The court in Garcia further explained: "[I]t has long been understood that the commerce power includes not only the ability to regulate interstate markets, but the ability to facilitate interstate commerce by removing intrastate burdens and obstructions to it.... On this theory, the Graves Amendment protects the rental car market by deregulating it, eliminating state-imposed laws and lawsuits Congress reasonably believed to be a burden on an economic activity with substantial effects on commerce.... Congress may foster and protect the entire market for rental cars because, in the aggregate, that market substantially affects interstate commerce. [As] long as the underlying economic activity the federal statute aims to protect is within the commerce power, we will not second guess [Congress'] decision that preemption is an appropriate means to achieve proper ends. Rather, Congress may choose any means reasonably adapted to the attainment of the suited end, even though they [involve] control of intrastate activities." (Citations omitted; internal quotation marks omitted.) Id., at 1252-53.
The plaintiff suggests that we should follow the substantial effects analysis in New York v. Beretta U.S.A. Corp., 524 F.3d 384, 393-95 (2d Cir.2008) (Beretta), cert. denied, ___ U.S. ___, 129 S.Ct. 1579, 173 L.Ed.2d 675(2009), instead of adopting the reasoning of Garcia. In Beretta, the *969 Second Circuit considered the constitutionality of a federal law[17] that preempted a New York law affecting the interstate firearms industry by precluding civil actions against members of the industry for unlawful acts committed by third parties. Id., at 389, 393. The plaintiff in the present case claims that, in its analysis of that issue, the Second Circuit did not determine whether the federal law directly regulated firearms as a "`thing'" in interstate commerce, as the court in Garcia did with respect to the car rental industry, but focused instead on whether tort litigation relating to the firearms industry substantially affected interstate commerce. We disagree. The court in Beretta, like the court in Garcia, analyzed the issue in question pursuant to the third category of activity that Congress may regulate under its commerce power, namely, the power to regulate activities "having a substantial relation to interstate commerce...." (Internal quotation marks omitted.) Id., at 393; see id., at 395. Moreover, like the court in Garcia, the court in Beretta did not view the regulated activity as tort litigation per se but as the firearms industry. See id., at 394. The court specifically explained that, "[w]hen enacting the [federal law], Congress explicitly found that the third-party suits that the [federal law] bars are a direct threat to the firearms industry, whose interstate character is not questioned. Furthermore, the [federal law] only reaches suits that have an explicit connection with or effect on interstate commerce." (Emphasis added; internal quotation marks omitted.) Id. The court thus concluded that there was no showing that Congress had exceeded its authority when "there [could] be no question of the interstate character of the industry in question and [when] Congress rationally perceived a substantial effect on the industry of the litigation that the [federal law sought] to curtail." (Emphasis added.) Id., at 395. Just as the regulated activity in Garcia was the rental car industry rather than the Florida state law concerning vicarious liability, the regulated activity in Beretta was the firearms industry rather than New York state law concerning tort litigation. Accordingly, the plaintiff's unsupported claim must fail.
We thus conclude that, because the Graves Amendment preempts state law and is a valid exercise of Congressional authority under the commerce clause of the United States constitution, the trial court properly granted Daimler Chrysler's summary judgment motion.
The judgment is affirmed.
In this opinion the other justices concurred.
NOTES
[1] Title 49 of the United States Code, § 30106, provides in relevant part: "(a) In General. An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if
"(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
"(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).
"(b) Financial Responsibility Laws.Nothing in this section supersedes the law of any State or political subdivision thereof
"(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or
"(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law...."
[2] We hereinafter refer to 49 U.S.C. § 30106 as the Graves Amendment or the Amendment.
[3] General Statutes § 14-154a provides in relevant part: "(a) Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.
"(b) The provisions of subsection (a) of this section shall not apply to:
"(1) Any person, with respect to the person's lease to another of a private passenger motor vehicle, if the total lease term is for one year or more and if, at the time damages are incurred, the leased vehicle is insured for bodily injury liability in amounts of not less than one hundred thousand dollars per person and three hundred thousand dollars per occurrence...."
[4] The Amendment's savings clause appears in 49 U.S.C. § 30106(b) and consists of two provisions, one in subdivision (1) and the other in subdivision (2). This appeal primarily concerns the savings provision of 49 U.S.C. § 30106(b)(2). In the interest of simplicity, we hereinafter refer to the savings provision of 49 U.S.C. § 30106(b)(2) as the "savings clause." In the event that we must compare the two savings provisions of 49 U.S.C. § 30106(b) for purposes of illustration, we refer to them specifically by subdivision.
[5] In its memorandum of decision, the trial court noted that Daimler Chrysler did not dispute "any of the relevant facts" that the plaintiff had alleged, including the fact that Daimler Chrysler was the owner of the vehicle in question.
[6] The other defendants are Bright Lighting, Inc., Michael Plourde and GEICO Indemnity Company.
[7] The plaintiff appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
[8] We use the term "long-term lessor" to refer to a lessor that enters into a lease with a term of one year or more.
[9] The Graves Amendment is applicable to all actions "commenced on or after the date of enactment [namely, August 10, 2005] ... without regard to whether the harm that is the subject of the action, or the conduct that caused the harm, occurred before such date of enactment." 49 U.S.C. § 30106(c)(2006). The Amendment clearly applies to the present action, which was commenced in 2006.
[10] Noscitur a sociis is a canon of statutory construction providing that "statutory terms... [that are] ambiguous when considered alone ... should be given related meaning when grouped together." Garcia v. Van guard Car Rental USA, Inc., supra, 540 F.3d at 1247.
[11] In claiming that the savings clause preserves the state statute because 49 U.S.C. § 30106(b)(2), unlike 49 U.S.C. § 30106(b)(1), is not expressly limited in its application to state laws relating to the registration and operation of a motor vehicle, the plaintiff relies on the principle that, when "Congress includes particular language in one section of a statute but omits it in another section of the same [a]ct, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (Internal quotation marks omitted.) Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). We disagree. More than one canon of statutory construction may be relevant in any given case, and we do not find the application of the principle of noscitur a sociis, on which the Eleventh Circuit relied in part in Garcia, unreasonable under the facts of the present case.
[12] Fla. Stat. § 324.021(9)(b) (2007) provides in relevant part: "2. The lessor, under an agreement to rent or lease a motor vehicle for a period of less than 1 year, shall be deemed the owner of the motor vehicle for the purpose of determining liability for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the lessee or the operator of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the lessor shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the lessor for economic damages shall be reduced by amounts actually recovered from the lessee, from the operator, and from any insurance or self-insurance covering the lessee or operator. Nothing in this subparagraph shall be construed to affect the liability of the lessor for its own negligence...." (Emphasis added.)
[13] Minn.Stat. § 65B.49, subd. 5a (i) (2008) provides in relevant part: "(2) ... [A]n owner of a rented motor vehicle is not vicariously liable for legal damages resulting from the operation of the rented motor vehicle in an amount greater than $100,000 because of bodily injury to one person in any one accident and, subject to the limit for one person, $300,000 because of injury to two or more persons in any one accident, and $50,000 because of injury to or destruction of property of others in any one accident, if the owner of the rented motor vehicle has in effect, at the time of the accident, a policy of insurance or self-insurance ... covering losses up to at least the amounts set forth in this paragraph. Nothing in this paragraph alters or affects the obligations of an owner of a rented motor vehicle to comply with the requirements of compulsory insurance through a policy of insurance... or through self-insurance.... Nothing in this paragraph alters or affects liability, other than vicarious liability, of an owner of a rented motor vehicle." (Emphasis added.)
[14] Although the trial court relied in part on Farmers Texas County Mutual v. Hertz Corp., supra, 282 Conn. at 543-44 n. 9, 923 A.2d 673, and Moncrease v. Chase Manhattan Auto Finance Corp., supra, 98 Conn.App. at 668 n. 1, 911 A.2d 315, in concluding that Connecticut no longer imposes vicarious liability on the owners of leased vehicles or rental cars, the relevant passages in those cases providing that the Graves Amendment preempts state law and eliminates vicarious liability under § 14-154a were not part of the holdings in those cases and thus constitute dicta. Accordingly, we conduct our own analysis of the Amendment in order to discern its meaning.
[15] General Statutes § 14-112(a) provides in relevant part: "To entitle any person to receive or retain a motor vehicle operator's license or a certificate of registration of any motor vehicle ... the commissioner [of motor vehicles] shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars...."
[16] Indeed, subsection (a) of § 14-112, which is entitled "Proof of financial responsibility," is exactly the type of financial responsibility law that is preserved under the savings provision of 49 U.S.C. § 30106(b)(1), because subsection (a) not only requires insurance as a condition of licensing or registration but imposes serious penalties on those who fail to obtain it. General Statutes § 14-112(a) provides in relevant part that, "[i]f any person fails to furnish ... proof [of the required insurance], the commissioner [of motor vehicles] shall, until such proof is furnished, suspend or revoke the license of such person to operate a motor vehicle or refuse to return any license which has been suspended or revoked in accordance with the provisions of section 14-111 or suspend or revoke the registration of any such motor vehicle or vehicles or refuse thereafter to register any motor vehicle owned by such person or refuse to register any motor vehicle transferred by him if it does not appear to the commissioner's satisfaction that such transfer is a bona fide sale, or, if such person is not a resident of this state, withdraw from such person the privilege of operating any motor vehicle in this state and the privilege of operation within this state of any motor vehicle owned by him...."
[17] The federal law, which became effective on October 26, 2005, is the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901 through 7903, which provides in relevant part that, any "qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending." 15 U.S.C. § 7902(b) (2006). Under an exception to the law, however, a civil action may proceed when a plaintiff adequately alleges that a "manufacturer or seller of [firearms transported in interstate or foreign commerce] knowingly violated a State or Federal statute applicable to the sale or marketing of [firearms], and the violation was a proximate cause of the harm for which relief is sought...." 15 U.S.C. § 7903(5)(A)(iii) (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917968/ | 101 B.R. 803 (1989)
In re Paul J. DEL VECCHIO and Jacqueline Del Vecchio, Debtors.
Paul J. DEL VECCHIO and Jacqueline Del Vecchio, Plaintiffs,
v.
ATICO SAVINGS BANK, Defendant.
Bankruptcy No. 88-02838-BKC-TCB, Adv. No. 89-0185-BKC-TCB-A.
United States Bankruptcy Court, S.D. Florida.
June 5, 1989.
Rotella & Boone, P.A., Gary J. Rotella, Ft. Lauderdale, Fla., for plaintiffs.
Stearns Weaver Miller, Miller Weissler Alhadeff & Sitterson, P.A., Robert A. Mark, Miami, Fla., for defendant.
MEMORANDUM DECISION
THOMAS C. BRITTON, Chief Judge.
These voluntary chapter 7 debtors seek, in this adversary proceeding, the "cancellation and avoidance of" a $77,500 prepetition State court judgment in favor of the defendant bank. Defendant's motion to dismiss (CP 4) was heard, May 25, before trial.
For the reasons which follow, the motion is granted and this complaint is dismissed without leave to amend, but without prejudice to State court proceedings under Fla. Stat. § 55.145[1] and without prejudice to *804 any proceedings to void any lien upon other grounds which may be applicable under bankruptcy law.
The Complaint Though Ambiguous Is Under § 522(f)(1)
Section 522(f) contains two alternative and completely different causes of action, § 522(f)(1) and § 522(f)(2).[2]
Though the complaint (¶ 2) alleges that:
"this action is filed by the Debtor to avoid a nonpossessory, nonpurchase money security interest in household and personal goods"
and thus appears to seek relief under § 522(f)(2), no remaining allegation supports that assertion and all remaining allegations, including the prayer for relief, as well as the oral argument of plaintiffs' counsel make it clear that plaintiffs are proceeding on § 522(f)(1). I have assumed the latter for the purposes of this hearing and this Order.
The Relevant Facts
The facts are those pleaded by plaintiffs, as clarified by plaintiffs or conceded by defendant at the hearing, and those of which this court takes judicial notice from its records. Fed.R.Evid. 201; State of Florida v. Charley Toppino & Sons, Inc., 514 F.2d 700, 704 (5th Cir.1975). The relevant facts are:
On August 11, 1986, the debtor husband acquired a single-family residence in Boca Raton, which was occupied by both debtors continuously as their residence from that date to the filing of this complaint on April 21, 1989.
That property is now and has been since the date of its acquisition a Florida Homestead, protected by Art. X, § 4 Fla. Const.
On March 16, 1988 defendant obtained a $77,500 judgment against the debtor husband[3] in the Florida Circuit Court for Palm Beach County. The judgment was not based upon a purchase money mortgage.
The debtors filed a voluntary chapter 7 bankruptcy petition on July 20, 1988, claiming and receiving, as of that date, the foregoing Homestead Exemption. They received a bankruptcy discharge on November 11, 1988. There has been no effort to enforce the judgment against the Homestead or otherwise and none has been threatened or is presently contemplated.
The only "impairment" of the Homestead exemption claimed by plaintiffs is that if they tried to sell their residence, the judgment might "interfere" with the sale. They have made no effort to sell their residence and contemplate no sale.
Plaintiffs Seek More Than § 522(f)(1) Permits
Plaintiffs acknowledge that they seek from this court now the equivalent of a State court "order of cancellation and discharge" under Fla.Stat. § 55.145, supra n. 1, the cancellation of the judgment from the Florida property records and the equivalent under that statute of a satisfaction of the judgment.
*805 They do not seek the only relief permitted by § 522(f)(1): "the avoid[ance] [of] the fixing of [the judgment] lien". The Florida Constitution itself provides that relief:
"no judgment, decree or execution shall be a lien thereon . . . ".
The relief plaintiffs seek would prevent defendant's judgment ever attaching to this property, if and when it later loses its Homestead status, or to any other property ever acquired by the judgment debtor. Section 522(f)(1) does not authorize this court to give that relief.
Furthermore, no relief whatsoever is authorized under § 522(f)(1) except "to the extent that [a judgment] lien impairs an exemption." The possibility that a judgment, which is not a lien might in the future "interfere" with a possible, but not presently contemplated, future sale of the debtors' Homestead, does not now "impair" the exemption already granted these debtors by this court.
At the hearing, plaintiffs also explained that the relief available to them after November 10, 1989, in the State court under the Florida Statute, is more costly and would take longer, than would be required in this court. This court has no general warrant to displace State Courts. Any time it does so, this court jeopardizes its ability to provide speedy and inexpensive relief in those areas it alone is charged with.
DONE AND ORDERED.
NOTES
[1] "At any time after one (1) year has elapsed since a bankrupt or debtor was discharged from his debts, pursuant to the Act of Congress relating to Bankruptcy, the bankrupt or debtor, his receiver or trustee, or any interested party may petition the Court in which the judgment was rendered against such bankrupt or debtor for an order to cancel and discharge such judgment. The petition shall be accompanied by a certified copy of the discharge of said bankrupt or by a certified copy of the order of confirmation of the arrangement filed by said debtor. The petition, accompanied by copies of the papers upon which it was made, shall be served upon the judgment creditor in the manner prescribed for service of process in a civil action. If it appears upon the hearing that the bankrupt or debtor has been discharged from the payment of that judgment or of the debt upon which it was recovered, the Court shall enter an order canceling and discharging said judgment. The order of cancellation and discharge shall have the same effect as a satisfaction of judgment and a certified copy thereof may be recorded in the same manner as a satisfaction of judgment. This section shall apply only to liens under judgments or obligations duly scheduled in the bankruptcy proceedings."
[2] "Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(C) professionally prescribed health aids for the debtor or a dependent of the debtor." § 522(f).
[3] The complaint (¶ 3) ambiguously alleges that the judgment is against the "plaintiff". It is clear, however, from the rest of the complaint that "plaintiff" means the debtor husband, who also acquired the real property in question and resides there "as head of the household with his wife", the other debtor/plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917974/ | 135 N.W.2d 103 (1965)
Cyril H. STRANG and Veronica O'Shea, as Administrators of the Estate of Mary Strang, Deceased, Appellants,
v.
George FRINK, Appellee.
No. 51681.
Supreme Court of Iowa.
May 4, 1965.
Rehearing Denied June 30, 1965.
*104 Less & Less, Cascade, and Clewell, Cooney & Fuerste, Dubuque, for appellants.
O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellee.
GARFIELD, Chief Justice.
This is a law action by the administrators of the estate of Mary Strang, deceased, to recover for her death resulting from an automobile collision allegedly caused by defendant's negligence. At the conclusion of plaintiffs' evidence the trial court directed a verdict for defendant on the ground of failure of proof of his actionable negligence. From judgment on the directed verdict plaintiffs have appealed.
I. Defendant makes no attempt to uphold the court's ruling on the ground on which it was placed. He seeks to uphold it on another ground of his motion to direct, which was overruled, that decedent's conduct constituted contributory negligence as a matter of law. Defendant is entitled to argue the ruling should be affirmed on any asserted ground of the motion to direct even though the motion was not sustained on such ground. Culbertson v. Anderson, 251 Iowa 265, 273-274, 100 N.W. 2d 633, 637, and citations; Markman v. Hoefer, 252 Iowa 118, 123, 106 N.W.2d 59, 62, and citations; Ontario Livestock Comm. Co. v. Flynn, 256 Iowa 116, 126 N.W.2d 362, 366-367.
II. The following propositions are deemed so well established that authorities need not be cited in support of any of them. Upon this appeal we give plaintiffs' evidence the most favorable construction it will reasonably bear. Plaintiffs must prove decedent's freedom from contributory negligence by a preponderance of the evidence. Generally the question of freedom from contributory negligence is for the jury; it is only in exceptional cases it may be decided as a matter of law. Even when the facts are not in dispute or contradicted, if reasonable minds might draw *105 different inferences from them, a jury question is engendered. See rule 344(f), 2, 8, 10 and 17, Rules of Civil Procedure, 58 I.C.A.
Ill. Dec.edent, 86 years, 9 months old at the time of the accident, was a rear seat passenger in an automobile driven by her daughter Margaret Eilers, then 60. They had started the return trip from Dubuque to their home in Monticello (about 35 miles) on a Sunday afternoon. The highway, U. S. 151, was divided, with two lanes for traffic in each direction and a median strip six to eight inches high between the two inside lanes. Mrs. Eilers approached the highway from Grandview Avenue in Dubuque which passed over 151 near the entrance she took. She had not driven this route before since "they" had the new road and was not familiar with it.
When Mrs. Eilers reached the overpass she stopped, saw no arrow pointing to the right, thought she was supposed to cross the overpass, did so, and then mistakenly took the approach to 151 that led to the northbound (east) lanes rather than the southbound (west) ones she intended to enter. Mrs. Eilers soon realized her error and was so frightened she didn't know what to do. She decided she would try to "jump" over the median strip on a bridge she was approaching and thus get into the southbound side. There was no grass growing in this strip on the bridge. Before Mrs. Eilers could carry out her plan she collided with defendant's northbound car which was in the act of passing a truck, also going north. She was driving only about 15 miles per hour as far to her right (west) as she could get.
Mrs. Eilers testified her mother was sitting behind her in the left rear seat, Mr. Eilers was at his wife's right in the front seat, and the ten-year-old Eilers boy was sitting at decedent's right in the rear seat. She also said, "My mother never made any comments about my speed or my driving. She at no time said anything or warned or advised me about being on a one-way road. * * * I knew I was on the wrong side of the road, nobody had to warn me." At another point Mrs. Eilers testified, "My mother had nothing to do with coming or going in this automobile except to ride along. She did not drive a car."
IV. We think the issue of decedent's freedom from contributory negligence was properly for the jury and the directed verdict may not be upheld on the ground now urged.
This case is to be distinguished from one Mrs. Eilers might have brought to recover for her own injuries. Recovery for the death of decedent-passenger is controlled by different considerations. She had no control over the automobile. Her daughter's negligence, therefore, is not to be imputed to decedent. The question is whether decedent, rather than Mrs. Eilers, exercised ordinary care for her own safety.
It is probably true that decedent to a limited extent entrusted her safety and the direction of the automobile to her daughter. But this was not necessarily negligence on her part. A passenger in an automobile is not under an absolute duty to see an impending danger in time to interfere and prevent it. Within reasonable limits she may rely upon the skill and judgment of the driver. A passenger is not required to exercise the same degree of vigilance as required of the driver. In support of what is so far said in this division see Frideres v. Lowden, 235 Iowa 640, 647-648, 17 N.W.2d 396, 400, and citations. See also Teufel v. Kaufmann, 233 Iowa 443, 447-448, 6 N.W.2d 850, 852-853, and citations.
Defendant argues decedent should have demanded that her daughter stop the car and allow her to alight, or tell her to immediately cross the median strip, or turn to her left to the shoulder on the east side of the northbound lanes, or warn her daughter of the imminent collision with defendant. This is proper argument to a jury that will doubtless be urged upon it *106 in the event of a retrial. But we are not persuaded the exercise of ordinary care required decedent, as a matter of law, to resort to any of the suggested alternatives. It would seem reasonable minds might not agree as to the wisdom of taking any of these steps.
In connection with what is just said see Puhrmann v. Lund, 254 Iowa 304, 307, 117 N.W.2d 495, 497; also Teufel v. Kaufmann, supra, which holds, "* * * while a passenger in an automobile must exercise reasonable care for his safety, he is not necessarily under the duty to do some specific thing such as warn the driver."
This is not such a case as Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, cited by defendant, or Peterson v. Davis, 254 Iowa 1359, 121 N.W.2d 111, not cited by him. In each case no evidence was offered as to what the injured passenger was or was not doing at the time of the accident. So far as shown, she may have been doing something actually dangerous, such as diverting the driver's attention or interfering with operation of the car. In the cited precedents the jury had no evidence from which it could determine the question of freedom from contributory negligence.
Where, as here, it is shown the passenger does or says substantially nothing a jury question is presented on freedom from contributory negligence. The jury then has something from which it may decide the issue, perhaps on the theory it would be unwise for the passenger to have done or said anything under the circumstances or that her not doing so did not contribute directly to the collision and resulting injury. This is all fully explained in Peterson v. Davis, supra; Puhrmann v. Lund, supra, 254 Iowa 304, 307, 117 N.W.2d 495, 497, and McKirchy v. Ness, 256 Iowa ___, 128 N.W.2d 910, 915-916. See also Mathews v. Beyer, 254 Iowa 52, 58-59, 116 N.W.2d 477, 481.
Aside from Paulsen v. Haker, supra, 250 Iowa 532, 95 N.W.2d 47, defendant's main reliance seems to be upon Hewitt v. Ogle, 219 Iowa 46, 256 N.W. 755, which upholds a judgment on directed verdict against a passenger in an automobile on the ground of her contributory negligence. The Hewitt opinion deals mainly with the contributory negligence of the driver, rather than the passenger, and does not mention the lesser degree of vigilance required of the latter. The principal precedent the opinion cites and quotes from at length is not one which involved a passenger's freedom from contributory negligence. Hewitt v. Ogle has been distinguished in some of our later cases that more nearly resemble this one and is not controlling here.
V. We must disagree with plaintiffs' contention they are entitled to the benefit of the no eyewitness rule on the issue of decedent's freedom from contributory negligence. Briefly stated, the rule is that where there is no eyewitness and no obtainable direct evidence of what a decedent did or failed to do by way of precaution at and immediately prior to the time of his injury, the jury may infer he was in the exercise of ordinary care for his own safety. Lingle v. Minneapolis & St. L. Ry. Co., 251 Iowa 1183, 1187, 104 N.W.2d 467, 469, and citations; Vandello v. Allied Gas & Chemical Co., 252 Iowa 1313, 1315-1316, 110 N.W.2d 232, 233; Hoffman v. Monroe Welding Supply Co., 253 Iowa 591, 596, 113 N.W.2d 237, 240, and citations.
It is implicit in our holding in Division IV that there is direct evidence of what decedent did or failed to do at and immediately prior to the time of her fatal injury. As we there try to point out upon the authority of several of our recent precedents, direct evidence that decedent said or did nothing is direct evidence on which a finding of freedom from contributory negligence could properly rest. Direct evidence of what a decedent failed to do during the material moments preceding an injury precludes application of the no eyewitness rule just as does direct evidence of *107 what a decedent affirmatively did. In either event there is direct evidence of decedent's conduct.
VI. As stated at the outset, defendant makes no attempt to uphold the directed verdict on the ground on which it was placedasserted failure of proof of defendant's actionable negligence. Since it seems to be conceded the ruling may not be sustained on such ground, discussion of the point is deemed unnecessary. However, in view of the reversal and remand for a new trial, we may say the issue of defendant's negligence should also have been submitted to the jury.
The judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
All Justices concur except HAYS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1543133/ | 39 F.2d 269 (1930)
LALANNE
v.
F. R. ARNOLD & CO.
Patent Appeal No. 2267.
Court of Customs and Patent Appeals.
April 10, 1930.
Hugo Mock and Asher Blum, both of New York City (Charles R. Allen, of New York City, of counsel), for appellant.
*270 Benj. R. Johnson, of New York City (John S. Keith and Oscar W. Jeffery, both of New York City, of counsel), for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
HATFIELD, Associate Judge.
This is an appeal in a trade-mark interference proceeding from the decision of the Commissioner of Patents holding that appellant was not entitled to register its trade-mark "Fraisy" for use on rouge and other toilet articles.
Appellant's application was filed on July 30, 1923.
Appellee's mark "Fraisia" for use on rouge having been registered on September 27, 1921, an interference was declared.
Considerable evidence was submitted by the parties. It appears therefrom that appellee had been using the trade-mark "Fraise" on lipsticks for more than twenty-five years prior to the taking of the testimony in this case; that these articles were purchased by appellee from Maison Dorin of Paris, France, and sold in large quantities throughout the United States; that each box containing "Fraise" lipsticks or rouge purchased and sold by appellee bore a label with its (appellee's) name and address and words designating it as "sole agent"; that, by virtue of its contract with Maison Dorin, appellee had the right, according to the testimony of the witness, John W. Arnold, brought out on cross-examination, to "register any of Dorin's trade-marks," and to use them during the continuance of the relationship existing between Dorin and appellee; that some of its rouge was put up in metal, and some in pasteboard, containers; that the rouge in the pasteboard containers was sold in two colors and white, and that the rouge in the metal containers was sold in four colors and white; that none of these was a "strawberry color"; that appellee first used its registered trade-mark "Fraisia" in December, 1920; and that large quantities of rouge have been sold under this trade-mark. Appellant first used its trade-mark "Fraisy" in the United States in 1917, and has continued to use it, to some extent, since that time. It further appears from the testimony of the applicant that, due to the fact that strawberry juice is used as a basis for his preparations, he adopted and used the trade-mark "Fraisy." In this connection he said:
"* * * My preparations have the juice of the strawberry (in French `Fraise') as their basis, and this is what led me to adopt the name `Fraisy,' as I knew that this word could constitute a valid trade-mark and prevent infringers from imitating either the mark or the method of presentation of my preparations."
The Examiner of Interferences held that the word "Fraise" was a French word meaning "strawberry"; that appellee had used the word "Fraise" as its trade-mark for the purpose of indicating the shade or color of its rouge; that, as the word was descriptive, appellee had no right to its exclusive use, and therefore was not entitled to any "benefit from the date of its use in trade for the purpose of carrying back its date of adoption in use of the word `Fraisia' prior to 1920. Since 1917, the date of adoption and use afforded to the applicant of the word `Fraisy' is prior to 1920, the earliest date which can be awarded the registrant for use of the word `Fraisia,' it is adjudged that the applicant is entitled to the registration for which he has made application."
In reversing the decision of the Examiner of Interferences, the Commissioner of Patents, among other things, said:
"* * * Under these circumstances, it does not appear fully established that the word `Fraise' was used merely in a descriptive sense. The word is the name of a berry and while such word is frequently used to designate a color, yet in view of the evidence in support of the registrant's Exhibit No. 7, which shows various colors and white, it is believed fair to hold the word was used in a trade-mark way to indicate origin of goods. It is evident confusion of origin would result from the use of the applicant's mark `Fraisy,' the registrant's mark `Fraisia,' and the previously used word `Fraise,' if they appeared upon the same goods in the same market. They are all, of the mind of the average purchaser, quite similar in appearance, spelling, sound and significance. It seems plain the applicant, who entered the field long after the use of the word `Fraise' on the same class of goods, should not add to the confusion in the minds of the purchasing public.
"It remains to be considered whether the registrant, Arnold & Co., are owners of their mark and of the mark `Fraise' in this country. It is common to grant registration of trade-marks to exclusive agents in this country of foreign manufacturers. Perhaps a fair holding supporting the view that such a distributor, having exclusive rights in this country, is the owner of a trade-mark in this country when applied to such goods, even if *271 they are manufactured and sold under the same trade-mark by the licensor in a foreign country, is that of Scandinavia Belting Co. v. Asbestos & Rubber Works of America, Inc., 257 F. 937 (C. C. A. 2d Cir.)."
Although it is contended by counsel for appellant that there is no evidence that appellee was the exclusive distributor of "Fraise" lipsticks, or that it owned any rights in the "Fraise lipstick," we are not of this opinion. We think the evidence is sufficient to establish that appellee was the exclusive distributor of "Fraise" lipsticks, and that it had the right to register the mark (assuming that it is subject to registration) and use it during the life of its contract with Maison Dorin. Obviously, then, appellee had a special ownership in such mark. Scandinavia Belting Co. v. Asbestos & Rubber Works of America, Inc., 257 F. 937, 955. In that case the Circuit Court of Appeals, Second Circuit, said:
"* * * But in the case now before us this court holds that one who has the exclusive right to use a trade-mark in the United States has such a special ownership therein as entitles him to its registration during the period of his exclusive use. `Ownership' is the right by which a thing belongs to some one in particular to the exclusion of all others. And the right to the exclusive use of this trade-mark in this country was in this plaintiff for a period of 27 years or 7 years beyond the registration period fixed by the statute. To say that the relation which existed between the English and the American company was that of agency does not help the defendant, for if it be conceded that the relation is that of agency it must also be conceded that it is an agency coupled with an interest, and the right to the exclusive use is one which cannot be withdrawn, and an interest sufficient to prevent revocation is sufficient to make the plaintiff such a special `owner' of the trade-mark as entitled it to register the same under the provisions of the act. To hold that one who has the exclusive right to use a trade-mark has no right to have it registered under the act would be, in our opinion, subversive of the policy and intent of the statute."
It clearly appears from the evidence that appellee purchased its goods from Dorin, that it was the exclusive distributor in the United States of these goods, and that appellee had the right to register any trade-mark used by Dorin on the goods purchased by it. To hold that appellee was not the owner of the mark "Fraise" in the United States during the life of its contract would amount to a denial of the truth of the uncontradicted evidence that such was the case.
Counsel for appellant have cited the case of Lawrence-Williams Co. v. Société Enfants Gombault et Cie. (C. C. A.) 22 F.(2d) 512, 515, as authority for the contention that appellee had no ownership in the mark "Fraise."
In that case the contract between the foreign owner of the trade-mark and the defendant, granting defendant the right to be the exclusive distributor in the United States of plaintiff's goods together with the right of using plaintiff's trade-mark, had expired. Thereafter, defendant used the trade-mark on other goods. The court held that defendant had no right to the use of the mark. In its decision, the court said:
"* * * Whether it had the right to register those marks belonging to plaintiff for the purpose of protecting its exclusive selling right in the United States we do not determine."
The decision in that case is not in point.
It is argued that the word "Fraise" is a French word meaning "strawberry," that it is descriptive of the rouge sold by appellee, and that therefore appellee is not entitled to its exclusive use as a trade-mark. The word "Fraise," according to English dictionaries, has several definitions. Among them, however, is the following:
"Fraise, n. Her. A strawberry-leaf, as in a ducal coronet. [F., strawberry,
The definition does not indicate that the word is ever used to describe color. But, if the word is so used in France, it cannot be said to be commonly or generally so used in the United States. See Le Blume Import Co., Inc., v. Coty et al. (C. C. A.) 293 F. 344. If it is ever used to denote a strawberry color, it is certainly not descriptive of any rouge sold by appellee.
We are of opinion that the trade-mark "Fraise," due to its use over a long period of years by appellee, has become associated in the mind of the public in the United States with appellee's goods; that it identifies such goods and indicates their origin; and that the use of the mark "Fraisy" by appellant, on goods possessing the same descriptive properties as those on which the mark "Fraise" is used by appellee, would cause confusion in the mind of the public and lead to deception, and that appellant is not entitled to have its mark registered. This holding *272 disposes of all issues raised by the appeal.
The decision is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917985/ | 993 A.2d 432 (2010)
2010 VT 18
Stephen BAIN
v.
Robert HOFMANN.
No. 09-262.
Supreme Court of Vermont.
February 22, 2010.
*433 Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.
ENTRY ORDER
¶ 1. Plaintiff appeals pro se from the dismissal of his complaint on res judicata grounds. We affirm.
¶ 2. Plaintiff is an inmate in the custody and control of the Vermont Department of Corrections (DOC). Plaintiff filed a pro se complaint against the DOC Commissioner in September 2008 and filed an amended complaint in March 2009. He alleged, in relevant part, that he was being denied adequate medical care in violation of his rights. He sought injunctive reliefspecifically, an order directing DOC to treat his medical problems consistent with "prevailing medical standards." The State moved to dismiss his complaint on res judicata grounds, and the trial court granted its request.
¶ 3. The court found that plaintiff's complaint alleged, in relevant part, violations of the Eighth Amendment and Equal Protection Clause of the Federal Constitution, as well as a claim under the Americans with Disabilities Act (ADA). Plaintiff stated that he suffered from chronic pain and migraines and that he was previously prescribed methadone, Valium, and Imitrix to treat his symptoms. He alleged that when he was transferred from a Vermont prison facility to an Oklahoma facility in January 2007, he was no longer allowed to take these drugs. Plaintiff further alleged that when he was transferred from Oklahoma to Kentucky in September 2007, he was not receiving any medicine to treat his *434 "severe chronic neuropathic pain and chronic orthopedic pain, and his chronic migraine condition." Plaintiff maintained that because previous doctors prescribed methadone and other medications for him, those prescriptions established the "prevailing standard of care," and the failure to prescribe them at other prisons was a violation of that standard. The court found that plaintiff did not explain the basis for his equal protection claim in his complaint.
¶ 4. The court concluded that the suit was barred by the doctrine of res judicata. As it explained, res judicata, or claim preclusion, "bars the litigation of a claim or defense if there exists a final judgment in former litigation in which the parties, subject matter and causes of action are identical or substantially identical." Berlin Convalescent Ctr., Inc. v. Stoneman, 159 Vt. 53, 56, 615 A.2d 141, 143 (1992) (quotation omitted). A claim need not be actually litigated in the earlier proceeding; rather, the doctrine "applies to claims that were or should have been litigated in the prior proceeding." In re Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 20, 769 A.2d 668, 673 (2001); see also Carlson v. Clark, 2009 VT 17, ¶ 13 n. 4, 185 Vt. 324, 970 A.2d 1269.
¶ 5. The court found that plaintiff had previously filed a similar suit in federal district court in Vermont against the DOC Commissioner and the Corrections Corporation of America (CCA), among others, as well as a suit in federal district court in Oklahoma. These two cases were consolidated, and in December 2008, the federal district court in Oklahoma issued a decision dismissing with prejudice plaintiff's claim that the Eighth Amendment required him to be provided with the medication he sought. See Bain v. Corr. Corp. of Am., No. CIV-08-332-F, 2008 WL 5142420, at *8 (W.D.Okla. Dec. 5, 2008). The federal court found that alternate treatment was available to plaintiff and that a mere disagreement over the proper course of treatment and medications did not violate the Eighth Amendment.
¶ 6. Plaintiff maintained that he was advancing a new claim in state court based on his treatment in Kentucky, but the trial court rejected this argument. It found that plaintiff sought the same relief in the present case that he sought in his earlier case, using the same theory. The Oklahoma court had already ruled, in essence, that the failure to prescribe methadone and Imitrix to plaintiff did not violate the Eighth Amendment. While plaintiff's complaint involved inaction by a different facility, it was merely a continuation of the conduct addressed in the earlier lawsuit an ongoing denial of the medications plaintiff desired. The court reasoned that plaintiff's claim therefore involved the same course of conduct by DOC, a named defendant in both cases. Thus, because the current complaint presented the same essential cause of action as that presented earlier, and rested on the same evidence, the court concluded that it was barred by res judicata. The court also found that plaintiff failed to elucidate the basis for his equal protection claim, mentioning it only in one sentence in his complaint. The court reasoned that because no facts were alleged other than those that also formed the basis for the Eighth Amendment and ADA claims, this claim too was barred by principles of res judicata, in that the claim could or should have been litigated in the earlier proceeding. Finding all of plaintiff's claims barred, the court dismissed his complaint with prejudice. This appeal followed.
¶ 7. Plaintiff asserts that he has a valid claim for violation of the Eighth Amendment. He also argues that his earlier lawsuits in federal court should not *435 foreclose him from filing a state law claim in state court. He suggests, for the first time on appeal, that the state constitutional provision prohibiting cruel and unusual punishment is more protective than that set forth in the Federal Constitution. He asserts for the first time that the Oklahoma court lacked jurisdiction to rule on his claim because he was transferred to Kentucky before that decision issued, and he also suggests that that court's decision was not final for purposes of res judicata. Additionally, he attempts to state an equal protection claim for the first time on appeal.
¶ 8. We do not address any of plaintiff's arguments that are raised for the first time on appeal. See Bull v. Pinkham Eng'g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) ("Contentions not raised or fairly presented to the trial court are not preserved for appeal."). This includes plaintiff's assertion that the state constitution provides him greater protection against "cruel and unusual punishment" than the Eighth Amendment, his attack on the jurisdiction of the Oklahoma court, and his newly stated grounds in support of his equal protection claim.
¶ 9. We agree that plaintiff's complaint is barred on res judicata grounds. As the trial court recognized, the doctrine of res judicata serves to "protect the courts and the parties against the burden of relitigation, encourage reliance on judicial decisions, prevent vexatious litigation and decrease the chances of inconsistent adjudication." Berlin Convalescent Ctr., Inc., 159 Vt. at 57, 615 A.2d at 144. Under the doctrine, "a final judgment in previous litigation bars subsequent litigation if the parties, subject matter, and cause(s) of action in both matters are the same or substantially identical." Faulkner v. Caledonia County Fair Ass'n, 2004 VT 123, ¶ 8, 178 Vt. 51, 869 A.2d 103.
¶ 10. In this case, as recounted above, plaintiff sued the DOC Commissioner, among others, in federal court, complaining that he was not receiving necessary medical treatment while incarcerated. While the Commissioner was dismissed from the federal court case on mootness grounds, we agree with the State that the Commissioner is in privity with CCA here for purposes of res judicata. As we have explained, "[a] privity relationship generally involves a party so identified in interest with the other party that they represent one single legal right." Lamb v. Geovjian, 165 Vt. 375, 380, 683 A.2d 731, 735 (1996) (quotation omitted); see also First Wis. Mortgage Trust v. Wyman's, Inc., 139 Vt. 350, 358-59, 428 A.2d 1119, 1124 (1981) (for purposes of res judicata, test for privity is whether parties have substantially the same interest in successive proceedings). The CCA's authority over petitioner is derived exclusively from the Commissioner. See 28 V.S.A. § 102(b)(5). Plaintiff was placed at the out-of-state facilities by the Commissioner, and both CCA and the Commissioner share the same legal interest in these proceedingsnamely, determining whether the failure to provide plaintiff with certain medication is unlawful. See State ex rel. Barksdale v. Litscher, 2004 WI App. 130, ¶ 14, 275 Wis.2d 493, 685 N.W.2d 801 ("Privity compares the interests of a party to a first action with a nonparty to determine whether the first action protected the interests of the nonparty." (citation omitted)). Moreover, plaintiff does not challenge any acts of the Commissioner in this case that are distinct from acts of the CCA prison facilities. To the contrary, plaintiff seeks reliefaccess to certain medicineinterchangeably from both the Commissioner and CCA. We conclude that under these circumstances the privity requirement is satisfied.
*436 ¶ 11. The trial court also correctly found that plaintiff raised claims that were or should have been raised in the earlier litigation. See Merrilees v. Treasurer, 159 Vt. 623, 624, 618 A.2d 1314, 1316 (1992) (mem.) ("Res judicata bars parties from relitigating, not only those claims and issues that were previously litigated, but also those that could have been litigated in a prior action."). All of plaintiff's claims rest on the same factsthe refusal to provide plaintiff with the medicine he seeks despite plaintiff's attempt to couch them differently. Plaintiff's Eighth Amendment argument has been finally decided against him, and his related claims should have been brought in his first suit. Plaintiff cannot now raise the same essential claim, seeking the same relief, for a second time. See Faulkner, 2004 VT 123, ¶ 8, 178 Vt. 51, 869 A.2d 103 (doctrine of claim preclusion rests on the "fundamental precept that a final judgment on the merits puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever" (quotations omitted)). Finally, there is no support for plaintiff's suggestion that the Oklahoma decision was not a final judgment on the merits. The requirements of res judicata are satisfied in this case, and plaintiff's complaint was properly dismissed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918075/ | 101 B.R. 368 (1989)
In re Henry GHERMAN, First Financial Planning Corporation of South Florida, Inc., Financial & Investment Planning, Inc. (AKA) Fip, Inc., Debtors.
Bankruptcy No. 88-03266-BKC-TCB.
United States Bankruptcy Court, S.D. Florida.
May 22, 1989.
David D. Bird, Asst. U.S. trustee, Miami, Fla.
Ronald R. Peterson, Jenner & Block, Chicago, Ill., John W. Kozyak, Miami, Fla., for Chapter 11 trustee.
Schantz, Schatzman, Aaronson & Berlin, P.A., Miami, Fla., for Chapter 11 Creditors' Committee.
*369 Kelley Drye & Warren, Smathers & Thompson, Joel M. Aresty, Miami, Fla., for debtors Henry Gherman and Financial & Inv. Planning.
ORDER DENYING DEBTOR'S REQUEST TO PROCEED IN FORMA PAUPERIS
THOMAS C. BRITTON, Chief Judge.
On May 19, the debtor, Gherman, in pro per, wrote me a letter, attaching a District Court form "Motion to Proceed in Forma Pauperis" and in his letter requested that I grant his request and provide him with an attorney skilled in bankruptcy law and provide him with a copy of all documents, transcriptions, depositions, and correspondence relating to his bankruptcy case.
The motion is denied.
The Sixth Amendment addresses a right to counsel but extends that right only to criminal and quasi-criminal proceedings. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); In re Martin-Trigona, 737 F.2d 1254 (2nd Cir.1984), cert. denied, 474 U.S. 1061, 106 S.Ct. 807, 88 L.Ed.2d 782 (1986). Section 1915(d) of Title 28 U.S.C. also affords Federal Courts discretion to appoint counsel; however, that provision is inapplicable to bankruptcy proceedings. See, U.S. v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). In re Flowers, 83 B.R. 953, 954 (Bankr.N.D.Ohio 1988).[1]
Mr. Gherman has been ably represented by experienced bankruptcy counsel since the inception of this case. There is no pending motion set for hearing before this court by that attorney requesting that he be released from that representation. As an alternative argument to allow the debtor's exemptions, a totally separate issue, that attorney included a motion to withdraw within a memorandum addressed to the exemption issue. (CP 329). Determination of the allowance of exemptions is under advisement.
DONE and ORDERED.
NOTES
[1] The contrary conclusion reached in In re DuPage Boiler Works, Inc., 97 B.R. 437 (Bankr.N.D. Ill.1989), which does not discuss any of the foregoing precedent, is neither binding upon or persuasive to this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918080/ | 101 B.R. 502 (1989)
In the Matter of ROGER J. AU & SON, INC., Debtor.
Bankruptcy No. 683-00986.
United States Bankruptcy Court, N.D. Ohio.
March 28, 1989.
John A. Schwemler, Brouse & McDowell, Akron, Ohio, for debtor.
*503 Edward R. Brown, Arter & Hadden, Cleveland, Ohio, for Aetna Cas. & Sur. Co.
Richard Gurbst, Squire, Sanders & Dempsey, Cleveland, Ohio, for NEORSD.
MEMORANDUM OF DECISION
JAMES H. WILLIAMS, Chief Judge.
Presented for consideration is an application by the debtor and debtor in possession, Roger J. Au & Son, Inc., to employ Larry Inscore and Charles E. Taylor as special counsel. The debtor states in its application that it "requires the services of attorneys as special counsel to prosecute [its] claims and defenses in case Nos. 30943 and 46485 pending in the Court of Common Pleas, Cuyahoga County, Ohio."
Objections were filed by Aetna Casualty & Surety Company, Inc. (Aetna) and Northeast Ohio Regional Sewer District (NEORSD), both asserting various conflicts and improprieties relating to the employment of Larry Inscore and Charles E. Taylor.
A hearing was held at which time all parties presented oral argument to the court after which the application was taken under advisement.
FACTS
This case was commenced by the debtor on July 26, 1983, by the filing of a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code. The debtor's sole shareholder, president and chief officer is Charles H. Au.
In May, 1977, the debtor was selected by NEORSD as the contractor for a sewer project in Cleveland, Ohio known as the Cuyahoga Valley Interceptor Project (CVID Project). Aetna was the debtor's surety and posted the required payment and performance bond for this contract with NEORSD.
The debtor experienced certain construction problems during the construction of the CVID Project and accordingly, certain change orders were authorized by NEORSD and a release was signed by the debtor. However, in December, 1979, a portion of the CVID Project collapsed. NEORSD insisted that the debtor complete the project for the contract price. The debtor, however, requested that NEORSD issue another change order to cover the increased expenses. The debtor completed the CVID Project with the exception of the collapsed portion and sought payment of $718,201.35 on its claim. NEORSD refused to release the remaining CVID Project funds to the debtor in the amount of $136,559.48.
On August 31, 1981, the debtor filed a complaint (Case No. 30943) in Cuyahoga County Common Pleas Court against NEORSD and Euthenics, Inc., an engineering firm, asserting various causes of action. NEORSD answered, denying the allegations and all liability.
On July 29, 1982, Aetna filed a complaint (Case No. 46495) in Cuyahoga County Common Pleas Court against NEORSD and the debtor seeking a declaratory judgment that its obligations as the debtor's surety under the performance bond and the labor and material bond have been fully discharged. In both cases NEORSD is asserting various counterclaims and cross-claims against the debtor and Aetna. These two actions (sewer district litigation) have been consolidated and are pending before the state court.
In November, 1985, Aetna notified the debtor that it would no longer continue to fund the debtor's litigation expenses and related costs for the prosecution of the sewer district litigation. It is for conducting this litigation that the debtor now seeks to employ Larry Inscore and Charles E. Taylor.
Also pending in this court is an adversary proceeding filed by the debtor and Charles H. Au, adversary proceeding No. 686-0114, against Aetna wherein the debtor and Charles H. Au assert that Aetna had a fiduciary duty to the debtor in regard to the sewer district litigation and that Aetna's decision in November, 1985, to seek a settlement of the litigation and to terminate funding of the debtor's legal expenses and the prosecution of that litigation constitute a breach of its fiduciary duty. Aetna *504 answered denying the essential allegations of the complaint and also asserting a counterclaim against the debtor and Charles H. Au. The debtor and Charles H. Au are represented in this adversary proceeding by Larry Inscore.
Larry Inscore and Charles E. Taylor also represent Cee-EM Realty, Inc. in a pending action in the Richland County Common Pleas Court, Case No. 84-793-C. Charles H. Au is a 50% shareholder in Cee-EM Realty, Inc.
Also currently pending before this court in the instant case and also in CDECO Maritime Construction, Inc., Case No. 683-00985, and Fireland Sewer & Water Construction Company, Inc., Case No. 684-00040, both affiliates of Roger Au & Son, Inc., is a plan of reorganization filed by Aetna which, if confirmed, would result in the settlement of the sewer district litigation and the dismissal of the adversary proceeding.
DISCUSSION
The starting point for the court's consideration of the debtor's application is 11 U.S.C. § 327 which provides:[1]
(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.
. . . . .
(c) In a case under chapter 7 or 11 of this title, a person is not disqualified for employment under this section solely because of such person's employment by or representation of a creditor, but may not, while employed by the trustee, represent, in connection with the case, a creditor.
As was stated in In re Thompson, 54 B.R. 311 (Bankr.N.D.Ohio 1985); affirmed, 77 B.R. 115 (N.D.Ohio 1986):
The concurrent representation of the trustee and a creditor, irrespective of whether or not an actual conflict of interest exists, is specifically prohibited by subsection 327(c). An attorney serving as general counsel for the trustee, and at the same time serving as counsel for a creditor in the same case, must make decisions on behalf of his clients which are ripe (sic) with potential conflicts:
It should be borne in mind that general counsel for the trustee, in order to accomplish a maximum distribution to creditors, usually must perform services that are adverse to certain individual creditors. For example, creditors' claims should be reviewed to determine which should be disputed, or an investigation of pre-bankruptcy transactions between the debtor and individual creditors might be conducted for the purpose of determining whether a preference has occurred. An attorney representing the trustee as general counsel would be required to give legal advice and to proceed with appropriate litigation in connection with these matters. Any number of possible conflicts can be envisioned.
There should be no opportunity for the exercise of conflicting interests nor even the appearance of dual loyalty. * * * The purpose of the disinterestedness requirement of subsection 327(a) is to prevent even the appearance of conflict.
Id. at 315-16, quoting In re Fondiller, 15 B.R. 890, 892, (9th Cir. BAP 1981). (Other citations omitted)
Even though in the instant proceeding Messrs. Inscore and Taylor are seeking to be retained as special counsel and not general counsel as the court in Thompson spoke to, this court still finds the arguments presented in Thompson to be persuasive and controlling.
*505 Mr. Inscore's representation in the adversary proceeding of Charles H. Au, the sole shareholder and a creditor of the debtor, puts him in direct conflict with Section 327(c). As is argued by Aetna and NEORSD, what happens in the sewer district litigation has a direct result as to the course the adversary proceeding will take. Mr. Inscore's representation of the debtor in one case and the debtor and the sole shareholder in the other case creates the appearance of, if not an actual, conflict of interest.
As to Mr. Taylor, even though his representation of Charles H. Au is indirect, Charles H. Au being a 50% shareholder in Cee-EM Realty, Inc., Mr. Taylor's relationship with Charles H. Au cannot be found to be one of a disinterested person.[2] Having to divide one's allegiance between two clients is what Section 327 attempts to prevent. Additionally, in view of the fact that the debtor has filed a single application to employ both attorneys, the court finds it inappropriate to bifurcate such application.
The debtor presents its application as seeking employment pursuant to Section 327(e):
The trustee, with the court's approval, may employ, for a specified special purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or the estate with respect to the matter on which such attorney is to be employed.
The court finds that even if this subsection were relevant to the debtor's application, the requirements of subsection (a) and (c) are still applicable to the employment of Messrs. Inscore and Taylor.
Accordingly, the application of the debtor to employ Larry Inscore and Charles E. Taylor will be denied.
An order in accordance herewith shall issue.
NOTES
[1] Since this bankruptcy case was filed on July 26, 1983, it will be governed by the Bankruptcy Code as it existed prior to the 1984 Bankruptcy Amendments and Federal Judgeship Act. Pub.L. 98-353.
[2] 11 U.S.C. § 101 provides:
(13) "disinterested person" means person that ...
(E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph or for any other reason. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573620/ | 17 So.3d 200 (2009)
LIFESTAR RESPONSE OF ALABAMA, INC.
v.
ADMIRAL INSURANCE COMPANY.
1060776.
Supreme Court of Alabama.
February 6, 2009.
*201 David B. Anderson and Ryan K. Cochran of Waller, Lansden, Dortch & Davis, LLP, Birmingham; and Clarence L. McDorman, Birmingham, for appellant.
Murray H. Gibson, Jr., and Steven W. Money, of Gibson, Rodgers & Money, LLC, Tuscaloosa, for appellee.
BOLIN, Justice.
This appeal arises out of a legal-malpractice action brought by Lifestar Response of Alabama, Inc. ("Lifestar"), against its defense lawyers and Admiral Insurance Company ("Admiral") for failing to have a default judgment set aside in the underlying case, the details of which are set out in Lifestar Response of Alabama, Inc. v. Lemuel, 908 So.2d 207 (Ala.2004).
Underlying litigation
The facts, as summarized in Lemuel, supra, are as follows:
"On November 19, 1998, Lifestar and Care entered into an `Asset Purchase *202 Agreement' pursuant to which Lifestar purchased all of the assets of Care. Care was in the business of operating a basic and advanced life-support ambulance and medical-transportation service. Lifestar identified itself in the agreement as an Alabama corporation having its principal place of business in Holtsville, New York, and Care identified itself as an Alabama corporation having its principal place of business at 939 South Perry Street, Montgomery, Alabama 36104. That location was conveyed to Lifestar in the transaction. Other features of the transaction pertinent to the issues in this case were that `the corporate name "Care Ambulance Service of Alabama, Inc." and any derivative thereof in the State of Alabama and East of the Mississippi River and any and all fictitious names used by [Care] and ... telephone numbers and facsimile numbers or pager numbers utilized by [Care]' were sold to Lifestar, and Care agreed to `change its corporate name to a name dissimilar' and to discontinue using the name Care Ambulance Service in the State of Alabama, except as might be required in order to collect accounts receivable generated before the closing of the asset-purchase transaction. Lawrence Branch, a `key employee' who was `in charge of running the day-to-day operation' of Care, was to stay on as an employee of Lifestar for two years.
"Care ceased business operations and Lifestar assumed the operation of the ambulance service. Lifestar continued to use the tradename `Care Ambulance Service,' advertising itself by that name in the Montgomery area telephone directory, also using the shorter tradename, `Care Ambulance.'
"On November 8, 2000, Darnell Eugene Lemuel became ill at his home in Montgomery. His wife, Mildred Lemuel, and their daughter, Naquita McDonald, were with him. Late that night Ms. McDonald telephoned emergency `911' and within two or three minutes two employees of `Care Ambulance' arrived. The circumstances of what they did, or omitted to do, on that occasion will be discussed later in this opinion; eventually they transported Mr. Lemuel to Baptist Medical Center South. His condition was critical when he arrived at the hospital, and he was pronounced dead at that facility on November 10.
"On November 7, 2002, Ms. Lemuel, both as the administratrix of Mr. Lemuel's estate and in her own right, sued `Care Ambulance Service of Alabama, Inc.' and the two employees who had attended to Mr. Lemuel, designated by the fictitious names `ABC' and `DEF.' The complaint alleged that Care, `a corporation registered in the State of Alabama with principal place of business at 939 South Perry Street in Montgomery, Alabama,' had been contacted after Mr. Lemuel had `passed out' in his house and that, although the responding employees were informed that he was on medication for high blood pressure and diabetes and observed that he was drifting in and out of consciousness, they `made no effort to provide appropriate life support measures.' The complaint charged that the two employees breached their duty to provide emergency medical treatment in various specified respects and that Care had failed to employ and dispatch properly qualified personnel. The summons directed service on Care at its South Perry Street address, to Branch's attention. Deputy Glenn Mannich of the Montgomery Sheriff's Department delivered the summons and complaint to the Perry Street address on January 7, 2003, and Karen Robertson, employed by Lifestar as its human *203 resource manager, accepted the service and signed Deputy Mannich's `service log.' At the hearing conducted on July 22, 2003, on Lifestar's motion to set aside the default judgment, Deputy Mannich testified that he had served `eight or ten papers' on Care Ambulance Service at the Perry Street address during the preceding four years and that Robertson was `one of the people that does accept the papers for the company.' He confirmed that she had previously signed for the papers on behalf of `Care Ambulance Service of Alabama, Inc.'
"In an affidavit dated July 16, 2003, in support of Lifestar's motion to set aside the default judgment and its objection to the plaintiff's motion to amend the judgment, Robertson stated that she had no personal recollection of the delivery of the summons and complaint but stated:
"`If I was personally delivered a copy of the Summons and Complaint in the Lemuel lawsuit, I would not have read the Complaint, nor noted the identity of the person or company being served. I would have given the Complaint to Vanessa Hill, our billing clerk, to forward to the home office of Lifestar along with other business documents usually transmitted to our home office.'
"Lifestar has not undertaken to account otherwise for the disposition of the summons and complaint, although its attorney acknowledged at the July 22 hearing: `I'm not going to say the ball didn't get dropped here as far as wherever this suit went,' and Lifestar states in its principal brief to this Court that `[a]s far as can be determined, the Complaint served upon Karen Robertson was transmitted to the home office of Lifestar, but from there it is unclear as to its routing.' (Lifestar's brief, p. 39.)
"No appearance was filed on behalf of Care, and the plaintiff's attorney, Timothy C. Halstrom, applied for a default judgment. On May 16, 2003, Judge Price signed an order scheduling `a hearing on default damages' for May 28. According to Judge Price's subsequent order of July 31, 2003, notice of that hearing was issued by the circuit clerk to Care at its Perry Street address. (The order scheduling that hearing bears the notation at its bottom `cc: Timothy Halstrom, Esq.; Lawrence S. Branch, Pro Se.') No one appeared at the May 28 hearing except Halstrom, Ms. Lemuel, McDonald, and Dallas Johnson, an expert witness. Testimony was given by Ms. Lemuel, McDonald, and Johnson, and numerous exhibits were introduced. At the conclusion of the hearing Judge Price entered a default judgment in favor of the plaintiff in the amount of $5,000,000.
"On June 3, 2003, Halstrom received a telephone call from an individual identifying himself as Bob Fraulich, a representative of Lifestar. According to Halstrom's representations made to Judge Price without objection at the July 22 hearing on the motion to set aside the default judgment, Fraulich was calling from New York, was aware of the default judgment against Care, and explained that `"Care is not that company. We are Lifestar Response Corporation Alabama, Inc., doing business as Care Ambulance Service. So you have got the wrong one, you can't collect the judgment."' In its brief to this Court, Lifestar states, `Actually what was said by Lifestar's representative was the Default Judgment was taken against the wrong party, not that Lemuel had sued using the "wrong name."' (Lifestar's brief, p. 9.)
"Based on that information, Halstrom filed a motion, reciting the content of *204 that telephone conversation and including other information, to amend the judgment to operate against `Life Star Response Corp. of Alabama d/b/a Care Ambulance Service.' Copies of the motion were sent by mail to Fraulich and to `Life Star Response Corp. of Alabama d/b/a Care Ambulance Service.' The motion mailed to Lifestar was duly received at the Perry Street address the following day.
"On June 12 attorney Jack B. Hinton, Jr., entered his notice of appearance on behalf of Care. The following day Halstrom faxed to him a copy of the motion to amend the judgment. Also on that day, Judge Price entered an order setting Halstrom's motion for hearing on June 26, with copies to Halstrom and Hinton. On June 23, 2003, attorney B[e]rt P. Taylor filed a notice of appearance on behalf of `Lifestar Response of Alabama, Inc., d/b/a Care Ambulance Service,' and a motion seeking a continuance of the June 26 hearing on the basis that he and his client `just recently learned' of the default judgment and the motion to amend. On June 24 Taylor filed a `corrected motion to continue hearing,' reidentifying his client as `Lifestar Response of Alabama, Inc., d/b/a Care Ambulance,' combining `Life' and `Star' in the name of the corporate entity and dropping `Service' at the end of its tradename. Halstrom filed an amendment to his motion, asking that the defendant be redesignated as `Lifestar Response of Alabama, Inc., d/b/a Care Ambulance Service.' Judge Price rescheduled the hearing on all pending motions for July 14; that hearing was ultimately conducted on July 22.
"On July 18, 2003, Care filed a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P., and Rule 60(b)(1), (4), and (6), Ala. R. Civ. P.; on that same day, Lifestar filed its `objection to plaintiff's motion to amend judgment and motion to set aside default judgment.' Care asserted in its motion that Lifestar had faxed to it on May 29 a copy of Judge Price's May 16 order setting the hearing on damages for May 28 and that, upon receiving that order, Care had faxed a copy of it to its legal counsel in California. Care alleged that it had a meritorious defense because, among other things, `it was not the entity involved in the alleged medical malpractice made the subject of this suit.' Care asserted that no unfair prejudice would result to the plaintiff if the default judgment was set aside and disclaimed any culpable conduct on its part, pointing out that its corporate name had been sold to Lifestar and that `[t]he first information made available to the former "Care Ambulance Service of Alabama, Inc.," was at or around the time of the hearing on the default judgment.' Claiming alternatively that the default judgment was void as to it because of lack of service, Care attached the affidavit of Branch, who attested that Care had not operated any ambulance companies after the sale of the service to Lifestar and that he was not at the Perry Street address on the date the summons and complaint were served, being then at his residence in Desert Hot Springs, California. He stated that he had not authorized Robertson to accept any service on his behalf.
"Lifestar asserted in its motion that its employees rendered no medical treatment to Mr. Lemuel because `Montgomery Fire Department Medics were on the scene at the time of arrival by the Lifestar ambulance and provided all medical care during transport in connection with medical personnel on staff at the hospital.' Lifestar argued that the default judgment was void because *205 Robertson was not authorized to accept service on behalf of Care. In its only reference to Rule 55(c), Ala. R. Civ. P., Lifestar argued that the default judgment was due to be set aside because:
"`Care Ambulance Service of Alabama, Inc., was not the entity performing the acts made the basis of Plaintiff's Complaint and, therefore, cannot be held legally accountable for said alleged wrongful conduct. The ambulance transportation provided plaintiff's decedent was through Lifestar not the named defendant. The named defendant has a very meritorious defense to the Plaintiff's claims. To enforce a default judgment against Care Ambulance would be manifestly unjust.'
"Lifestar contended that the judgment could not be amended as the plaintiff was requesting because `Care Ambulance Service of Alabama, Inc., is not a tradename being used by Lifestar.' Lifestar argued that the plaintiff had not sued a tradename but, rather, `[t]he face of the Complaint clearly reflects suit against an existing Alabama corporation and does not designate the nature of the suit as being related to a Complaint against the entity doing business as "Care Ambulance."' As evidentiary support, Lifestar annexed the affidavits of Robertson and Keith Bryan, its regional vice president.
"Concerning the incident involving Mr. Lemuel, Bryan's affidavit states:
"`I have reviewed the records of Lifestar and determined Darnell Lemuel was transported by a Lifestar ambulance on November 8, 2000, from his residence at 3345 S. Perry Street, to [Baptist Medical Center]-South. Attached is the Statistical Data Report, Baptist Health Admissions Fact Sheet, and Run Report signed by the Lifestar employees making the run. The Lifestar employees did not render EMT medical services to Mr. Lemuel. The Montgomery Fire Department Fire Medics were on the scene at the time of arrival, accompanied Mr. Lemuel in the transport to the hospital, and provided all medical treatment to the patient in conjunction with medical personnel at the hospital with whom they were in contact.
"`Pursuant to Ordinance 25-98, City of Montgomery, Montgomery Fire Department Fire Medics are in charge at the scene in all matters concerning patient care and patient transport. The protocol requires an ambulance crew to work under the direction of the officer or fire medic in command of a scene where care is being provided by fire department personnel. This protocol was followed by the Lifestar ambulance crew in connection with the transport of Mr. Lemuel.
"`The Lifestar ambulance crew did not perform the medical care criticized by the Plaintiff in the Lemuel lawsuit described above, which is alleged to have caused the death of Mr. Lemuel on November 10, 2000, two days following his transport to the hospital by the Lifestar ambulance.' "The referenced `Statistical Data Report, Baptist Health Admissions Fact Sheet, and Run Report' have been closely examined, and none contain any express reference to the presence on the scene of any Montgomery Fire Department personnel.
"On July 22, 2003, Judge Price conducted a hearing on all pending motions. Halstrom, Hinton, and Taylor were present. The only witness called was Deputy Mannich. Hinton argued on behalf *206 of Care that it existed only `as a shell' after it sold its entire business to Lifestar `lock, stock, and barrel.' He acknowledged that by the time the Lemuel action was filed, Branch had relocated to California and Care had not thereafter maintained in Alabama a registered office or a resident registered agent for service, as required by § 10-2B-5.01, Ala.Code 1975. Hinton argued that Care had a meritorious defense inasmuch as it had not been involved in any way in the response to the Lemuel home.
"Taylor argued that because Care Ambulance Service of Alabama, Inc., was nonetheless `still a valid entity' the summons and complaint directed to it was ineffectual as service on or notice to Lifestar. Taylor argued that although Lifestar had been the entity that did respond to the emergency call for medical assistance at the Lemuel residence, it had not provided any medical care to Mr. Lemuel. Taylor asserted:
"`[T]he care that was provided to Mr. Lemuel, whatever that care may have been, was provided by the Montgomery Fire Department medic department. They were on the scene. They're the ones that called us. They're the ones that rode in the ambulance with the patient to the hospital. They're the ones by ordinance that have exclusive control and jurisdiction over the situation.'
"Judge Price responded to that argument to point out that the testimony at the May 28, 2003, hearing had been to the contrary, prompting Taylor to insist `[b]ut they are wrong that is what I am saying.' When Judge Price noted that Lifestar had had the opportunity to appear at the May 28 hearing and present its defense, Taylor insisted `[b]ut we weren't sued. And we weren't put on notice, which is the whole point.'
"Concerning his motion to amend the judgment, Halstrom argued that `Care Ambulance Service' was a tradename under which Lifestar operated and that, under all the circumstances, the judgment against Care Ambulance Service of Alabama, Inc., should be recognized as a judgment against Lifestar. He relied on Ex parte CTF Hotel Management Corp., 719 So.2d 205 (Ala.1998), as his principal authority. Taylor responded that the defendant in Ex parte CTF was designated by a tradename under which the entity served with process did business, whereas here Lifestar had `never done business as Care Ambulance Service of Alabama, Inc.' Taylor argued that the whole purpose of service is `notice' and that because Lifestar was not properly named it was not `put on notice.'
"Halstrom pointed out that the complaint clearly described the particular ambulance service involved in the incident and that Lifestar would have known from that description that it had provided that service. Halstrom proved that in an action filed in the Montgomery Circuit Court five months before the Lemuel action, the name of the defendant served had been identical to the name of the defendant served in this case, and Lifestar had answered the complaint, acknowledging that it was in fact the entity being sued. Specifically, in that other action another wrongful-death claim was brought against `Care Ambulance Service of Alabama, Inc.,' and the summons directed service on Branch at the Perry Street address. Service by certified mail was effected on Vanessa Hill at that address. On July 10, 2002, Lifestar filed an answer, introduced by the statement: `Comes now the Defendant, Life Star Response Corp. of Alabama, d/b/a Care Ambulance Service (incorrectly designated as *207 Care Ambulance Service of Alabama, Inc. in plaintiff's Complaint) ....'
"In his order of July 31, 2003, Judge Price summarized the testimony he had heard at the July 22 hearing on damages, reviewed the pertinent procedural events of the case, and held that it should have been apparent to the on-site personnel of Lifestar upon receipt of the summons and complaint in the Lemuel action that the complaint `stated a claim for damages against the entity doing business under the name "Care Ambulance Service" based on the alleged wrongful acts of the employees of "Lifestar."' He stated that Lifestar was aware of its obligation to answer the complaint designating the wrongdoer as Care Ambulance Service of Alabama, Inc., as evidenced by the answer it filed in a prior action and the fact that it operated under the tradename `Care Ambulance Service.' Judge Price concluded that Lifestar had received actual notice of a claim against it asserting negligence of its employees and simply `took a calculated risk in not appearing to defend.' Judge Price expressed his opinion that the default was the result of culpable conduct by Lifestar, pointing out that Lifestar had misrepresented itself to the courts in Montgomery County by names other than its true legal name. He denied the motions to set aside the default judgment and granted the motion to amend it, directing the court clerk to substitute `Lifestar Response of Alabama, Inc., d/b/a Care Ambulance Service' for `Care Ambulance Service, Alabama, Inc.' in the default judgment.
"Care has not appealed from Judge Price's order. Lifestar appeals, asserting (1) that the default judgment was void because service of process was insufficient as to both it and Care; (2) that if the judgment was not void, it should have been set aside; (3) that if the judgment was not void and not otherwise due to be set aside, it was error for Judge Price to substitute Lifestar as the judgment debtor; and (4) that the $5,000,000 default judgment was excessive."
908 So.2d at 209-14.
On December 3, 2004, this Court held that Lifestar did not show that it was entitled to have the default judgment set aside as void for lack of jurisdiction because the purpose of service is to notify the defendant of the action being brought against the defendant and Lifestar was served with notice under its tradename, through one of its local employees; Lifestar never argued that the employee was not authorized to accept service; and Lifestar had answered complaints in other unrelated actions against it under its tradename. Additionally, we held that Lifestar was not entitled to have the default judgment set aside because Lifestar presented an unsupported assertion that its employees merely provided transportation and that other parties were negligent in the care of Mr. Lemuel; Lifestar never asserted that the plaintiff would not be unfairly prejudiced by setting aside the default judgment; and Lifestar failed to provide a reasonable explanation for its failure to timely respond to the complaint. Last, we held that Lifestar was not entitled to appellate review of the punitive-damages award because Lifestar never sought a hearing on the issue of damages or raised that issue in the trial court. Ultimately, Lifestar settled the Lemuel action for $2,000,000 as satisfaction for the default judgment.
Related Litigation
After the default judgment was entered in her favor, Mildred Lemuel filed a garnishment action in state court, claiming that Admiral, as Lifestar's primary insurer, was liable for a portion of the *208 $5,000,000 default judgment against Lifestar. Markel American Insurance Company ("Markel") was Lifestar's excess-insurance carrier.
Admiral responded to Lemuel's garnishment action by removing the action to the United States District Court for the Middle District of Alabama and by filing a declaratory-judgment action in the federal court, seeking a judgment declaring that it was not liable for the default judgment. See Lemuel v. Admiral Ins. Co., CV-03-1101, and Admiral Ins. Co. v. Lemuel, CV-03-D-1102-N. In its declaratory-judgment action, Admiral argued that, contrary to the terms of its policy with Lifestar, Lifestar failed to notify it of Mildred Lemuel's action until after the default judgment had been entered and that, because of the delay in notice, Admiral was not required to pay any portion of the default judgment. Markel, which did not receive notice of the Lemuel action until almost a year after Admiral, also filed a declaratory-judgment action in federal court seeking a declaration that Lifestar's untimely notice constitutes a breach of the notice provision of its policy with Lifestar. See Markel American Ins. Co. v. Lifestar Response of Alabama, Inc., d/b/a Care Ambulance, CV-04-D-942-N. The federal district court consolidated the three cases.
On January 23, 2006, the federal district court concluded that the default judgment was not covered under the applicable insurance policies and granted the summary-judgment motions filed by Admiral and Markel. Lemuel v. Admiral Ins. Co., 414 F.Supp.2d 1037 (M.D.Ala.2006). In its opinion, the court defined the substantive issue as whether Lifestar gave timely notice of Lemuel's claims and legal action to Admiral and Markel, in light of the express conditions in the policies that the insured give notice "`as soon as practicable/possible' and [that it] forward suit `papers immediately.'" 414 F.Supp.2d at 1048. The first issue addressed by the court was a choice-of-law question. Lemuel and Lifestar contended that the parties to the Admiral policy contractually agreed that New York law would govern. Alternatively, they argued that Alabama's application of the principle of lex loci contractus would yield the same result i.e., New York law would govern because the insurance contract was issued and delivered in New York. Admiral contended that an equally valid argument could be made for applying Alabama law because Lifestar is an Alabama corporation doing business in Alabama or, in the alternative, an exception to the principle of lex loci contractus applies because performance and coverage of the policy was to occur in Alabama. The federal district court concluded that there was no conflict between New York law and Alabama law as to the issues disputed and that when there is no conflict the court did not have to determine which state's law governed. The court determined that under the law of both states when an insurance policy contains as a condition precedent to coverage that the insured provide prompt notice of a claim or an action, the insured must comply with that condition in a timely manner and that, absent a valid reason for the untimely delay, the notice is deemed unreasonable.
The federal district court stated that the date Lifestar had actual notice of the Lemuel action was a pivotal factual issue in determining whether Lifestar timely notified Admiral and Markel of the Lemuel action. Admiral asserted that Lifestar, as a party in the state court proceedings, was barred by the doctrines of collateral estoppel and/or res judicata from relitigating the findings of the state court as to the date Lifestar received notice of the litigation in the Lemuel action. According to Admiral, because this Court affirmed the Montgomery Circuit Court's judgment, *209 which was based, in part, on a finding that Lifestar received actual notice of Lemuel's complaint on January 7, 2003, the federal district court was bound by that finding, and Lifestar could not relitigate the issue in the federal proceedings. Lifestar argued that neither collateral estoppel nor res judicata precluded it from demonstrating when it actually received notice that Lemuel's complaint was filed against Lifestar.
The federal district court stated that it was bound by 28 U.S.C. § 1738, the full-faith-and-credit doctrine, to give a state court judgment the same preclusive effect that would be given the judgment under the law of the state in which the judgment was entered. The court determined that under Alabama law the doctrine of collateral estoppel did not apply. However, the court held that the doctrine of res judicata did apply and that Lifestar was bound by the state court's finding as set out in Lifestar Response of Alabama, Inc. v. Lemuel, supra, that Lifestar received notice of the Lemuel action on January 7, 2003. The federal district court further held that because Lifestar was notified of the Lemuel action on January 7, 2003, and because it did not notify Admiral until June 3, 2003, nearly 5 months after it received notice, Lifestar had failed to timely notify Admiral under the terms of the insurance policy. Similarly, Markel was not timely notified because Lifestar did not notify it of the Lemuel action until May 12, 2004.
Lifestar appealed the federal district court's decision to the United States Court of Appeals for the Eleventh Circuit. While the appeal was pending, Lifestar settled its claim against Markel for $25,000. On January 9, 2007, the Eleventh Circuit affirmed the federal district court's summary judgment for Admiral and Markel. Lemuel v. Lifestar Response of Alabama, Inc., (No. 06-11155, Jan. 9, 2007, 11th Cir.2007)(not selected for publication in the Federal Reporter).
In 2005, Lifestar sued, in Bergen County, New Jersey, its insurance agent, Capacity Coverage Company of New Jersey, Inc., for failing to give the insurance carriers timely notice of the Lemuel action. See Lifestar Response of Alabama, Inc. d/b/a Care Ambulance v. Capacity Coverage Co. of New Jersey, Inc., CV-3951-05. Ultimately, that case was settled for $100,000.
Current Litigation
On June 2, 2005, Lifestar sued its defense attorneys, Bert P. Taylor and Taylor & Smith, P.C. ("the Taylor defendants"), and Admiral in the Montgomery Circuit Court. Lifestar alleged that Admiral had a duty to defend Lifestar in any action against it and that Admiral had engaged the Taylor defendants as Admiral's agent to defend Lifestar in accordance with its insurance policy and that the Taylor defendants represented both Lifestar and Admiral in a tripartite relationship and had failed to exercise ordinary diligence in their representation. Lifestar alleged that Admiral breached its contract of insurance with Lifestar by providing a defense that was below the appropriate standard. Additionally, Lifestar alleged that Admiral acted in bad faith in its failure to effectively defend Lifestar. Lifestar also alleged that the Taylor defendants were Admiral's agents and that as agents of Lifestar the Taylor defendants' negligence and/or wantonness should be imputed to Admiral. Lifestar sued the Taylor defendants under the Alabama Legal Services Liability Act, § 6-5-270 et seq., Ala.Code 1975.
On September 25, 2005, Admiral moved to dismiss the complaint. Admiral stated that, after the default judgment was entered in the Lemuel action, the Taylor defendants were retained to defend Lifestar *210 against the judgment or to attempt to get the default judgment set aside. Admiral asked the trial court to take judicial notice of the underlying litigation in the Lemuel action and the related litigation in the federal courts. Admiral stated that Lifestar had asserted in the federal litigation that New York law, rather than Alabama law, governed Admiral's insurance policy with Lifestar. As a ground for granting its motion to dismiss, Admiral argued that under New York law an insurance company cannot be held vicariously liable for malpractice committed by counsel it retained to defend its insured. Admiral further argued that although no Alabama court has addressed the issue, the result would be the same under Alabama law because, it argued, attorneys in Alabama are prohibited by the Alabama Rules of Professional Conduct from allowing an insurer to interfere with the attorney's independence of professional judgment in representing the insured and because insurance companies are forbidden from practicing law. Admiral also argued that under Alabama law a retained attorney is in essence an independent contractor in relation to the person who retained the attorney. As another ground to grant the motion to dismiss, Admiral argued that Lifestar's bad-faith claim should have been raised in the federal court litigation as a compulsory counterclaim.
Admiral attached numerous exhibits to its motion to dismiss involving the federal court and state court litigation, including the insurance policy and a letter dated June 19, 2003, from Admiral acknowledging receipt of the notice of the Lemuel action from Lifestar on June 3, 2003, noting that Lifestar had retained the Taylor defendants and that Admiral had reserved its right to disclaim coverage or to provide a defense.
In response to Admiral's motion to dismiss, Lifestar argued, among other things, that Admiral's duty to provide a defense did not arise under the insurance contract alone because Admiral had assumed the duty to provide a defense to Lifestar (even though it reserved its right to disclaim coverage or to provide a defense) and it had done so in a negligent manner. Lifestar also argued that there was a factual issue as to whether Admiral or Lifestar had hired the Taylor defendants and that a lawyer is an agent of the insurance company when the lawyer is hired to defend a lawsuit against the company's insured.
In support of its response, Lifestar attached an affidavit from Bert Taylor that had been filed in the federal court litigation in support of Bert Taylor's motion to withdraw as Lifestar's attorney because of a conflict. In the affidavit, Taylor stated that he was on a list of "panel counsel" for Admiral and that in early June 2003 Bob Froelich,[1] Lifestar's risk manager, had contacted him about representing Lifestar in the Lemuel action. Taylor stated that he investigated the default judgment and that he spoke with Froelich on June 16, 2003, and discussed with Froelich reporting the claim to Admiral. Taylor states that he sent invoices to Admiral for services rendered to Lifestar because Admiral was providing a defense to Lifestar. Taylor also stated that he sent two reports to Admiral regarding the Lemuel action.
Admiral's motion to dismiss was argued on October 31, 2005, and continued until August 28, 2006, at which time the trial court denied the motion and ordered that Bert Taylor be deposed. After Taylor's *211 deposition was taken, Lifestar amended its complaint, adding additional negligence and wantonness claims against Admiral, asserting that Admiral was negligent and/or wanton in the manner in which it supported and supervised the Taylor defendants as Admiral's "panel counsel."[2] Lifestar also asserted that Admiral was negligent and/or wanton in investigating the Lemuel action and in the manner in which it failed to challenge the excessiveness of the default judgment.
On October 13, 2006, Admiral filed a renewed motion to dismiss, arguing that there exists no cause of action against an insurance company for the alleged legal malpractice of retained defense counsel and that Admiral is not a legal-services provider under the Alabama Legal Services Liability Act. Admiral argued that Lifestar's action was barred by the doctrine of "judgmental immunity" or the "attorney-judgment rule" and that the claims asserted in Lifestar's amended complaint should be dismissed on the same grounds as the claims in Lifestar's original complaint. Admiral adopted and incorporated its original motion to dismiss and its supplemental material filed in support of the original motion. Admiral also submitted a brief in support of its renewed motion to dismiss. In its brief, Admiral asserted that the testimony from Bert Taylor's deposition indicated that the Taylor defendants did not breach the standard of care and, furthermore, that Admiral did not participate in or direct Lifestar's defense. Admiral quoted from Taylor's deposition in its brief in support of the motion to dismiss and attached to its brief a copy of Taylor's deposition.
In his deposition, Taylor stated that he had been contacted by Lifestar's corporate risk manager, Froelich, and asked to represent Lifestar in the Lemuel action; that he had not been hired or assigned by Admiral to represent Lifestar; and that Admiral had merely approved Lifestar's selection of Taylor as a defense attorney and ultimately paid Taylor's defense bill once the federal litigation began. Taylor said that, at Admiral's request, he had previously represented Lifestar in another lawsuit involving Care Ambulance and that he had been privately retained by Lifestar at various times to work on other lawsuits that did not involve Admiral. According to Taylor, Froelich told Taylor that he would contact Admiral and get permission for Taylor to represent Lifestar in the Lemuel action. He also stated that Admiral did not control, direct, or have any input into his defense of Lifestar in the Lemuel action and that Lifestar's corporate officers and attorneys supervised and directed Lifestar's defense.
On November 29, 2006, Lifestar filed a response to Admiral's renewed motion to dismiss. Lifestar asserted that Admiral had included facts outside the pleadings in an effort to prove that the Taylor defendants were merely exercising attorney judgment or engaging in litigation strategy. Lifestar went on to set out a time line of Bert Taylor's actions in the Lemuel action and to cite to and quote from Bert Taylor's deposition in arguing that the Taylor defendants' actions fell below the appropriate standard. Lifestar also referred to another civil action in Alabama in which Bert Taylor had been hired by Admiral to defend Lifestar. Lifestar argued that when an insurance company is defending its insured under a reservation of rights, its duty to its insured is a heightened one. Lifestar asserted that Taylor *212 originally stated that he was hired by Admiral to defend Lifestar but that he now claims that he was not hired by Admiral and that Admiral disavowed hiring Taylor. Lifestar further argued that because Admiral now states that it did nothing to defend Lifestar, Lifestar is entitled to a judgment against Admiral based on its failure to do anything in defense of its insured.
After a hearing on Admiral's renewed motion, the trial court granted the motion on January 17, 2007, and certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Lifestar appealed.
Analysis
In its brief to this Court, Lifestar states that its bad-faith-failure-to-defend claim and breach-of-contract claim are no longer actionable because of the federal court's determination in Lemuel v. Admiral Insurance Co., supra, that Admiral did not have a duty to provide Lifestar with a defense to the Lemuel action in state court. Lifestar states that only its negligence and wantonness claims against Admiral "for its failure to provide Lifestar a defense to the Lemuel claim" are before this Court. (Lifestar's brief, p. 6.) Before proceeding to our analysis of the issues raised in this case, we must address the applicable standard of review and the applicable law.
Standard of Review
Lifestar argues that we should apply the standard applicable to this Court's review of the dismissal of a case for failure to state a claim; Admiral argues that we should apply the standard applicable to this Court's review of a summary judgment because the trial court considered matters outside the pleadings. Admiral is correct. Rule 12(b), Ala. R. Civ. P., provides:
"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
This Court has stated:
"`When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala. 1977). "Once matters outside the pleadings are considered, the requirements of Rule 56, [Ala. R. Civ. P.], become operable and the `moving party's burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.' C. Wright & A. Miller, Federal Practice & Procedure, Civil, § 1366 at 681 (1969)." Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala. 1986).'
"Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997)."
Robinson v. Benton, 842 So.2d 631, 634 (Ala.2002).
In the present case, both sides addressed matters outside the pleadings, including the related litigation and Bert Taylor's deposition. The trial court did not exclude any of the matters outside the *213 pleadings, and when matters outside the pleadings are presented to and not excluded by the trial court, the motion will be treated as a summary-judgment motion. Rule 12(b), Ala. R. Civ. P. Additionally, it appears that both sides acquiesced in the trial court's consideration of matters outside the pleadings either by submitting or by referring to evidence beyond the pleadings; therefore, notice by the trial court that it would consider matters outside the pleadings would not have been necessary under Rule 56, Ala. R. Civ. P. Cf. Graveman v. Wind Drift Owners' Ass'n, 607 So.2d 199 (Ala.1992)(nonmovant, like the movant, filed materials in addition to the pleadings). Accordingly, we will review this case under the standard applicable to a summary judgment.
Applicable Law
Alabama law follows the traditional conflict-of-law principles of lex loci contractus and lex loci delicti. See Liberty Mut. Ins. Co. v. Wheelwright, 851 So.2d 466 (Ala.2002). Under the principles of lex loci contractus, a contract is governed by the law of the jurisdiction within which the contract is made. Cherry, Bekaert & Holland v. Brown, 582 So.2d 502 (Ala.1991).[3] Under the principle of lex loci delicti, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala.1991). Lifestar's remaining claims against Admiral are based on negligence and wantonness; therefore, we will apply Alabama law because the alleged injury occurred in Alabama.
Discussion
The first issue is whether Admiral can be held vicariously liable for the alleged negligence of the Taylor defendants.
The test for determining whether a person is an agent or employee of another, rather than an independent contractor, is whether that other person has reserved the right of control over the means and method by which the person's work will be performed, whether or not the right of control is actually exercised. Alabama Power Co. v. Beam, 472 So.2d 619 (Ala.1985). Vicarious liability arises from the right of supervision and control over the manner of the alleged agent's performance. Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003). Generally, one is liable for the actions of an agent but is not liable for the actions of an independent contractor. Gonzalez, LLC v. DiVincenti, 844 So.2d 1196 (Ala.2002).
Lifestar argues that based on Boyd Brothers Transportation Co. v. Fireman's Fund Insurance Cos., 729 F.2d 1407 (11th Cir.1984), an attorney retained by an insurance *214 company to defend the company's insured is not an independent contractor and, therefore, that Admiral is responsible for the Taylor defendants' allegedly negligent and/or wanton defense. In Boyd Brothers, the insurance company agreed to represent its insured, an Alabama transportation company, in an action seeking damages as the result of a steel shipment from New York where the transportation company had allegedly caused the steel to rust in transport. The insurance company undertook to defend the action under an agreement that it was not waiving its right to deny coverage or to deny that it had a duty to provide the transportation company a defense. The insurance company assigned the case to a New York attorney and paid for the bulk of the attorney's services throughout the litigation. The New York Supreme Court entered a summary judgment for the steel supplier and against the transportation company. In response to the summary-judgment motion, the attorney for the transportation company had attached only one item, an affidavit by the transportation company's president, who had no direct knowledge of any of the facts presented in the affidavit. After the entry of the summary judgment, the insurance company wrote a letter to the transportation company confirming that the judgment had been entered and refusing to defend them further. The transportation company paid for an attorney to represent it on appeal of the summary judgment but lost that appeal. The case eventually went to a New York jury, and damages were assessed against the transportation company. Subsequently, the transportation company sued the insurance company, alleging negligence and wantonness in defending the action. The jury found in favor of the transportation company, and damages were awarded. The insurance company appealed.
On appeal, one of the issues was whether the New York attorney was an agent of the insurance company or an independent contractor. The United States Court of Appeals for the Fifth Circuit first turned to New York law on the question whether an attorney retained and paid by an insurance company to defend an insured is an independent contractor or the insurance company's agent. However, there were no New York cases on point at that time. The court next looked to Alabama law because of its connection to the case and found no Alabama law on point. The court then looked to Alabama's neighboring state of Georgia and found a case, Smoot v. State Farm Mutual Automobile Insurance Co., 299 F.2d 525 (5th Cir.1962), in which the federal appellate court, interpreting Georgia law, determined that "[t]hose whom the insurer selects to execute its promises, whether attorneys, physicians, no less than company-employed adjusters, are its agents for whom it has the customary legal liability." 299 F.2d at 530.
Lifestar's reliance on Boyd Brothers is misplaced. First, Boyd Brothers did not apply Alabama law; instead, it applied Georgia law, as interpreted by the federal court. Second, Boyd Brothers was issued four years before Feliberty v. Damon, 72 N.Y.2d 112, 531 N.Y.S.2d 778, 527 N.E.2d 261 (1988), in which the New York state court determined that the alleged negligence of defense counsel, whom the insurance company was required to retain to conduct litigation of behalf of the insured, would not be imputed to the insurance company. Had Feliberty been decided when Boyd Brothers was before the federal court, the federal court would have followed New York law.
We note that other jurisdictions have held that an insurer is not vicariously liable for the actions of counsel it retained on *215 behalf of its insured. In Merritt v. Reserve Insurance Co., 34 Cal.App.3d 858, 880, 110 Cal.Rptr. 511, 526 (1973), the California court stated that "independent counsel retained to conduct litigation in the courts act in the capacity of independent contractors, responsible for the results of their conduct and not subject to the control and direction of their employer over the details and manner of their performance." The nature of the duty assumed by the insurer to defend its insured against suits must be considered a delegable duty because the insurer had no authority to perform that duty itself and in fact, because an insurance carrier is not authorized to practice law, was prohibited from doing so. "If counsel negligently conducts the litigation, the remedy for this negligence is found in an action against counsel for malpractice and not in a suit against counsel's employer to impose vicarious liability." 34 Cal.App.3d at 881-82, 110 Cal.Rptr. at 527. See also Brown v. Lumbermens Mut. Cas. Co., 90 N.C.App. 464, 369 S.E.2d 367 (1988) (alleged negligence of attorneys hired by insurer to defend insured could not be imputed to insurer because attorney was an independent contractor); Aetna Cas. & Sur. Co. v. Protective Nat'l Ins. Co., 631 So.2d 305 (Fla.Dist.Ct.App.1993)(holding that an insurance company is not vicariously liable for the malpractice of the attorney it retained to defend its insured).
Other jurisdictions have held an insurer vicariously liable for the negligence of counsel retained to defend its insured. See, e.g., Pacific Employers Ins. Co. v. P.B. Hoidale Co., 789 F.Supp. 1117 (D.Kan.1992)(holding that under Kansas law primary insurer was vicariously liable under agency principles because counsel was engaged in the furtherance of the insurer's business and received instructions from the insurer rather than the insured); Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980)(expressly declining to follow the Merritt court's rationale).
Lifestar cites Waters v. American Casualty Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524 (1954), for the proposition that an attorney retained by an insurance company to represent an insured is an agent of the insurance company. In Waters, this Court held that a liability insurer may be liable beyond the limits of the policy for negligence or bad faith in failing to settle claims against the insured within policy limits when a judgment greater than the policy limits is subsequently obtained against the insured. In Waters, the insured sued his insurer, alleging negligence and bad faith, when the jury's verdict exceeded the policy limits and the insurer had had an opportunity to settle within the policy limits before the verdict was returned. During the trial, the plaintiff offered to settle the case for an amount equal to the policy limits. The defense attorney retained by the insurer to represent the insured did not notify the insurer of the offer. The Court stated that the opinion was addressing the liability of the insurer, and not of the attorney. However, the Court noted that the attorney must exercise ordinary diligence and skill throughout his or her representation and that that requirement imposes a duty on the attorney to inform the insurer of a proposal presented by the plaintiff to settle an action within the limits of the policy. Whether or not the attorney notifies the insurer, the insurer is charged with the same notice the attorney received in the course of the employment the same as if the attorney had in fact so notified the insurer. The Court held that the question of the insurer's liability was properly left to the jury where the attorney, acting within the line and scope of his employment, was the agent *216 of his client, the insurer. Although the Waters Court imputed the attorney's knowledge of the settlement offer to the insurer, the "agency" relationship did not extend to control the attorney's practice of law.
Rule 1.8(f), Ala. R. Prof. Cond., provides:
"A lawyer shall not accept compensation for representing a client from one other than the client unless:
"(1) the client consents after consultation or the lawyer is appointed pursuant to an insurance contract;
"(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
"(3) information relating to representation of a client is protected as required by Rule 1.6."
The Comment to Rule 1.8 explains:
"Paragraph (f) requires disclosure of the fact that the lawyer's services are being paid for by a third party. Subsection (1) in this paragraph expressly recognizes that in the insurance defense practice, attorneys are appointed by the insurers to represent the insureds as clients. The insurer's authority to appoint counsel springs from its contract with the insured. In the normal insurance defense relationship where, for example, there are no coverage issues, appointed counsel has two clients, the insured and the insurer. Hence, the insurer is not a third party. Additionally, all arrangements pursuant to paragraph (f) must also conform to the requirements of Rule 1.6 concerning confidentiality and Rule 1.7 concerning conflict of interest. Where the client is a class, consent may be obtained on behalf of the class by court-supervised procedure."
(Emphasis added.)
In Mitchum v. Hudgens, 533 So.2d 194 (Ala.1988), an obstetrician sued the attorney who had been designated by the insurer to defend the medical-malpractice claim against the obstetrician, alleging that the attorney had committed malpractice by settling the medical-malpractice action within policy limits without giving prior notice of the settlement to the obstetrician. This Court explained:
"It must be emphasized that the relationship between the insured and the attorney is that of attorney and client. That relationship is the same as if the attorney were hired and paid directly by the insured and therefore it imposes upon the attorney the same professional responsibilities that would exist had the attorney been personally retained by the insured. These responsibilities include ethical and fiduciary obligations as well as maintaining the appropriate standard of care in defending the action against the insured."
533 So.2d at 199.
In its complaint, Lifestar alleges that the Taylor defendants represented both Lifestar and Admiral in a tripartite relationship. In the normal tripartite relationship between an insurer, the insured, and the defense attorney, the insurer has a duty to defend and retains an attorney to provide the defense. So long as the interests of the insurer and the insured coincide, they are both clients of the retained attorney, with the mutual goal of defeating the action against the insured. Two classic conflicts of interest that may arise between the insured and the insurer are where the claimed damages exceed coverage and where the insurer has reserved its right to contest coverage under the policy. "[N]o real conflict of interest exists between *217 the insured and the insurer, at least where the claim or settlement is within policy limits and there has been no reservation of rights by the insurer." Mitchum, 533 So.2d at 201 (emphasis added). If a conflict exists, the primary obligation of the retained attorney is to the insured. In the present case, Admiral reserved its right to deny coverage. Thus, the Taylor defendants represented Lifestar, not Admiral.
This Court has addressed a defense attorney's obligation when the insurer reserves its rights to deny coverage or disclaim its duty to provide a defense. In L & S Roofing Supply Co. v. St. Paul Fire & Marine Insurance Co., 521 So.2d 1298 (Ala.1987), this Court answered the certified question posed by a federal district court as to whether an insurer's election to defend its insured under a reservation of rights creates such a conflict of interest that the insured is entitled to engage counsel of its choice at the insurer's expense. The insured, L & S Roofing, relied on decisions from "`[a]t least fifty different courts in a dozen jurisdictions'" that have held that the existence of a dispute as to coverage justifies selection of independent counsel by the insured. 521 So.2d at 1302. This Court disagreed and adopted a standard of "enhanced obligation of good faith," 521 So.2d at 1304, that the insurer and defense counsel retained by it must follow. This Court adopted the enhanced-good-faith standard established by the Washington Supreme Court in Tank v. State Farm Fire & Casualty Co., 105 Wash.2d 381, 715 P.2d 1133 (1986), and quoted extensively from that opinion:
"`This enhanced obligation [of good faith] is fulfilled by meeting specific criteria. First, the company must thoroughly investigate the cause of the insured's accident and the nature and the severity of the plaintiff's injuries. Second, it must retain competent defense counsel for the insured. Both retained defense counsel and the insurer must understand that only the insured is the client. Third, the company has the responsibility for fully informing the insured not only of the reservation of rights defense itself, but of all the developments relevant to his policy coverage and the progress of this lawsuit. Information regarding progress of the lawsuit includes disclosure of all settlement offers made by the company. Finally, an insurance company must refrain from engaging in any action which would demonstrate a greater concern for the insurer's monetary interest than for the insured's financial risk.'"
521 So.2d at 1303 (quoting Tank, 105 Wash.2d at 388, 715 P.2d at 1137)(emphasis omitted). This Court admonished that when an insurer defends its insured under a reservation of rights retained counsel should understand that counsel represents only the insured, not the insurer.
Lifestar is not the first party to sue a third party for an attorney's alleged malpractice when the third party retained the attorney. In United Steelworkers of America, AFL-CIO v. Craig, 571 So.2d 1101 (Ala.1990), the union members brought an action against their union alleging legal malpractice. The trial court entered a judgment in favor the union members, and the union appealed. This Court held that
"the duty, if any, on which the [union members'] claims rest, arises solely out of federal labor law .... The fact that the [union members] couched their suit in language indicative of state-law claims does not create a state-law cause of action where, as here, a state-law claim does not otherwise exist. In other words, but for the duty of fair representation implied in the union-employee relationship, *218 inherent in federal labor law, no cause of action exists for legal malpractice against a nonlawyer, based on the nonlawyer's `failing to adequately represent the plaintiffs' in a litigated `discrimination' suit."
571 So.2d at 1102 (citations omitted).
In Alabama Education Ass'n v. Nelson, 770 So.2d 1057 (Ala.2000), a former teacher brought a legal-malpractice action against her attorney and the teachers organization, the Alabama Education Association ("the AEA"), which had provided the attorney. This Court held that the AEA was not a "legal services provider" under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975, and, therefore, could not be held liable for the alleged malpractice of the attorney it retained to represent the former teacher.
In the present case, the Taylor defendants' alleged negligence and wantonness could not be imputed to Admiral. Admiral could not control the Taylor defendants' professional judgment. Rule 1.8(f)(2), Ala. R. Prof. Cond., prevents an attorney from accepting compensation from a third party unless there is no interference with the attorney's independent judgment. Therefore, the attorney's ethical obligation to his or her client (here, Lifestar) prevents an insurer from controlling the manner of the attorney's performance. We also agree with the rationale of the New York court in Feliberty v. Damon, supra:
"First, the duty to defend an insured is by its very nature delegable, as all the parties must know from the outset, for in New York as in California an insurance company is in fact prohibited from the practice of law. Accordingly, the insurer necessarily must rely on independent counsel to conduct the litigation. Second, the paramount interest independent counsel represents is that of the insured, not the insurer. The insurer is precluded from interference with counsel's independent professional judgments in the conduct of the litigation on behalf of its client. Vicarious liability thus produces an untenable situation here: on the one hand an insurer is prohibited from itself conducting the litigation or controlling the decisions of the insured's lawyer, yet on the other hand it is charged with responsibility for the lawyer's day-to-day independent professional judgments in the `nuts and bolts' of representing its client. Finally, in determining whether a new exception should be recognized, we note that an insured is not otherwise left without a remedy for a law firm's claimed incompetence, and a law firm is not insulated from liability for wrongdoing; indeed, in the case before us, plaintiff has sought full recovery for his damages in a legal malpractice claim against the firm."
72 N.Y.2d at 120, 531 N.Y.S.2d at 782, 527 N.E.2d at 265 (citations omitted). Accordingly, we hold that Admiral cannot be held vicariously liable for the Taylor defendants' alleged negligence or wantonness.
Lifestar also argues that Admiral is directly liable for the negligent and/or wanton manner in which it supported and supervised the Taylor defendants as Admiral's panel counsel. Lifestar also argues that Admiral was negligent and/or wanton in investigating the Lemuel action and in the manner in which it failed to challenge the excessiveness of the default judgment.
First, any claim that Lifestar had regarding Admiral's failure to investigate the underlying action would have fallen under Admiral's enhanced obligation of good faith as discussed in L & S Roofing, supra. In a subsequent case, this Court has held that a claim of a breach of the enhanced obligation of good faith is a breach-of-contract claim. See Twin City *219 Fire Ins. Co. v. Colonial Life & Accident Ins. Co., 839 So.2d 614 (Ala.2002). In Twin City Fire, this Court stated that after L & S Roofing, "whenever an insurer defends the insured under a reservation of rights, the enhanced duty of good faith is read into that reservation of rights.... Because the enhanced duty arises from the contract, it follows that claims alleging a breach of the enhanced duty of good faith are contract claims." 839 So.2d at 616. Lifestar recognizes that any contract claims that it had against Admiral should have been brought in the federal action. Second, as to Lifestar's claims that Admiral failed to supervise the Taylor defendants, including supervising them in the challenging the excessiveness of the award in the Lemuel action, an insurance company is prohibited from practicing law and must rely on independent counsel to conduct litigation. A corporation cannot practice law, and an appearance for a corporation by one not an attorney is not permissible. A-OK Constr. Co. v. Castle Constr. Co., 594 So.2d 53 (Ala.1992). Furthermore, the Taylor defendants, as discussed earlier, represented Lifestar's interests, not Admiral's.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.
NOTES
[1] This person's name is also spelled "Frau lich" throughout the record and in Lifestar Response of Alabama, Inc. v. Lemuel, supra.
[2] Panel counsel is typically a list of lawyers regularly used by insurers to represent their insureds.
[3] Alabama law has long recognized the right of parties to an agreement to choose the law of a particular state to govern the agreement. Lifestar contended that it and Admiral agreed in the insurance contract that New York law would apply and that a contractual choice-of-law provision may be broad enough to apply to both contract claims and tort claims in certain circumstances. The policy between Lifestar and Admiral, which was issued in New York, provides that "[t]he terms of this policy which are in conflict with the statutes of the state wherein this contract is issued are hereby amended to conform to such statutes." However, this language conforming the provisions of the policy with state law does not operate as a choice-of-law provision and should not be treated as such. The plain language of that provision states only that where the policy conflicts with state law the state law will apply to conform the policy to the statute; such language does not indicate an intent by Lifestar and Admiral to apply New York law to the construction and validity of the agreement, much less to any tort claims arising out of the relationship between the parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573638/ | 17 So.3d 991 (2009)
Carroll John LANDRY, III
v.
BATON ROUGE POLICE DEPARTMENT.
No. 2008 CA 2289.
Court of Appeal of Louisiana, First Circuit.
May 8, 2009.
*993 Floyd J. Falcon, Jr., Charles L. Dirks, III, Baton Rouge, LA, for Plaintiff/Appellant, Carroll John Landry, III.
Joseph N. Lotwick, Baton Rouge, LA, for Defendant/Appellee, Baton Rouge Police Department.
Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
WHIPPLE, J.
This is an appeal by plaintiff from a judgment of the district court, affirming the decision of the Municipal Fire and Police Civil Service Board, which had upheld a one-day suspension of plaintiff. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 12, 2007, plaintiff, Officer Carroll John Landry, III, a classified employee serving with permanent status as an officer with the Baton Rouge Police Department, brought his police vehicle to the city lot for repairs. When Officer Landry left the vehicle at the city lot, he inadvertently left his Department-issued shotgun, Department-issued laptop computer, and a bag containing ammunition in the trunk of the vehicle. When city lot employees discovered and reported the weapon and other items, an investigation was conducted. During the investigation, Officer Landry acknowledged to Chief Jeff LeDuff that he had inadvertently left his shotgun in the trunk of his unit when he dropped the unit off at the city lot for repairs.[1]
Thereafter, by letter dated June 5, 2007, Chief LeDuff advised Officer Landry that he was considering taking official disciplinary action against Officer Landry for the violation of the Department's Policies and Procedures Manual Disciplinary Code, Section XII, and General Order Nos. 132 and 138, governing the carrying and storage of weapons and the removal of personal equipment from vehicles delivered to the city lot for repairs. In the letter, Officer Landry was further notified of the time and date of his pre-disciplinary hearing.
After the pre-disciplinary hearing, Chief LeDuff informed Officer Landry, by letter dated June 12, 2007, that he was imposing discipline in the form of a one-day suspension due to Officer Landry's violation of Departmental policies and procedures. Officer Landry appealed the disciplinary action to the Municipal Fire and Police Civil Service Board ("the Board").
At the hearing before the Board, Officer Landry again acknowledged that he had violated Departmental policy and procedure by leaving his weapon and laptop in his unit, but asked the Chief to consider the totality of the circumstances in determining whether to take disciplinary action. Additionally, counsel for Officer *994 Landry raised a procedural objection at the hearing, noting that LSA-R.S. 40:2531, regarding police officers under investigation, required that an internal administrative investigation of a police officer was to be completed within sixty days, a provision which was violated in the instant case. Thus, counsel for Officer Landry asked the Board to find that the Chief was not acting in good faith and to either dismiss the suspension or, at a minimum, reduce the suspension to a letter of reprimand or caution. At the close of the hearing, the Board voted to uphold the Chiefs decision.
Officer Landry then appealed the Board's decision to the district court, noting that the 2007 amendments to LSA-R.S. 40:2531 in part added subsection (C), providing that any discipline taken against a police officer without compliance with the minimum standards set forth in LSA-R.S. 40:2531 is an absolute nullity. Prior to the 2007 amendments, the statute required that an investigation be completed in sixty days, but provided no penalty for failure to comply. Officer Landry argued that the amendments to LSA-R.S. 40:2531 should be given retroactive effect and should apply to the instant case. Thus, Officer Landry averred, because the investigation leading to his one-day suspension was not completed within sixty days as required by LSA-R.S. 40:2531(B)(7), the disciplinary action taken against him should be declared an absolute nullity.
After hearing the matter, the district court concluded that the amendments in question, which provided a remedy where none existed before, were substantive in nature and, thus, could be applied prospectively only. Thus, the district court affirmed the decision of the Board upholding the suspension of Officer Landry. From this judgment, Officer Landry appeals, contending that the Board and the district court committed legal error in concluding that the amendment to LSA-R.S. 40:2531 does not have retroactive effect.
BURDEN OF PROOF AND STANDARD OF REVIEW
Matters involving classified employees of municipal fire and police departments are governed by the Municipal Fire and Police Civil Service Law, LSA-R.S. 33:2471, et seq., and by LSA-Const.1921, Art. XIV, § 15.1.[2]See LSA-R.S. 33:2591 and LSA-Const.1974, Art. X, § 18. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may demand a hearing and an investigation by the Board to determine the reasonableness of the action. LSA-R.S. 33:2501(A).
The Board may, if the evidence is conclusive, affirm the action of the appointing authority. If it finds that the action was not taken in good faith for cause, the *995 Board shall order the immediate reinstatement or reemployment of such person. LSA-R.S. 33:2501(C).
The employee may appeal any decision of the Board that is prejudicial to him. LSA-R.S. 33:2501(E)(1). The district court shall hear the matter in a summary manner, and its review of the Board's action is limited to a finding of whether the Board's decision was made "in good faith for cause." LSA-R.S. 33:2501(E)(2) & (3); Moore v. Ware, XXXX-XXXX (La.2/25/03), 839 So.2d 940, 945.
If based on good faith and statutory cause, a decision of the Board cannot be disturbed on judicial review. Good faith does not occur if the appointing authority acted arbitrarily or capriciously or as a result of prejudice or political expediency. Moore, 839 So.2d at 945. Arbitrary or capricious means the lack of rational basis for the action taken. The district and appellate courts should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. Moore, 839 So.2d at 946.
DISCUSSION
As stated above, the only issue raised by Officer Landry herein is whether the 2007 amendments to LSA-R.S. 40:2531 apply retroactively to nullify the disciplinary action taken against him, where the investigation into the incident was not completed within sixty days.
Louisiana Revised Statute 40:2531 sets forth the minimum standards that shall apply to the investigations of law enforcement officers. Pursuant to LSA-R.S. 40:2531(B)(7), the investigation of a law enforcement officer shall be completed within sixty days.[3] However, prior to the 2007 amendments to LSA-R.S. 40:2531, the statute contained no penalty provision for non-compliance with the sixty-day rule.[4]
In Marks v. New Orleans Police Department, XXXX-XXXX (La. 11/29/06), 943 So.2d 1028, 1032-1036, the Louisiana Supreme Court considered the issue of whether, under the pre-amendment version of LSA-R.S. 40:2531, the failure to comply with the statutory "minimum standards," by failure to complete the investigation within sixty days, required summary *996 dismissal of the charges against an officer. Noting that the statute contained no penalty provision for non-compliance, the Supreme Court held that the failure to comply with the sixty-day time period did not require summary dismissal of a disciplinary action. Rather, the Court concluded that failure to comply with the sixty-day time period may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer was demonstrated due to the delay. Marks, 943 So.2d at 1036-1037.
The following year, the Legislature amended LSA-R.S. 40:2531 by Acts 2007, Nos. 91 and 258. In Acts 2007, No. 91, the Legislature amended subsection (B)(7) of LSA-R.S. 40:2531 to add language providing that the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date that a formal and written complaint is made against a law enforcement officer. Act No. 91 also added the following language to subsection (B)(7): "The investigation shall be considered complete upon notice to the law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint." Additionally, by Acts 2007, No. 258, the Legislature added subsection (C) to LSA-R.S. 40:2531, providing as follows:
C. There shall be no discipline, demotion, dismissal or adverse action of any sort taken against a law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal or adverse action of any sort whatsoever taken against a law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.
(Emphasis added). The effective date of these amendments was August 15, 2007.
Officer Landry asserts that the amendments did not place any new obligations upon the Baton Rouge Police Department, but, rather, merely identified when the investigation was deemed completed and described the remedy available to a law enforcement officer in the event the police department failed to meet the obligations already imposed by LSA-R.S. 40:2531. Thus, he contends that these amendments should be applied retroactively, thereby nullifying the discipline taken against him, because they are procedural or remedial in nature. Because Acts 2007, No. 258 was the amendment that provided for a penalty for non-compliance with the sixty-investigation period, we will focus our analysis on whether Act 258 can be applied retroactively.
The legislature is free, within constitutional confines,[5] to give its enactments retroactive effect. Louisiana Revised Statute 1:2 provides that "[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated." However, LSA-R.S. 1:2 has been construed as co-extensive with LSA-C.C. art. 6. St. Paul Fire & Marine Insurance Company v. Smith, 609 So.2d 809, 816 (La.1992). Article 6 codifies the general rule against retroactive application of legislative enactments and the exceptions jurisprudentially grafted one, providing as follows:
*997 In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
St. Paul Fire & Marine Insurance Company, 609 So.2d at 816.
In determining whether a newly enacted provision is to be applied prospectively only, or may also be retroactive, LSA-C.C. art. 6 requires a two-fold inquiry. First, the court must determine whether the amendment to the statute expresses legislative intent regarding retroactive or prospective application. Keith v. U.S. Fidelity & Guaranty Company, 96-2075 (La.5/9/97), 694 So.2d 180, 183. Second, if no such intent is expressed, the enactment must be classified as substantive, procedural, or interpretive. Keith, 694 So.2d at 183.
Furthermore, even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights. If it does so, then in spite of legislative pronouncements to the contrary, the law is substantive rather than procedural or interpretive. State Farm Mutual Automobile Insurance Company v. Noyes, XXXX-XXXX (La.App. 1st Cir.2/23/04), 872 So.2d 1133, 1138.
In the instant case, Act 258 does not expressly provide for retroactive application, nor has the legislature expressly declared the Act to be interpretive or provided for an effective date that would be indicative of retroactive application of the amendments. Therefore, this court must classify the enactment as substantive, procedural, or interpretive.[6]See Noyes, 872 So.2d at 1138.
Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. Keith, 694 So.2d at 183. Substantive laws either establish new rules, rights, and duties or change existing ones. Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its initial enactment. It is the original statute, not the interpretive one, that establishes the rights and duties. St. Paul Fire & Marine Insurance Company, 609 So.2d at 817. When an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retroactive effect because it does not change, but merely clarifies, pre-existing law. St. Paul Fire & Marine Insurance Company, 609 So.2d at 817.
As noted by the Supreme Court, the suggested distinction between interpretive legislation "clarifying," and substantive legislation "amending" or "changing," existing law is an obscure one. There is no bright line between substantive laws which change existing standards and interpretive laws which change existing standards by redefining and returning to their ostensible "original" meaning. St. Paul Fire & Marine Insurance Company, 609 So.2d at 819.
*998 However, the statutory interpretation and the construction to be given to legislative acts is a matter of law and rests with the judicial branch. Bourgeois v. A.P. Green Industries, Inc., XXXX-XXXX (La.4/3/01), 783 So.2d 1251, 1260. Noyes, 872 So.2d at 1139. In Noyes, this court has quoted with approval Justice Lemmon in his assignment of additional reasons to the majority opinion in Bourgeois, wherein Justice Lemmon stated as follows:
True interpretive legislation occurs when the Legislature, upon realizing that a previously enacted law contains an ambiguity or an error, amends the prior law to correct the ambiguity or error before the law has been judicially interpreted. However, after the judicial branch performs its constitutional function of interpreting a law, and the Legislature disagrees with that interpretation, a new legislative enactment is a substantive change in the law and is not an interpretive law, because the original law as interpreted by the judicial branch, no longer applies.
Bourgeois, 783 So.2d at 1261 (Lemmon, J., assigning additional reasons); Noyes, 872 So.2d at 1139.
As stated above, prior to the 2007 amendment at issue, LSA-R.S. 40:2531 did not contain a penalty provision for non-compliance with the sixty-day investigation rule. Noting that the statute contained no penalty provision for non-compliance, the Supreme Court, prior to the 2007 amendments, held that the failure to comply with the sixty-day time period did not require dismissal of a disciplinary action unless prejudice to the officer was demonstrated due to the delay. Marks, 943 So.2d at 1036-1037.
Contrary to Officer Landry's assertions, LSA-R.S. 40:2531(C), as added by Acts 2007, No. 258, is not procedural because it did not merely prescribe a method for enforcing a previously existing substantive right. Instead, the right of an officer to have any discipline taken without complete compliance to the "minimum standards" set forth in LSA-R.S. 40:2531 declared an absolute nullity, and the penalty of nullity imposed against the department for its failure to comply, did not previously exist.
Moreover, the effect of Acts 2007, No. 258, which provides that any discipline taken without complete compliance with the "minimum standards" (including the sixty-day rule) is an absolute nullity, is that the Supreme Court's interpretation of LSA-R.S. 40:2531 in Marks no longer applies. See Bourgeois, 783 So.2d at 1261 (Lemmon, J., assigning additional reasons). Accordingly, we conclude that Act 258 was not interpretive. See Noyes, 872 So.2d at 1139-1140.
Until the 2007 amendment adding subsection (C) to LSA-R.S. 40:2531, an officer had no remedy of nullity for discipline taken without compliance to the minimum standards set forth in LSA-R.S. 40:2531, nor was the penalty of absolute nullity of the disciplinary action imposed against the department. Thus, the amendment was substantive in that it represents a distinct change in the rights and obligations of the parties. Pursuant to LSA-C.C. art. 6 and LSA-R.S. 1:2, such a substantive change in the law cannot be applied retroactively, and the Board and the district court were correct in declining to do so.
CONCLUSION
For the above and foregoing reasons, the June 10, 2008 judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiff, Carroll John Landry, III.
AFFIRMED.
NOTES
[1] Officer Landry explained that at the time he brought his vehicle to the city lot for repairs, he was on medical leave for the birth of his first child. On the day in question, his wife followed him to the city lot with the baby, and while he was taking care of paperwork at the lot, the baby had an accident on herself, which also leaked in the truck. According to Officer Landry, in his haste to attend to his wife and baby, Officer Landry left his shotgun, computer and some personal magazines in the trunk of his unit.
[2] Louisiana Revised Statutes 33:2471-2508 are in the section entitled "Part II. Fire and Police Civil Service Law for Municipalities between 13,000 and 250,000." Pursuant to LSA-R.S. 33:2591, Article XIV, § 15.1 of the 1921 Louisiana Constitution governs the classified civil service of the fire and police services in municipalities having a population between 250,000 and 500,000. Moreover, Article 10, § 18 of the 1974 Louisiana Constitution retained and continued in force the provisions of Article XIV, § 15.1 of the 1921 Constitution as statutes. See LSA-R.S. 33:2591, LSA-Const.1921, Art. XIV, § 15.1, and LSA-Const.1974, Art. X, § 18.
Citing LSA-R.S. 33:2591, LSA-Const.1921, Art. XIV, § 15.1, and LSA-Const.1974, Art. X, § 18, this court has held that the provisions of LSA-R.S. 33:2471-2508 apply to municipalities having a population between 250,000 and 500,000 as well. McGehee v. City/Parish of East Baton Rouge, XXXX-XXXX (La.App. 1st Cir.9/12/01), 809 So.2d 258, 261 n. 6.
[3] Prior to amendment in 2007, LSA-R.S. 40:2531(B)(7) provided as follows:
Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:
* * *
(7) Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the officer who is under investigation. The officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this paragraph shall be construed to prohibit the law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.
[4] The statute, prior to the 2007 amendments, also did not specifically set forth when the investigation was deemed complete.
[5] Louisiana Constitution Article I, section 23 prohibits ex post facto laws and laws impairing obligations of contracts. Also, no law can be retroactively applied so as to divest a party of a vested right, as this would violate the due process clause of the state and federal constitutions. These constitutional issues, however, arise only when retroactive effect is given to a new law. St. Paul Fire & Marine Insurance Company v. Smith, 609 So.2d 809, 816 n. 11 (La.1992).
[6] As noted above, Officer Landry argues in part that the amendments were "remedial" and, thus, should be applied retroactively. While the jurisprudence had also recognized a fourth category, remedial laws, the legislature intentionally left this category out of LSA-C.C. art. 6 because of the multiplicity of meanings it had been given. "A remedial law may be procedural, interpretive, or substantive." LSA-C.C. art. 6, Official Comment (d); St. Paul Fire & Marine Insurance Company, 609 So.2d at 817 n. 16. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573641/ | 224 S.W.3d 860 (2007)
Ex parte Earnest Carl WILSON.
No. 06-06-00121-CV.
Court of Appeals of Texas, Texarkana.
Submitted April 18, 2007.
Decided May 23, 2007.
*861 Earnest Carl Wilson, Rosharon, pro se.
Joe Black, Dist. Atty., Al Davis, Asst. Dist. Atty. Harrison County, Marshall, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Chief Justice MORRISS.
Pro se inmate Earnest Carl Wilson unsuccessfully petitioned[1] the 71st Judicial District Court in Harrison County to expunge the records related to his April 26, 1993, arrest for escape. Wilson argues that the trial court erred in not giving his petition a full hearing with reasonable notice, not granting Wilson a bench warrant so he could attend the hearing,[2] denying *862 his expunction petition, and denying his motion to vacate[3] the trial court's judgment denying expunction. We reverse and remand this case for an evidentiary hearing because, under these facts, the trial court erred in ruling on Wilson's petition without holding an evidentiary hearing.
Expunction proceedings are authorized by Chapter 55 of the Texas Code of Criminal Procedure and are considered civil causes of action. See McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex.App.-Fort Worth 2002, no pet.); Tex. Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex.App.-Houston [1st Dist.] 1994, no writ). A petitioner is entitled to expunction only on proof of satisfaction of each statutory requirement. See Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 650 (Tex.App.-Corpus Christi 2002, no pet.). The salient portion of Article 55.01 of the Texas Code of Criminal Procedure provides as follows:
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
. . . .
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested . . . ;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
TEX.CODE CRIM. PROC. ANN. art. 55.01(a) (Vernon 2006). Although Section 55.01 is in the Texas Code of Criminal Procedure, an expunction proceeding is civil in nature. Heine, 92 S.W.3d at 646. Wilson, as the one who brought this civil action, bore the burden of proof. See id. at 650. Expunction will not be granted unless the petitioner *863 satisfies each of the statutory requirements. Perdue v. Tex. Dep't of Pub. Safety, 32 S.W.3d 333, 335 (Tex.App.-San Antonio 2000, no pet.). We review a trial court's ruling on a petition for expunction under an abuse-of-discretion standard. Heine, 92 S.W.3d at 646. A trial court abuses its discretion if it acts without reference to guiding rules and principles or if its actions were arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Also, it errs if it rules without holding a hearing, where one is required.
Article 55.02 states that the trial court "shall set a hearing on" the petition for expunction. See TEX.CODE CRIM. PROC. ANN. art. 55.02, § 2(c) (Vernon 2006). Not every hearing called for under every rule of civil procedure necessarily requires an oral hearing, and, unless required by the express language or the context of the particular rule, the term "hearing" does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court. Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex.1988); Ex parte Staner, No. 06-06-00088-CV, 2007 WL 79406 (Tex. App.-Texarkana Jan.5, 2007, no pet. h.); Ex parte Current, 877 S.W.2d 833, 839 (Tex.App.-Waco 1994, no writ). For example, a trial court may rule on an expunction petition without conducting a formal hearing and without the consideration of live testimony, if it has at its disposal all the information it needs to resolve the issues raised by the petition. Current, 877 S.W.2d at 839-40. Presumably, that information might be available by what is in the pleadings, by summary judgment proof, or by judicially noticing court records.
The judgment denying Wilson's requested expunction recites that the trial court "has examined the records of the County Court at Law of Harrison County, Texas," and rules on Wilson's petition apparently by taking judicial notice of those records and without an evidentiary hearing. While those records were obviously available to the trial courtit based its ruling on them, satisfying itself that the petition's claims were meritlessthe court apparently ruled entirely on the basis of its judicial notice of another court's records.
Before courts can take judicial notice of facts, those facts cannot be seriously subject to debate and must be easily ascertainable. Fender v. St. Louis Southwestern Ry. Co., 513 S.W.2d 131, 135 (Tex. Civ.App.-Dallas 1974, writ ref'd n.r.e.); Levlon v. Dallas Ry. & Terminal Co., 117 S.W.2d 876, 878 (Tex.Civ.App.-Dallas 1938, writ ref'd). Judicial records from other states, and such records from a domestic court other than the court being asked to take judicial notice, have not been deemed so easily ascertainable that no proof is required; they are to be established by introducing into evidence authenticated or certified copies, respectively, of those records. Fender, 513 S.W.2d at 135; Adams v. State Bd. of Ins., 319 S.W.2d 750, 754 (Tex.Civ.App.-Houston 1958, writ ref'd n.r.e.).[4] That was not done in this case, and no evidentiary hearing was held. Because the trial court's ruling rested necessarily on its taking judicial notice of unspecified *864 court records from another court,[5] dispensing with an evidentiary hearing on Wilson's petition was error.
Ordinarily, we presume the records not made a part of the appellate record support the trial court's decision. See State v. Pierce, 816 S.W.2d 824, 831 (Tex.App.-Austin 1991, no writ). But, because the trial court's judgment was rendered without properly taken judicial notice and without an evidentiary hearing, it was error.
We reverse the judgment and remand this matter to the trial court for a hearing in accordance with this opinion.
NOTES
[1] We note that Wilson's petition lacks information to identify the case in which he was arrested April 26, 1993, other than the date of his arrest and the charge, and that there is apparent confusion among the various information sources Wilson cites. The lack of any appellate record reflecting the underlying facts impedes our effort at cutting through that confusion.
[2] Wilson asserts he was entitled to be personally present at a hearing, notwithstanding his status as an inmate. Though prison inmates do not lose the right to access the courts because of their incarceration, they do not have an absolute right to appear in person. Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex. App.-San Antonio 2001, no pet.). There are alternatives to having an inmate physically present at a hearing, such as the use of affidavit, deposition, or telephone. See In re D.D.J., 136 S.W.3d 305, 314 (Tex.App.-Fort Worth 2004, no pet.); Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex.App.-Houston [1st Dist.] 2000, no pet.). And a variety of factors can affect whether a bench warrant should be granted, including the difficulty in transporting the inmate to court, security and danger of his or her presence, the weight of the inmate's claims, the time-critical nature of the matter, the need for the inmate's personal and present testimony and for judging his or her credibility, whether the hearing is to the court or to a jury, the inmate's probability of success on the merits, whether the inmate is represented or is pro se, and whether he or she is a plaintiff or defendant. D.D.J., 136 S.W.3d at 310-15; see Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir.1976). A decision on a request for a bench warrant is reviewed for an abuse of discretion. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 650 (Tex.App.-Austin 2002, pet. denied); In re B.R.G., 48 S.W.3d 812, 820 (Tex.App.-El Paso 2001, no pet.).
[3] Wilson's "motion to vacate" was essentially a motion for new trial. That motion essentially argued that the trial court was incorrect in its findings in the judgment. We review a trial court's denial of a motion for new trial for abuse of discretion. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). Since we find error in the original judgment, we do not address Wilson's "motion to vacate."
[4] Domestic judgments, on the other hand, can be judicially noticed. See Besing v. Smith, 843 S.W.2d 20, 21 (Tex.1992); Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex.App.-Houston [14th Dist.] 1991, no writ). But here, we have no indication that the trial court's review of the records of the county court at law was limited to just a judgment, or even that the court's review necessarily included any judgment. The appellate record is simply silent on that question. And we cannot conclude, based on the spare record before us, that the trial court could have learned from a judgment alone that Wilson's April 26, 1993, arrest actually resulted in a conviction.
[5] The judgment denying the expunction finds that, on July 20, 1993, in cause number 93-589, Wilson was convicted of misdemeanor escape based on his guilty plea. The trial court further finds in its judgment that the offense in question occurred March 26, 1993, and that Wilson was arrested for it April 26, 1993, matching it to the arrest date and charge furnished by Wilson in his petition for expunction. If those findings are justified, Wilson is not entitled to his requested expunction. But Wilson is entitled to a hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573562/ | 224 S.W.3d 517 (2007)
OPINION Tiazmara SOTELO, Appellant,
v.
INTERSTATE FINANCIAL CORPORATION, Appellee.
No. 08-05-00363-CV.
Court of Appeals of Texas, El Paso.
April 19, 2007.
*518 Jaay D. Neal, Law Offices of Jaay D. Neal, P.C., San Antonio, for Appellant.
Temple B. Ingram, Jr., Austin, for Appellee.
Before CHEW, C.J., McCLURE, and CARR, JJ.
OPINION
KENNETH R. CARR, Justice.
Appellant Tiazmara Sotelo appeals from a summary judgment granted in favor of Appellee Interstate Financial Corporation on claims for usury and wrongful foreclosure. For the reasons that follow, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Tiazmara Sotelo (Appellant will be referred to herein as "Sotelo") signed a promissory note in favor of Interstate Financial Corporation (Appellee will be referred to herein as "IFC") in the amount of $240,000 on February 11, 2000 (the Note).[1] To secure the Note, Sotelo also executed a Deed of Trust giving IFC a lien on real property located at 14003 Montana Avenue (this property will be referred to as the "Montana property") in El Paso.[2] In early 2003, IFC began foreclosure proceedings on the Montana property, claiming that Sotelo was three months in default. IFC sold the Montana property by trustee sale on March 4, 2003.
Sotelo filed this suit on June 4, 2003, alleging wrongful foreclosure. On March *519 17, 2004, Sotelo filed her first amended petition, in which she raised, for the first time, a usury claim.[3] Sotelo alleged that IFC had coerced her into repurchasing the Montana property to serve as collateral for the Note and that the majority of the funds were to pay off her father's pre-existing business debt with IFC, a debt on which she was not obligated. She argued that, because she had been forced to assume a third party's debt as condition of getting the loan, the amount of the assumed debt was interest, which rendered the Note usurious.[4] Sotelo asserted two grounds for her wrongful foreclosure claims. She alleged that her obligation under the Note was paid in full, as payments had been made in excess of her individual obligation, according to IFC's release. In the alternative, she alleged that IFC had forfeited all principal amounts, because the Note was usurious and there was therefore no lien upon which to foreclose.
On January 10, 2005, the trial court abated the case to allow Sotelo to send IFC notice of her usury claim, pursuant to section 305.006(b) of the Texas Finance Code. Two days later, Sotelo's counsel sent IFC her statutory notice. Pursuant to section 305.006(c), IFC's counsel sent Sotelo a reply on February 16, 2005, releasing her from all obligation under the note, except for $17,400.15 of principal, which she acknowledged to be her individual obligation. IFC also released Sotelo individually from any further obligation on the note, as payments had already been made in excess of $17,400.15.[5]
*520 On May 23, 2005, IFC moved for summary judgment on both traditional and no-evidence grounds. See Tex.R. Civ. P. 166a(c) and (i). In support of its traditional motion, IFC argued, in part, that it had corrected any usury violation by releasing and discharging Sotelo's liability on the Note. In its no-evidence motion, IFC argued, in part, that there was no evidence of either of the elements necessary to establish wrongful foreclosure. The trial court granted summary judgment on both Sotelo's usury and wrongful foreclosure causes of action on August 22, 2005. Sotelo appeals.
DISCUSSION
In two issues, Sotelo argues that the trial court improperly granted IFC's motion for summary judgment on her usury and wrongful foreclosure claims.[6] When the trial court's order granting summary judgment does not state the specific ground or grounds relied upon for its ruling, as in this case, summary judgment will be affirmed on appeal if any of the theories advanced is meritorious. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
The standard of review for a traditional summary judgment asks whether the movant carried the burden of showing that there is no genuine issue of material fact, so that judgment should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); De Santiago v. West Tex. Cmty. Supervision & Corrs. Dep't, 203 S.W.3d 387, 398 (Tex.App.-El Paso 2006, no pet.). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff's causes of action, D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002), or establishes all elements of an affirmative defense to each claim. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). Once the movant establishes a right to judgment as a matter of law, the burden shifts to the nonmovant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
When reviewing a summary judgment, we take as true all competent evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002) (citing Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997)).
The Texas Rules of Civil Procedure permit a party to move for a no-evidence summary judgment "without presenting summary judgment evidence," and they require the moving party to "state the elements as to which there is no evidence." Tex.R. Civ. P. 166a(i). A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). The party moving for a no-evidence summary judgment must specifically state the elements as to which *521 there is allegedly no evidence. See Tex.R. Civ. P. 166a(i); Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied). The burden then shifts to the nonmovant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged in the motion. Aguilar, 162 S.W.3d at 834. We view the evidence in the light most favorable to the nonmovant, and we must disregard all contrary evidence and inferences. King Ranch, 118 S.W.3d at 751. A genuine issue of material fact is raised if the nonmovant produces more than a scintilla of evidence regarding the challenged element. Id. There is not a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of material fact. Ianni v. Loram Maint. of Way, Inc., 16 S.W.3d 508, 513 (Tex.App.-El Paso 2000, pet. denied). Evidence that fails to constitute more than a mere scintilla is, in legal effect, no evidence at all. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001).
In its traditional motion for summary judgment, IFC asserted its defense under section 305.006(c) of the Texas Finance Code, stating that it had corrected any usury violation by releasing Sotelo from individual liability on the note. Sotelo responds that summary judgment was not proper on this ground, because IFC's correction was not timely under Finance Code section 305.103.
Section 305.103 states:
(a) A creditor is not liable to an obligor for a violation of this subtitle if:
(1) not later than the 60th day after the date the creditor actually discovered the violation, the creditor corrects the violation as to that obligor by taking any necessary action and making any necessary adjustment, including the payment of interest on a refund, if any, at the applicable rate provided for in the contract of the parties; and
(2) the creditor gives written notice to the obligor of the violation before the obligor gives written notice of the violation or files an action alleging the violation.
(b) For the purposes of Subsection (a), a violation is actually discovered at the time of the discovery of the violation in fact and not at the time when an ordinarily prudent person, through reasonable diligence, could or should have discovered or known of the violation. . . . .
Tex. Fin.Code Ann. § 305.103.
Sotelo argues that IFC had actual knowledge of the usury on March 17, 2004, when she filed her first amended petition, but that it did not give her notice of its intent to correct until December 22, 2004, more than nine months later.
In response, IFC argues there is an alternative method for a creditor to correct a violation. Sections 305.006(b) and (c) of the Finance Code provide the following procedure for a creditor to correct a usury violation and avoid liability:
(b) Not later than the 61st day before the date an obligor files a suit seeking penalties for a transaction in which a creditor has contracted for, charged, or received usurious interest, the obligor shall give the creditor written notice stating in reasonable detail the nature and amount of the violation.
(c) A creditor who receives a notice under this section may correct the violation as provided by Section 305.103 during the period beginning on the date the notice is received and ending on the 60th day after that date. A creditor who corrects a violation as provided by this section is not liable to an obligor for the violation.
*522 Tex. Fin.Code Ann. § 305.006(b) and (c). Section 305.006 therefore requires, as a precondition to filing a usury claim, that the obligor "shall give the creditor written notice stating in reasonable detail the nature and amount of the violation."
Our primary goal when construing a statute is to ascertain and give effect to the Legislature's intent. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex.2002). We begin by construing statutes as written and, if possible, ascertain intent from the statutory language. Id. We may also consider other factors such as the object the statute seeks to obtain, legislative history, and the consequences of a particular action. Id.; see also Tex. Gov't Code Ann. § 311.023. In addition, we must always consider a statute as a whole and attempt to give effect to all of its provisions. Marcus Cable Assocs., L.P., 90 S.W.3d at 706; see also Tex. Gov't Code Ann. § 311.021.
When we apply these principles of statutory construction, IFC's February 16, 2005, correction letter was effective under section 305.006. By the plain language of the statute, a creditor has sixty days, "beginning on the date the notice is received," in which to effect a correction. Tex. Fin. Code Ann. § 305.006(c). It is also our opinion that the Legislature's goal in enacting these provisions was to encourage creditors to amend usurious contracts in the borrower's favor. In a case where the creditor unilaterally discovers that a promissory note is usurious, the correction can be made under section 305.103. See Tex. Fin.Code Ann. § 305.103. In a case where the borrower discovers the excessive interest and intends to file suit, the creditor can correct under section 305.006 after the borrower sends the required notice and before he files suit. See Tex. Fin.Code Ann. § 305.006(b) and (c).
We are unpersuaded by Sotelo's argument that, since IFC acquired "actual knowledge" of her contentions regarding the usury cause of action at the time she filed her first amended petition, the correction letters were therefore untimely under section 305.103. This argument ignores the Legislature's apparent intention in section 305.006 to provide an alternative "safe harbor" method for correction before the debtor files suit.
Sotelo did not send IFC notice of her usury claim before she filed her first amended petition. Neither party has challenged the trial court's abatement of the case to allow Sotelo to comply with the statutory notice requirement. Once that notice was served on IFC's counsel, the plain language of the statute gave the creditor a short window in which to correct the problem.[7]
Were we to construe the statute as Sotelo argues, we would render section 305.006(c) ineffective, because a debtor could deprive the creditor of his window of correction by simply ignoring the mandatory *523 requirement[8] contained in section 305.006(b). If a claimant can maintain an action by abating the case and sending the required notice after the suit has been filed, we see no reason why the abatement and subsequent notice should not also give the creditor an opportunity to use section 305.006(c) to correct the violation. This gives effect to both provisions and does not allow a usury claimant to rob a creditor of its section 305.006 correction method by failing to comply with the statute.
The summary judgment record shows that IFC made its correction under section 305.006 on February 16, 2005, which was less than sixty days after Sotelo sent her notice under section 305.006(b). Since neither party contends that IFC breached the usury statutes after it sent its February 12 correction letter, IFC proved its statutory defense to usury. See Tex. Fin.Code Ann. § 305.006(c). The trial court did not err by granting summary judgment on Sotelo's usury claim.
As one of its no-evidence grounds for summary judgment, IFC argues there was no evidence of either of the elements of Sotelo's wrongful foreclosure cause of action. The elements of wrongful foreclosure are (1) an irregularity at the sale; and (2) the irregularity contributed to an inadequate price. Forestier v. San Antonio Sav. Ass'n, 564 S.W.2d 160, 165 (Tex.Civ.App.-El Paso 1978, writ ref'd n.r.e.) (citing American. Sav. & Loan Ass'n v. Musick, 531 S.W.2d 581, 587 (Tex. 1975)).
Rule 166a(i) states that "The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Tex.R. Civ. P. 166a(i). The only evidence Sotelo produced in response to IFC's motion was her own affidavit. The document itself does not make reference to her wrongful foreclosure claim, and she does not argue in her summary judgment response or her brief that it raises a fact issue on that cause of action. Since Sotelo did not produce any evidence of a fact issue on her claim for wrongful foreclosure, the trial court properly granted summary judgment on that claim.
Having determined there were lawful grounds for summary judgment on each of Appellant's claims, we overrule both of them and affirm the judgment of the trial court.
For the reasons stated above, we affirm the trial court's judgment.
NOTES
[1] Sotelo's mother and brother also signed the Note, but they are not involved in this litigation.
[2] The proceeds of the Note were, in part, to allow Sotelo to repurchase the Montana property. Sotelo originally purchased the property in 1997, but had transferred it to a third party in November of 1999.
[3] Sotelo's usury claim was, therefore, first raised more than four years after she signed the Note. IFC urges that Sotelo's usury claim is barred by the statute of limitations, which provides that a suit for usury "must be brought within four years after the date on which the usurious interest was contracted for, charged, or received." Tex. Fin.Code Ann. § 305.006(a). Because of our disposition of this case, we find it unnecessary to address IFC's statute of limitations defense.
[4] Sotelo argues that the note was usurious under the theory of Alamo Lumber Co. v. Gold, 661 S.W.2d 926 (Tex.1983). In Alamo Lumber, the court held that a lender who requires a borrower to assume a third party's debt as a condition to making a loan, as distinguished from requiring that the borrower pay another of her own debts, must include the amount of the third party's debt in the interest computation. Id. at 928. Because of our disposition of this case, we also find it unnecessary to address Sotelo's argument that the Note was usurious under Alamo Lumber.
[5] IFC's letter stated, in pertinent part:
This letter is sent in response to your letter of January 12, 2005. You sent that letter as your client's notice pursuant to § 305.006(b), Tex. Finance Code, regarding the promissory note executed by your client, dated February 11, 2000, in the original principal amount of $240,000.00 (the "Note"). As I understand your letter, your contention . . . is that the principal amount of the Note, from your client's viewpoint, was only $17,400.15, and all other amounts contained in the $240,000.00 face amount of the Note were interest as to your client . . . .
Under § 305.006(c), Tex. Finance Code, a creditor who receives a notice under § 305.006(b) "may correct" an alleged usury within sixty (60) days after receipt of such notice. If the creditor does so, under § 305.006(c) the creditor is not liable to the obligor for the alleged violation. In order to correct even the most remote possibility that this transaction might be viewed as usurious to your client, Interstate Financial Corporation does hereby release and discharge Tiazmara Sotelo from personal liability for payment of any amount which might be characterized as interest (usurious or not) due from her under the Note, and specifically releases and discharges her from any obligation to pay any amount under the Note other than the $17,400.15 you acknowledged to be principal in your letter. Because of the payments credited against the Note, this means that your client has no further liability under the Note.
Interstate Financial Corporation does not release or discharge any other obligor from liability under the Note; it does not reduce, release, or discharge the amount of indebtedness owed by any other obligor under the Note; and it does not waive, release, or discharge any collateral or security for the Note.
[6] Issue One: "The trial court erred in granting Appellee's motion for summary judgment that there was no evidence of the exaction of greater compensation than allowed by law and that such did not constitute an irregularity in the foreclosure."
Issue Two: "The trial court erred in granting Appellee's motion for summary judgment that Appellant's claim for usury was barred by limitations or had been corrected and the trustee's sale was valid as a matter of law."
[7] The Texas usury statutes impose often draconian penalties upon those creditors who violate them. See, e.g., Tex. Fin.Code Ann. § 305.002 (creditor who charges and receives interest that is greater than twice the lawful amount forfeits, inter alia, the principal amount of the loan, as well as the interest and all other amounts charged and received). Presumably, the Legislature's purpose behind such penalties was not to award unwarranted "windfalls" to fortuitous debtors or to unfairly penalize well-intentioned creditors for careless or unknowing mistakes (cf. Tex. Fin. Code Ann. § 305.101 ("A creditor is not subject to penalty under this chapter for any usurious interest that results from an accidental and bona fide error.")), but rather to dissuade unscrupulous creditors from charging usurious rates in the first instance. We believe that our construction of the relevant statutes effectuates this goal.
[8] "[T]he obligor shall give the creditor written notice" before filing suit (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573578/ | 224 S.W.3d 291 (2005)
Daniel Lee ALFORD, III, Appellant,
v.
Doug JOHNSTON, Appellee.
No. 08-04-00025-CV.
Court of Appeals of Texas, El Paso.
July 21, 2005.
*294 D. Lee Alford IV, Bryan, for Appellant.
C.R. Kit Bramblett, El Paso, for Appellee.
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
DAVID WELLINGTON CHEW, Justice.
This is an appeal from a suit for damages related to a holdover tenancy on a ranch in Culberson County, Texas. Through an assignment of the ranch owner's rights, Appellee Doug Johnston, the current lessee of the ranch, sued former lessee Appellant Daniel Lee Alford, III for pasturage damages resulting from Mr. Alford's wrongful holdover on the ranch past the commencement date of Mr. Johnston's lease. Mr. Johnston also sought recovery for damages to the ranch water system. After a bench trial, the trial court awarded no damages for replacement of the water system, but did award Mr. Johnston pasturage damages of $2,984.23 and attorneys' fees through trial in the sum of $2,000, in addition to awarding him contingent attorneys' fees related to future appeals. In four issues, Mr. Alford contends that the *295 trial court erred in its award of pasturage damages and attorney's fees in this case. We will affirm.
For approximately eighteen years, Mr. Alford leased the 12,000 acre Allen Ranch just south of Van Horn and ran cattle on it. Mr. Alford and Mr. Allen, the owner, had an oral grazing lease under which Mr. Alford was to pay Mr. Allen at the end of each year based on the number of cattle grazed on a monthly basis at the rate of $3 per cow, per month; $2 per yearling, per month. In addition, Mr. Alford did not have to pay for any yearlings being held in the pens he constructed on the ranch. Mr. Alford did not pay Mr. Allen any rent on the ranch for the year of 1996.
In May 1996, the ranch was sold at auction to Mapleleaf Enterprises, a Houston, Texas company whose principal owner is David Chu. Mr. Alford and Mr. Chu discussed the possibility of Mr. Alford continuing to lease the ranch, but they were not able to negotiate a new lease. By letter dated July 20, 1996, Mr. Chu informed Mr. Alford that he had decided to lease the ranch to Mr. Johnston and Mr. Jack Dees and that their lease would commence on October 1, 1996. Mr. Chu requested that Mr. Alford vacate the property by September 30. In response to the letter, Mr. Alford contacted Mr. Chu and asked for permission to stay on the ranch from July to September 1996. Mr. Alford paid Mr. Chu $1,500 for the three months' use of the ranch at a rate of $2 per head, per month.
Mr. Alford did not leave the ranch by October 1, 1996 and at the time believed that he had the right to stay on the ranch under his on-going one-year lease with the prior owner. Mr. Johnston filed a forcible entry and detainer action against Mr. Alford in the justice court and obtained a judgment in his favor. Mr. Alford filed an appeal of that judgment in the county court.
According to Mr. Alford, through Mr. Johnston's attorney, the parties then reached an agreement in which Mr. Alford agreed to drop the appeal in the county court and allow Mr. Johnston to start putting his cows in the pastures, while Mr. Alford would be allowed to leave his yearlings in the pens until they were ready to be moved. However, Mr. Johnston testified that their agreement was for Mr. Alford to vacate the ranch by the first of the year. Mr. Johnston did not recollect any mention of him being able to use the pastures prior to January 1 nor did he recollect moving any cattle into the pastures during November and December of 1996. C.R. "Kit" Bramblett, Mr. Johnston's attorney, testified that there was no agreement that Mr. Alford would not be held liable for his use of the ranch. Rather, the only agreement was that the appeal would be dropped and that Mr. Alford would vacate the ranch by January 1, 1997.
Under the terms of their lease, Mr. Johnston and Mr. Dees agreed to lease the ranch for $12,000 a year, which amounted to about a dollar per acre in annual rent, which Mr. Johnston testified was a reasonable rate in west Texas. Mr. Johnston testified that under his lease, he was entitled to move onto the ranch on October 1, 1996, however, for three months past this commencement date he paid rent, but was not able to run his cattle on the property. Mr. Johnston believed that the fair way to calculate the value of Mr. Alford's pasturage was that it cost Mr. Johnston to lease the ranch, which was approximately $1,000 per month.
When Mr. Johnston later took possession of the ranch, he discovered that he was unable to pump water into the dirt tank on the north end of the ranch. Mr. Johnston incurred over $14,000 in expenses *296 to replace the missing components of the ranch's water system. Mr. Alford testified that when he moved on to the ranch in 1978, he purchased the water equipment to the headquarters and the water equipment for the north end water well from a previous tenant. Over the course of many years, Mr. Alford replaced the motor and the electrical boxes on the water well numerous times. When Mr. Alford left the ranch, he removed the submersible motor, pump, pipe string, and electrical boxes from the water well, and took these components because they belonged to him. Mr. Alford testified that these components were not permanently affixed to the well casing or the real property.
DAMAGES
Scope of Review
No findings of fact or conclusions of law were requested or filed in this case. See TEX.R.CIV.P. 296, 299a. Because the trial court did not make findings of fact or conclusions of law, we must assume that it made all findings in support of its judgment. Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex.1996); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). When a reporter's record is brought forward, as in this case, these implied findings may be challenged by factual sufficiency and legal sufficiency points the same as jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989)(per curiam). In determining whether some evidence supports the judgment and the implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely that which is opposed to it or contradictory in its nature. Worford, 801 S.W.2d at 109. The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Id.
Standard of Review
A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact-finding. In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.). There are two separate "no evidence" claims. In re Estate of Livingston, 999 S.W.2d at 879. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as "a matter of law." Id. When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." Id.; see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.). In reviewing a legal insufficiency or "no evidence" point, we consider only the evidence which tends to support the fact-findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If more than a scintilla of evidence exists to support the questioned finding, the "no evidence" point fails. Id.; Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex. App.-El Paso 1994, writ denied).
Pasturage Damages
First, Mr. Alford argues that pursuant to the parties' agreement in late November or early December of 1996, Mr. Johnston agreed to allow Mr. Alford use of the pens on the ranch until year-end as consideration for Mr. Alford agreeing to vacate the pastures and dismiss his appeal of the forcible entry and detainer action. Therefore, Mr. Alford asserts, Mr. Johnston *297 was not entitled to any further compensation for possession of the ranch after October 1, 1996. We must disagree.
At the bench trial, Mr. Johnston testified that there was no agreement between the parties regarding use of the pastures during the disputed period. Mr. Bramblett also testified that there was no agreement that Mr. Alford would not be liable for the time his client was deprived use of the ranch. Rather, the extent of their arrangement was that Mr. Alford would vacate the ranch by January 1, 1997 and that he would dismiss his appeal in the county court, which had involved issuance of a bond. This evidence supports the trial court's implied finding that there was no subsequent agreement between the parties concerning Mr. Alford's liability during the holdover period.[1]
Alternatively, Mr. Alford argues that Mr. Johnston's pasturage damages should not exceed $2,000 because under their subsequent agreement, Mr. Johnston was to use the pastures during the holdover period. According to Mr. Alford, Mr. Johnston began to move his cattle onto the ranch by the end of November or early December. Mr. Alford asserts that at most, he was liable to Mr. Johnston for two months' rent at the fair rate of $1,000 per month or a total of $2,000.
As already discussed, Mr. Johnston did not recall any agreement about him being able to use the pastures during the holdover period nor did he recall moving any cattle into the pastures during November and December. In fact, Mr. Johnston testified that he did not move any cattle onto the ranch on October 1, 1996 and for the first three months of his lease he did not get to run his cattle on the ranch. This evidence directly contradicts Mr. Alford's testimony and supports the trial court's implied finding that Mr. Johnston was deprived of use of the ranch for the three-month period after October 1, 1996.
It was undisputed at trial that Mr. Alford was a holdover tenant. There is also an implied finding that Mr. Alford remained in possession of the leased ranch after the commencement date of Mr. Johnston's lease of the same property. As the landlord's assignee, Mr. Johnston sued to recover the rental value of the property during the holdover period. In an action for damages for a lessee's wrongful holdover, the proper measure of damages is the reasonable market rental value of the property during the holdover period. See Downwind Aviation, Inc. v. Orange County, 760 S.W.2d 336, 340 (Tex.App.-Beaumont 1988, writ denied); Standard Container Corp. v. Dragon Realty, 683 S.W.2d 45, 48 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). Mr. Johnston testified that the reasonable value of the pasturage during the holdover period was roughly a thousand dollars a month. Mr. Johnston also testified that the ranch was just under 12,000 acres and that a dollar an acre annual rent was a reasonable rate for rental on ranches in west Texas. It is undisputed that $1,000 was a fair and reasonable monthly rate for lease of the ranch. Therefore, there is evidence to support the trial court's award of pasturage damages for the three-month holdover period in the amount of $2,984.23. Issues One and Two are overruled.
ATTORNEY'S FEES
In his third issue, Mr. Alford complains that the trial court erred in awarding Mr. Johnston any attorneys' fees because Mr. Johnston's demand for payment was excessive *298 and therefore precludes any recovery of attorney's fees as a matter of law. In his fourth issue, Mr. Alford argues in the alternative that Mr. Johnston failed to segregate the attorney's fees attributable to his contract claim from those attributable to his claim for "damage to the water system," which Mr. Alford asserts was clearly a tort claim for conversion for which attorney's fees are not recoverable.
At trial, Mr. Johnston's attorney, C.R. "Kit" Bramblett, testified that he was licensed to practice law in January 1976 and based on the work he had done in preparation for the lawsuit, in particular having to appear before the trial court in over twelve pretrial and trial proceedings, he believed that $5,000 was a reasonable fee for his services. On cross-examination, Mr. Bramblett maintained that he considered $5,000 a reasonable attorney fee even if the maximum amount of recovery for the breach of contract claim was $750 because "[i]t would depend on how much work you had to do, how many times you had to go to court, how [many] times the case was continued and the amount of work you did." Mr. Alford's attorney, Daniel Lee Alford, IV, testified that a $5,000 fee through trial was not a reasonable fee because the bulk of the case was pleaded as a tort case, for which attorney's fees are not recoverable. The trial court's final judgment awarded Mr. Johnston $2,000 in attorney's fees for services rendered through trial.
Standard of Review
Reasonable attorney's fees are recoverable in a suit for breach of contract. See TEX.CIV.PRAC. & REM.CODE ANN. § 38.001(8)(Vernon 1997). The determination of reasonable attorney's fees is a question for the trier of fact. Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 12 (Tex.1991). The amount of a fee award rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a clear abuse of discretion. Cordova v. Southwestern Bell Yellow Pages, Inc., 148 S.W.3d 441, 445-46 (Tex.App.-El Paso 2004, no pet.). Even though the appropriate standard of review is abuse of discretion, we may nevertheless review a fee award for sufficiency of the evidence. Id. at 446. This hybrid analysis requires a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) if so, did the trial court err in its application of discretion? Id.; see Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question. Cordova, 148 S.W.3d at 446. We then proceed to the determine whether, based on the elicited evidence, the trial court made a reasonable decision. Cordova, 148 S.W.3d at 446. Stated inversely, we must conclude that the trial court's decision was neither arbitrary nor unreasonable. Id.
Excessive Demand
Mr. Alford argues that Mr. Johnston's demand for payment of $16,000 in tort damages and $6,000 in pasturage damages was excessive, and only approximately 13 percent of the sum he recovered in the final judgment. See TEX.CIV.PRAC. & REM.CODE ANN. § 38.002. Relying on Findlay v. Cave, 611 S.W.2d 57 (Tex.1981), Mr. Alford asserts that as a matter of law, Mr. Johnston is precluded from recovering any attorney's fee because of his outrageous demand. A creditor who makes an excessive demand upon a debtor is not entitled to attorney's fees for subsequent litigation required to recover the debt. See Findlay, 611 S.W.2d at 58. In Findlay, the amount of the attorney's fees was not at issue. Id. Rather, the question was whether any attorney's fees were allowable *299 at all because the original demand for payment was excessive as a matter of law, thereby discharging the debtor from any liability for fees incurred in the litigation. Id. at 57, 58. The Findlay Court found that even though the demand was for an amount appreciably greater than that which the jury later determined was actually due, the amount demanded was based on the parties' written contract and the debtor had made no attempt to tender the full amount that the jury found to be actually due. Id. at 58. Under those circumstances, the court concluded that it could not find a sufficient level of unreasonableness or bad faith to warrant finding excessive demand as a matter of law. Here, there is no evidence that Mr. Johnston refused to accept tender of the amount actually due or that Mr. Alford's tender of the actual amount due would have been refused and thus would have been futile. See id. at 58. By his demand letter, Mr. Johnston alleged $16,000 for damages to the water system and $6,000 for pasturage on the ranch. While a demand that is greater than the eventual judgment is some evidence of excessiveness, this fact is not the sole criterion for determining whether the demand was excessive. Findlay, 611 S.W.2d at 58. The evidence supports the trial court's implied finding that the demand was not excessive. Without any evidence of unreasonableness or bad faith on the part of Mr. Johnston, we cannot conclude that the demand was excessive as a matter of law.[2] Accordingly, we overrule Issue Three.
Segregation of Fees
In his fourth issue, Mr. Alford argues in the alternative that Mr. Johnston failed to segregate the attorney's fees attributable to his contract claim from those attributable to his claim for "damage to the water system," which Mr. Alford asserts was clearly a tort claim for conversion for which attorney's fees are not recoverable.
As a general rule, the party seeking to recover attorney's fees carries the burden of proof and must show that the fees were incurred on a claim that allows recovery of such fees and, thus, is ordinarily required to segregate fees by claim when there are multiple claims which may or may not allow the recovery of such fees. See Sterling, 822 S.W.2d at 10-11; Z.A.O., Inc. v. Yarbrough Drive Ctr. J.V., 50 S.W.3d 531, 550-51 (Tex.App.-El Paso 2001, no pet.). There is a recognized exception to the duty to segregate fees when the attorney's fees rendered are in connection with multiple claims arising out of the same transaction. Sterling, 822 S.W.2d at 11. Therefore, when the claims "are dependent upon the same set of facts or circumstances and thus are `intertwined to the point of being inseparable,' the party suing for attorney's fees may recover the entire amount covering all claims." Sterling, 822 S.W.2d at 11. On appeal, Mr. Johnston does not contest that his claim for damages to the ranch water system was a tort claim or that the exception to fee segregation applies in this case. Rather, Mr. Johnston argues that the trial court, in fact, segregated the pasturage damage claim from the damage claim for the ranch's water system by its implied finding that $2,000 was a reasonable attorney's fee.
*300 Here, Mr. Johnston's attorney testified that the reasonable fee for his services through trial was $5,000, noting the numerous court appearances required during the litigation process. Even if we were to agree with Mr. Alford's contention that Mr. Johnston failed to adequately segregate his attorney's fees, the award would still stand. In addition to the evidence presented, the trial court was entitled to take judicial notice of the usual and customary attorney's fees for the services provided and the contents of the case file, even though no request was made for the trial court to do so and the trial court did not formally announce that it had done so. See TEX.CIV.PRAC. & REM.CODE ANN. § 38.004; Cap Rock Electric Cooperative., Inc. v. Texas Utilities Electric Co., 874 S.W.2d 92, 101 (Tex.App-El Paso 1994, no writ); Ho v. Wolfe, 688 S.W.2d 693, 697 (Tex.App.-Amarillo 1985, no writ); Holsworth v. Czeschin, 632 S.W.2d 643, 645 (Tex.App.-Corpus Christi 1982, no writ). Moreover, an appellate court when reviewing the judgment of the trial court may presume that the trial court did take such judicial notice. Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939 (Tex.App.-El Paso 1994, no writ), citing Holsworth, 632 S.W.2d at 645. Thus, the trial court did have sufficient information upon which to determine the usual and customary attorney's fees for the contract claim at issue. The usual and customary attorney's fees are presumed to be reasonable. See TEX. CIV.PRAC. & REM.CODE ANN. § 38.003. The trial court's decision was neither arbitrary nor unreasonable, therefore it did not err in applying its discretion in awarding reasonable attorney's fees in the amount of $2,000 for services rendered through trial. Issue Four is overruled.
We affirm the trial court's judgment.
NOTES
[1] Further, at the bench trial, Mr. Alford's counsel conceded that Mr. Alford was a holdover tenant, but disputed the amount of money he owed to Mr. Johnston for the pasturage.
[2] Mr. Alford also cites to Wuagneux Builders, Inc. v. Candlewood Builders, Inc., 651 S.W.2d 919 (Tex.App.-Fort Worth, 1983, no writ), in support of his claim of excessive demand. However, Wuagneux Builders, Inc. is not on point because the issue in that case was whether there was an excessive award of attorney's fees by the jury, not whether the plaintiff made an excessive demand for payment which precludes recovery of the attorney's fees awarded. See Wuagneux Builders, Inc., 651 S.W.2d at 922. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573593/ | 17 So. 3d 890 (2009)
William HARVEY, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-4977.
District Court of Appeal of Florida, Fourth District.
September 16, 2009.
William Harvey, Raiford, pro se.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
William Harvey (Defendant) appeals from an order summarily denying his rule 3.850 motion for postconviction relief in connection with a 1981 case that became final in 1983. We affirm the trial court's denial of the motion as untimely.
*891 We issued an order to show cause whether Defendant might be entitled to reversal as to a portion of his third ground for relief, which was not addressed in the order of denial. There, he alleged that the trial court erred in finding him to be a sexual predator under section 775.21, Florida Statutes, without an opportunity to be heard or present argument that he did not qualify as a sexual predator. If we construe that as a claim that he did not qualify for the designation, untimeliness would not be a bar if the matter were considered pursuant to rule 3.800(a). See Saintelien v. State, 990 So. 2d 494 (Fla.2008) (holding that a rule 3.800(a) motion may be used to challenge a sexual predator designation, but only when it is apparent from face of record that the criteria for the designation were not met).
The state's response points out that Defendant did not show where in the record there is any substantiation that he was so designated. The motion specifically challenged Defendant's conviction, judgment, and sentence entered in 1982, years before section 775.21 was enacted and became effective on October 1, 1993.[1] If Defendant actually has been designated as a sexual predator,[2] the order so designating him could not have been entered with his judgment and sentence in his 1981 case, but would have occurred in connection with his sentencing for a subsequent offense committed after section 775.21 became effective, or thereafter in whatever circuit he was residing when a law enforcement agency may have sought the designation. Compare § 775.21(4) & (5), Fla. Stat. (2008).
"When a claim of a sexual predator designation error is made, the trial judge who made the designation is the one in the best position to evaluate the claim and to correct the error." Nicholson v. State, 846 So. 2d 1217, 1219 (Fla. 5th DCA 2003) (quoted approvingly by Saintelien, 990 So.2d at 496). There would be no way to determine from Defendant's criminal record in his 1981 case that the criteria were not met.
Affirmed.
WARNER, STEVENSON and TAYLOR, JJ., concur.
NOTES
[1] Ch. 93-277, § 6, at 2626, Laws of Fla.
[2] We note in passing that Defendant's name appears on the Florida Department of Law Enforcement website, not as a sexual predator, but only as a sexual offender. Sexual offenders also are subject to reporting and registration requirements. § 943.0435, Fla. Stat. (2008). Pursuant to section 943.0435, a sexual offender is one who has committed any of certain criminal offenses specified in the statute, among which are violations of section 794.011, excluding subsection 794.011(10). § 943.0435(1)(a)1.a.(I). Defendant's count IV was a violation of section 794.011(3), Florida Statutes (1981). Section 943.0435 contains no provision for a court order designating such offenders as sexual offenders; they attain that status merely by virtue of their convictions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584756/ | 187 P.3d 219 (2008)
344 Or. 558
RENNELLS
v.
HALL.
No. (S055952).
Supreme Court of Oregon.
May 29, 2008.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573600/ | 17 So. 3d 1099 (2009)
Mary DIXON, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-00770-COA.
Court of Appeals of Mississippi.
February 17, 2009.
Rehearing Denied June 30, 2009.
Certiorari Denied September 24, 2009.
*1101 William R. Labarre, Virginia Lynn Watkins, attorneys for appellant.
Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
Before KING, C.J., GRIFFIS and CARLTON, JJ.
KING, C.J., for the Court.
¶ 1. On August 19, 2004, Melcenia Bell was robbed and assaulted. Nearly four months later, on December 12, 2004, Bell died as a result of the complications from the injuries she sustained in the assault. On October 5, 2006, a Hinds County jury convicted Mary Dixon of the robbery and murder of Bell. Thereafter, Dixon filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Dixon's motion was denied on January 8, 2007. Aggrieved, Dixon now appeals arguing the following assignments of error: (1) the trial court erred in refusing to suppress Dixon's statements; (2) the trial court erred in denying Dixon's motion for a directed verdict, rejecting Dixon's motion for a judgment notwithstanding the verdict (JNOV), and refusing to grant Dixon's request for a peremptory jury instruction; and (3) the trial court erred in admitting the testimony of Dr. Stephen Hayne and photographs from the autopsy of Bell.
FACTS
¶ 2. On the morning of August 19, 2004, shortly after 7:30 a.m., Elizabeth Eubanks arrived at 827 Dreyfus Street, Jackson, Mississippi, the home of Bell, to assist Bell with her personal needs and carry out some household chores as Eubanks had done every Thursday over the past three years. Shortly after Eubanks arrived, Daryl Bell, the decedent's son, left home to haul some scrap metal to a recycling center in Flowood, Mississippi. He had plans to return home soon to take his mother to the hairdresser in preparation for a trip to Cleveland, Ohio that Sunday to visit her daughter and grandson. As her usual practice, Eubanks helped Bell pin her wallet in her housecoat after Bell took her bath. Bell, who owned rental property directly behind her home, was known to keep the weekly rental payments in her wallet pinned to her housecoat. On this day Bell had $300 in rental payments as well as $475 from her son to pay for her son's ticket to Ohio.
¶ 3. Eubanks testified that she left Bell's house between 8:45 a.m. and 9:00 a.m. after having placed a Coke on the stand near Bell's daybed, which was located in the front room of Bell's home. Eubanks also testified that she (Eubanks) left the front door unlocked so that the Meals on Wheels driver would be able to gain entrance into the house without Bell having to get up. At approximately 9:45 a.m., Jack Turner, the Meals on Wheels driver, arrived at Bell's home and found her lying naked on the floor in a pool of blood with a screwdriver sticking out of her neck and a bloody axe lying on the daybed. Turner retreated to his vehicle and requested that his dispatcher notify the authorities.
¶ 4. Approximately, three hours after the assault, Jacqueline Wallace, Tony Edwards, and Dixon, who were all persons of interest in the robbery and assault, were transported to the police department for questioning. Officer Charmaine Valentine testified that while transporting Dixon to the police department, Dixon stated that Edwards killed that old lady. Officer Valentine subsequently relayed this information to the detectives. Detective James Roberts testified that when Dixon arrived at the police department she was Mirandized and then questioned regarding the crime against Bell. Although Dixon did not *1102 sign a written waiver of rights, she spoke with Detective Roberts. Detective Roberts reduced Dixon's responses to writing. Thereafter, Dixon initialed each answer and signed the statement. After interviewing Dixon, Detective Roberts testified that he continued his investigation and talked with several other individuals. Detective Roberts stated that during the investigation of this offense, he found no physical evidence to link Dixon to the assault and robbery. Investigator Andrew McGahey testified that latent prints were found on the Coke can, but none of the evidence collected and analyzed linked Dixon to the crime.
¶ 5. On December 12, 2004, Bell died as a result of complications from her injuries. Approximately five months later, on May 18, 2005, Detective Roberts received a call from Deputy Pamela Turner of the Hinds County Sheriff's Department, who informed him that she had information regarding the robbery and murder of Bell. Deputy Turner testified that she had spoken with Dixon at least four times prior to contacting Detective Roberts and at least two times thereafter. Deputy Turner recalled that on three occasions in which she spoke with Dixon, Dixon confessed to being present and witnessing the robbery and assault of Bell.
¶ 6. In May 2005, a Hinds County grand jury indicted Dixon for the murder and armed robbery of Bell. During trial, a suppression hearing was held to determine the voluntariness of the statements made by Dixon to Deputy Turner. The trial court ruled that Dixon's statements that linked her to the scene of the crime were given freely and voluntarily. On October 5, 2006, a jury found Dixon guilty of capital murder. Dixon was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved, Dixon appeals.
ANALYSIS
I. MOTION TO SUPPRESS
¶ 7. This Court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Graves v. State, 492 So. 2d 562, 565 (Miss.1986).
¶ 8. Dixon argues that the trial court erred in failing to suppress statements which she made to Deputy Turner on May 4, 9, 11, 16, 20, and 25, 2005. Dixon contends that the statements were involuntary and were given without adequate warning or waiver of her fundamental rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article 3, Sections 14 and 26 of the Mississippi Constitution of 1890. Dixon gave six separate statements to Deputy Turner. All the statements were given while in custody. Deputy Turner testified that Dixon was actually given her Miranda warning prior to making the May 9th statement, reminded of her rights prior to making the May 11th statement, and in the subsequent statements on May 16th, May 20th, and May 25th, Dixon was either reminded or stated that she understood her rights. In her brief, Dixon contends that according to the Mississippi Law Enforcement Officer's Handbook, section B.2.a. (2006-2007), as a trained law enforcement officer, Deputy Turner should have been aware that "Miranda warnings should have been given prior to any subsequent interrogation session with the person in custody even though the warnings were given in a prior interrogation."
¶ 9. On May 4, 2005, Deputy Turner was ordered by her supervisor to speak with a female housed at the Raymond Detention Center, who had pertinent information about drug activity in the Jackson area. The female, who was later identified as *1103 Mary Dixon, was checked out of the detention center to aid in a drug buy. Deputy Turner testified that while en route to conduct a drug buy, Dixon identified herself as the female that the Jackson Police Department had in custody for hurting Melcenia Bell. After Dixon stated that she witnessed the crime while at the abandoned building next door to Bell's home, Deputy Turner asked Dixon if they could talk later. Dixon agreed.
¶ 10. Deputy Turner testified that on May 9, 2005, after receiving permission from Dixon's attorney, Tom Fortner, to speak with Dixon, Dixon was properly Mirandized and signed a Miranda waiver before giving a statement. Deputy Turner testified that during the interview, Dixon disclosed pertinent information relating to Bell's assailant. At the conclusion of the interview, the recording, which was turned over to the division secretary to be transcribed, was found to be inaudible.
¶ 11. Due to the recording problems on May 9th, Deputy Turner came back on May 11, 2005, and took another statement from Dixon. Dixon stated that while she was at the abandoned building next door to Bell's home with her crack pipe and dope, she observed Tony Tucker a/k/a Antonio Dixon go to Bell's home and commit the crime.
¶ 12. On May 16, 2005, Dixon agreed to take a polygraph test, but shortly after beginning the process, Dixon declined. In an effort to understand Dixon's refusal to take the polygraph test, Deputy Turner took Dixon outside to smoke a cigarette. Deputy Turner allowed Dixon to use her cell phone to call her daughters. At the end of the call, Dixon began to cry. Deputy Turner inquired as to what was wrong, and Dixon responded that she wanted to tell the truth. Dixon stated that she was on Bell's porch inside the doorway the day of the incident watching Tucker hurt Bell. Thereafter, Dixon stated that she did not want to talk anymore, but she was willing to talk later.
¶ 13. Deputy Turner testified that on May 20, 2005, she checked Dixon out of jail, drove her to McDonald's to eat and then to Bell's home before interviewing Dixon again about the robbery and assault of Bell. Deputy Turner testified that after reminding Dixon of her Miranda rights, Dixon stated in a recorded interview that she was on Bell's porch, in the doorway smoking crack when Tucker assaulted and robbed Bell. Dixon gave a description of Bell's clothing, the location of the money, as well as a detailed description of how the crime was committed.
¶ 14. Deputy Turner testified that on May 25, 2005, Dixon identified Tucker in a lineup as Bell's assailant. No additional statements were made after the identification. Dixon was neither advised of her Miranda rights nor was a waiver signed.
¶ 15. "A statement by the accused is admissible if the accused was given the Miranda warnings, and then knowingly, intelligently, and voluntarily waived the rights." Busick v. State, 906 So. 2d 846, 855(¶ 16) (Miss.Ct.App.2005) (citation omitted). "The voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances." Hicks v. State, 812 So. 2d 179, 191(¶ 32) (Miss.2002).
¶ 16. "[T]he judge should ascertain, under a totality of the circumstances and beyond a reasonable doubt, that the defendant's statement was freely and voluntarily given, and was not the result of force, threat, or intimidation." Baldwin v. State, 757 So. 2d 227, 234-35(¶ 28) (Miss. 2000). "Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied *1104 an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence." Hicks, 812 So.2d at 191(¶ 32).
¶ 17. In Morris v. State, 798 So. 2d 603, 606(¶ 9) (Miss.Ct.App.2001), this Court stated:
When a defendant challenges the voluntariness of his statement, the trial court must hold an evidentiary hearing outside the jury's presence to determine the admissibility of the confession. The State must prove the voluntariness of the statement beyond a reasonable doubt. The State establishes a prima facie case of voluntariness when the officer, or other person having knowledge of the facts, testifies that the confession was voluntarily made without any threats, coercion, or offer of reward. When the State establishes its prima facie case of voluntariness, the defendant must then rebut the State's assertion of voluntariness.
(Internal citations and quotations omitted).
¶ 18. A suppression hearing was conducted prior to Deputy Turner's testimony in order to exclude the six statements Dixon made to Deputy Turner. The trial court ruled that the May 4th statement and the May 25th statement did not fall within the definition of a confession. The trial court held that although Dixon was read her Miranda rights on May 9th, the statement given was not a confession, nor was there any evidence to suggest that the statement made was not a knowing, intelligent, and voluntary statement. Dixon alleges that she is functionally illiterate; therefore, she lacked the ability to understand a waiver of her rights. However, testimony from both Detective Roberts and Deputy Turner indicated that she understood her rights. As to the May 11th statement, the trial court ruled that although it was not satisfied that what Dixon said fell within the definition of a confession, even if it did, Miranda rights are only factors for the court to consider when determining whether or not, from the totality of the circumstances, that the statement given by one in custody is a voluntary statement. The trial court ruled that although the facts and circumstances surrounding the May 16th statement were lacking, the factors and qualifications required under the law for a statement to be admissible were met. The trial judge also ruled that Dixon's statement on May 20, 2005, was freely and voluntarily given.
¶ 19. On each of the aforementioned dates, Dixon spoke with law enforcement officials and stated that she was either present at the scene of the crime or witnessed the crime being committed against Bell. During each of the statements, Dixon either gave a statement after waiving her Miranda rights or continued to disclose information after being reminded of her rights. There is no evidence to suggest that Dixon requested counsel before making any statement to law enforcement. Moreover, Dixon presented no evidence to suggest that her statements were not voluntary. In addition, Dixon's willingness to continue previous conversations with Deputy Turner as to what happened implies that Dixon freely and voluntarily made the statements.
¶ 20. The trial judge did not abuse his discretion in denying Dixon's motion to suppress the statements made to Deputy Turner. Thus, we find this issue is without merit.
II. MOTION FOR A DIRECTED VERDICT, MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT, AND REQUEST FOR A PEREMPTORY JURY INSTRUCTION
*1105 ¶ 21. The standard of review applied to a denial of a request for peremptory instructions, motions for a directed verdict, and motions for a judgment notwithstanding the verdict is the same. Easter v. State, 878 So. 2d 10, 21(¶ 36) (Miss.2004). Each of them challenges the legal sufficiency of the evidence presented at trial. Id. In considering whether to disturb a jury verdict our supreme court will consider:
whether the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Stewart v. State, 986 So. 2d 304, 308(¶ 12) (Miss.2008).
¶ 22. Dixon maintains that the State failed to prove by sufficient evidence the necessary elements of capital murder pursuant to Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006), which states:
The killing of a human being without the authority of law by any means or in any manner shall be capital murder ... [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies[.]
¶ 23. Dixon specifically argues that there was no physical evidence to link her to the robbery and assault resulting in Bell's death. Dixon asserts that although witnesses testified that the scene of the crime was very bloody, no blood stains were discovered on the clothing that she had worn that day. Dixon argues that the State failed to prove beyond a reasonable doubt that she did kill Bell without authority of law while engaged in the commission of the crime of robbery as required pursuant to Mississippi Code Annotated section 97-3-19(2)(e).
¶ 24. Detective Roberts testified that none of the information surrounding the crime had been released to the public. The only person(s) besides the person committing the crime who had significant knowledge of the crime scene were Turner, the Meals on Wheels driver; law enforcement; crime scene personnel; and medical personnel. Deputy Turner testified that although Dixon alleged that Tucker had committed the crime, on May 20, 2005, Dixon was able to provide an accurate description of how the assault occurred, a description of Bell's clothing, and the location of Bell's wallet where Bell kept her money.
¶ 25. Charmaine Kelly testified that in October 2005, she wrote a letter to the district attorney informing the State of Dixon's involvement in the crime against Bell. Kelly, who was Dixon's cellmate on two occasions, testified that during their incarceration, Dixon confessed to the robbery and assault against Bell. Kelly also testified that Dixon told her that after committing the crime, she bought drugs with Tucker. Kelly stated that Dixon said she left Bell naked to make it appear as if a man had committed the crime.
¶ 26. Gladys Powell a/k/a Denise Bates, a former coworker of Dixon, testified that in response to her question as to whether Dixon committed the offense against Bell, Dixon responded, "if they said she did it, then she did it." Powell claims that at no *1106 point during their conversation did Dixon deny having killed Bell.
¶ 27. "[Q]uestions regarding weight and worth of witness testimony or witness credibility are for the jury to settle." Jones v. State, 783 So. 2d 771, 778(¶ 19) (Miss.Ct.App.2000). The Mississippi Supreme Court has stated:
Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict.
Jones v. State, 920 So. 2d 465, 472-73(¶ 22) (Miss.2006) (citation omitted).
¶ 28. The jury in this case has found that the evidence was sufficient to convict Dixon on the offenses for which she was indicted. In making its determination whether to find Dixon guilty or innocent, the jury resolved any issues of credibility of the witnesses presented at trial and, thus, found it reasonable to accept their representation of the facts.
¶ 29. Therefore, viewing the evidence in the light most favorable to the prosecution, the trial court did not err in denying Dixon's motion for a directed verdict, motion for a judgment notwithstanding the verdict, and request for a peremptory jury instruction. We find that this issue is without merit.
III. TESTIMONY OF DR. STEPHEN HAYNE AND AUTOPSY PHOTOGRAPHS OF THE DECEDENT
¶ 30. Exhibits 36, 38, 40, and 42 were marked for identification only. Exhibits 37, 39, 41, 43, and 44 were admitted into evidence.
¶ 31. Dixon contends that the use of Exhibits 38, 40, and 42 was in error, and when coupled with other errors, the exhibits deprived Dixon of a fair trial free of inflammatory prejudice. Dixon argues that the photographs were not necessary to identify Bell because Eubanks and Daryl had done so earlier in trial. Dixon asserts that Exhibits 37, 39, 41, 43, and 44 were merely admitted to horrify the jurors at the brutality of a crime against one so vulnerable as Bell. Dixon claims that Exhibits 43 and 44 were irrelevant to testimony as to the cause of Bell's death because Bell's medical records indicated there were no stab wounds on her right side depicted in the picture and, thus, inadmissible. However, in her rebuttal brief, Dixon asserts that although Exhibits 37, 39, 41, 43, and 44 are relevant. Dr. Hayne used the aforementioned exhibits to explain that Bell's death was the result of multiple organ failure, and the scars Bell sustained were consistent with being stabbed.
¶ 32. Exhibit 37 is a facial view of decedent Bell. This photograph depicts a large scar located over the left side of the forehead. Exhibit 39 is a photograph of decedent Bell's left upper extremity, showing part of the left arm and left forearm with multiple scars predominantly located over the outer surface of the left arm. Exhibit 41 is a photograph of the left flank or outer flank left chest wall of decedent Bell. There are multiple scars, some medical in origin, located over the site going up to the front surface of the left shoulder. Exhibit 43 is a photograph of the outer surface of the right upper extremity including the *1107 right shoulder, right arm, and upper part of the right forearm. There are multiple scars on the site as well as the shoulder and right arm. Exhibit 44 is a photograph of the thumb, part of the back, and the second digit of the right hand.
¶ 33. The supreme court has held:
Photographs that aid in describing the circumstances of the killing, the location of the body and cause of death, or that supplement or clarify a witness's testimony have evidentiary value and are admissible before a jury. Admission of photos of a deceased is within the sound discretion of a trial court and is proper so long as the photos serve some useful, evidentiary purpose. The discretion of a trial judge to admit photos in criminal cases, runs toward almost unlimited admissibility regardless of gruesomeness, repetitiveness, and the extenuation of probative value.
Bennett v. State, 933 So. 2d 930, 946(¶ 53) (Miss.2006) (internal citations and quotations omitted). "Some probative value is the only requirement needed in order to support a trial judge's decision to admit photographs into evidence." Jones, 920 So.2d at 476-77(¶ 35) (citation omitted).
¶ 34. "[A]bsent an abuse of discretion, the [trial] court's decision [as to the admissibility of photographs] will be upheld on appeal.... Reversal of the trial court will occur only where there is a clear abuse of discretion." Id. at 476(¶ 35).
¶ 35. Prior to direct examination of Dr. Hayne, the trial judge conducted a hearing outside the presence of the jury, which was treated as a motion in limine to address the matter of the photographs. During the hearing, defense counsel objected to the inflammatory and prejudicial nature of the photographs, but made no objections as to the relevance of the photographs. Defense counsel asserted that at the time of the motion in limine, he could not address the issue of relevance. He contended that he was not aware of how Dr. Hayne reached a conclusion as to the scars depicted in the photographs or what he intended to show by the photographs. Dixon asserts that testimony had been given as to the number of scars and Dr. Hayne's inability to identify the origin of the scars. As a result of the hearing, the trial court ruled that as the trial progressed, defense counsel could make timely objections as to the relevancy of the photographs. Later after the jury returned, defense counsel objected only to the relevancy of Exhibits 36 and 38. The trial court sustained the objection and allowed the Exhibits 36 and 38 to be received and marked for identification only.
¶ 36. As the trial progressed, defense counsel made no additional objections as to the relevancy or the inflammatory nature of Exhibits 37, 39, 41, 43, and 44. Being within his sound discretion, the trial judge found that the photographs served some probative value; therefore, the photographs were deemed admissible. Dixon presented no evidence that the trial court abused its discretion; thus, we find that this assignment of error is without merit.
¶ 37. Next, Dixon argues that Dr. Hayne was forced to acknowledge the inconsistency of his testimony. Dixon contends that Dr. Hayne concluded that scars in Exhibits 43 and 44 were on the right side of the body and were consistent with the type of injuries that would be received in this type of attack, while the medical records showed that none of the stab wounds were on the right side of the body. In addition, Dixon contends that Dr. Hayne could not specify the origin of the scars, and his testimony was inconsistent with emergency room records; therefore, it was error to permit Dr. Hayne's testimony and admission of the exhibits. However, *1108 the State asserts that Dixon failed to contemporaneously object to Dr. Hayne's testimony. Therefore, the State asserts that Dixon is procedurally barred.
¶ 38. Pursuant to Mississippi Rule of Evidence 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
"According to Mississippi Rule of Evidence 703, the expert may base his opinion on personal observation as well as facts or data `made known to him at or before the hearing.' All evidence must also pass the requirements of Mississippi Rule of Evidence 403, which excludes evidence if it is unfairly prejudicial, confusing, or a waste of time." Ross v. State, 883 So. 2d 1181, 1184(¶ 4) (Miss.Ct.App.2004). "A forensic pathologist, addresses two basic questions: what was the cause of death, and what was the manner of death?" Bell v. State, 725 So. 2d 836, 853-54(¶ 51) (Miss.1998).
¶ 39. The State offered Dr. Hayne to testify to as to Bell's cause of death. Dr. Hayne was tendered as an expert witness in the areas of anatomic, clinical, and forensic pathology. Dr. Hayne was deemed qualified to provide expert testimony regarding the interpretation of laboratory tests, prepare tissues or specimens to make a determination of disease or lack thereof, and to determine the cause and manner of death.
¶ 40. Dixon's argument as to the inconsistency of Dr. Hayne's testimony and review of the photographs is flawed. Dr. Hayne's testimony was based on his observation of the body, facts made known to him, and his observation of anatomical drawings and photographs at trial. Dr. Hayne testified that he had reviewed Bell's medical records and was able to reach an opinion with a reasonable degree of medical certainty as to the cause and manner of Bell's death. Dr. Hayne's testimony fulfilled the requirements as outlined in Ross.
¶ 41. Nevertheless, "if no contemporaneous objection to a witness's testimony is made, the error, if any, is waived. Application of the contemporaneous objection rule is not diminished in a capital case." Rubenstein v. State, 941 So. 2d 735, 751(¶ 27) (Miss.2006) (internal citation omitted). Dixon made no objections as to Dr. Hayne's qualifications as an expert witness or testimony. Therefore, this issue is procedurally barred and without merit.
¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573656/ | 224 S.W.3d 630 (2007)
Terry PRUITT, Appellant,
v.
MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.
No. WD 66956.
Missouri Court of Appeals, Western District.
May 22, 2007.
Terry Pruitt, Jefferson City, pro se.
David A. Johnston, Esq., Jefferson City, for Respondent.
Before Div IBRECKENRIDGE, P.J., LOWENSTEIN and HOLLIGER, JJ.
HAROLD L. LOWENSTEIN, Judge.
Terry Pruitt was an inmate at the Farmington Correctional Facility. In a three-count petition filed October 3, 2005, Pruitt contends that, due to the negligence of the Department of Corrections ("Corrections"), he was injured while incarcerated. In Count I, Pruitt alleges that he was injured when he slipped and fell in the "toilet and sink" area of the facility on September 24, 2004. In Count II, Pruitt states that he incurred the second injury on June 10, 2005 when he was struck on the head by a ceiling grate. In Count III, he claims to have been injured when he slipped in the hallway of the facility.
*631 Corrections filed a motion to dismiss the petition arguing that: (1) Count I was barred by the statute of limitations set forth in Section 516.145;[1] (2) the petition failed to state a cause of action upon which relief could be granted; and (3) Pruitt failed to exhaust his administrative remedies prior to filing the petition. The trial court sustained the motion to dismiss and, on January 5, 2006, entered a judgment stating: "Petitioner's Petition is dismissed for failure to state a cause of action." (Emphasis added.) On January 24, 2006, Pruitt filed a motion for rehearing as well as "Suggestions in Opposition to Defendant's Motion to Dismiss." When the trial court denied the motion for rehearing, Pruitt refiled his petition as to Counts II and III in circuit court but has appealed the dismissal of Count I to this court.
Pruitt now claims in this appeal that "[Corrections] moved the Circuit Court to dismiss Count I for being barred by the statute of limitations. . . . [Corrections] further moved the Circuit Court to dismiss Counts II and III for failing to state a claim and failure to exhaust administrative remedies." However, a review of the record indicates that the stated grounds for Corrections' motion was the "failure to state a claim upon which relief can be granted as a matter of law." In the suggestions in support of the motion to dismiss, Corrections argued that the entire petition fails to state a claim upon which relief could be granted. Corrections offered the statute of limitations argument as to Count I as an alternate basis for dismissal.
The trial court granted the motion to dismiss the petition for failure to state a cause of action. The trial court did not ground the dismissal of Count I on the statute of limitations; indeed, the trial court did not rule on that issue at all. Pruitt was not subject to adverse ruling as to the statute of limitations; therefore, the issue of whether Count I is barred by the statute of limitations set forth in Section 516.145 is not properly before this court. "To undertake to review an issue not having been decided by the trial court would be akin to rendering an advisory opinion, something appellate courts are wont not to do." Daniel v. Ind. Mills & Mfg., Inc., 103 S.W.3d 302, 318 (Mo.App.2003). The issue is simply not ripe for adjudication by this court.
Under Rule 67.03, "[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." Here, the trial court did not specify that the dismissal was with prejudice; therefore, the dismissal is presumed to be without prejudice. A dismissal without prejudice is not a final judgment for the purposes of appeal. Ampleman v. Schweiss, 969 S.W.2d 862, 863 (Mo.App.1998).
Although the trial court's decision is titled "Judgment," it has said nothing else to manifest an intent to terminate the litigation and allow the plaintiff to seek appellate review. There was no language here to the effect that "there was no reason for delay in entering a judgment on the motion to dismiss," or that the dismissal was as to one of several parties and the dismissal *632 was rendered pursuant to Rule 74.01(b). State ex rel. Dos Hombres-Independence, Inc. v. Nixon, 48 S.W.3d 76, 79-80 (Mo.App.2001). Had the reason for dismissal of Count I been based on the limitations as a bar to refiling the action, then the ruling would have effectively been with prejudice. Braun v. Petty, 31 S.W.3d 521, 523 n. 1 (Mo.App.2000).
Because Pruitt can cure the defect by refiling a petition as to Count I in the trial court seeking legal remedy or even limited equitable relief of the type still available to him, Pruitt's appeal is not properly before this court. The appeal is dismissed.
All concur.
NOTES
[1] All statutory references are to RSMo. (2000) unless otherwise specified.
Section 516.145 provides that "all actions brought by an offender, as defined in section 217.010, RSMo, against the department of corrections or any entity or division thereof, or any employee or former employee for an act in an official capacity, or by the omission of an official duty" must be brought within one year of the event. Pruitt does not dispute that he is subject to the limitations set forth in Section 516.145 but rather bases his argument on the date his injury accrued. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917950/ | 993 A.2d 535 (2010)
In re D.M., Appellant.
No. 07-FS-525.
District of Columbia Court of Appeals.
Argued March 25, 2009.
Decided April 15, 2010.
*537 Enid Hinkes, appointed by the court, for appellant.
Sidney R. Bixler, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for the District of Columbia.
Before REID and GLICKMAN, Associate Judges, and FARRELL, Senior Judge.
GLICKMAN, Associate Judge:
Appellant D.M. and his friend J.R., two juveniles, were charged jointly with arson[1] and felony destruction of property.[2] They were slated to be tried together. The morning of the hearing, though, the government dropped the charges against J.R. in exchange for his testimony against appellant. Not having any other reason to detain J.R., the trial judge held a brief hearing to review his status and to release him from pretrial custody. The judge then proceeded with appellant's delinquency trial, in which J.R. was the key witness against him, and found him involved in the charged offenses. Appellant's primary claim on appeal is that, by considering and discussing J.R.'s situation, the judge violated ethical canons that prohibit ex parte communications and require recusal when there exists an appearance of partiality on the judge's part. We disagree, and as we find appellant's other claims of error to be meritless, we affirm his delinquency adjudication.
I.
At around noon on April 23, 2007, a fire broke out on in an unused classroom on the third floor of the Taft Diagnostic Center. The school had to be evacuated. The fire did not cause extensive damage, but it destroyed a metal file cabinet and a plastic storage cabinet and blistered and stained the paint on a nearby wall. The fire inspector, Milton Olinger, estimated the total damage at "about $3,000."[3] Olinger opined that the fire was set intentionally with an open flame in the metal filing cabinet. Fire investigators found a cigarette lighter in the cabinet.
*538 After the building was secured, the Taft Center's principal, Gregory Matthews, reviewed videotape taken by a motion-activated camera monitoring the third-floor hallway. The video showed J.R. and appellant in the hallway, "engaged in conversation and maybe smoking cigarettes." According to the video, appellant entered and exited the classroom while J.R. remained in the hallway. The two young men left together. The next frames captured by the camera showed firemen arriving to put out the fire; the camera did not detect anyone else in the hallway or entering or leaving the classroom in the interim. Matthews was "100 percent sure" that the two young men in the video were J.R. and appellant. They were charged with arson and malicious destruction of property.
On the morning of trial, however, the government announced that it was dismissing the charges against J.R. Simultaneously, it subpoenaed him to testify against appellant. Because the arson case was the only charge on which J.R. was being held in custody, and because he was already under the court's probationary supervision, the trial judge decided to address his release and review his status before starting the trial. In accordance with the general rule that juvenile proceedings are to be kept confidential,[4] the judge asked, "Is it possible for [appellant] to just go into the back for a minute? Would that be okay?" Appellant's counsel responded, "Yes." The judge also asked "if the family members connected with [appellant's] matter can just wait outside for just a minute." Appellant's counsel was not asked to leave, but she did so.
Once the courtroom was partially cleared, the judge observed that J.R. had a probation review scheduled in approximately two months. Mentioning that she had received a report from J.R.'s probation officer that raised concerns regarding his mother, the judge asked the Child and Family Services social worker present whether there had been "any progress" with regard to J.R.'s placement. The social worker responded that several family members wanted to help his mother ensure that J.R. always had adequate supervision. A representative from Youth Villages chimed in that she had spoken "with the principal at the school ... [and] he is allowing [J.R.] back in the school." The judge responded, "Okay," and then inquired whether other "services and supports" had been identified to assist J.R. and his mother. J.R.'s counsel said that his office was working on educational services and that an educational advocate had been appointed. The judge then received information on J.R.'s anticipated enrollment in summer school and his possible participation in summer camp.
After concluding that discussion, the judge asked J.R.'s sister, C.R., "Was there anything that you wanted to add or any additional services that you think would assist ... your brother in being successful at home?" C.R. stated that she and other family members had discussed a "house arrest" or home monitoring arrangement for her brother"if he on some sort of system that lets him know[,] [`]if I don't go home they are going to know I ain't go home.[']"but had decided that "every time he don't come home we're just going to report him," and he would know it. Picking up on C.R.'s idea, the judge asked counsel for J.R. and the government about the possibility of implementing third-party monitoring. With their consent, the judge declared that she would add third-party *539 monitoring as a condition of J.R.'s probation. Next, after confirming that J.R. had been receiving his prescribed medication while he was in pre-trial custody, the judge set a new date for his probation review, "just so we can be sure that [J.R.] had a good plan in place for the summer." The judge then admonished everyone present to remain in close contact with J.R.'s probation officer and stated that she would "put the order in place for the third party monitoring."
Finally, the judge turned to "the logistics of having J. available" to testify at appellant's trial. Although the prosecutor expressed a desire to defer J.R.'s discharge from custody until he finished testifying, the judge signed an order for his immediate release. The judge then addressed J.R. directly for the first time in the hearing, advising him as follows:
All right. J., J., look at me. You are going to be released today because this case is being dismissed but as you know [the prosecutor] has just subpoenaed you to testify today before me in this case. Okay? So, ... you are going to be released from the cell block room but you may not leave the Court building. You are going to be released from there and [your attorney] and your mom are just going to sit with you outside the courtroom. Okay. So, you are not to leave the building under any circumstances until you are excused by me or by ... the Government counsel. Do you understand that? ... Mr. R., do you understand that?
J.R. replied, "Yes." Shortly afterward, the judge began hearing appellant's case.
J.R. was the government's key witness. According to J.R., he and appellant were on the third floor of the Taft Center "skipping breakfast time" and "playing around." Appellant, who was carrying a "torch" (i.e., a cigarette lighter), told J.R. "that he didn't take his medicine" and said, "I wonder if [I] light [sic] the school on fire." Appellant walked into one of the classrooms and invited J.R. to follow him. They sat on a sofa and appellant lit a cigar. Appellant then reached inside the file cabinet and set fire to some files inside a black plastic crate. J.R. "tr[ied] to stomp it out" and then left the room as appellant was still trying to ignite the files. J.R. called out to appellant and the two left together.
Testifying in his own defense, appellant placed the blame for the fire on J.R. Appellant claimed that J.R. took his cigarette lighter from him and used it to set fire to the papers in the file cabinet. Appellant said he then found a jug of water, poured it into "little science cups," and threw the water on the fire in an effort to extinguish it. Appellant asserted that if he had started the fire, he would have pleaded guilty "because my UUV's [are] way worse than this, the way I've been hitting cars and all that."
In rebuttal, the government recalled Matthews, the Taft Center's principal, to play the surveillance videotape showing that only appellant entered the classroom where the fire occurred.[5] The government also called Sergeant Phillip Proctor, a firefighter who had questioned appellant about the fire. Proctor said appellant told him other individuals had set it, "but he did not want to snitch on those individuals and say who they were." Appellant did *540 not tell Proctor that it was J.R. who had started the fire.
In finding appellant guilty, the judge declined to rely on the videotape because she questioned its completeness and believed that J.R. and appellant both were present in the classroom when the fire was set. The issue turned on the credibility of their conflicting accounts, and the judge resolved that issue in favor of J.R. and against appellant:
After considering all of the testimony and having an opportunity to assess the credibility of both Mr. R. and Mr. M as well as the arguments that are being [p]ut forth by counsel as to why one or the other might have a motivation or an incentive to fabricate their testimony[,] I do find that the account of what transpired on April 23rd that was given by J.R. ... was the far more credible account of what transpired[.]
The judge accordingly found that "the Government has met its burden to establish beyond a reasonable doubt [appellant's] involvement in both the charges." With respect to the mens rea element of the two charges, the judge specifically found that appellant acted in "conscious disregard" of known and substantial risks to the property and to the security of the building's occupants.
II.
Appellant's primary contention is that the trial judge erred in failing to recuse herself. Appellant argues that the judge violated two different canons of judicial ethics by speaking to J.R., speaking to others about J.R., and reading his probation report just before he became an important witness for the prosecution in appellant's trial: (1) the canon prohibiting ex parte communications, and (2) the canon requiring recusal when the judge's impartiality might reasonably be questioned. Appellant failed to raise these claims below, and the government argues that they are subject to review only for plain error. In some cases we have declined to so limit our review of unpreserved claims of judicial bias, recognizing that it may be unfair to expect a defendant to challenge the integrity of the judge who is about to adjudicate his guilt or impose his sentence.[6] Here, though, appellant and his counsel knew the trial judge was about to speak to J.R., and appellant's counsel, as a member of the D.C. Bar, was free to remain in the courtroom and attend the proceeding.[7] Under these circumstances, plain error review would seem appropriate because appellant was afforded a fair opportunity to be present (through his counsel) during the communications and to express any concerns he may have had without attacking the judge's integrity. We need not resolve this question, however, because we conclude there was neither an improper ex parte communication concerning appellant or his case nor any actual or apparent bias on the judge's partand hence there was no violation of the canons of judicial ethics, plain or otherwise.
A.
Subject to exceptions not applicable to this case, Canon 3(B)(7) of the Code of Judicial Conduct provides that "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a *541 pending or impending proceeding...."[8] In appellant's view, the trial judge violated this canon both by "initiat[ing]" and by "consider[ing]" the colloquy regarding J.R.'s placement.[9]
"Ex parte communications are those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter and are prohibited in order to ensure that every person who is legally interested in a proceeding is given the full right to be heard according to law."[10] The colloquy with and about J.R. therefore involved an "ex parte communication" only if appellant had a right to be present. While appellant had a right to be present at every stage of his own proceeding,[11] he had a right to be present during J.R.'s meeting with the judge only if that meeting involved communications concerning appellant or his pending case.[12] Thus the distinction drawn in Canon 3(B)(7) between "ex parte communications" and "other communications... concerning a pending or impending proceeding" need not detain us.[13] However we categorize the communications to which appellant was not privy, the dispositive question is whether they pertained to appellant or the allegations or evidence against him.
They did not. There was no mention of appellant or the facts of his case during the judge's colloquy with and about J.R. Appellant argues that the judge heard information that cast J.R. in a positive light, thereby making the judge more likely to credit his imminent testimony for the prosecution. Specifically, appellant points to the social worker's report that the principal was allowing J.R. to return to school. We are not persuaded; it is fanciful to construe that statement as an endorsement of J.R.'s character, let alone his character for truthfulness. And we see nothing else in the colloquy that bore on J.R.'s credibility.
Appellant also points to the fact that the trial judge read J.R.'s probation report before the trial beganperhaps, though the record is not clear, before the government *542 dismissed J.R. from the case. This was dangerous. Probation reports, like presentence reports, may contain a considerable amount of information about the probationer and his behavior that is not subject to cross-examination or the rules of evidence.[14] If the trial judge had read a probation report on appellant before sitting as the finder of fact in his delinquency trial, we might think reversal was required.[15] As it is, however, there is no claim or indication that the judge read appellant's probation report before she adjudicated him delinquent, and appellant points to nothing in J.R.'s probation report bearing on appellant, J.R.'s credibility, or the offense with which they had been jointly charged.[16]
There likewise is no sign that the judge's findings of fact in appellant's case were influenced in any way by J.R.'s probation report or the colloquy concerning him. So far as it appears, the information the judge elicited or obtained from those sources was irrelevant to appellant and his case, and appellant has not rebutted the presumption that a judge, sitting as finder of fact, will "disregard all irrelevant matters in making [his or her] adjudications."[17] On this record, we can see no violation of the prohibition in Canon 3(B)(7) against initiating or considering ex parte communications or other communications outside the parties' presence concerning a pending or impending proceeding.
*543 B.
The second canon of the Code of Judicial Conduct on which appellant relies, Canon 3(E)(1), instructs a judge to "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned[.]"[18] This injunction establishes an objective standard that obliges the judge to "recuse from any case in which there is an appearance of bias or prejudice sufficient to permit the average citizen reasonably to question the judge's impartiality."[19] Importantly, the test is whether the facts would create a reasonable doubt about the judge's partiality in the mind of a person with knowledge of all the relevant circumstances.[20]
That test is not met here. The only reason appellant advances for asserting a violation of Canon 3(E)(1) is the trial judge's alleged receipt of ex parte information from her review of J.R.'s status. However, as we have said, the record affords no basis for thinking that the judge solicited or received any communication bearing on appellant or his case. Appellant himself therefore had no right to be present during the discussion about J.R., and the judge did not bar his counsel, who could have attended it, from doing so. In our view, a reasonable person informed of these facts would not doubt the judge's impartiality in presiding over appellant's case.
III.
Appellant's other claims on appeal merit only brief discussion. We reject appellant's contention that there was insufficient evidence of his malice to convict him of arson. Viewed in the light most favorable to the government, the evidence showed that appellant wondered aloud what would happen if he tried to set the school on fire; that he started the fire with a cigarette lighter; that he continued to try to set the fire despite J.R.'s attempts to extinguish the blaze; and that appellant did not notify anyone about the fire. The trial judge reasonably could find, as she did, that appellant intentionally set the fire in conscious disregard of a known and substantial risk that his actions would endanger the school's occupants.[21]
We similarly reject appellant's claim that there was insufficient evidence to convict him of felony (as opposed to misdemeanor) destruction of property. Even if appellant intended only to set fire to some old files having de minimis value, there was sufficient evidence that he consciously disregarded the risk that the fire would spread (as it did) to surrounding school *544 property "of the value of $200 or more."[22]
Lastly, appellant argues that Matthews's testimony on rebuttal that appellant "was overheard ... asking what would happen if he burned the school down" was so prejudicial that it entitles him to a new trial. When the prosecutor elicited the testimony, appellant moved to strike ita request the judge granted. Appellant did not seek a mistrial. We therefore review his current claim only for plain error. When an appellant argues that the trial judge should have declared a mistrial sua sponte, even if the trial was before a jury we consider only "whether the judge compromised the fundamental fairness of the trial, and permitted a clear miscarriage of justice, by not intervening" on his or her own motion.[23] In this case, a bench trial, "it was incumbent upon [the judge] to terminate the trial only if [she] believed [she] had been exposed to comments that prevented [her] from reaching a verdict solely on the relevant evidence."[24] We cannot say the judge abused her discretion in believing she could ignore the comment she struck from the record. We see no reason to think the judge was influenced by the stricken portion of Matthews's rebuttal testimony.[25]
IV.
For the foregoing reasons, we conclude that the trial judge did not err by initiating or considering an ex parte communication or by failing to recuse herself, and that appellant's other assignments of error are without merit.
Affirmed.
NOTES
[1] D.C.Code § 22-301 (2001).
[2] D.C.Code § 22-303 (2001).
[3] Olinger testified that it would cost $319 to replace the storage cabinet and $300 to replace the file cabinet with comparable new ones; that painting supplies would cost around $17; and that "the rest would be in labor about $1,200 but it probably could exceed that because [of] the electrical work that would need to be done." The witness did not otherwise explain why his total cost estimate was $3,000 even though his figures added up to around $1,850.
[4] See Super. Ct. Juv. R. 53(a)(1) ("Pursuant to D.C.Code § 16-2316(e), the general public shall be excluded from judicial hearings concerning juvenile delinquency or persons in need of supervision.").
[5] The prosecutor also asked Matthews whether appellant was overheard making any statements prior to the fire. Matthews answered that appellant "was overheard saying, asking what would happen if he burned the school down." Appellant immediately objected to this testimony and, following argument, the judge ruled that it should have been introduced in the government's case-in-chief and ordered it stricken from the record.
[6] See, e.g., Belton v. United States, 581 A.2d 1205, 1212 & n. 7 (D.C. 1990).
[7] See Super. Ct. Juv. R. 53(a)(2)(A).
[8] DISTRICT OF COLUMBIA CODE OF JUDICIAL CONDUCT Canon 3(B)(7) (1995).
[9] See Foster v. United States, 615 A.2d 213, 216 (D.C.1992) (suggesting that "initiating" and "considering" are separate violations).
[10] Harris v. United States, 738 A.2d 269, 277 (D.C.1999) (internal quotation marks, brackets and citation omitted). See also Clifton v. United States, 363 A.2d 299, 301 (D.C.1976) ("Any discussion with the trial judge relating to the trial should be conducted only in the presence of all counsel.") (emphasis added).
[11] See Super. Ct. Juv. R. 43; cf. Super. Ct. Crim. R. 43(a) ("The defendant shall be present... at every stage of the trial....").
[12] Cf. In re W.T.L., 656 A.2d 1123, 1129 (D.C. 1995) (holding that trial judge "engaged in prohibited ex parte communications about appellant" by discussing his conduct in his and his counsel's absence with another juvenile during the latter's disposition hearing); United States v. Spears, 197 F.3d 465, 470 (10th Cir.1999) ("Criminal defendants have a right to be present ... at a presentence hearing in a co-defendant's case if the testimony at the hearing will affect the defendant's sentence.") (emphasis added); United States v. Anaya, 32 F.3d 308, 314 (7th Cir.1994) (suggesting that a defendant does not have an absolute right to be present at a co-defendant's sentencing, but merely a right to advance notice of the information presented at that sentencing if the trial court intends to rely on it in passing sentence).
[13] See Harris, 738 A.2d at 277 n. 13 ("We have treated situations in which a trial court has received ex parte communications where no interested party was present in the same manner as those cases where the communication was received at the instance and for the benefit of one party only[.]") (internal quotation marks omitted) (citing In re W.T.L., 656 A.2d 1123 (D.C. 1995)).
[14] See D.C.Code § 24-303 (2001) ("The probation officers shall carefully investigate all cases referred to them by the court, and make recommendations to the court to enable it to decide whether the defendant ought to be placed under probation, and shall report to the court, from time to time as may be required by it, touching all cases in their care, to the end that the court may be at all times fully informed of the circumstances and conduct of probationers.").
[15] Cf. Gregg v. United States, 394 U.S. 489, 492-93, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) (suggesting that reversal of conviction would have been required if the trial judge had read a presentence report on the defendant before the jury returned its verdict; "[t]o permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant's guilt or innocence or who will preside over a jury trial would seriously contravene the ... purpose [of Criminal Rule 32] of preventing possible prejudice from premature submission of the presentence report."). See also Super. Ct. Juv. R. 32(b)(1) ("The [predisposition] report shall not be submitted to or considered by the judicial officer, or its contents disclosed to anyone, unless the respondent has pleaded guilty or has been found guilty or in need of supervision.").
While Canon 3(B)(7)(c) provides, as an exception to the general rule against ex parte communications, that "[a] judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities," we consider that exception inapplicable to a judge's perusal of a presentence or probation report on a respondent (or defendant) prior to a finding of guilt. Probation officers do fall within the category of "court personnel" for the purposes of the exception, see Foster v. United States, 615 A.2d 213, 218 (D.C.1992), but before guilt has been determined, they have no role in "aid[ing] the judge in carrying out the judge's adjudicative responsibilities."
[16] We presume that appellant and his counsel have not seen J.R.'s probation report, as it is a confidential juvenile social record. See D.C.Code § 16-2332 (2001 & Supp.2009); Super. Ct. Juv. R. 55(b)(3). The probation report is not part of the record before us, and we have not inspected it. Because "it is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred," Cobb v. Standard Drug Co., 453 A.2d 110, 111, (D.C.1982), and appellant could have moved to supplement the record on appeal with J.R.'s probation report, see D.C.App. R. 10(e), we do not remand for a hearing to ascertain its contents.
[17] In re W.N.W., 343 A.2d 55, 58 (D.C. 1975).
[18] DISTRICT OF COLUMBIA CODE OF JUDICIAL CONDUCT Canon 3(E)(1) (1995). The Canon tracks the language of 28 U.S.C. § 455, which governs the disqualification of federal judges, and in construing it we may look to federal case law interpreting that statute for guidance. Belton v. United States, 581 A.2d 1205, 1213 (D.C. 1990).
[19] Garrett v. United States, 642 A.2d 1312, 1315 (D.C. 1994) (internal quotation marks and brackets omitted).
[20] See Sao Paulo State of the Federative Republic of Braz. v. Am. Tobacco Co., 535 U.S. 229, 232-233, 122 S.Ct. 1290, 152 L.Ed.2d 346 (2002) (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 861, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)).
[21] Contrary to appellant's argument, the judge thus correctly found that he acted with malice. See Phenis v. United States, 909 A.2d 138, 163-64 (D.C.2006) ("With respect to arson, the government must prove that appellant acted intentionally, and not merely negligently or accidentally, while consciously disregarding the risk of endangering human life and offending the security of habitation or occupancy.") (internal quotation marks omitted).
[22] D.C.Code § 22-303 (2001).
[23] Lewis v. United States, 930 A.2d 1003, 1008 (D.C.2007) (internal quotation marks omitted).
[24] McKoy v. United States, 263 A.2d 645, 648 (D.C. 1970).
[25] See, e.g., Singletary v. United States, 519 A.2d 701, 702 (D.C.1987) (noting "presumption that a trial judge, in deciding a case, will disregard any inadmissible evidence and any improper argument"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917954/ | 101 B.R. 216 (1989)
In re MARATHON HOME LOANS, Debtor.
Bernice W. CHAMBERS, Plaintiff,
v.
MARATHON HOME LOANS, Marathon Home Loans, Inc., a California Corporation, Marathon Fund One, a California Limited Partnership, Emily Sudduth, Homestead Securities Corporation, a California Corporation, David S. Hirshfeld, M.D., FBO Defined Benefit Pension Plan, and Gregory Reide, Defendants.
Bankruptcy No. 288-M0116-C-11, Adv. No. 288-0359.
United States Bankruptcy Court, E.D. California.
May 31, 1989.
*217 David T. Cohen, Robinson, Diamant, Brill & Klausner, Century City, Cal., for debtor/defendant.
Ilene J. Jacobs, Cal. Rural Legal Assistance, Marysville, Cal., for plaintiff.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO ORDER TO SHOW CAUSE
CHRISTOPHER M. KLEIN, Bankruptcy Judge:
On March 2, 1989, a hearing was held on the Order To Show Cause issued January 25, 1989, regarding sanctions in connection with the bankruptcy trustee's activities in connection with the removal from California Superior Court, Sutter County, of a multi-defendant civil action sounding in theories of fraud, tort, and statutory violations.
FINDINGS OF FACT
The facts set forth in this court's Report And Recommendation For Disposition Of Motion For Remand filed December 2, 1988, and adopted in full by the United States District Court on January 19, 1989, include the following findings of fact that are incorporated herein:
1. Bernice Chambers ("Chambers") borrowed money through Marathon Home Loans ("Marathon"), giving a deed of trust against her residence. Chambers is a 72-year-old widow who is an invalid and who is able to sign her name only with a mark. The loan later became the subject of foreclosure proceedings prosecuted by Marathon in Sutter County, California.
2. Marathon is now a chapter 11 debtor in bankruptcy case No. LA-88-10557-NRR in the United States Bankruptcy Court, Central District of California.
3. Chambers filed a proof of claim in Marathon's bankruptcy and, in addition, moved for relief from the automatic stay. She sought permission from Marathon's bankruptcy court (a) to file a complaint in Sutter County Superior Court that would name Marathon as one of seven defendants in an action grounded upon various counts sounding in fraud, other torts, and statutory lender liability theories and (b) to obtain preliminary relief blocking a foreclosure sale that had been scheduled by Marathon.
4. A copy of the proposed complaint was included with Chambers' motion for relief from the automatic stay. At least four of the other six defendants are not debtors in bankruptcy cases.
5. Several of the counts in the complaint provide a basis, assuming the predicate *218 facts are ultimately established at trial, for judgments against nondebtor defendants as well as the debtor.
6. The hearing on the motion for relief from automatic stay was held at 2:00 p.m. on July 13, 1988, before the Honorable Robin Riblet, United States Bankruptcy Judge, Central District of California.
7. At the hearing on relief from stay, counsel for Marathon's chapter 11 trustee, counsel for Marathon itself, and counsel for the beneficiary of the deed of trust all appeared and opposed the proposed relief from the automatic stay, arguing that the proposed litigation would detrimentally affect the bankruptcy estate, and that it would be inconvenient and inappropriate to litigate in Sutter County Superior court.
8. Judge Riblet, at the conclusion of the hearing, orally granted the motion to permit Chambers to prosecute the state court action, obtain preliminary relief, obtain final judgment against any or all defendants, and enforce a judgment against any defendants and assets other than assets of the bankruptcy estate.
9. An Order For Relief From Automatic Stay in In re Marathon Home Loans containing the following provisions was signed and filed July 15, 1988, and entered on the docket July 26, 1988:
1) That the automatic stay pursuant to Bankruptcy Code § 362 which became operative upon the filing of the Petition for Bankruptcy in this case is lifted to allow the Movant to adjudicate her claims.
2) This Order is effective only as to Movant, Bernice W. Chambers.
3) The stay is not lifted to allow enforcement of a judgment against assets of the bankruptcy estate.
/s/ Robin Riblet
10. No appeal was taken from the Order For Relief From Automatic Stay.
11. The trustee actually had a copy of the intended complaint before July 13, 1988.
12. Chambers' Complaint was filed on July 14, 1988, in Superior Court of California, County of Sutter, and assigned docket No. 40210. That court granted a temporary restraining order the same day restraining Marathon's foreclosure sale, which also had been scheduled for that date.
13. On July 14, 1988, counsel for the trustee was notified by telephone that the case had been filed in Sutter County and that the temporary restraining order had been granted.
14. The trustee actually received a copy of the temporary Restraining Order on July 18, 1988.
15. The trustee actually received a copy of the filed Complaint on July 20, 1988.
16. The trustee filed his Application For Removal in the Eastern District of California on August 18, 1988.
17. The trustee gave, as bases to support removal, his assertion that the proper forum for resolution of the plaintiff's claim is the bankruptcy court and his assertion that, without removal, duplicative litigation in multiple forums would result.
18. If the trustee succeeded in resisting the motion for remand, he intended to have the matter transferred to the federal courts in the Central District of California.
I now make the following, additional findings regarding the Order To Show Cause on the issue of sanctions.
19. The trustee believes that Marathon bankruptcy is a no asset case. (Declaration of Lawrence A. Diamant, paragraph 3.)
20. The trustee believes, and believed at the time of causing the removal, that Chambers' claim will have no value in the Marathon bankruptcy case because tax claims alone exceed the sum which the trustee expects to achieve from selling the loan servicing package of Marathon. (Declaration of Lawrence A. Diamant, paragraph 9.)
21. The trustee represented to the court that Chambers' motion for relief from the automatic stay and the proceedings thereon were ex parte. (Trustee's Response To Bernice W. Chambers' Motion For Remand And Objection To Application For Removal *219 at 4-5.) The motion was not ex parte, as that term is understood in federal courts. It was heard in open court, on notice to the trustee, and with the actual appearance in opposition by counsel for the trustee. The only ex parte aspect was a preliminary request for an order shortening time to permit the hearing to be held on shortened notice.
22. The trustee, and his counsel, intentionally attempted to create the impression with this court that the trustee had not been afforded his day in court on the question of relief from the automatic stay. This was done by intentionally omitting to note that the trustee had appeared through counsel, together with counsel for Marathon itself and counsel for the beneficiary of the deed of trust, and opposed the proposed relief from the automatic stay, arguing that the litigation that Chambers' wished to file in Sutter County Superior Court would detrimentally affect the bankruptcy estate, and that it would be inconvenient and inappropriate to litigate in Sutter County.
23. Homestead Securities Corporation ("Homestead") is the trustee on the Chambers' deed of trust and has no other interest in the Chambers' residence. Homestead is a subsidiary or affiliate of Marathon and is the debtor in a chapter 11 case that was filed at the behest of Marathon's trustee.
24. Homestead is the trustee on the deed of trust from Myron E. Gire and Alice Z. Gire on a parcel of motel property in Yolo County given to secure a $285,000 loan placed by Marathon in which Marathon is the mortgage servicing agent. That property is within the jurisdiction of this court in the bankruptcy case currently pending entitled In re Alice Z. Gire, No. 288-00269-C-11, Bankr.E.D.Cal. In re Alice Z. Gire, No. 288-00269-C-11, Order Approving Lien-Free Sale Of Property at 3 and Ex. B at 3, (Bankr.E.D.Cal. March 6, 1989).
25. The trustee does not believe that Homestead has any interest implicating the automatic stay where Homestead is merely the trustee on a deed of trust securing a loan that is serviced by Marathon. In re Alice Z. Gire, No. 288-00269-C-11, Stipulation Re Proceeds Of Sale And Order Approving (Bankr.E.D.Cal.) (prepared and executed by trustee May 9, 1989); Fed.R. Evid. 201 and 801(d)(2).
26. The prevailing rates for professional services in the community for attorneys with comparable skill and experience as counsel for Chambers are $100.00 per hour for actual legal services and $25.00 per hour for travel time.
27. Counsel for California Rural Legal Assistance spent a total of 88.5 billable hours working on the removal and remand aspects of the litigation. A total of 1.75 hours was spent in travel.
CONCLUSIONS OF LAW
The basic problem that underlies this situation is that the trustee, and the law firm of which he is a named partner and which acts as his counsel, are determined to throw up every possible roadblock, one at a time, in front of Chambers and her counsel, California Rural Legal Assistance. The individual actions in setting up the obstacles are legally permissible, based upon technical, frequently hypertechnical, analyses of law and procedure in which the goals of substantive justice are sacrificed on the altar of gamesmanship.
Marathon's bankruptcy judge authorized Chambers to file her action in Sutter County Superior Court, lifting the automatic stay for that purpose. Chambers' proposed complaint, with designation of all parties and all theories of relief, was before Judge Riblet. The trustee argued that Chambers should not be allowed to proceed in Sutter County. He argued the same theories that were subsequently advanced in this court on the motion to remand. He lost and did not appeal.
After Chambers filed her action in Sutter County, the trustee removed the action, pursuant to 28 U.S.C. § 1952. Chambers moved to remand. This court, and the district court, agreed with Chambers and with Judge Riblet that the matter was appropriate *220 to proceed in Sutter County Superior Court.
There is no question that the trustee was entitled, as a matter of law, to cause the removal of all or part of the action from Sutter County Superior Court. If that were all there was to the matter, this court would not now be seriously entertaining the question of sanctions.
The factor that tips the scales toward the conclusion that the trustee was proceeding for an improper purpose is that the trustee conceded that if the motion for remand were to be denied, he would seek to have the case transferred to the Central District of California, the very place where he had unsuccessfully attempted to keep the matter in the first place. His purpose in this court was an end run that was inconsistent with orderly and timely administration of justice.
Another factor makes the trustee's motives suspect. The trustee avers that the Marathon case is a "no asset" case. He believes, and believed at the time of causing the removal, that Chambers' claim will have no value in the Marathon bankruptcy case because tax claims alone exceed the sum that the trustee expects to achieve from selling Marathon's principal asset: the bundle of rights that is described as a "loan servicing package." In other words, he thinks that after payment of priority claims and of expenses of administration that include the trustee's fees and expenses, there will be nothing for unsecured creditors.
The trustee's sworn declaration belies his protestation that there was no improper purpose. He says that he was attempting to avoid the imposition of a nonallowable punitive damage award that might be made by the state court. Since the trustee concedes that priority tax claims are likely to consume property of the estate and since he believes that punitive damage claims are not allowable claims in bankruptcy, it is difficult to understand how the trustee's activities could possibly make a difference. The primary beneficiaries of stalling are the various other nondebtor defendants to Chambers' suit. Creditors will not benefit. Of course, the trustee and his law firm would benefit if they could obtain an award of fees and expenses for these efforts.
One problem with excessive gamesmanship is that it is expensive and inefficient. The time and effort that the trustee has been devoting to his attempt to prevent the Chambers' case from going forward in Sutter County Superior Court exceed the time and effort that would have been required to try the case on the merits. In his exuberance for the competitive aspects of civil procedure, the trustee has lost sight of the goal of substantial justice and has lost sight of fundamental tenets of economic decisionmaking.[1]
Nor is the gamesmanship over. The trustee now asserts, for the first time, that the automatic stay that arises in the Homestead bankruptcy case prevents the Sutter County action from going forward and further dictates the advisability of having the entire matter sent to the Central District of California. That tends to confirm the trustee's improper purpose. First, the trustee is also the trustee in Homestead, having filed the petition on behalf of Homestead in his capacity as trustee for Marathon, and was the trustee at the time of the original removal and motion to remand.
Of greater significance, the trustee has, in another bankruptcy case in this court, taken the position that the Homestead automatic stay does not apply to a sale of property as to which Homestead is the trustee on a deed of trust securing a loan *221 serviced by Marathon. In re Alice Z. Gire, No. 288-00269-C-11, Stipulation Re Proceeds Of Sale And Order Approving. That stipulation is instructive. It was prepared on the pleading stationery of Robinson, Diamant, Brill & Klausner. It was executed by Lawrence A. Diamant's attorney on May 9, 1989, and subsequently sent to counsel for Alice Z. Gire, who, along with Alice Z. Gire, executed it on May 11, 1989. In the stipulation, the trustee mentions Marathon ten times and says nothing whatsoever about Homestead.
I conclude that the trustee and his counsel have known from the outset that they would assert that the Homestead automatic stay is an obstacle, and they have been holding the argument in reserve for when they needed it to further their improper purpose.[2] I further conclude that the trustee does not believe that the argument is meritorious or substantial.
Moreover, there is considerable doubt that an automatic stay in the Homestead bankruptcy case has any effect upon the Chambers' case. The evidence of record is that Homestead is the trustee on the Chambers' deed of trust. That suggests that the deed of trust, under the circumstances of the case in which the beneficiary and all other interested parties are also party to the lawsuit, may not be property of the estate or property to be obtained from the estate and that the automatic stay may not apply. 11 U.S.C. § 541(b)(1).
In any event, if Chambers were to go to Los Angeles and make another request for relief from the automatic stay, this time in the Homestead bankruptcy case, the matter would be in front of the same bankruptcy judge who already authorized her to proceed in Sutter County. It is fair to predict that Judge Riblet would adhere to her prior determination and grant relief from the stay. It also is of some significance that the nondebtor beneficiary of the Chambers' deed of trust, who is a named defendant in Chambers' state court action and who ultimately is the real party in interest, stipulated to the preliminary injunction that was issued by the Sutter County Superior Court stopping the foreclosure.
Further inferences about the intent of the trustee and his counsel flow from the series of half-truths that appear throughout their papers. There was, for example, the intentional attempt to create the impression that the trustee had not been afforded his day in court before Judge Riblet on the original motion for relief from automatic stay. He repeatedly refers to that proceeding as having been ex parte and fails to mention that his counsel was present, argued, and lost on the merits. This type of omission makes a difference.
In the circumstances of this case, such omissions were worse than mere ineffective advocacy. They fit within a pattern of doubtful conduct in a fashion such that the omissions constitute an intentional attempt to mislead the court.[3]See Rule 7-105(1), Rules of Professional Conduct of the State Bar of California. And they were worse than a mere breach of the type of duty of candor as to the applicability of which there is some debate in this circuit. Compare Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir.1986), with Golden Eagle Distrib. Corp. v. Burroughs Corp., 809 F.2d 584 (9th Cir.1987) (dissent from denial of rehearing en banc).
The inaccuracies so infected the papers and argument that, had there been any attention to the actual situation, sober counsel would not have burdened the parties in this court with the matter.
Sanctions can be imposed for the type of conduct in question pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. Bankruptcy Rule 9011 operates as a virtual clone of Rule 11. Judicial decisions interpreting and applying Rule 11 are applicable to Bankruptcy Rule 9011 matters.
*222 The leading case in this circuit enunciating the standards for applying Rule 11 sanctions recognizes that there are two prongs to the rule: frivolousness and improper purpose. Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir.1986). Improper purpose is implicated in this case by virtue of harassment or abusive litigation activity.
One focuses on the improper purpose of the person who signed the pleadings, objectively tested, rather than focusing upon the consequences of the pleadings, subjectively viewed from the perspective of the putative victim of the harassment. See Zaldivar, 780 F.2d at 832.
If a motion or paper, other than a complaint, is filed as part of a persistent pattern of abusive litigation activity, it may be deemed to have been filed for an improper purpose and be sanctionable notwithstanding that the motion or paper may be objectively reasonable and, thus, not frivolous. Aetna Life Ins. Co. v. Alla Med. Serv., Inc., 855 F.2d 1470, 1476 (9th Cir.1988).
The challenge for a trial court is to construe Rule 11 (and Bankruptcy Rule 9011) so as to promote the goal of limiting harassment, delay, and expense without simultaneously impinging upon the duty of counsel to represent a client zealously, and so as not to chill an attorney's enthusiasm or creativity or to impede the dynamic by which the common law adjusts to changing situations. Aetna Life Ins. Co., 855 F.2d at 1496: Golden Eagle Distrib. Corp., 801 F.2d at 1536. Rule 11 is meant to discourage pettifoggery, but not creative lawyering. Vaccaro, No. 87-1777, slip op. at 4508.
Bearing those considerations in mind, I am persuaded that the conduct of the trustee and his counsel in prosecuting the removal and fighting over the motion to remand was in the nature of abusive litigation tactics and harassment rather than in the nature of zealous advocacy of the merits of a case or an effort to facilitate the adjustment of the common law to changing situations. They were pettifogging. Their main purpose was to make the prosecution by Chambers of her civil action so cumbersome, difficult, protracted, and expensive as to cause her to give up in frustration before a court of competent jurisdiction could focus upon the merits of her claims.
The same conduct that justifies sanctions under Bankruptcy Rule 9011 also may be considered under section 1927 if it also appears that counsel acted recklessly or in bad faith in multiplying proceedings unreasonably and vexatiously. That necessitates an express finding as to the sanctioned counsel's state of mind. See Toombs v. Leone, 777 F.2d 465 (9th Cir.1985). I am persuaded by clear and convincing evidence that the trustee, who is an attorney, and his counsel, the law firm in which the trustee is a named partner, subjectively intended to defend by a procedural war of scorched-earth attrition, seeking every opportunity for interposing further obstacles to the consideration of Chambers' claims on the merits. They acted in bad faith. Accordingly, sanctions are also appropriate under section 1927.
Turning to the question of which sanctions to impose, I start with the shifting of fees. Chambers' counsel was required to devote a substantial amount of time and effort to resisting the unnecessary and inappropriate litigation activity. She endeavored throughout to prosecute the litigation efficiently. In the absence of a basis for awarding fees at a different rate, the lodestar is presumptively the rate to apply and will be applied in this case.[4]
Counsel from California Rural Legal Assistance has been the match for counsel for *223 the trustee. She has, as noted above, dealt with the trustee's various maneuvers in a craftsmanlike manner. She has made a competent record that the lodestar rate for an attorney of her experience and background working in this type of matter is $100.00 per billable hour, plus $25.00 per hour for travel time. Appropriate lodestar compensation for California Rural Legal Assistance is $8,850.00 for 88.5 hours at the lodestar rate of $100.00 per hour plus $43.50 for 1.75 hours of travel time. These services were actually and necessarily performed. In addition, costs of $56.70 were incurred.
Fees will be shifted. The trustee and his counsel (recalling that his counsel is the law firm in which the trustee is a named partner) are the ones who have created the problem and should bear the burden. Accordingly, it will be ordered that the trustee and/or his law firm pay to California Rural Legal Assistance $8,950.20.
Nor should the trustee and his counsel profit from their abusive litigation tactics. Although I am not the judge to whom they will be presenting applications for compensation pursuant to 11 U.S.C. § 330, and although I will not (and could not) presume to interfere with that judge's independent determinations on such applications, I can, as a sanction, require that the trustee and his law firm report to that judge my findings regarding their conduct in this court. Accordingly, as a sanction, it will be declared that the legal services on behalf of the trustee at all times in this court did not constitute necessary services, and the trustee will be ordered to report this determination in every application for compensation pursuant to 11 U.S.C. § 330 or 331.
An appropriate order will issue.
NOTES
[1] While courts ordinarily discourage the type of satellite litigation that involves sanction matters, a court's investment of time on a sanctions matter that establishes standards for conduct for the general guidance of the bar yields positive returns by enabling future counsel in future matters to make intelligent decisions about the type of arguments and tactics that are wise to eschew. Such guidance improves the administration of justice by directing the resources of the bench and the bar to resolution of significant and nonfrivolous issues. Vaccaro v. Stephens, No. 87-1777, slip op. at 4516-17 (9th Cir. May 1, 1989) (Sneed, J., concurring).
Needless to say, I regard the trustee's type of advocacy as unpersuasive and counterproductive.
[2] "O what a tangled web we weave when first we practice to deceive." Sir Walter Scott, Marmion, canto vi, stanza 17.
[3] The court was not misled, primarily because the trustee's opponent was a competent legal craftsman who took issue at the appropriate points and made the adversarial process work.
[4] It makes no difference that Chambers' counsel is a salaried employee of California Rural Legal Assistance, who is not billing on the same basis as attorneys in private practice. California Rural Legal Assistance necessarily incurred the expense associated with the diversion of its employee's attention from other needed legal services to other needy clients. Moreover, compensation below the lodestar rate would create unfortunate economic incentives that would make it less expensive for an attorney to pursue abusive litigation activity against a lawyer acting pro bono than against a lawyer who is billing at the usual hourly rates. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917971/ | 101 B.R. 16 (1989)
THOMAS STEEL CORPORATION, Plaintiff,
v.
BETHLEHEM REBAR INDUSTRIES, INC., et al., Defendants.
No. 89 A 0468.
United States Bankruptcy Court, N.D. Illinois, E.D.
June 23, 1989.
*17 Peter M. Sfikas, Lawrence X. Pusateri, Larry R. Eaton, Mary F. Andreoni, Peterson, Ross, Schloerb & Seidel, Chicago, Ill., for James L. Marketos and Lane & Mittendorf.
John W. Damisch, Barclay, Damisch & Sinson, Ltd., Chicago, Ill., for Jean Marc Charlier and Gabriel Banon.
Kevin D. Evans, Schiff, Hardin & Waite, Chicago, Ill., for Bethlehem Rebar Industries, Inc. and American Banaco, Inc.
Edwin C. Thomas, III, John P. Morrison, Cathy D. Furda, Bell, Boyd & Lloyd, Chicago, Ill., for Thomas Steel Corp.
MEMORANDUM OF DECISION
EUGENE R. WEDOFF, Bankruptcy Judge.
This adversary proceeding is presently before the court as a result of an attempted removal of an action from the United States District Court for the Northern District of Illinois. The parties who attempted the removal have requested this court to transfer the proceeding to the United States Bankruptcy Court for the Southern District of New York, which is now presiding over bankruptcy cases in which the defendants in the original district court action are debtors. The plaintiffs in the original action have moved for remand of the proceeding to the district court. For the reasons set forth below, this court finds that the attempted removal was ineffective to vest jurisdiction in the bankruptcy court, and so dismisses this proceeding, rendering moot the motions for transfer and remand.
Findings of Fact
The facts relevant to this decision are set forth in the motion papers filed by the parties and are not in dispute. The proceeding now before this court began as a breach of contract case, filed in the district court, by Thomas Steel Corporation ("TSC") against Bethlehem Rebar Industries, Inc. ("Bethlehem") and its parent corporation, American Banaco, Inc. ("Banaco"). The case was assigned to Judge Prentice H. Marshall. On August 31, 1988, pursuant to a settlement agreement, the district court entered a final judgment in favor of TSC against both Bethlehem and Banaco, for an amount in excess of $645,000; the court later amended the judgment to add an award of attorneys' fees.
After obtaining the judgment, TSC began enforcement proceedings, by serving "Citations to Discover Assets," pursuant to Illinois law. See Ill.Rev.Stat. ch. 110, ¶ 2-1402 and ch. 110A, ¶ 277 (1987).[1] TSC served these citations, on September 13, 1988, on Bethlehem and Banaco; on the chairman of their boards of directors, Gabriel Banon; and on a financial officer of both corporations, Jean-Marc E. Charlier. On March 30, 1989, after taking some discovery and unsuccessfully attempting to satisfy its judgment through an agreed stock transfer, TSC filed a motion for rule to show cause why Bethlehem, Banaco, Banon and Charlier should not be held in contempt of court for transferring property of the judgment debtors in violation of the citations.[2]
*18 By this time, Banon was already subject to an involuntary petition in bankruptcy, filed in the Southern District of New York on February 13, 1989. Shortly after the filing of the motion for rule to show cause, on April 5, an involuntary bankruptcy petition was brought against Bethlehem, also in the Southern District of New York; and on May 9, Banaco filed a voluntary bankruptcy petition in the same district.
Meanwhile, on April 27, 1989, TSC filed another motion for rule to show cause, this one directed against James L. Marketos and the Washington D.C. law firm of Lane & Mittendorf attorneys who represented Bethlehem, Banaco, Banon, and Charlier in the citation proceedings. The motion alleges that these attorneys aided and abetted their clients in violating the citations.
On May 18, 1989, in apparent response to the motion for rule to show cause, Marketos and Lane & Mittendorf filed, with the bankruptcy clerk for the Northern District of Illinois, an application for removal of the entire TSC case from the district court to the bankruptcy court, and simultaneously moved the bankruptcy court for a transfer of the proceeding to the bankruptcy court for the Southern District of New York. The application and motion to transfer were subsequently joined in by Charlier and Banon. On June 7, TSC responded to this activity by moving for remand of the proceeding back to the district court and opposing the requested transfer of its rule to show cause motion against Marketos and Lane & Mittendorf. Both Marketos/Lane & Mittendorf and TSC have filed memoranda in support of their positions.
Conclusions of Law
Because the jurisdiction of the bankruptcy court is dispositive in this proceeding, it is necessary to review briefly the history of that jurisdiction. The 1978 Bankruptcy Reform Act created Bankruptcy Courts as a virtually independent tribunal, with inherent jurisdiction over bankruptcy cases and related proceedings. G. Treister, J. Trost, L. Forman, K. Klee & R. Levin, Fundamentals of Bankruptcy Law 23-25 (1986) ("Treister & Trost"). However, this aspect of the 1978 legislation was declared to be in violation of Article III of the United States Constitution, in that bankruptcy judges were not given the life tenure and salary protection that the Constitution requires for federal judges. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Accordingly, Congress enacted amendments in 1984 to place jurisdiction over bankruptcy cases and related proceedings in the district courts, and to allow bankruptcy judges to hear only those cases that the district court referred to them. Treister & Trost at 44-45 ("In the congressional view the system passes constitutional muster under Marathon because Article III district courts have the power to control what is referred . . ."). Under the 1984 amendments, "bankruptcy court" is only a name given to the bankruptcy judges of a judicial district, who constitute a "unit of the district court," 28 U.S.C. § 151, and a bankruptcy judge can hear a matter if and only if (1) the matter is within the bankruptcy jurisdiction granted to the district courts under 28 U.S.C. § 1334, (2) the district court has referred the matter to the bankruptcy judges for that district pursuant to 28 U.S.C. § 157(a), and (3) the district court has not withdrawn its reference of the matter pursuant to 28 U.S.C. § 157(d).
In the present proceeding, the jurisdiction of the bankruptcy court was not invoked through a reference from the district court. Rather, Marketos and Lane & Mittendorf attempted to bring the proceeding to this court by way of removal from the district court, pursuant to 28 U.S.C. § 1452. That section provides:
(a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
*19 (b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise.
Because Section 1452 allows only for the removal of causes to the district court, it would seem on its face to have no potential for removing causes that are already pending in the district court. The removal statute has, in fact, been interpreted in just this way. Helena Chemical Co. v. Manley, 47 B.R. 72, 74-75 (Bankr.N.D.Miss. 1985) (noting that Section 1452 "provides for removal to the district court, not the bankruptcy court per se nor the bankruptcy court as a unit of the district court" and so construing the section "to provide primarily for the removal when appropriate of cases from the state courts, not from the federal district courts"); In re Watson-Mahaney, Inc., 70 B.R. 578, 581 (Bankr.N. D.Ill.1987).
Only one decision, In re Philadelphia Gold Corp., 56 B.R. 87 (Bankr.E.D.Pa. 1985), appears to hold that Section 1452 can be used to remove a cause of action from district court to bankruptcy court. This decision, however, is not persuasive. In Philadelphia Gold, the court first noted that the 1978 Bankruptcy Reform Act contained a removal provision, codified as 28 U.S.C. § 1478 (1982) (repealed), very similar to the present Section 1452. Indeed, as the court pointed out, the only difference between the two provisions is that where former Section 1478 provided for removal of an action "to the bankruptcy court" if "bankruptcy courts" had jurisdiction over the action, Section 1452 provides for removal to the "district court" if the "district court" has jurisdiction. 56 B.R. at 89.[3] The court then described the thrust of the 1984 amendments enacted in response to Marathon, removing the independent jurisdiction and status of the bankruptcy courts, and concluded that this change had the following impact on removal:
The upshot of this [loss of independent status] is that while chapter 90 of title 28 of the United States Code, dealing inter alia with venue, removal, and jury trials, under the 1978 Act, spoke of "the bankruptcy court," the substance of this chapter was repealed by the 1984 Act and replaced by chapter 87 of title 28 of the United States Code, which chapter speaks of "the district court" rather than "the bankruptcy court." Nonetheless, the reference to the district court in chapter 87 of the 1984 Act is deemed to denote the bankruptcy court when read in the light of the referral provisions under 28 U.S.C.A. § 157 (West 1985 Supp.). Thus, the replacement by the 1984 Act of the term "bankruptcy court" in 28 U.S.C. § 1478 of the 1978 Act with the expression "district court" in 28 U.S.C.A. § 1452 (West 1985 Supp.) effected no substantive change. Ergo, a civil action pending in the district court may be removed to the bankruptcy court by the filing of a timely application for removal under 28 U.S.C.A. § 1452 (West 1985 Supp.).
56 B.R. at 89-90.
There are at least two reasons why this interpretation of Section 1452 cannot be accepted, in addition to the requirement that statutes be interpreted according to their plain meaning. United States v. Ron Pair Enterprises, Inc., ___ U.S. ___, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). First, the Philadelphia Gold interpretation ignores the actual thrust of the 1984 amendments, which was to effect a quite substantive change in the relationship between district courts and bankruptcy courts. Regardless of the manner in which the reference power may have been expected to be exercised, the district courts were given the power to retain all bankruptcy cases and proceedings. By interpreting Section 1452 to allow for removal from a *20 district court to a bankruptcy court, Philadelphia Gold creates a significant gap in that power: allowing litigants in any bankruptcy matter before the district court (presumably even one as to which the reference has been withdrawn) to remove the matter to bankruptcy court. Such a gap would severely undermine the Article III supervision that Congress intended as a remedy for the defects found by the Supreme Court in Marathon. Second, the Philadelphia Gold interpretation does not consider Section 1452(b). Yet if "district court" is interpreted to mean "bankruptcy court" for purposes of Section 1452(a), Section 1452(b) would result in the bankruptcy court ("the court to which such claim or cause of action is removed") having unreviewable discretion to remand a claim or cause of action to the district court or not to remand. Such a power could raise even more serious Article III problems than those addressed in Marathon, since the decisions of the bankruptcy court in that case were at least appealable. See Hillyard Farms v. White County Bank, 52 B.R. 1015, 1019 (S.D.Ill. 1985). Moreover an unreviewable power in bankruptcy courts to dispose of remand motions would contradict the Bankruptcy Rule enacted to effectuate Section 1452; Bankruptcy Rule 9027(e) provides that the bankruptcy court may only hear motions to remand if the district court does not otherwise order, and that the bankruptcy court may only make a report and recommendation to the district court, not a final decision.[4]
The other arguments advanced by Marketos and Lane & Mittendorf offer little additional ground for interpreting Section 1452 to allow removal of cases from district court to bankruptcy court. They note that Congress could have explicitly excluded district court cases from those that might be removed under Section 1452, but such an exclusion is hardly necessary in light of the fact that the removal is to the district court. They also point out, citing 1 Collier on Bankruptcy ¶ 3.01[5][c] at 3-86 (15 ed. 1989), that Bankruptcy Rule 9027(a), in effectuating Section 1452, authorizes removal from either "state or federal" courts. However, there are federal courts other than district court, such as the court of claims, in which an action subject to removal might be pending.
Finally, Marketos and Lane & Mittendorf refer to a number of cases in addition to Philadelphia Gold, but none is on point. La Preferida, Inc. v. Cerveceria Modelo, S.A., 85 B.R. 795 (N.D.Ill.1988) is cited as a case in which the district court "allowed the removal of an action from the District Court to the Bankruptcy Court for the Northern District of Illinois." (Mem. in Opposition to Motion to Remand at 14.) In fact, the court in La Preferida merely remarked that a party had removed the case to bankruptcy court. 85 B.R. at 796. The district court in no way commented on the appropriateness of the removal, and, although this fact is not set forth in the opinion, the district court had previously withdrawn the reference of the removed case, by agreement of the parties, after receiving argument that removal from the district court to bankruptcy court was not authorized by statute. See Plaintiff's Reply in Support of Its Motion to Withdraw the Reference, No. 87 C 4081 (N.D.Ill., June 9, 1987).
In re Gianakas, 56 B.R. 747 (N.D.Ill. 1985) which Marketos and Lane & Mittendorf cite for the proposition that the change from "bankruptcy court" to "district court" in Section 1452 is not significant has nothing to do with removal from a district court. Gianakas was a case of removal from a state court, in which the party seeking removal filed its application with the clerk of the bankruptcy court. In response to an argument that a removal application could only be filed with the clerk of the district court, the district judge pointed out that the bankruptcy court is a part of the district court, and so the term *21 "district court" as used in the statute, can be interpreted to include bankruptcy court. "It is . . . clear by definition that Congress re-created the bankruptcy court as a `unit' of the district court; it follows that the bankruptcy clerk's office for the district is essentially an administrative unit of the entire district court apparatus." 56 B.R. at 751. This reasoning actually underscores the inappropriateness of removal in the present context. There can be no "removal," in any meaningful sense, when the court to which the action is supposedly removed is merely a part of the court that presided the action originally.[5]
The last case cited by Marketos and Lane & Mittendorf is Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984). This case was decided under the removal statute in effect prior to the 1984 amendments (28 U.S.C. § 1478), and simply holds that if the bankruptcy court lacked jurisdiction over a removed action because the requirements of § 1478(a) were not met, then the prohibition against appellate review set forth in § 1478(b) would not be operative. 743 F.2d at 993. It is only in the context of determining appellate jurisdiction that the court stated its belief that the change of language from § 1478 to § 1452 would not affect its decision. 743 F.2d at 987 n. 4 ("We do not believe that the particular changes, terminology, and renumbering of sections make substantive changes in the statutes as we interpret them in this opinion"). The decision says nothing about the permissibility of removal from district court to bankruptcy court.
In light of the plain language of Section 1452 and the overall jurisdictional scheme of the 1984 amendments, it must be concluded that removal from the district court to the bankruptcy court is not permitted. This leaves the question of what should be done with the present adversary proceeding in bankruptcy court. TSC has urged that the proceeding be remanded. However, because this proceeding is not the kind of action that can be removed under Section 1452(a), the remand procedures provided for by Section 1452(b) and Bankruptcy Rule 9027(e) may not properly be invoked. Cf. Pacor, Inc. v. Higgins, 743 F.2d at 993 ("If subsection (a) [of Section 1452] does not permit the removal, then subsection (b) never comes into play . . ."). If this were the type of proceeding that could be removed to bankruptcy court, then a recommendation for remand, based on this court's view of the equities, would be appropriate. Since this is not such a proceeding, the attempted removal provides no jurisdiction for this court to take such action.[6]
An alternative disposition would be for this court to recommend that Judge Marshall, like the district judge in Gianakas, withdraw the reference of this proceeding. However, this result would also be inappropriate, because, in this court's view, the proceeding was never referred to the bankruptcy court in the first place. The United States District Court for the Northern District of Illinois has adopted a general local rule, Rule 2.33, which provides (in section A) for reference to the bankruptcy judges of the district of "any and all cases under Title 11 U.S.C. and any and all proceedings arising under Title 11 U.S.C. or arising in or related to any case under Title 11 U.S.C." This rule plainly applies to original filings in the district court, and refers such filings bankruptcy cases, adversary proceedings, and related matters to the bankruptcy judges. However, the rule does not appear to apply to proceedings, like the present one, that are not related to a bankruptcy when filed in district court, but arguably become related to a subsequently filed bankruptcy case. The rule contains no provision for notice to the district judge presiding over such a proceeding or to any of the parties affected; neither does the rule make any provision for the district judge to preside over further activity involving the proceeding (by way of appeal or review of reports). See Rule 2.33 c-e. *22 Rather, section c of the rule appears to assume that in at least some situations where a proceeding in district court becomes related to a subsequently filed bankruptcy, the district judge will direct reference of the proceeding to the bankruptcy court, and provides that in the event of such a directed reference, the same district judge will preside over further district court activity in the proceeding.[7] Thus, the proper method at least in the Northern District of Illinois for a party to bring a proceeding like the present one into bankruptcy court is for that party to make a motion before the district court for a directed reference. Cf. Helena Chemical Co. v. Manley, 47 B.R. 72, 76 (Bankr.N.D.Miss. 1985) (interpreting a similar order of reference and concluding that in circumstances like the present ones "a specific order of reference . . . should be entered by the district court prior to any proceedings being conducted by this bankruptcy court"). In addition to being consonant with the local rule governing reference, this procedure would assure that the district judge who has been presiding over a case makes the choice whether to retain or refer it. In the present situation, it is certainly appropriate that Judge Marshall be consulted before a motion for rule to show cause is taken from his docket. Moreover, Judge Marshall may well be in a much better position than this court to decide whether this proceeding should be transferred to New York. Cf. In re Gianakas, 56 B.R. 747 (N.D.Ill.1985).
Accordingly, this court will enter an order dismissing this proceeding for lack of jurisdiction, dismissing the pending motions as moot, and directing the parties to proceed further before the district court.
NOTES
[1] Rule 69 of the Federal Rules of Civil Procedure generally provides that the procedure on execution of judgments, and in proceedings supplementary to and in aid of a judgment "shall be in accordance with the practice and procedure of the state in which the district court is held." The Illinois supplementary proceeding involving citations to discover assets is described in In re Fowler, 90 B.R. 375, 377 (Bankr.N.D.Ill.1988).
[2] The service of a citation to discover assets has been held to create a lien on the personal property of the judgment debtor held by the respondent to the citation. In re Stoner Investments, Inc., 7 B.R. 240, 241 (Bankr.N.D.Ill.1980).
[3] The legislative history of Section 1452 does little more than likewise note the similarity of that section to former section 1478 "except for reference to district courts rather than to bankruptcy courts." S.Rep. No. 55, 98th Cong., 1st Sess. 43 (1983), quoted in 1 Collier on Bankruptcy ¶ 3.01[5][b] (15 ed. 1989).
[4] The rule presents yet another difficulty. Section (d) provides that the parties to a removed action shall proceed no further in the original court "unless and until the claim or cause of action is remanded." If removal were intended from the district court, this provision would contradict section (e), which, as noted above, requires the parties to proceed in the district court in order to obtain a final order of remand.
[5] Black's Law Dictionary 1164 (5th ed. 1979) defines "removal of causes" as "[t]he transfer of a cause from one court to another."
[6] Should this determination be mistaken, this opinion may be considered a recommendation for remand to the district court, pursuant to Bankruptcy Rule 9027(e).
[7] General Local Rule 2.33 c provides, in relevant part: "If in a bankruptcy ("B") case or set of related bankruptcy ("B") cases a report and recommendation referred to in subsection B(3) of this Rule [relating to reports and recommendations of bankruptcy judges in non-core proceedings] is filed pursuant to the prior direction of a district judge, the report shall be assigned to the calendar of that judge." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918068/ | 101 B.R. 787 (1989)
In re Anthony R. D'AVANZA, Jr., Debtor.
Anthony R. D'AVANZA, Jr., Plaintiff,
v.
The UNITED STATES of America and Internal Revenue Service, Defendant.
Bankruptcy No. 87-3026-8P7, Adv. No. 87-365.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
June 29, 1989.
B. Gray Gibbs, Saint Petersburg, Fla., for plaintiff.
Hillary Burchuck, for defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion *788 for Summary Judgment filed by Anthony R. D'Avanza, Jr. (Debtor), Plaintiff in this adversary proceeding. The Debtor seeks a determination that his 1981 and 1982 income tax liabilities are dischargeable obligations as a matter of law. The Court has considered the Motion, together with the record, has heard argument of counsel, and now finds the undisputed facts to be as follows:
On April 24, 1984, the Debtor filed his individual federal income tax return for the year ending December 31, 1981. On May 2, 1984, the Debtor contends that he mailed his individual federal income tax return for the year ending December 31, 1982. On June 4, 1987, the Debtor filed his Voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code and subsequently instituted this adversary proceeding seeking an Order determining that his federal income tax liabilities for the years 1981 and 1982 are dischargeable in that the obligations do not come within the exception to discharge pursuant to § 523(a)(1)(B)(ii). It should be noted at this juncture, the Government concedes that the Debtor's tax liability for the year 1981 is a dischargeable obligation. Therefore, this Court's opinion shall be limited to the claim of dischargeability vel non of the Debtor's 1982 income tax liability.
With respect to the 1982 liability, the Debtor alleged in the Complaint that the tax return for that year was filed on or before a date two years before the date of the filing of his Petition. It appears, however, that the Internal Revenue Service (Government) has no record of ever receiving this income tax return and on November 28, 1984, made an assessment against the Debtor that included an audit deficiency, a negligence penalty, and a failure to file penalty and interest. This was accomplished by the use of a Form 870, "substitute for return", also known as a "dummy return" which was prepared by the Government to facilitate processing of the proposed assessments against the Debtor. Form 870 which is entitled "Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment" is a form used by the IRS to assess the tax liability of a particular taxpayer and create a return for that taxpayer who has failed to file such return. A Form 870 or "dummy return" signed by a taxpayer which contains sufficient information or data from which a tax can be computed has been found to constitute a return under § 275(a) of the Internal Revenue Code. Internal Revenue Ruling 74-203, U.S. v. Olgeirson, 284 F.Supp. 655 (D.N.D.1968), Germantown Trust Co. v. Commissioner, 309 U.S. 304, 60 S.Ct. 566, 84 L.Ed. 770 (1940)
Based on the foregoing, the Debtor contends that his income tax liability for the year 1982 is a dischargeable obligation in that it does not come within the exceptions to discharge contemplated in §§ 523(a)(1)(B)(i) or (ii). For this proposition, the Debtor asserts the following two theories as to why his 1982 return should be deemed to have been filed two years prior to the commencement of his case and, hence, dischargeable. The Debtor first contends that he mailed his 1982 income tax return in 1984 and although never received by the Government, the mailed return should be deemed to have been filed in 1984 more than two years prior to the commencement of his case. In the alternative, the Debtor contends that the dummy return prepared by the Government on November 28, 1984, has been recognized by other courts to be a filed return and since it was prepared in excess of the two years prior to the commencement of the Debtor's case, represents a dischargeable tax obligation.
In opposing the dischargeability claim of the Debtor, the Government contends first that the claim of the Debtor that he mailed the return is of no consequence and the return is only deemed to have been filed if it was received. Second, the Government contends that the dummy return with respect to the 1982 taxes should not be accepted as a proper substitute for a return filed by the taxpayer because this form can not provide the factual basis upon which the Court can find that Debtor's tax liabilities for 1982 are dischargeable.
*789 The Court has considered the record relevant to the Motion for Summary Judgment filed by the Debtor and is satisfied that with respect to Count I of the Complaint, the Debtor is entitled to a determination that his tax liability is dischargeable. The Debtor's federal income tax return for the year ending December 31, 1981, was filed on April 24, 1984, clearly outside of three years before the date of the filing of his Petition for Relief under Chapter 7.
As to the Debtor's claim set forth in Count II which seeks a determination of the dischargeability of his federal income tax liability for 1982, the resolution of this claim is not without some difficulty. The Debtor contends that he mailed his return for 1982, but it is claimed by the Government that it never received the return. This, of course, in turn caused the Government to file the dummy return for the purpose of processing a proposed assessment against the Debtor for his 1982 income tax liability. This assessment was made on November 28, 1984, and clearly was made in excess of 240 days of the date of filing of the Petition and is, therefore, dischargeable unless the tax liability comes within an exceptive provision of § 523(a)(1)(B)(i) of the Bankruptcy Code, which is precisely the Government's contention, i.e., that the liability is nondischargeable pursuant to § 523(a)(1)(B)(i).
The Government contends that the Debtor failed to file a tax return for the year 1982 and, therefore, taxes owed by him for that calendar year are nondischargeable pursuant to § 523(a)(1)(B)(i), notwithstanding that a dummy return for that year was prepared by the Government. This is so because the Government maintains that a "dummy return" is not a return for the purposes of § 523(a)(1)(B)(i) of the Bankruptcy Code. This Court is satisfied that the dummy return in this case does not constitute a return inasmuch as the dummy return or Form 870 contained only the Debtor's name, address, Social Security number and filing status and as such did not contain information which would satisfy or qualify the return as a tax return under the Internal Revenue Code.
However, this still leaves for consideration whether the Debtor's income tax liability for 1982, which the Debtor contends was mailed in 1984, clearly in excess of three years of his filing of his Petition, is dischargeable. In support of his contention that he did mail his 1982 income tax return, the Debtor has filed uncontroverted affidavits, one signed by himself, and the other signed by Mark F. Mooney, a tax attorney which indicates that Mr. Mooney prepared the Debtor's 1982 income tax return and forwarded the return with a cover letter to the Debtor containing instructions with regard to filing and mailing the return.
In opposition to these affidavits, the Government contends that the evidence submitted by the Debtor in support of his argument that he mailed his 1982 income tax return to the Internal Revenue Service was irrelevant and inadmissible. In support of its contention, the Government relies on Phinney v. Bank of Southwest National Association, Houston, 335 F.2d 266 (5th Cir.1964); Rich v. Commissioner, 250 F.2d 170 (5th Cir.1957); and Deutsch v. Commissioner, 599 F.2d 44 (2nd Cir.1979).
A careful analysis of this case leaves no doubt that there is scant, if any, support for the proposition urged by the Government. The cases cited by the Government dealt with the issue of whether a petition filed by the taxpayer with a tax court was timely filed. The courts in those cases held that the statute of limitations barring additional assessments by the Government after three years did not begin to run until the IRS actually received the taxpayer's return (emphasis supplied). While the courts in these cases concluded that mailing of the income tax return did not constitute filing, the Court did not suggest that it could not consider all the evidence in determining whether the return in issue had actually been filed. The only concrete conclusion that the courts made were that § 502 of the Internal Revenue Code applies only if the document was actually received. Each of these cases considered the issue of whether or not a mailed return is a filed return only for the purposes of the statute *790 of limitations on the assessment of a tax and certainly not for the purposes of § 523 of the Bankruptcy Code.
It is well established that exceptions to discharge pursuant to § 523(a) of the Bankruptcy Code are narrowly construed against the creditor and liberally in favor of the debtor and that the burden of proof is on the creditor claiming an exception of its debt from the debtor's general bankruptcy discharge. Murphy & Robinson Investment Co. v. Cross, 666 F.2d 873 (5th Cir.1982).
More appropriate for this Court's consideration are the cases dealing with the late filing penalties pursuant to § 6651 of the Internal Revenue Code. Section 6651 of the Internal Revenue Code provides for penalties for late filing or failure to file income tax returns. In Haden v. Commissioner, TC Memo 1986-539, the Government sought imposition of penalties for failure to file the tax return against a taxpayer. The taxpayer claimed that he had mailed his income tax return to the Internal Revenue Service and presented testimony of two witnesses who accompanied him when he mailed the return. The tax court considered that the issue was solely one of fact, and after examining the evidence, the court accepted the taxpayer testimony as fully corroborated by two witnesses and determined that Government was not entitled to impose penalties for failure of the taxpayer to file. Similarly, in Carlin v. Commissioner, TC Memo 1981-694, the tax court considered the taxpayer's testimony that he had mailed his income tax return and concluded that late filing penalties were inappropriate.
The evidence presented indicates that the Debtor did, in fact, mail his return in 1984, clearly three years prior to the filing of his Petition under Chapter 7 of the Bankruptcy Code. The Government has provided no evidence to rebut this finding. Based on the foregoing facts and authorities cited by respective counsel, this Court is satisfied that Debtor's Motion for Summary Judgment should be granted, and the Debtor's tax liabilities for the years 1981 and 1982 are dischargeable.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Debtor's Motion for Summary Judgment be, and the same is hereby, granted.
A separate Final Judgment shall be entered in accordance with the foregoing.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573672/ | 553 F. Supp. 144 (1982)
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, et al., Plaintiffs,
v.
ILLINOIS BELL TELEPHONE COMPANY, Defendant.
HARDEN, et al., Plaintiffs,
v.
ILLINOIS BELL TELEPHONE COMPANY, Defendant and Party Plaintiff.
Nos. 73 C 0959, 74 C 1505.
United States District Court, N.D. Illinois, E.D.
November 24, 1982.
Ivan Bodensteiner, Valparaiso, Ind., Michael Erp, Irving M. Friedman, Fiffer & D'Angelo, Chicago, Ill., for plaintiffs in No. 74 C 1505.
John McNulty, Chicago, Ill., Friedrich, Bomberger, Tweedle & Blackman, Hammond, Ind., Thompson Powers, Kane & Koons, James Hutchinson, Washington, D.C., EEOC, Barry L. Chaet, Chicago, Ill., EEOC, Leo Froga Amicus Section, for Illinois Bell Telephone Co.
Katz & Friedman, Chicago, Ill., for plaintiffs in No. 74 C 0959.
MEMORANDUM OPINION AND ORDER
ASPEN, District Judge:
Plaintiffs brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., against defendant Illinois Bell Telephone ("Bell"), alleging that its maternity leave policies discriminate on the basis of sex. On February 29, 1980, this Court granted the plaintiffs' motion for summary judgment with respect to the issues of reinstatement from *145 maternity leave and accrual of seniority during maternity leave. The Court further granted Bell's motion for summary judgment with respect to its policies concerning wages, basic medical insurance and the duration of maternity leave. On April 8, 1982, this Court approved a settlement agreement between the parties[1] and dismissed these cases with prejudice. Presently pending before the Court is the Harden plaintiffs' motion for attorneys' fees.[2]
Hardin plaintiffs' counsel request attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k), in the amount of $73,373.75, to compensate Mr. Ivan E. Bodensteiner and Mr. Michael M. Mulder for their legal services. Mr. Bodensteiner claims that he spent 180.4 hours on this case and seeks an hourly rate of $125. He further urges that this Court apply a multiplier of 2.0 for time spent prior to this Court's order of February 29, 1980, granting both parties summary judgment with respect to certain issues, and a multiplier of 1.5 for the remainder of his time. He does not seek a multiplier for time spent on the attorneys' fees petition. Mr. Mulder seeks an hourly rate of $100 for 264.4 hours, with a multiplier of 1.5 for all time other than that spent on the fee application. Bell opposes plaintiff's request for attorneys' fees in a number of respects.[3]
42 U.S.C. § 2000e-5(k) governs the award of attorneys' fees in Title VII cases, and provides that:
In any action or proceeding under this subchapter the Court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
While the statute vests discretion in courts, that discretion is not unlimited. A prevailing party in a Title VII case should ordinarily recover attorneys fees, unless special circumstances would render such an award unjust. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S. Ct. 2362, 2370, 45 L.Ed.2d *146 280 (1975); Cf., Newman v. Piggy Park Enterprises, 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968) (principle that prevailing party should ordinarily recover attorneys' fees in Title II actions). The United States Court of Appeals for the Seventh Circuit has articulated the factors to be considered in determining attorneys' fees awards. As a starting point, courts are to consider the hours spent by an attorney times the attorney's billing rate. Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1322 (7th Cir.1974), cert. denied, 425 U.S. 997, 96 S. Ct. 2214, 48 L. Ed. 2d 823 (1976). Additional elements are set forth in the Code of Professional Responsibility, as adopted by the American Bar Association:
Factors to be considered as guides in determining the reasonableness of a fee include the following:
"(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
"(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
"(3) The fee customarily charged in the locality for similar legal services.
"(4) The amount involved and the results obtained.
"(5) The time limitations imposed by the client or by the circumstances.
"(6) The nature and length of the professional relationship with the client.
"(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
"(8) Whether the fee is fixed or contingent.
Disciplinary Rule 2-106.
Id.; Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir.1980).
We now review this case in light of the above standards. As a starting point, it is important to emphasize that although this case was ultimately resolved through settlement, this factor does not weaken the plaintiffs' claim to fees. Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2575, 65 L. Ed. 2d 653 (1980). However, the plaintiff is entitled to fees only for preparation and presentation of claims on which he or she has prevailed. Busche v. Burkee, 649 F.2d 509, 522 (7th Cir.1981), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1982). In considering the results obtained, we note that plaintiffs in the instant case were granted summary judgment against Bell with respect to Bell's maternity leave reinstatement policies, and its policy concerning seniority accrual during maternity leave. Thus, while this Court granted Bell summary judgment concerning wages, medical insurance, and length of maternity leave policies, the plaintiffs obtained a substantial settlement from Bell. Accordingly, it is thus that plaintiffs, by succeeding on significant issues in this litigation which benefitted the plaintiff class, are prevailing parties. Nadeau v. Helgemore, 581 F.2d 275, 278-79 (1st Cir.1978). Nevertheless, since plaintiffs are not entitled to fees for time spent upon unsuccessful claims, any activity by Mr. Bodensteiner devoted exclusively to issues on which Bell prevailed on summary judgment is not compensable. Plaintiffs have satisfied this Court that Mr. Bodensteiner spent only 1.9 hours on issues upon which the plaintiffs lost; as to the remaining time, it is not clear that the activities in question related exclusively to issues upon which plaintiffs were unsuccessful. In calculating the number of hours attributable to the prosecution of successful claims, the Seventh Circuit has declared that "[t]his calculation presumably includes time spent on unsuccessful claims to the extent such time would have been spent in connection with the successful claims even if the unsuccessful claims had not been brought." Busche v. Burkee, 649 F.2d 509 (7th Cir. 1981), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1982). We therefore decline to disregard more than 1.9 hours spent by Mr. Bodensteiner prior to this Court's award of partial summary judgment to Bell.
Counsel for plaintiffs claim they spent a total of 444.8 hours on the instant case. Bell argues that this number should be reduced *147 by at least 57.5 hours to account for duplication of effort and inefficiency. We do not believe that the hours claimed are unreasonable, given the time and labor required by this litigation and the length of counsels' professional relationship with the plaintiffs. The fact that both Mr. Bodensteiner and Mr. Mulder attended the same meetings does not demonstrate duplication of effort; the involvement of two or more attorneys in the same matter is not necessarily unreasonable. Urbina v. Quern, 482 F. Supp. 1013, 1016 (N.D.Ill.1980); Wheeler v. Durham City Board of Education, 88 F.R.D. 27, 29 (M.D.N.C.1980).
Turning to the hourly rates sought by Messrs. Bodensteiner and Mulder, we decline to award the requested rates of $125 per hour to Mr. Bodensteiner and $100 per hour to Mr. Mulder. At the outset of our inquiry, we note that there is no indication that the client or the circumstances of this case imposed any particular time limits upon plaintiffs' counsel. Nor is there evidence that Messrs. Bodensteiner and Mulder were precluded from accepting other employment during the pendency of the instant litigation. In considering the fee customarily charged in this area for similar legal services and the experience of counsel, we observe that counsel for plaintiff CWA received $125 per hour for the services of Mr. Irving M. Friedman and $60 per hour for the services of all other attorneys. Mr. Friedman's legal experience and recognized expertise is considerable, for he graduated from law school in 1947 and has been involved in a great deal of litigation. Bell's counsel currently charge $95 per hour and $72.50 per hour, and their billing rates during earlier phases of the litigation were considerably lower. Bell's attorneys, moreover, have significant experience in employment discrimination litigation. There is no question that Messrs. Bodensteiner and Mulder are also experienced attorneys, and their representation of plaintiffs was undoubtedly competent. However, the breadth of their experience matches neither that of CWA's counsel nor Bell's. Therefore, we find that billing rates of $100 per hour for Mr. Bodensteiner and $60 per hour for Mr. Mulder are reasonable.
Bell would have us reduce further the billing rates of Messrs. Bodensteiner and Mulder with respect to hours spent on travel and on the fee petition.[4] Concerning the time spent on the fees petition, the Seventh Circuit has declared that prevailing plaintiffs "are properly entitled to fee awards for time spent litigating their claim to fees." Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir.1980), cert. denied, 454 U.S. 1063, 102 S. Ct. 614, 70 L. Ed. 2d 601 (1982). While some courts have reduced fee awards with respect to time spent on the fee petition, e.g., Keyes v. School Dist. No. 1, Denver, Colorado, 439 F. Supp. 393, 410 (D.Colo. 1977), other courts have declined to do so, e.g., Chrapliwy v. Uniroyal, Inc., 509 F. Supp. 442, 454 (N.D.Ind.1981), aff'd in part, rev'd in part, 670 F.2d 760 (7th Cir. 1982). We recognize, as other courts have, that denying attorneys' fees for the time spent obtaining them might decrease the value of a fee award by making attorneys engage in uncompensated litigation to obtain their fee. Stanford Daily v. Zurcher, 64 F.R.D. 680, 684 (N.D.Cal.1974), aff'd, 550 F.2d 464 (9th Cir.1977), rev'd on other grounds, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978). We therefore hold that the 83.9 hours claimed for work on the fee petition is reasonable and decline to reduce the fee award with regard to this issue.
With respect to transportation, Messrs. Bodensteiner and Mulder have submitted affidavits indicating the amount of their time spent in travel. Mr. Bodensteiner spent 27.5 hours, and Mr. Mulder 38 hours, on travel time. While some courts have compensated counsel at their usual hourly *148 rate for travel time, e.g., Chrapliwy v. Uniroyal, Inc., 509 F. Supp. 442, 455 (N.D.Ind. 1981), others reduce fee awards by compensating travel time at a different hourly rate than other time, e.g., McPherson v. School District # 186, 465 F. Supp. 749, 758 (S.D. Ill.1978). There is precedent in this district for the deduction of transportation expenses from fee awards, Harceg v. Brown, 536 F. Supp. 125, 135 (N.D.Ill.1982). Since counsel argue that part of their time spent in travel was utilized in preparation of this case, we will award Mr. Bodensteiner $50 per hour, and Mr. Mulder $30 per hour, for this travel time.
Finally, we shall not apply a multiplier to increase the amount of fees awarded to Messrs. Bodensteiner and Mulder. In determining whether to award a multiplier, courts consider: "1) the contingent nature of the class action litigation; 2) the quality of legal services; 3) the benefit conferred upon the class; and 4) the public service aspect." Will v. United States, 90 F.R.D. 336, 345 (N.D.Ill.1981). The quality of legal services in this litigation was undoubtedly high, and the public service aspect of prosecuting this case is not insignificant. The quality of legal services, however, is reflected in the hourly rates set by the Court. Tidwell v. Schweiker, 677 F.2d 560, 570 (7th Cir., 1982). And while the plaintiffs' class clearly benefitted from this case, the legal issues involved were not particularly complex, and the case was ultimately resolved through settlement. The instant case, moreover, has little precedential value which is one factor to consider in deciding whether to award a multiplier, Strama v. Peterson, 689 F.2d 661, 665 (7th Cir.,1982). And while we recognize that plaintiffs' counsel were engaged on a contingency basis, the contingent nature of a fee alone does not justify the use of a multiplier. Bonner v. Coughlin, 657 F.2d 931, 936-37 (7th Cir.1981). In short, the analysis of this litigation using factors set forth in Will v. United States, supra, and Waters v. Wisconsin Steel Works, supra, indicates that awarding a multiplier to plaintiffs' counsel would be inappropriate. We also note that no multiplier was applied to the fee request awarded to counsel for plaintiff CWA in their settlement with Bell.
Accordingly, plaintiffs are awarded attorneys' fees in the amount of $31,199.[5] It is so ordered.
NOTES
[1] The settlement provides, inter alia, that former and current Bell employees who commenced a maternity leave between June 15, 1971 and August 7, 1977, will be granted up to thirty additional days of seniority credit. Employees who returned to work after such leave will receive $125 per leave; employees whose reinstatement was delayed will be paid up to $3,000 for their losses out of a $400,000 fund created by Bell. Employees who began maternity leave between August 8, 1977 and April 28, 1979, will receive $50 per leave. Class members who sought but never obtained reinstatement will be placed on a preference list by former job classification.
[2] The Hardin case was consolidated with CWA v. Illinois Bell, No. 73 C 0959, prior to settlement. However, only the plaintiffs' attorneys' fees in CWA have been settled. On November 10, 1981, this Court approved a settlement concerning attorneys' fees between counsel for plaintiff Communications Workers of America ("CWA") and Bell. Bell agreed to pay Mr. Irving M. Friedman a $125.00 hourly rate for three hundred seventy six hours, and all other attorneys a $65.00 hourly rate for seven hundred thirty three hours, yielding a total of $93,520.00. This agreement, of course, did not cover the matter of plaintiffs' attorneys' fees in the Hardin case.
The law firm of Shulman & Goldman filed a petition for fees in this case on March 22, 1982. The firm claimed to be a successor in interest to the firm of Spivack & Lasky, which allegedly represented Susan Harden. No one presently in Shulman & Goldman worked on the instant case; Norman E. Goldman presented an affidavit of time spent on the case based upon records of Spivack & Lasky and consultation with attorneys who worked on the case. In response to the fees petition, Bell filed interrogatories and requests to produce, to which Shulman and Goldman objected. The Court instructed Mr. Goldman to comply with Bell's request for verification of the time spent on the instant case on April 16, 1982. Shulman & Goldman, however, have filed no additional affidavits or documents. Accordingly, its petition for fees is denied. It is so ordered.
[3] Bell would have this Court reduce the number of hours claimed by plaintiffs' attorneys for duplication of efforts. Bell also asks that the Court not consider, for fee purposes, any hours spent by plaintiffs' counsel on issues upon which Bell prevailed, that we reduce the requested billing rates sought by plaintiffs' counsel as being unreasonably high, and further reduce the rates to account for time spent on travel and preparation of the fees petition. Finally, Bell argues that no multiplier should be awarded and that no time spent on the fees petition should be included in a fee award if the Court's award does not exceed the fee settlement offer rejected by plaintiffs' counsel.
[4] There is no authority for Bell's claim that time spent on the fee petition should not be compensated if the Court's fee award is the same or less than the sum which defendants offered in settlement of the attorneys' fees issue. Spero v. Abbott Laboratories, 396 F. Supp. 321 (N.D.Ill.1975), involved the plaintiff's rejection of a settlement offer; the Court there refused to award attorneys' fees for time spent by the plaintiff's attorney after the settlement offer.
[5] In reaching this award, the Court relied upon the following calculations:
Hourly
Attorney Time Period Hours Rate Fees
Ivan E. Bodensteiner 2/7/74-2/29/80 69
3/1/80-3/1/82 81.7
Travel Time 27.5 $50 $ 1,375
Hours Minus Travel Time 123.2 $100 $12,320
Fee Application 27.8 $100 $ 2,780
_______
Total $16,475
Michael M. Mulder 5/29/80-3/1/82 208.3
Travel Time 38.0 $30 $ 1,140
Hours Minus Travel Time 170.3 $60 $10,218
Fee Application 56.1 $60 $ 3,366
_______
Total $14,724 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573785/ | 16 Neb. Ct. App. 275
JAMES E. DINGES, APPELLEE,
v.
CINDY E. DINGES, APPELLANT.
No. A-06-239.
Court of Appeals of Nebraska.
Filed January 2, 2008.
Cindy E. Dinges, pro se.
Dennis R. Ringgenberg and Daniel L. Hartnett, of Crary, Huff, Inkster, Sheehan, Ringgenberg, Hartnett & Storm, P.C., for appellee.
INBODY, Chief Judge, and CARLSON and CASSEL, Judges.
CASSEL, Judge.
INTRODUCTION
Cindy E. Dinges appeals from the decree dissolving her marriage to James E. Dinges. We find no merit in Cindy's assignments that the trial court erred in denying her due process, in making findings not supported by the evidence, and in not recusing itself. However, we conclude that the trial court erred in treating traceable proceeds of Cindy's lump-sum Social Security disability award as a marital asset, contrary to the anti-assignment clause of the Social Security Act. We therefore modify the trial court's division of property.
BACKGROUND
Cindy and James married on October 23, 1998. No children were born to the marriage. On July 20, 2004, James filed a petition for dissolution. On July 27, Cindy moved from the marital home.
At the time of the marriage, Cindy worked as a union pipefitter. She finished working for her employer on April 30, 2000, and took an honorable withdrawal from the union on August 1. James testified that Cindy worked full time until toward the end of 2000, when she had an appendicitis attack, underwent some surgeries, and was laid off. Cindy applied for Social Security disability benefits. A "Notice of Decision Fully Favorable" dated August 16, 2004, informed Cindy that the Social Security Administration had decided her case. A notice of award stated that Cindy's first payment was for $27,170 for the money she was due through September 2004 and that she would then receive $632 per month. The notice of award stated that the administration found Cindy became disabled on December 3, 2000, that she had to be disabled for 5 full calendar months in a row before she was entitled to benefits, and that Cindy's first month of entitlement to benefits was June 2001.
In February 2005, Cindy purchased a modular home with a cash value of $54,000. She made a downpayment of $27,000, using the "Social Security back pay."
The trial court determined that Cindy's lump-sum Social Security disability award represented benefits which were accrued during the marriage and that the award should be considered in equitably dividing the marital estate. Because Cindy used the proceeds from the award to purchase the modular home, the court stated that the modular home was part of the marital estate. The court proceeded to equitably distribute the marital assets and debts.
Cindy timely appeals.
ASSIGNMENTS OF ERROR
Cindy alleges, restated, that the court erred in (1) denying her due process by forcing her to go to trial without a final pretrial conference, (2) making factual findings unsupported by the evidence, (3) finding no basis for recusal, and (4) classifying her lump-sum Social Security disability award as marital property and awarding one-half of its value to James.
STANDARD OF REVIEW
[1] Determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law, regarding which an appellate court is obligated to reach its own conclusions independent of those reached by the trial court. Conn v. Conn, 13 Neb. Ct. App. 472, 695 N.W.2d 674 (2005).
[2] A motion to recuse for bias or impartiality is initially entrusted to the discretion of the trial court, and the trial court's ruling will be affirmed absent an abuse of that discretion. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
[3] The division of property is entrusted to the discretion of the trial judge and will be reviewed de novo on the record and affirmed in the absence of an abuse of discretion. Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).
ANALYSIS
Due Process.
[4] Cindy argues that she was denied due process by the trial court's denying her a pretrial conference, in violation of Fed. R. Civ. P. 26(f). Generally, Nebraska state courts are not bound by the federal rules governing civil procedure in federal courts. See Fed. R. Civ. P. 1 (federal rules govern procedure in U.S. district courts). Nebraska has not adopted a rule similar to the federal rule 26(f), and Neb. Ct. R. of Dist. Ct. Pretrial Proc. (rev. 2000) states only that "the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider" certain issues. Further, the court held a pretrial conference on November 5, 2004, which Cindy's then counsel attended. The court's decision not to hold another pretrial conference or a settlement conference after Cindy began handling her own representation does not amount to a denial of due process or an abuse of the trial court's discretion. This assignment of error is without merit.
Factual Findings.
Another of Cindy's assignments of error broadly questions whether the trial court erred in making its findings contained in the decree "[w]hen [i]ts [f]indings [w]ere [n]to [b]ased [o]n [e]vidence [a]dduced [a]t [t]rial." Brief for appellant at 2.
[5] She argues that the court erred in dividing the marital assets and debts and contends that the court based its findings on exhibits that were "allowed into evidence against [her] timely objections and against the Nebraska Rules of Evidence." Id. at 22. To the extent Cindy argues the court erred in receiving evidence over her objections or in dividing the marital estate, such arguments are not encompassed by her assignment of error and we do not consider them. See Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007) (to be considered by appellate court, alleged error must be both specifically assigned and specifically argued in brief of party assigning error).
[6] Cindy argues that the values used by the trial court were based on an exhibit offered by James showing values of property, which exhibit was not received into evidence "[Nut curiously ... was made part of the bill of exceptions after trial." Brief for appellant at 23 (emphasis omitted). Of course, Neb. Ct. R. of Prac. 5A(1) (rev. 2006) requires the official court reporter to include in the verbatim record of any "trial or other evidentiary hearing" the "evidence offered" at such trial or hearing. Thus, there is nothing "curious" about the presence of the exhibit within the bill of exceptions. The rule requires that an exhibit offered at trial but not received by the trial court be included in the record in order to allow an appellate courtwhere an alleged error in refusing to receive the exhibit is properly raised in an appealto effectively review the court's decision. See Neb. Rev. Stat. § 27-103(1)(b) (Reissue 1995). The pertinent question, however, is whether, in deciding the issues, the trial court expressly relied on the exhibit which the court had refused to receive. We have reviewed the court's decree, including extensive findings of fact and conclusions of law, and find no indication that the values used by the court were derived from the refused exhibit. We conclude that the values used by the trial court are supported by other evidence which was received at trial.
Recusal.
On November 7, 2005, Cindy filed a "Motion to Recuse or, in the Alternative[,] Motion for Disqualification." She alleged that she had "sufficient reason to believe" that the trial judge was biased against Cindy because of the judge's actions in a telephonic hearing on October 28 where the judge "ridiculed" Cindy and "belittled her actions[,] all the while praising [James'] [a]ttorney for his alleged `correctness.'" Cindy further alleged that the judge showed "an obvious bias" toward James and his position during the telephonic hearing. Cindy stated that she filed a complaint against the judge with the "Nebraska Judicial review Committee." On November 18, the court entered an order stating that it "finds that there is no basis in fact for this judge to recuse or disqualify himself from hearing the within matter."
[7] A trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown. Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). We have reviewed the transcription of the October 28, 2005, hearing, and find nothing in the court's statements showing bias. While a more complete explanation of the court's rulings might have been helpful to this litigant, we find no abuse of discretion in the denial of the motion. This assignment of error lacks merit.
Social Security Disability Award.
Cindy argues that the court erred in classifying her lumpsum Social Security award as marital property. The trial court, using an "analytical approach," determined that Cindy's Social Security award represented benefits accrued during the marriage and should be included in the marital estate. The court then stated that because Cindy used the proceeds from the Social Security disability award to purchase the modular home, the modular home was part of the marital estate.
[8] In Parde v. Parde, 258 Neb. 101, 602 N.W.2d 657 (1999), the Nebraska Supreme Court adopted the analytical approach in determining whether proceeds from a Federal Employers' Liability Act personal injury settlement should be included in the marital estate. The Parde court explained that "[i]n the analytical approach, courts analyze the nature and underlying reasons for the compensation." 258 Neb. at 108-09, 602 N.W.2d at 662. The Parde court held that compensation for an injury that a spouse has or will receive for pain, suffering, disfigurement, disability, or loss of postdivorce earning capacity should not equitably be included in the marital estate, but compensation for past wages, medical expenses, and other items that compensate for the diminution of the marital estate should equitably be included in the marital estate because they properly replace losses of property created by the marital partnership. We have little difficulty agreeing with the trial court that under the analytical approach, Cindy's lump-sum award would be included in the marital estate because it was compensation for the diminution of the marital estate. The problem presented by this case, which problem the trial court did not address, is that Cindy's lump-sum award was composed of Social Security benefits.
[9] The anti-assignment section of the Social Security Act, 42 U.S.C. § 407(a) (2000), states:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
In Philpott v. Essex County Welfare Board, 409 U.S. 413, 417, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973), the U.S. Supreme Court described § 407(a) as "impos[ing] a broad bar against the use of any legal process to reach all social security benefits." However, in 1975, Congress declared that Social Security benefits were subject to legal process "to enforce the legal obligation of the individual to provide child support or alimony." 42 U.S.C. § 659(a) (2000). "Alimony" does not include "any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." § 659(i)(3)(B)(ii).
In Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), the Nebraska Supreme Court considered whether the husband, who participated in a public employee retirement fund in lieu of Social Security participation, was entitled to an offset or other compensation for the wife's Social Security benefits when dividing marital property in a dissolution decree. The Webster court stated, "Courts generally agree that § 407(a) preempts state law that would authorize distribution of Social Security benefits, and that Social Security benefits themselves are not subject to direct division in a dissolution proceeding." 271 Neb. at 796, 716 N.W.2d at 54. The Webster court cited to a number of cases where state courts considered the U.S. Supreme Court's decision in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979), as instructing them that Social Security is not subject to an indirect adjustment through offset.
In Hisquierdo, the U.S. Supreme Court held that in dissolution proceedings, a wife did not have a community property interest in her husband's expectation of receiving railroad retirement benefits. The Court, in so holding, expressly pointed to the similarities between the railroad retirement benefits and benefits under the Social Security Act, including the fact that the laws providing for both forms of benefits specifically prohibited the assignment of the benefits through garnishment, attachment, or other legal process....
The Court concluded that Congress had decided upon a delicate statutory balance in which it fixed an amount it thought appropriate to support an employee's old age and to encourage the employee to retire. In deciding how finite funds were to be allocated, Congress chose not to allow diminution of that fixed amount by the spouse for whom the fund was not designed. The Social Security Act provides a specific limited avenue for divorced persons to obtain a share of the former spouse's benefits. See 42 U.S.C. § 402(b)(1)(A) through (D), and (c)(1)(A) through (D) (2000).
The Court in Hisquierdo specifically rejected the wife's argument that even if a direct allocation of her former husband's railroad retirement benefit would be contrary to the statutory benefit scheme, she should still be entitled to an offsetting award of presently available community property to compensate her for her interest in the expected benefits. The court explained: "An offsetting award, however, would upset the statutory balance and impair petitioner's economic security just as surely as would a regular deduction from his benefit check." Hisquierdo v. Hisquierdo, 439 U.S. 572, 588, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979).
Webster v. Webster, 271 Neb. at 797-98, 716 N.W.2d at 54-55.
[10] The Webster court stated that the weight of authority concluded an offset of Social Security benefits was prohibited, but that most of those courts, especially those in equitable division states as compared to community property states, "have not found a more generalized consideration of Social Security benefits to be an impermissible factor in the overall scheme when making a property division." 271 Neb. at 798, 716 N.W.2d at 55. The Webster court ultimately concluded that "the anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution prohibit a direct offset to adjust for disproportionate Social Security benefits in the property division of a dissolution decree." Webster v. Webster, 271 Neb. 788, 800, 716 N.W.2d 47, 56 (2006).
The Webster court's discussion of Marriage of Zahm, 138 Wash. 2d 213, 978 P.2d 498 (1999), and Neville v. Neville, 99 Ohio St. 3d 275, 791 N.E.2d 434 (2003), provides some guidance on how to dispose of the issue before us.
The court in Marriage of Zahm ... concluded that where the trial court neither computed a formal calculation of the value of the husband's Social Security benefits nor offset a formal numerical valuation into the court's property division via a specific counterbalancing property award to the wife, the reasoning in Hisquierdo did not apply. The court explained that the antireassignment clause of the Social Security Act did not preclude the trial court from considering a spouse's Social Security income "within the more elastic parameters of the court's power to formulate a just and equitable division of the parties' marital property." 138 Wash. 2d at 222, 978 P.2d at 502. As described by the court in Neville, [a]lthough a party's Social Security benefits cannot be divided as a marital asset, those benefits may be considered by the trial court under the catchall category as a relevant and equitable factor in making an equitable distribution." Neville v. Neville, 99 Ohio St. 3d at 278, 791 N.E.2d at 437. This is especially true when "'a spouse's social security contributions and ultimate benefits have been increased by the work of the other spouse, and ... a nonemployed spouse loses spending power after a divorce through the inability to use the other spouse's social security benefits.' [Quoting] 2A Social Security Law and Practice (Flaherty & Sigillo, Eds., 1994), Section 34:67." 99 Ohio St. 3d at 278, 791 N.E.2d at 437.
Webster v. Webster, 271 Neb. at 799, 716 N.W.2d at 55-56.
In In re Marriage of Knipp, 15 Kan. App. 2d 494, 809 P.2d 562 (1991), a Kansas appellate court reached a similar conclusion. In that case, the husband received a lump-sum Social Security disability benefit of approximately $12,800 during the marriage for a disability suffered prior to the marriage, and he invested the payment in an interest-bearing account. At the time of the divorce, $9,200 remained in the account, and the trial court ordered $3,000 from the account set over to the wife as part of the property division. Citing to Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S. Ct. 590, 34 L. Ed. 2d 608 (1973), the Kansas Court of Appeals stated that the U.S. Supreme Court had determined that 42 U.S.C. § 407(a) applied to benefits received and deposited in a savings account, stating, "Writing for a unanimous court, Justice Douglas reasoned that retroactive benefits placed in an account retained the quality of `moneys' within the scope of 42 U.S.C. § 407." In re Marriage of Knipp, 15 Kan. App. 2d at 495, 809 P.2d at 563. The Kansas court concluded that the trial court erred in setting aside a portion of the husband's lump-sum Social Security benefits but stated that "the anti-assignment statute does not prohibit a court from considering the value of a lump sum social security disability award in dividing the remaining marital property." Id. at 495-96, 809 P.2d at 564. The Kansas court then reversed, and remanded for reconsideration of the property division, stating that "no single asset may be viewed independently in adjudicating a property settlement." Id. at 496, 809 P.2d at 564.
In Olsen v. Olsen, 169 P.3d 765, 768 (Utah App. 2007), the Court of Appeals of Utah held that
Congress has preempted state trial courts from including social security benefits as a marital asset; however, trial courts may consider social security benefits in relation to all joint and separate marital assets in seeking to ensure that "property be fairly divided between the parties, given their contributions during the marriage and their circumstances at the time of the divorce."
The Olsen court concluded that the division of property needed to be reconsidered on remand.
[11] We conclude that the trial court erred in stating that it "should consider the lump sum award received by C[indy] as a marital asset subject to division in this dissolution proceeding" and then including the modular home, purchased post separation with the Social Security funds, in the marital estate. The Nebraska Supreme Court's holding in Webster v. Webster, 271 Neb. 788, 716 N.W.2d 47 (2006), precludes such treatment. However, we must also decide the issue discussed but not reached by the Webster court. We hold that while an offset of a Social Security award is prohibited by the anti-assignment clause of the Social Security Act and the Supremacy Clause of the U.S. Constitution, a court may properly consider a spouse's Social Security award in equitably dividing the marital property. We rely upon the "weight of authority" noted by the Webster court. See id. at 798, 716 N.W.2d at 55. Of course, such award is only one of many factors which we consider in our de novo review of the division of marital property.
[12,13] Appeals in domestic relations matters are heard de novo on the record, and thus, an appellate court is empowered to enter the order which should have been made as reflected by the record. Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191 (2003). We therefore modify the decree to exclude the Social Security award, traceable to the modular home, as part of the marital estate. The trial court's decree showed the net marital estate to be $41,933, and it awarded Cindy a net value of $21,060.52 of the marital estate and James a net value of $20,872.48. Eliminating from the marital estate the $27,000 traceable to the modular home leaves a net marital estate of $14,933. Although the division of property is not subject to a precise mathematical formula, the general rule is to award a spouse one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006). A division of one-third to one-half of this marital estate would be to award a spouse between approximately $4,978 and $7,467. We accept the trial court's distribution of the assets and liabilities, but, to equitably divide the marital estate, we order James to pay $11,000 to be distributed to Cindy. With such payment, Cindy will have received $5,060.52 of the marital estate, and James' share will be reduced to $9,872.48.
CONCLUSION
We conclude that the court did not abuse its discretion in denying Cindy a further pretrial conference or a settlement conference, in the factual findings it made in the decree, or in declining to recuse itself. However, we conclude that the court erred in finding Cindy's lump-sum Social Security disability award to be a marital asset subject to division. We therefore modify the court's decree to equitably divide the marital estate after eliminating from the marital estate the $27,000 in Social Security disability benefits traceable to the modular home.
AFFIRMED AS MODIFIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573646/ | 224 S.W.3d 89 (2007)
STATE of Missouri, Respondent,
v.
Melvin Leroy TYLER, Appellant.
No. WD 67384.
Missouri Court of Appeals, Western District.
March 20, 2007.
Motion for Rehearing and/or Transfer Denied May 1, 2007.
Application for Transfer Denied June 26, 2007.
*90 Melvin Leroy Tyler, Jefferson City, pro se.
Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge, and EDWIN H. SMITH, Judge.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 2007.
JOSEPH M. ELLIS, Judge.
Melvin Leroy Tyler appeals from the denial of his pro se motion filed on November 2, 2005, in the Circuit Court of Platte County, challenging his June 2, 1977 convictions for forcible rape, robbery in the first degree, kidnapping, and armed criminal action. In his motion, Appellant claimed that the trial court lacked jurisdiction over his case because he had filed a motion to remove the case to federal court and the trial court had not received a remand back from the federal court. The trial court denied Appellant's motion finding that it was in the nature of a post-conviction motion, that Appellant had already unsuccessfully filed three prior post-conviction motions, and that the current motion was untimely and successive.
Before this Court may address the merits of an appeal, it must first determine whether jurisdiction is proper. Shelton v. Shelton, 201 S.W.3d 576, 579 (Mo. App. W.D.2006). "If we lack jurisdiction, then the appeal must be dismissed." Id.
This Court's jurisdiction is derivative of the trial court. Id. A trial court has no jurisdiction to entertain a post-conviction motion filed beyond the time limits provided in the applicable Supreme Court Rule. Patterson v. State, 164 S.W.3d 546, 548 (Mo.App. E.D.2005). Moreover, Rule 27.26, which was the rule governing motions for post-conviction relief in effect at the time of Appellant's conviction, prohibited the trial court from entertaining a successive Rule 27.26 motion when the grounds asserted were raised in the original motion or could have been raised therein. Hooper v. State, 579 S.W.2d 647, 649 (Mo.App. E.D.1979).
After Appellant's convictions and sentences were affirmed on direct appeal,[1] on December 28, 1987, Appellant filed his first motion for post-conviction relief under Rule 27.26, which was denied following a hearing. Tyler v. State, 994 S.W.2d 50, 50 (Mo.App. W.D.1999). The denial of that motion was affirmed on appeal.[2]Id. Appellant filed a second Rule 27.26 motion on March 18, 1996, which was denied as untimely. Id. The denial of that motion was affirmed on appeal.[3]Id. Appellant filed *91 his third motion for post-conviction relief on September 18, 1997, and that motion was dismissed as being both successive and untimely. Id. The dismissal of that motion was affirmed on appeal. Id. Appellant's current post-conviction motion is likewise both successive and untimely.
Appellant asserts that his motion could have been granted under the plain error provisions of Rule 29.12(b). Contrary to Appellant's assertion, however, "Rule 29.12(b) provides no basis for an independent motion and further, there is no statutory authority for an appeal from an order denying a Rule 29.12(b) motion." State v. Smith, 204 S.W.3d 697, 698 (Mo. App. E.D.2006); see also Vernor v. State, 30 S.W.3d 196, 197 (Mo.App. E.D.2000).
In short, the trial court lacked jurisdiction to entertain Appellant's motion, and, as a result, this court lacks jurisdiction over Appellant's appeal. Appellant's appeal is, therefore, dismissed for lack of jurisdiction.[4]
All concur.
NOTES
[1] State v. Tyler, 587 S.W.2d 918, 934 (Mo.App. W.D.1979).
[2] Tyler v. State, 794 S.W.2d 252 (Mo.App. W.D.1990).
[3] Tyler v. State, 941 S.W.2d 856 (Mo.App. W.D.1997).
[4] Appellant attempts to claim for the first time on appeal that Rules 29.12(b) and 27.20(c) (1969) are unconstitutional to the extent they preclude him from pursuing his current motion. Since such a constitutional claim was not raised at the earliest opportunity with the trial court, it is not preserved for appellate review. State v. Crow, 63 S.W.3d 270, 273 (Mo.App. W.D.2001). Moreover, even were his claim preserved, the time limits placed upon the filing of post-conviction motions by the applicable Supreme Court rule have repeatedly been held to be mandatory and constitutional. See White v. State, 939 S.W.2d 887, 904 (Mo. banc 1997); State v. Johnson, 907 S.W.2d 311, 313 (Mo.App. E.D. 1995); Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573660/ | 408 S.W.2d 558 (1966)
Lucille MERRIFIELD et vir, Appellants,
v.
Robert L. SEYFERTH et ux., Appellees.
No. 16792.
Court of Civil Appeals of Texas, Dallas.
October 14, 1966.
Rehearing Denied November 4, 1966.
*559 Thompson, Knight, Simmons & Bullion, and Timothy E. Kelley and Geo. C. Chapman, Dallas, for appellants.
Waldie, McDowell & Colvin, Ronald R. Waldie, Dallas, for appellees.
BATEMAN, Justice.
The appellees Robert L. Seyferth and wife recovered judgment against the appellants Lucille Merrifield and her husband, George T. Merrifield in the sum of $7,500 for personal injuries sustained by Mrs. Seyferth in an automobile collision. The jury's findings as to Mrs. Merrifield's negligence and proximate cause are not attacked; neither do appellants attack the *560 finding of damages as being excessive. However, by their first two points of error they complain of restrictions placed by the trial court on their cross-examination of appellees' medical witness.
In this cross-examination appellants' counsel sought to show that the witness was prejudiced against him personally by reason of the following facts:
Two or three years previously the doctor had been sued for damages on account of alleged malpractice. His liability insurer had employed appellants' counsel to defend the suit. The doctor had employed appellees' counsel to represent him in view of an ad damnum in excess of policy limits. After investigation appellants' counsel recommended to the insurer that the case be settled for the limits of the policy. This was done, and the insurance company then cancelled the doctor's insurance. The doctor testified (out of the hearing of the jury, while the bill of exceptions was being perfected) that, while he resented the cancellation of his insurance, he held no resentment against appellants' counsel and did not resent the fact that the case had been settled on that basis. The trial court rejected the testimony on the ground that it was irrelevant.
Appellants' counsel continued with his cross-examination, in the course of which it appeared that the doctor had not brought his original records on Mrs. Seyferth to the courtroom. He promised to send them the next morning. He sent certain records which appellants' counsel had an opportunity to examine but to which he raised no objection until after the unfavorable verdict, whereupon he sought to take the doctor's oral deposition, and had subpoena duces tecum issued to him, in the hope of proving that the original records had not been sent and that the original records "might" reflect either that the doctor had not treated Mrs. Seyferth as extensively as he had testified or that she had had subsequent accidents, and that this would constitute newly discovered evidence. By their third point of error on appeal the appellants complain of the order quashing the subpoena duces tecum.
The burden of the first three points of error is that appellants were improperly deprived of the opportunity to show bias, interest and prejudice on the part of this medical witness. We find no merit in these points. Although wide latitude is allowed a party to cross-examine an adverse witness in order to show interest, bias, or prejudice to affect his credibility, and the only limitation is that of relevancy, McCormick & Ray, Texas Law of Evidence, § 600, pp. 467-8, this valuable right is subject to that limitation and "confers no right upon a litigant to examine a witness upon matters which are irrelevant and immaterial." Mena v. Byers, Tex.Civ.App., 237 S.W. 330.
In our opinion, the tendered testimony was not relevant to any issue in the case and there was no error in excluding it. Moreover, it does not appear from the record that any harm probably resulted to appellants by the exclusion of this testimony. Rule 434, Texas Rules of Civil Procedure.
It should also be added that the trial court has a great deal of discretion in determining to what extent such cross-examination may be prolonged. Horton v. Houston & T.C. Ry. Co., 46 Tex. Civ. App. 639, 103 S.W. 467, 469, wr. ref.; St. Louis & S.F. Ry. Co. v. Clifford, Tex.Civ.App., 148 S.W. 1163, wr. ref.; Traders & General Ins. Co. v. Robinson, Tex.Civ.App., 222 S.W.2d 266, wr. ref. The record reflects no abuse of the trial court's discretion. He gave appellants every reasonable opportunity to develop bias or prejudice on the part of the witness; and when they failed to do so he very properly put a stop to the cross-examination.
Therefore, the first two points of error are overruled.
Appellants' third point is likewise without merit. The trial of the case had been completed and final judgment rendered *561 more than two months prior to the quashing of the subpoena duces tecum, and no showing whatever is made of any newly discovered evidence. The mere suspicion or hope or belief of an attorney that an oral deposition "might" uncover some helpful evidence is not sufficient.
To obtain a new trial on the ground that "newly discovered evidence" was available, it was necessary for appellants to show that the evidence was unknown to them or their attorney prior to the trial, and that their failure to discover it was not due to their want of diligence; also, that the new evidence was so material as that it would probably change the result upon another trial, and that it was competent evidence, not merely cumulative, corroborative, collateral, or impeaching. 41 Tex.Jur.2d, New Trial, § 105, p. 253. Appellants failed to show any of these things. Their attorney knew as much about the doctor's records before he rested his case as he did after the verdict. If he had desired to go into the matter of comparing the records furnished by the doctor with other records he might have in his office, this should have been attempted during the course of the trial and before resting. He could have recalled the doctor for further cross-examination, compelling him to bring all of his records into the courtroom, but elected not to do so until after the unfavorable verdict had been returned. It was then too late. Moreover, new trials are rarely granted on the basis of newly discovered evidence which purports to accomplish no more than the impeachment of a witness who has testified. Safety Cas. Co. v. Bennett, Tex.Civ.App., 259 S.W.2d 596, 598, no wr. hist. The third point is overruled.
By their fourth point of error appellants complain of the trial court's refusal to permit them to develop the facts regarding hospital insurance applicable to Mrs. Seyferth's case after she had testified that she could not afford to go to the hospital as recommended by her doctor.
Mrs. Seyferth's doctor testified that he recommended that she be hospitalized but that she had stated that "for financial reasons" she was unable to do so. She testified that he had recommended hospitalization for her but that she did not go to the hospital because she "didn't have the money," and, later, that if she had had the money she would have gone to the hospital as recommended by her doctor.
This testimony as to Mrs. Seyferth's lack of funds was not relevant; it bore on no issue in the case. The subject of inquiry was Mrs. Seyferth's physical condition, not the condition of her finances. Of course, if appellants had taken the position that her disability, pain and suffering were due, at least to some extent, to her own neglect of her body; i. e., in failing to follow her physician's advice to enter a hospital, then it might have been pertinent for her to explain that apparent wilfulness by proving her financial inability to avail herself of hospital care. But in the absence of some such provocation the testimony could hardly have had any purpose except to excite jury sympathy for her impoverished condition. Yet, appellants did not object to it on that or any other ground and did not request an instruction that the jury not consider it.
Instead, appellants endeavored to impeach the testimony by showing that Robert Seyferth had insurance coverage with his employer, Texas Instruments, which would have paid the cost of her hospitalization or at least a substantial portion thereof. Objection was made that this had "no material bearing in this case," which objection was sustained. Counsel for appellants sought to perfect his bill of exceptions by continued cross-examination of Mrs. Seyferth out of the presence and hearing of the jury. Failing in this, he proved by the appellant Lucille Merrifield that she was employed at "TI" and was familiar with the benefits of a hospitalization insurance plan "they have out at TI," which covered dependents. When asked how much that plan would pay for the spouse of an employee who would *562 enter a hospital for treatment for sickness or illness after October 10, 1964 (date of the accident), she said it would pay the cost of a semi-private room and up to $300 "in extras" (x-rays and laboratory tests) and also pay for surgery according to a schedule. This testimony was tendered for the limited purpose of impeaching Mrs. Seyferth's testimony that she had not entered a hospital because of a lack of funds. Appellees then made the additional objection that it had not been "shown through any witness that any such plan was carried by Robert Seyferth at the time of this accident." This objection was also sustained.
We think the trial court correctly sustained both of appellees' objections to the proffered testimony. In the first place, the general rule is that a witness may not be impeached, where the testimony sought to be contradicted was immaterial or collateral to the issues being tried, by contrary evidence which is likewise collateral. Orchin v. Fort Worth Poultry & Egg Co., Tex.Civ.App., 43 S.W.2d 308, 311; Kushner v. Rush, Tex.Civ.App., 347 S.W.2d 787, wr.dism., and many other cases collected in Texas Digest Witnesses, Key No. 383. The test is: Was the original testimony as to Mrs. Seyferth's lack of money admissible? Attorney-General v. Hitchcock (1847), 1 Exch. 99; McCormick & Ray, Texas Law of Evidence, Vol. 1, §§ 683, 690, pp. 526, 535; 58 Am.Jur., Witnesses, §§ 783-786, pp. 432-435. We can think of no theory on which it would have been admissible.
In the second place, error is not shown in the exclusion of evidence unless the appellant brings before the appellate court a record that shows clearly, by bill of exceptions or otherwise, not only what the evidence would have been if admitted but also its relevancy. Here it was shown by bill of exceptions that "TI" had, on the date of the accident in question, a plan of hospitalization insurance which provided substantial hospital services to dependents of employees. Even though we interpret the initials "TI" to mean Texas Instruments, a corporation having a large factory near Dallas, there was no evidence that either of appellees was an employee of Texas Instruments at the time of the accident or covered by the insurance "plan." The policy of insurance was not made a part of the bill of exceptions, nor was there any evidence that all employees of Texas Instruments were covered thereby. Unless appellants were in position to show the relevance of the rejected testimony, they present nothing for review by this court. 3 Tex.Jur.2d, Appeal and ErrorCivil, §§ 416, 417, pp. 670-673. We therefore overrule appellants' fourth point of error.
No reversible error having been shown, we affirm the judgment.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573657/ | 396 S.W.2d 170 (1965)
H. E. McCOLLUM, Appellant,
v.
Gerald F. MAY, Appellee.
No. 16590.
Court of Civil Appeals of Texas, Dallas.
September 24, 1965.
J. Paul Pomeroy, Jr., Houston, for appellant.
Bailey & Williams and Lawrence R. Maxwell, Jr., Dallas, for appellee.
DIXON, Chief Justice.
This is an appeal from a summary judgment. Appellee depends solely on his *171 sworn Original Petition with attached exhibits to support his summary judgment against appellant H. E. McCollum.
In the same suit a judgment was also taken by appellee against Pete Covington, who did not appeal.
APPELLEE'S PLEADINGS
In his motion for summary judgment appellee says, "This is a suit on sworn account under Rule 185 of the Texas Rules of Civil Procedure. As required by said rule Plaintiff's Original Petition is accompanied by the affidavit of James A. Williams, Attorney of Record for the Plaintiff Gerald F. May."
The affidavit above referred to, omitting formal parts, is as follows:
"Before me the undersigned authority personally appeared JAMES A. WILLIAMS, who being by me first duly sworn, states that he is the Attorney of Record for the Plaintiff, Gerald F. May, that he has knowledge of the facts herein set forth, and is duly authorized by the said Plaintiff to make this Affidavit, that the indebtedness as hereinabove alleged is due and owing at this time, and that such indebtedness within the knowledge of Affiant is just, true and correct and that all just and lawful offsets, payments and credits have been allowed."
We have quoted the above affidavit to show that it complies with the form of affidavit prescribed in Rule 185, T.R.C.P. for a suit on sworn account, but it does not meet the requirements of Rule 166-A, Sec. (e) for an affidavit to support a summary judgment.
A condensed statement of the allegations in appellee's Original Petition, filed September 30, 1964, is necessary to an understanding of the points presented in this appeal:
1. Appellee alleges that on February 1, 1960 Cow. M. & M. Carcass Co. and H. E. McCollum, Lee W. Mitchell, and Pete Covington individually, executed their promissory note payable to Pete Covington for $5,000 due September 30, 1960. This note is unusual in that Pete Covington appears to be both a maker and the payee. The record gives no explanation of this situation. We shall hereafter refer to this instrument as the McCollum note.
2. On February 1, 1960 Pete Covington executed a note payable to appellee G. F. May for $9,000 due September 30, 1960. The date of execution and the due date of this note are the same as the McCollum note.
3. On March 10, 1960 Pete Covington assigned the $5,000 note signed by McCollum and others to appellee G. F. May "as collateral for note of $9,000.00 to G. F. May by Pete Covington."
4. On August 9, 1961 Pete Covington and appellee May signed a document, the first paragraph of which states, "The following summarizes an agreement entered into between Gerald F. May and Pete Covington." This document recites that both the McCollum note for $5,000 and Covington's note for $9,000 were still unpaid. So Covington agreed to execute two new notes "in working out a settlement of Covington's $9,000 note." Appellee May would continue to hold McCollum's $5,000 note and Covington's $9,000 note as collateral for the two new notes to be executed by Covington. McCollum was not a party to this agreement.
5. Pursuant to said agreement on August 9, 1961 Covington executed a note for $5,000 payable to appellee May at the rate of $100 per month beginning September 1, 1961.
6. Also pursuant to the agreement on August 9, 1961 Covington executed a note for $4,000 payable to appellee May on or before one year after date.
Appellee further alleged in his Petition that the amount due on the $5,000 McCollum note, which he held as collateral, was *172 $7,940, including principal, interest and attorney's fees. The total amount due on the $9,000 Covington note was $14,322.
In the alternative appellee alleged that the amount due on the two Covington notes of August 9, 1961 was $12,930, after crediting Covington with payments totaling $400.
APPELLANT'S PLEADINGS
McCollum filed a sworn Original Answer to appellee's sworn Original Petition.
In his sworn Original Answer McCollum pled (1) a general denial, and that (2) there never was any consideration given to him by the payee, Covington, for the $5,000 note of February 1, 1960, (3) appellee May is not a holder of said note in due course, (4) he is not a bona fide purchaser, and (5) he is not the owner of the note.
McCollum did not file a reply to appellee's unsworn motion for summary judgment.
OPINION
We shall first consider appellant's second and third points on appeal in which he asserts that Rule 185, T.R.C.P. does not apply to the facts alleged by assignee-appellee May since (2) appellant was not a party to the contractual agreements between appellee May and Pete Covington, and (3) Rule 185 does not apply to special contracts.
We agree with appellant. In McCamant v. Batsell, 59 Tex. 363, our Supreme Court, speaking through Judge Stayton, held that a debt which is not the result of a transaction between the parties to it, but which is the result of a transaction between one of them and some other person cannot constitute such an account as the statute (now Rule 185) contemplates. This holding is quoted by the San Antonio Court of Civil Appeals in Eng v. Wheeler, 302 S.W.2d 263, 266. See also Nat'l Surety Corp. v. Dabney, 282 S.W.2d 70, 73 and Duree v. Aetna Ins. Co., 66 S.W.2d 764.
In Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78, our Supreme Court held that Rule 185, T.R.C.P. is not a rule of substantive law, but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery or defense and is not the basis for a cause of action; and further, it does not include transactions resting on special contract. See cases cited in the opinion in support of the holding. Appellant's second and third points are sustained.
In his first point appellant says that issues of fact were joined, which issues, if found in favor of appellant, would require judgment in his favor.
So far as appellant McCollum is concerned appellee May's Petition seeks to assert a cause of action against McCollum on a promissory note in which May is not the payee, but which note May holds only by assignment as collateral security for notes executed by Pete Covington. The rule of law is that when a negotiable instrument held as collateral security is subject to defenses as between the original parties, the holder of the collateral must plead and prove that he will lose his principal debt, or part thereof, unless he is permitted to collect the collateral sued on. Appellee May has neither pled nor proved such facts in this case, though McCollum in his sworn Original Answer pled certain defenses to the note, as heretofore pointed out. In view of the fact issues thus raised by McCollum's Original Answer the Original Petition of appellee May, standing alone, is insufficient to support a summary judgment in May's favor. Harrington v. H. B. Claflin & Co., 91 Tex. 294, 42 S.W. 1055; Cont. & Com'l. Nat'l Bank of Chicago v. Meister, Tex.Civ.App., 186 S.W. 377; Farwell v. Tingle, Tex.Civ.App., 280 S.W. 232; Hays v. Walsh, Tex.Civ.App., 280 S.W. 877; City Nat'l Bank v. Pearce, Tex.Civ.App., 291 S.W. 291; City Nat'l Bank v. Underwood, Tex.Civ.App., 293 S.W. 941; Kincaid v. Lee County State Bank, Tex.Civ.App., 4 S.W.2d 310; Harris *173 v. Wuensche, Tex.Civ.App., 7 S.W.2d 595; Harris v. Bucek, Tex.Civ.App., 8 S.W.2d 565; Stanley v. Columbus State Bank, Tex. Civ.App., 258 S.W.2d 840; 9 Tex.Jur.2d 308-310.
Appellee May says that the defenses pled by McCollum are conclusions of law, therefore cannot be considered. This statement would ordinarily be correct if we were passing on the sufficiency of affidavits and counter-affidavits attached to a motion for summary judgment or an answer to a motion for summary judgment. But that is not the situation here. In this case both parties are relying only on their pleadings appellee on his sworn Original Petition and McCollum on his sworn Original Answer.
Rule 45, T.R.C.P., referring to petitions and answers, provides that an allegation of a legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole. In construing this rule our courts have held that pleading a legal conclusion is permissible if the pleader's adversary is not misled by it. This is especially true where the adversary has not excepted to the sufficiency of the pleading. White v. Bond, Tex.Civ.App., 355 S.W.2d 225 (rev. on other grounds, Tex.Civ.App., 362 S.W.2d 295); Blackstock v. Gribble, Tex.Civ. App., 312 S.W.2d 289; Atkinson v. Thompson, Tex.Civ.App., 311 S.W.2d 250. Appellee filed no exceptions to the legal conclusions alleged in McCollum's Original Answer.
The situation we have before us then boils down to this: Appellee May, to support his unsworn motion for summary judgment, relies solely on his sworn Original Petition with attached exhibits. Appellant McCollum traverses appellee's Petition with a sworn Original Answer which is in compliance with Rules 45, 93 and 94, T.R.C.P. and which as a pleading, raises material defensive fact issues. Neither party went forward with any depositions, other exhibits, other affidavits, or evidence. It is simply a case of pleading versus pleading. Appellee has not discharged the burden which was on him under Rule 166-A to show beyond any doubt that there are no fact issues in this case. Appellant's first point is sustained.
In his fourth point appellant asserts that the "attorney's affidavit attached to appellee's Original Petition is insufficient to support a summary judgment under Rule 185 * * *."
The affidavit does not comply with Rule 166-A, Sec. (e) with reference to summary judgment. It simply says that the affiant "has knowledge" of the facts. It does not state that the affidavit is made on "personal knowledge." His "knowledge" could be based on hearsay information. Further, the affidavit does not show affirmatively that affiant is competent to testify to the matters stated therein.
However, McCollum did not except to the sufficiency of the affidavit. Our Supreme Court has held that objections to deficiencies such as are present in the affidavit here may not be raised for the first time on appeal in summary judgment proceedings "when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230. We do not believe that the Supreme Court's holding is applicable here since we have held that the record does fairly present material fact issues.
We believe that the situation here is more analogous to that in Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, in which no showing was made before the trial court with proof in the nature of depositions, admissions, or other evidence, and it was held to be error under the circumstances to sustain a motion for summary judgment.
The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573683/ | 224 S.W.3d 585 (2007)
KENTUCKY BAR ASSOCIATION Movant
v.
Nancy E. Shelby CALLOWAY Respondent
No. 2007-SC-000116-KB.
Supreme Court of Kentucky.
June 14, 2007.
OPINION AND ORDER OF PUBLIC REPRIMAND
I. INTRODUCTION
The Kentucky Bar Association (KBA), pursuant to Supreme Court Rule (SCR) 3.435, has moved this Court to impose reciprocal discipline on Nancy E. Shelby Calloway, KBA Number 10129. Calloway was admitted to the practice of law in Kentucky on October 9, 1980. Calloway's last known roster address is 308 Shelby-Calloway Road, Elkton, Kentucky 42220.
On January 26, 2007, the Board of Professional Responsibility of the Supreme Court of Tennessee entered an order of Public Censure against Calloway. This action was taken based on Calloway's actions during a divorce proceeding in that state. The facts are as follows:
Judge Davies awarded a divorce to Respondent's client on grounds of adultery but also found Respondent's client to be guilty of an affair with Respondent. In open court Judge Davies stated, "Ms. Calloway, your conduct in this case is not professional. Don't ever do that again. If I hear about it, I'll report you to the Board."
Based on these circumstances, the Tennessee Board of Professional Responsibility concluded Calloway had violated Tennessee Rules of Professional Conduct 1.7(b), 8.4(a), and 8.4(d).
Upon receipt of notice of the Tennessee Order of Public Censure, the KBA filed a Petition for Reciprocal Discipline. The KBA recommends this Court impose a Public Reprimand on Calloway. In accordance *586 with Supreme Court Rule (SCR) 3.435, we ordered Calloway to show cause, if any, why reciprocal discipline should not be imposed. Calloway elected to file no response to this Court's Show Cause Order. Having failed to show by substantial evidence that either of the exceptions set out in SCR 3.435 apply, we conclude reciprocal discipline is mandated by the rule.
II. ANALYSIS
SCR 3.435 applies to those situations where members of the KBA have been sanctioned for ethical violations in other states. The rule mandates that this Court impose "identical discipline unless Respondent proves by substantial evidence" either "(a) a lack of jurisdiction or fraud in the out-of-state disciplinary proceeding," or "(b) that misconduct established warrants substantially different discipline in this State." See SCR 3.435(4). Further, the rule requires us to recognize that a final adjudication of misconduct in another jurisdiction establishes conclusively the misconduct for purposes of a disciplinary proceeding in Kentucky. See SCR 3.435(4).
The Board of Professional Responsibility of the Supreme Court of Tennessee concluded Calloway's actions during her representation of a client in a divorce case violated Tennessee Rule of Professional Conduct 1.7(b), 8.4(a), and 8.4(d). SCR 3.130-1.7(b) states:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. . . .
This rule is equivalent to Tennessee Rule of Professional Conduct 1.7(b) with the exception that the Tennessee Rule adds the words "in writing" after "consents" in §§ (b)(2). SCR 3.130-8.3(a) states:
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another[.]
The provisions of SCR 3.130-8.3(a) are identical to the provisions of Tennessee Rule of Professional Conduct 8.4(a). Kentucky has not adopted a rule equivalent to Tennessee Rule of Professional Conduct 8.4(d).
Inasmuch as Calloway has been disciplined by the Board of Professional Responsibility of the Supreme Court of Tennessee by Order of Public Censure, and inasmuch as Calloway's actions are governed by equivalent rules of professional conduct in the Commonwealth of Kentucky, Calloway is subject to Public Reprimand as authorized by SCR 3.380. Further, this Court has imposed the sanction of Public Reprimand for similar conduct. See Bezold v. Kentucky Bar Assoc., 134 S.W.3d 556 (Ky.2004)(attorney admitted romantic involvement with client in a divorce action, court found violation of SCR 3.130-1.7(b)). Thus, we can find no reason to believe Calloway's conduct warrants substantially different discipline.
III. CONCLUSION
SCR 3.435 governs petitions for reciprocal discipline. Calloway has failed to prove by substantial evidence that either of the exceptions set out in the rule. See SCR 3.435(4). Therefore, this Court shall impose reciprocal discipline as follows:
IT IS HEREBY ORDERED:
*587 1. Nancy E. Shelby Calloway, KBA Member Number 10129, is adjudicated guilty of unprofessional conduct based on the facts set out in KBA file 14983.
2. Nancy E. Shelby Calloway is Publicly Reprimanded for her conduct.
3. In accordance with SCR 3.450, Nancy E. Shelby Calloway shall pay all costs associated with these disciplinary proceedings, for which execution may issue from this Court upon finality of this Order.
All sitting. All concur.
ENTERED: June 14, 2007.
/s/ Joseph E. Lambert
Chief Justice | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573675/ | 224 S.W.3d 271 (2005)
Francis DOONAN, Individually and as Minority Member of Rio Grande Tool & Stamping, and Michele Doonan, Appellants,
v.
Larry C. WOOD, Joy C. Helbing, Woodven, L.P., and Woodven Texas Corporation, Appellees.
No. 08-04-00016-CV.
Court of Appeals of Texas, El Paso.
July 7, 2005.
*272 Michael Cohen, Law Office of Michael Cohen, El Paso, for appellants.
Antonio Martinez Jr., Firth, Johnston & Martinez, Ken Slavin, Kemp Smith, P.C., Angela Morrow Nickey, Robles, Bracken, Coffman & Hughes, L.L.P., Jaime Olivas, El Paso, for appellees.
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
DAVID WELLINGTON CHEW, Justice.
This is an appeal from a grant of a summary judgment. Appellants sued Appellees for breach of fiduciary duty, conspiracy, and alter-ego for damages. Appellees moved for a no-evidence summary judgment, and it was granted as to all claims. In four issues, Appellants appeal the trial court's granting of the summary judgment in favor of Appellees. We affirm.
On May 15, 1995, Conrad Moore and Francis G. Doonan formed Rio Grande Tool & Stamping, L.L.C. Mr. Moore owned 51 percent of the interests and Mr. *273 Doonan owned a 40 percent interest. Rio Grande was formed to provide custom tooling and precision metal stamping for the maquila industry in Juarez, Mexico. From the onset, Rio Grande was not successful, incurring operating losses of $630,172 and a debt of $589,966 between May 15, 1995 and July 31, 1997. In the spring of 1997, Sunwest Bank gave Rio Grande notice that it would not renew Rio Grande's operating line of credit forcing Rio Grande to find new financing. Mr. Moore contacted his long time acquaintance Larry C. Wood.
Mr. Larry Wood and his brother Donald Wood had recently formed an investment company named Woodven, L.P., ("Woodven"). Woodven is a Texas limited partnership, whose general partner is Woodven Texas Corp. Larry and Donald are the only shareholders of Woodven Texas Corp., and the only limited partners of Woodven. Larry Wood was the president, secretary, treasurer, and director of Woodven Texas Corp. Joy C. Helbing was the vice president and director of Woodven Texas Corp.
On October 7, 1997, Woodven made a term loan of $500,000 and granted a line of credit of $700,000 to Rio Grande. Mr. Moore and Mr. Doonan offered Woodven an option to purchase 34 percent membership interest in Rio Grande. As security for the loans, Woodven was granted a security interest in all of Rio Grande's assets. Mr. and Mrs. Moore and Mr. and Mrs. Doonan also personally guaranteed the debt.
On November 6, 1997, Woodven exercised its option to acquire a 34 percent interest in Rio Grande. The equity interests in Rio Grande became: Woodven, L.P. 34 percent; Moore 33.66 percent; and Doonan 32.34 percent.
Mr. Moore withdrew as an officer of Rio Grande in March 1998. Mr. Moore's personal guaranty was extinguished. Larry Wood was then elected Chief Executive Officer and Joy Helbing was elected Chief Financial Officer of Rio Grande. On September 30, 1998, Mr. Moore's interest in Rio Grande was conveyed to Woodven.
Mr. Doonan was Rio Grande's Chief Operating Officer. His responsibilities included procuring business through the use of his expertise and skill as a master die and toolmaker utilizing his own designs and running the day to day production of the business. In mid April 2001, Mr. Doonan quit. Almost a year later, Woodven foreclosed its security interest in the assets of Rio Grande and the assets were sold in a private sale to Woodven.
Woodven then contributed the purchased assets as the capital to form RGTS, L.L.C., a Texas limited liability company, that was wholly owned by Woodven. On September 29, 2003, Woodven sold the assets to an unrelated third party.
In Issue One, Appellants argue that the trial court erred in granting the Appellees' motion for no-evidence summary judgment when the motion was defective because it contained only global and conclusory statements. Appellants allege that the motion lists the essential elements of the raised causes of action and generally asserts that there is no evidence to support the elements. They allege that "this constitutes the impermissible making of a `general no-evidence challenge to an opponent's case.'" Appellees argue that the motion was not defective because it specified the elements of each claim lacking evidentiary support.
Texas Rules of Civil Procedure 166a(i) states in part:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements *274 of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence.
See TEX.R.CIV.P. 166a(i).
In this case, Appellees' motion for summary judgment alleges that Appellants have not demonstrated any evidence to support their causes of action based on breach of fiduciary duty, conspiracy, and alter ego. Our review shows that the motion specifically enumerated each of the elements of the causes of action as to which there is no evidence. We thus find that Appellees no-evidence motion for summary judgment was not defective. We therefore overrule Appellants' Issue One.
Issues Two, Three, and Four pertain to the question of whether Appellants presented more than a scintilla of evidence of all the essential elements of Appellants' claim, and if so, whether the trial court erred in granting Appellees no-evidence summary judgment.
A no-evidence summary judgment is essentially a pretrial directed verdict and as such, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.-El Paso 2000, no pet.). The party seeking a no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. See TEX.R.CIV.P. 166a(I). The movant must specifically state the elements as to which there is no evidence. See TEX.R.CIV.P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. See id. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of the non-movant's claim or defense. See id.; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). More than a scintilla of evidence exists when the evidence "`rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of the existence of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). In reviewing a no-evidence summary judgment ruling, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Havner, 953 S.W.2d at 711.
In Issue Two, Appellant argues that the trial court erred in granting the Appellees' motion for no-evidence summary judgment since Appellants presented more than a scintilla of evidence of all the essential elements of a claim for breach of fiduciary duty. Specifically, Appellants assert that they presented evidence regarding the existence of a fiduciary relationship between them and Woodven, L.P., Larry Wood, and Joy Helbing. They further argue that sufficient evidence was presented regarding the breach of such fiduciary duty and the damages resulting from that breach. In a related point, in Issue Three, Appellants further extend the damages argument.
In their brief, Appellants discuss the issues as they related to Mr. Doonan, but fail to address how Mrs. Doonan was owed a fiduciary duty, how that duty was breached, and what damages resulted from that breach. We agree with Appellees' assertion that Mrs. Doonan was owed no *275 fiduciary duty. In order to recover on her breach of fiduciary duty claim, one of the elements Mrs. Doonan must establish is that Appellees were Mrs. Doonan's fiduciaries. See Myer v. Cuevas, 119 S.W.3d 830, 836 (Tex.App.-San Antonio 2003, no pet.). Fiduciary duties arise either from certain formal relationships that are recognized as fiduciary as a matter of law, or from the existence of an informal, "confidential" relationship between the parties. Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998). The existence of a confidential or fiduciary relationship is ordinarily a question of fact, and the issue only becomes a question of law when it is one of no evidence. Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex.1992). A party asserting breach of fiduciary duty must establish the existence of a confidential or similar relationship giving rise to a fiduciary duty. See Bado Equip. Co., Inc. v. Bethlehem Steel Corp., 814 S.W.2d 464, 475 (Tex.App.-Houston [14th Dist.] 1991, no writ). Appellants have failed to present any evidence regarding a fiduciary duty owed to Mrs. Doonan nor do they point to any case law that would establish such a relationship. As such, we hold that with respect to Mrs. Doonan, there was no fiduciary duty that was breached and as such, the no-evidence motion for summary judgment was properly granted.
The Appellees' begin their response by stating that the Appellants failed to meet their burden in their response to the summary judgment motion. They argue that as this Court stated in Walton v. City of Midland, 24 S.W.3d 853, 858 (Tex.App.-El Paso 2000, no pet.), it was not the trial court's burden to sift through the record to find Appellant's evidence for him. We point out however, that in Walton, the record before the trial court was over 500 pages. Id. The record in this case differs from Walton in that Appellants' exhibits is half that size. Nevertheless, we are mindful that we are not required to search the record without any guidance from Appellants to determine whether they had produced evidence raising a genuine issue of material fact on the elements challenged by Appellees. See Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex.App.-Houston [1st Dist.] 1996, no writ).
Appellees' argue that even if Mr. Doonan was owed a fiduciary duty, the facts specified in the response do not raise a material fact issue on whether the Appellees breached any fiduciary duty that caused the Appellants any damage. We agree with Appellees.
In its brief, Appellants argue that Appellees breached their fiduciary duty in the following ways: (1) by enforcing the personal guarantees for loans from Woodven, L.P. to Rio Grande Tool & Stamping, which they argue was in violation of Article 3.07 of the regulations adopted by Rio Grande; (2) excluding Mr. Doonan from a meeting that took place between Mr. Wood, Ms. Helbing, Mr. Moore, and Mr. Moore's attorney Jerry Keith in which Mr. Moore was released from his personal guarantee on the loan made by Woodven to Rio Grande and Mr. Wood took the Rio Grande stock he held and became majority shareholder; (3) his removal as authorized signer from Rio Grande's Norwest Bank account; (4) by Mr. Doonan being told to "get out or you'll be taken out of here in handcuffs" in April 2001; and (5) by the foreclosure on Rio Grande's assets and of Mr. Doonan's interest which was the collateral used for securing the loan Rio Grande received from Woodven. We find that the evidence does not raise a genuine issue of material fact of a breach of fiduciary duty. We conclude that such actions were taken for legitimate business reasons *276 rather than for the fiduciary to profit by taking advantage of its position. See Bohatch v. Butler & Binion, 977 S.W.2d 543, 550-53 (Tex.1998). As such, we overrule Issue Two. In finding that there was no breach of fiduciary, we do not need to address the issue of damages resulting from such breach. We therefore overrule Issue Three.
In Issue Four, the Appellants argued that the trial court erred in granting the Appellees' motion for no-evidence summary judgment since the Appellants presented more than a scintilla of evidence of all the essential elements of a claim for conspiracy. After reviewing the record, Appellants failed to respond to the conspiracy claim portion of the no-evidence summary judgment motion. A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See TEX.R.CIV.P. 166a(i); Havner, 953 S.W.2d at 711. Appellants failed to direct the trial court to any evidence on the cause of action of conspiracy. We overrule Issue Four.
In a cross-point, Appellees argue that Appellants' summary judgment proof was not timely filed and cannot be considered. TEX.R.CIV.P. 166a(c), allows for summary judgment evidence to be filed late, but only with leave of court. Summary judgment evidence must be filed no later than seven days prior to the day of the hearing. See TEX.R.CIV.P. 166a(c), (d). The no-evidence summary judgment hearing was held on November 21, 2003. On November 14, 2003, Appellants timely filed a response to Appellee's no-evidence summary judgment motion, but did not attach any evidence. On November 17, 2003, four days before the summary judgment hearing, Appellants' filed an Appendix to their response to the Appellees' Motion for No-Evidence Summary Judgment. The record does not indicate that the Appellants obtained leave of court to file this evidence. However, the Appellants have submitted a postmark date of November 14, 2003. As such, under TEX.R.CIV.P. 5, Appellants Appendix was timely filed and therefore, leave of court was not necessary. Therefore, Appellees' cross-point is overruled.
We affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573668/ | 743 N.W.2d 683 (2008)
2008 WI 4
In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Jeffrey D. BERLIN, Attorney at Law:
Office of Lawyer Regulation, Complainant,
v.
Jeffrey D. Berlin, Respondent.
No. 2007AP180-D.
Supreme Court of Wisconsin.
Decided January 17, 2008.
*684 ¶ 1 PER CURIAM.
We review referee Henry A. Field, Jr.'s recommendation that the license of Attorney Jeffrey D. Berlin to practice law in this state be suspended for a period of six months for eight counts of professional misconduct committed in connection with two client matters.
¶ 2 We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We further determine that the seriousness of Attorney Berlin's misconduct warrants the suspension of his license to practice law for six months, and that the costs of the proceeding, which are $676 as of July 24, 2007, should be assessed against him.
¶ 3 Attorney Berlin was admitted to practice law in Wisconsin in 1978. His license to practice law is currently under suspension for failure to pay State Bar of Wisconsin membership dues. He was publicly reprimanded in August 2005 for three counts of failing to act with reasonable diligence and promptness in representing a client, three counts of failing to keep a client reasonably informed of the status of a matter, two trust account violations, and three counts of failing to refund unearned advanced fees. Public Reprimand of Jeffrey D. Berlin, 2005-4.
¶ 4 The Office of Lawyer Regulation (OLR) filed a complaint in this matter on January 22, 2007. Attorney Berlin responded stating that he did not intend to contest the charges because of his medical condition.[1] Accordingly, the matter was handled as a default proceeding, and the OLR complaint formed the basis for the referee's factual findings.
¶ 5 In May 2002 D.B. hired Attorney Berlin to represent him in a personal injury action for injuries D.B. sustained in an automobile accident. Attorney R.L. McNeely subsequently joined Attorney Berlin in this representation.[2]
¶ 6 On March 21, 2005, D.B. died from circumstances unrelated to the automobile accident. Following his death, D.B.'s wife, C.B., contacted either Attorney Berlin or Attorney McNeely regarding the personal injury claim.
¶ 7 On April 5, 2005, Attorney McNeely prepared and filed a special administration petition in the D.B. estate, requesting that the probate court appoint C.B. as special administrator of D.B.'s estate to permit her to resolve D.B.'s personal injury claims arising out of the May 2002 accident.
¶ 8 On April 22, 2005, Attorney McNeely filed a civil summons and complaint in Milwaukee County circuit court seeking damages on behalf of D.B.'s estate and *685 C.B. relating to the May 2002 automobile accident.
¶ 9 On April 29, 2005, the Milwaukee County Child Support Agency filed four claims against D.B.'s estate for unpaid child support obligations totaling $126,200.28.
¶ 10 On or about May 24, 2005, American Family Insurance Group issued a check for $100,000 payable to "R.L. McNeely Law Office Clients Trust Account" to settle C.B.'s claims in connection with the personal injury action. This settlement encompassed claims that C.B. made in her individual capacity, as well as claims made on behalf of D.B.'s estate. C.B. had not been appointed special administrator of D.B.'s estate at this time.
¶ 11 On June 3, 2005, Attorney McNeely and Attorney Berlin directed C.B. to sign in her individual capacity and on behalf of D.B.'s estate a written release of all claims relating to the May 2, 2002, auto accident. On June 6, 2005, Attorney McNeely filed a notice of voluntary dismissal in connection with the personal injury case.
¶ 12 On June 4, 2005, Attorney McNeely sent correspondence to the probate court that read:
The above-captioned matter was scheduled for hearing on appointment of a special administrator, on June 22, 2005, at 2:30 p.m. The special administration was commenced to pursue a claim arising out of an automobile accident involving the deceased, occurring in May 2002. A civil suit was commenced. . . . We have been unable to serve the other driver involved in the accident, and there are no outside witnesses. Therefore, we have entered a voluntary dismissal in the civil case, and there is no longer a need to pursue special administration. I request that you take the matter off the court's calendar . . ., and close the file on this matter.
¶ 13 Prior to disbursing the $100,000 settlement proceeds, Attorney Berlin told Attorney McNeely that the American Family insurance adjuster handling the claim had authorized them to distribute the settlement proceeds as they saw fit. Attorney Berlin and Attorney McNeely decided that none of the settlement proceeds should go to D.B.'s estate. Rather, they decided to allocate the entire settlement (less attorney fees and litigation-related costs) to C.B. in her individual capacity. This amount totaled $57,199.26.[3]
¶ 14 Neither Attorney Berlin nor Attorney McNeely discussed with C.B. the potential or actual conflicts of interest that might have existed between her individual interests and the interests of D.B.'s estate, and neither attorney obtained a written waiver from C.B. regarding these potential or actual conflicts. Neither Attorney McNeely nor Attorney Berlin advised the probate court that a settlement had been received relating to D.B.'s May 2002 auto accident or that these settlement proceeds had been disbursed. In addition, neither Attorney McNeely nor Attorney Berlin advised the Milwaukee County Child Support Agency of the settlement.
¶ 15 In the present disciplinary proceeding, the referee found that a portion of the $100,000 settlement payment properly belonged to the probate estate of D.B.C.B.'s special administration petition filed on April 5, 2005, should have been converted to a probate petition that listed a portion *686 of the $100,000 as probate property. The referee found further that in May, June, and July of 2005, no one had the legal authority to take any action on behalf of D.B.'s estate regarding the personal injury claim relating to the automobile accident, including signing a release or authorizing the disbursement of settlement proceeds obtained from a legal action filed on behalf of the estate. The referee noted that C.B. was never actually named special administrator of D.B.'s estate.
¶ 16 While this matter was under investigation, Attorney Berlin told OLR staff that he knew the "State had liens that exceeded the proceeds" from the settlement, and that he was aware of these liens prior to the receipt of the settlement proceeds. Attorney Berlin explained that he exercised his "judgment to get the funds to the family" and that his "duty was to his client and not to the State of Wisconsin."
¶ 17 Attorney Berlin failed to respond to other attempts by the OLR to obtain information regarding this matter. Attorney Berlin failed to respond to a letter dated November 17, 2005, and, in response to a follow-up letter sent by the OLR on April 7, 2006, Attorney Berlin left a voicemail message for OLR staff expressing confusion as to what information was being requested. OLR staff made several subsequent attempts to contact Attorney Berlin by telephone to discuss this investigation, but were unable to reach him. Attorney Berlin subsequently failed to respond to a third letter from the OLR, sent on June 12, 2006.
¶ 18 The OLR alleged and the referee found that by participating in making an aggregate settlement of both C.B.'s individual claims and the claims of D.B.'s estate without consulting with and obtaining the informed consent of C.B. and someone authorized by the probate court to act on behalf of D.B.'s estate, Attorney Berlin engaged in a prohibited transaction, in violation of former SCR 20:1.8(g).[4]
¶ 19 The OLR alleged and the referee found that Attorney Berlin intended to allocate the entirety of the aggregate settlement of both C.B.'s individual claims and the claims of D.B.'s estate to C.B. by:
Concurring with or advising McNeely to dismiss the probate case without first advising the probate court that a settlement of claims belonging to D.B.'s estate had been obtained and effectuated by a release C.B. signed while purporting to act as a special administrator of the estate.
Concurring with or advising McNeely to inform the probate court, "We have been unable to serve the other driver involved in the accident, and there are no outside witnesses. Therefore, we have entered a voluntary dismissal in the civil case, and there is no longer a need to pursue special administration *687 . . ." without also informing the probate court that a settlement had been reached, which released the estate's claims.
Concurring with or advising McNeely to distribute the entire $100,000 settlement to C.B. (after attorneys fees and litigation costs were deducted) when he knew that there were outstanding claims against D.B.'s estate, for unpaid child support and the aggregate settlement was paid as consideration for the release of any claims the estate might have had against the released parties.
Therefore, Attorney Berlin engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).[5]
¶ 20 The OLR alleged and the referee found that by failing to provide OLR staff with information requested in letters dated November 17, 2005, April 7, 2006, and June 12, 2006, Attorney Berlin willfully failed to provide relevant information, fully answer questions, or furnish documents in the course of an OLR investigation, in violation of SCR 20:8.4(f)[6] as it relates to the requirements of SCR 22.03(6).[7]
¶ 21 The OLR complaint also alleged misconduct in connection with Attorney Berlin's representation of police officer K.K. In July 2004, when the events giving rise to this allegation of misconduct occurred, Attorney Berlin worked as a part-time staff attorney for the Wisconsin Professional Police Association (WPPA). Attorney Gordon E. McQuillen (McQuillen) was Attorney Berlin's supervisor at WPPA. McQuillen assigned Attorney Berlin to represent Officer K.K. in legal matters stemming from K.K.'s termination from the Village of Jackson police department.
¶ 22 On August 10, 2004, Attorney Berlin filed a complaint in Washington County circuit court naming the Village of Jackson as a defendant. The defendant answered the complaint, and the circuit court conducted a telephonic scheduling conference on February 25, 2005.
¶ 23 During the scheduling conference, the court established a briefing schedule that required Attorney Berlin to file a brief by April 1, 2005. Attorney Berlin never filed the brief.
¶ 24 Between February 25 and April 20, 2005, Attorney Berlin repeatedly assured McQuillen that he had timely filed the brief. McQuillen eventually discovered that Attorney Berlin had not filed the brief. Attorney Berlin also falsely assured McQuillen that he had contacted defense counsel and the circuit court, and that he had secured an extension of time to file this brief.
¶ 25 On April 20, 2005, defense counsel filed a motion to dismiss and scheduled a hearing on this motion for May 9, 2005.
¶ 26 On April 25, 2005, the court issued a notice of dismissal advising Attorney Berlin that K.K.'s case would be dismissed in 20 days unless good cause was shown. Attorney Berlin never responded.
*688 ¶ 27 On April 27, 2005, Attorney Berlin met with McQuillen, resigned from his position with WPPA, and told McQuillen that he had never filed the brief, had failed to secure the leave of defense counsel, and failed to ask the court for an extension. Although Attorney Berlin knew of the April 25, 2005, order to show cause, he did not inform McQuillen of it.
¶ 28 On May 5, 2005, K.K. called McQuillen asking why an order for dismissal of his case was posted on the circuit court website. McQuillen contacted Attorney Berlin and learned for the first time of the existence of the order to show cause.
¶ 29 At no time during his representation of K.K. did Attorney Berlin advise K.K. that he had failed to file the brief and obtain an extension of time to file the brief, or that the circuit court had issued an order to show cause why the case should not be dismissed.
¶ 30 On October 6, 2005, Attorney Berlin told the OLR that he "did the briefing" for K.K.'s case but claimed his files were with the WPPA. On November 4, 2005, Attorney Berlin told OLR that he would send OLR a copy of the briefs that he filed on K.K.'s behalf. On November 7, 2005, OLR received a copy of a brief from Attorney Berlin that purportedly related to K.K.'s case. Attorney Berlin's cover letter to OLR staff indicated that this brief "was submitted to the Circuit Court of Washington County."
¶ 31 According to the circuit court's website, no brief was filed on behalf of K.K. until June 1, 2005, more than one month after Attorney Berlin resigned his position with WPPA, and more than two weeks after Attorney Berlin had been replaced by successor counsel.
¶ 32 On December 9, 2005, OLR sent a letter to Attorney Berlin requesting that he respond to specific questions regarding K.K.'s grievance. Attorney Berlin did not respond. He also failed to respond to subsequent letters sent by the OLR on April 7, 2006, and June 12, 2006.
¶ 33 The OLR complaint alleged and the referee found that by failing to file a brief in accordance with the briefing schedule established by the Washington County circuit court or seek the consent of opposing counsel and the court to an extension of time to file the brief, and by failing to take any action with regard to the court's April 25, 2005, order to show cause why the case should not be dismissed, Attorney Berlin failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.[8]
¶ 34 In addition, the referee found that by failing to inform K.K. that he had not filed a brief as ordered by the court or obtain the consent of opposing counsel and the court to extend the time in which to file the brief, and by failing to inform K.K. that the court issued an order to show cause why the case should not be dismissed, Attorney Berlin failed to keep a client reasonably informed about the status of a matter, in violation of SCR 20:1.4(a).[9]
¶ 35 The OLR alleged and the referee found that Attorney Berlin engaged in a course of conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c), by falsely assuring *689 McQuillen that he was "timely with respect to filing" the brief in K.K.'s case, and that he had contacted the court and defense counsel and secured an extension of time for filing his brief. In addition, Attorney Berlin failed to affirmatively advise McQuillen that the court had issued an order dated April 25, 2005, requiring K.K. to show cause why this case should not be dismissed.
¶ 36 The OLR alleged and the referee found that Attorney Berlin made a misrepresentation to the OLR in the course of an OLR investigation, in violation of SCR 20:8.4(f) as it relates to the requirements of SCR 22.03(6). Attorney Berlin sent OLR a copy of a brief in November 2005 that purportedly related to K.K.'s case, and advised the OLR in an enclosed cover letter that this brief "was submitted to the Circuit Court of Washington County" in response to OLR's inquiry concerning Attorney Berlin's representation of K.K. However, circuit court records indicated that no brief was filed on behalf of K.K. in this matter until June 1, 2005, more than one month after Attorney Berlin resigned his position with WPPA and more than two weeks after Attorney Berlin had been replaced by successor counsel.
¶ 37 Finally, by failing to provide OLR with information in the K.K. matter that OLR had requested in letters dated December 9, 2005, April 7, 2006, and June 12, 2006, Attorney Berlin willfully failed to provide relevant information, fully answer questions, or furnish documents in the course of an OLR investigation, in violation of SCR 20:8.4(f) as it relates to the requirements of SCR 22.03(6).
¶ 38 The OLR requested a six-month suspension of Attorney Berlin's license to practice law, as well as imposition of the costs of the disciplinary proceeding. The referee recommended the same, without discussion. Neither party appealed the referee's report, such that this matter is submitted to the court for review of the referee's report and recommendation pursuant to SCR 22.17(2).
¶ 39 In conducting our review, we will affirm the referee's findings of fact unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). We review the referee's conclusions of law de novo. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. In accordance with our authority to supervise the practice of law in this state, we determine the level of discipline that is appropriate under the particular circumstances, independent of the referee's recommendation, but benefiting from it. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶ 40 The referee's findings of fact in this case have not been shown to be clearly erroneous, and we adopt them. We also agree with the referee's conclusions of law. We further agree with the referee's recommendation for a six-month suspension of Attorney Berlin's license to practice law in Wisconsin. Finally, we find it appropriate to require Attorney Berlin to pay the full costs of this proceeding which, as of July 24, 2007, total $676.
¶ 41 IT IS ORDERED that the license of Jeffrey D. Berlin to practice law in Wisconsin is suspended for a period of six months, effective the date of this order.
¶ 42 IT IS FURTHER ORDERED that within 60 days of the date of this order Jeffrey D. Berlin pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Jeffrey D. *690 Berlin to practice law in Wisconsin shall remain suspended until further order of the court.
¶ 43 LOUIS B. BUTLER, JR., J., and ANNETTE KINGSLAND ZIEGLER, J., did not participate.
NOTES
[1] Attorney Berlin states that he has had six spinal surgeries since 2000, a major heart attack, a stroke, and has been deemed totally disabled by the Social Security Administration. He has stated that he will not practice law in Wisconsin again.
[2] Attorney McNeely is also the subject of a pending disciplinary complaint filed by the OLR. OLR v. McNeely, 2007AP208-D.
[3] Between June 3 and July 16, 2005, Attorney McNeely disbursed the $100,000 settlement proceeds received from American Family Insurance Group as follows: C.B.: $57,199.26; Attorney Berlin: $16,665; Attorney McNeely: $17,442.87; Litigation costs: $359.54; and LeSafre Intl. Co. (medical creditor): $8,333.33.
[4] Effective July 1, 2007, substantial changes were made to the Wisconsin Supreme Court Rules of Professional Conduct for Attorneys, SCR Chapter 20. See Supreme Court Order No. 04-07, 2007 WI 4, 293 Wis. 2d xv; and Supreme Court Order No. 06-04, 2007 WI 48, 297 Wis. 2d xlvii. Since the conduct underlying this case arose prior to July 1, 2007, unless otherwise indicated, all references to the supreme court rules will be to those in effect prior to July 1, 2007.
Former SCR 20:1.8(g) states: Conflict of interest: prohibited transactions
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
[5] Former SCR 20:8.4(c) states that it is misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
[6] Former SCR 20:8.4(f) provides that it is professional misconduct for a lawyer to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."
[7] SCR 22.03 provides: Investigation.
(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.
[8] Former SCR 20:1.3 states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."
[9] Former SCR 20.1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573665/ | 408 S.W.2d 44 (1966)
RECEIVABLES FINANCE CORPORATION, a Corporation, Respondent,
v.
Frank H. HAMILTON and William T. Hamilton, Appellants.
No. 51494.
Supreme Court of Missouri, Division No. 2.
November 14, 1966.
Milton Yawitz, Allen A. Yoder, St. Louis, for plaintiff-respondent. Rassieur, Long, Yawitz, Koenig & Schneider, St. Louis, of counsel.
John D. Gallagher, Clayton, for defendants-appellants.
*45 EAGER, Presiding Judge.
Plaintiff, assignee of Shainman & Company, Inc., a bankrupt, sought to recover against the defendants individually as endorsers of three trade acceptances. The suit was in three counts. The instruments were drawn by Miller-Shainman Company (the predecessor in name of plaintiff), two on August 30, 1960, and one on November 18, 1960, in the respective amounts of $15,000, $16,000, and $20,000; the first two were accepted by Westroads Humpty Dumpty Toy & Record acting through defendants, who were therein specifically designated as its President and Secretary, and the third was accepted by Humpty Dumpty Playland Stores, Inc., acting through defendants, also specifically designated as its President and Treasurer. Both acceptors were corporations. All three instruments were regularly delivered; they were payable, respectively, on December 10, 1960, December 29, 1960, and January 10, 1961. On the backs of the first two instruments the following endorsements were made:
"William T. Hamilton Pres.
Frank H. Hamilton Secy."
On the third, the identical endorsements appear except that the abbreviation "Sec'y" was scratched out and "Treas." written in its place. The facts as to the drawing, the acceptance and delivery, and the endorsements of the three instruments are stipulated, and it is also agreed that all three were duly presented for payment, that payment in each instance was refused, that the defendants were given notice of dishonor and that demand was duly made. The sum of $16,185 had been paid on the third instrument, nothing on the other two. The defendants were officers of the two corporations which accepted the instruments; both corporations were in the business of selling toys, and Shainman & Company, Inc. was a wholesale distributor of toys.
The essential defense was that the endorsements of the defendants were made and affixed in their corporate capacities and not as individuals; that they are not individually liable. No evidence whatever was introduced except the stipulation of facts, which has already been digested, and the instruments themselves. It was conceded that the plaintiff was the owner of all title and interest in each of the instruments. The court entered judgment for plaintiff in the sum of $34,814.37, with interest from the respective due dates. A motion of the defendants for judgment or a new trial was overruled by lapse of time, and this appeal followed.
The sole question here is whether the endorsements of these defendants, with the added abbreviations of "Pres." and "Sec'y." ("Treas." in one instance) created individual liability on their part. Before going further we quote § 401.020, RSMo 1959, V.A.M.S., which is identical with § 20 of the Uniform Negotiable Instruments Act: "Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability." This statute was first enacted in 1905 (Laws 1905, p. 243 et seq.) and has existed in the same form ever since.
The position of the defendants here is that one is not personally liable on such an endorsement, "where he adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity," thus literally following the wording of the first half of § 401.020 quoted above; and, further, that even if such words did not disclose the principal, plaintiff has failed to meet its burden of showing that defendants were principals. Plaintiff, contra, asserts: that no principals were disclosed in the endorsements, that the abbreviations added were mere "descriptio personae," that a construction considering these as corporate endorsements would be *46 irrational, and that plaintiff fully met its burden of proof.
There have been diverse constructions of the section in question and sundry criticisms of its wording. See, Uniform Laws Annotated, Vol. 5, Part 1, § 20 note, and also pocket parts; Finch v. Heeb, Mo.App., 131 S.W.2d 146. However, the principles which we shall state seem to have emerged rather clearly, according to a substantial weight of authority. We do not confine ourselves to Missouri authorities, for few are really applicable.
Where a person, acting with sufficient authority, signs or endorses an instrument in a corporate name with his own signature affixed as an officer, the principal being thus disclosed, he is not individually liable. There can be no doubt of this principle. Reifeiss v. Barnes, Mo.App., 166 S.W.2d 225; Fricke v. Belz, 237 Mo.App. 861, 177 S.W.2d 702. The difficulties arise from the surprising number of variations in the modes of signing.
If one signs or endorses an instrument in his individual name, and adds merely a descriptive term or title after his name, such as "Pres.," "Sec'y.," "Trustee," etc., without a disclosure of the principal for whom (or which) he is thus acting, he is liable personally, and the addition is merely "descriptio personae." Rudolph Wurlitzer Co. v. Rossmann, 196 Mo.App. 78, 190 S.W. 636; Myers v. Chesley, 190 Mo.App. 371, 177 S.W. 326; Gayle-Blevins Lumber Co. v. Delhomme, La.App., 159 So. 2d 355; Gross v. Lamme, 77 Nev. 200, 361 P.2d 114; Lawhorn v. Wellford, 179 Tenn. 625, 168 S.W.2d 790; Kessel v. Murray, 197 Iowa 17, 196 N.W. 591, 33 A.L.R. 1346; Daniel v. Buttner, 38 Wash. 556, 80 P. 811; Jump v. Sparling, 218 Mass. 324, 105 N.E. 878. In such cases it is generally held that parol evidence is not admissible to establish the fact that only a corporate liability was intended.
Some courts have held, on signatures of widely varying types, that the instruments were ambiguous, and that parol evidence should be admitted to ascertain the real intent of the parties. Finch v. Heeb, Mo.App., 131 S.W.2d 146; Washington Mutual Fire Ins. Co. v. St. Mary's Seminary, 52 Mo. 480; McClellan v. Reynolds, 49 Mo. 312; Fricke v. Belz, 237 Mo.App. 861, 177 S.W.2d 702; Robertson v. Club Ephrata, 48 Wash.2d 285, 293 P.2d 752. But it is very generally held that, in order to create such an ambiguity, there must be something more than the mere addition of abbreviations such as "Pres.," "Sec'y.," or "Treas.," and usually the corporate name must appear in some manner on the instrument itself in order to permit such evidence. Myers v. Chesley, 190 Mo.App. 371, 177 S.W. 326. Evidence has thus been admitted: where the corporate name appeared above that of the individual but no title appeared after his name (Belz, supra); where other related documents, generally referred to in the note, clearly showed a corporate liability (Washington Mutual and Robertson, supra); and, where the body of the instrument clearly showed that it was solely a corporate obligation (McClellan v. Reynolds, 49 Mo. 312).
In this connection we note that a contract of endorsement is a different and separate contract from that shown on the face of a negotiable instrument. Gross v. Lamme, 77 Nev. 200, 361 P.2d 114; Dewey v. C. I. T. Corp. (Tex.Civ.App.), 374 S.W.2d 298; Davis v. McColl, Mo.App., 184 S.W. 920; 10 C.J.S. Bills and Notes § 217a, pp. 708-709. And in Lamme and Dewey, supra, it is clearly indicated that where liability on an endorsement is involved, the disclosure of the principal must appear in the endorsement itself.
We are not really concerned here with the admission of parol evidence upon a showing of ambiguity. Defendants offered no parol evidence whatsoever, but submitted their case upon the stipulation of facts and the instruments themselves. We are thus required to determine the effect of the endorsements as a matter of law.
*47 No reformation of the instruments has been sought, though such has been granted in some instances, when all requirements were present. See Rudolph Wurlitzer Co. v. Rossmann, 196 Mo.App. 78, 190 S.W. 636, 639. Defendants cite and seem to rely largely upon the case of Finch v. Heeb, Mo. App., 131 S.W.2d 146. We do not consider the case to be applicable here, for the signatures of the individuals sued there as makers appeared under the typed name of their principal, the "Chaffee Lodge No. 735, I. O. O. F.," and the word "Trustees" appeared both above and at the side of their names; the ambiguity supposedly arose from the body of the note which recited that "we as principal, promise to pay * * * ." On the facts of that case we have no quarrel with the ruling admitting parol evidence, if indeed the court did not see fit to direct a verdict for the individual defendants. The name of the principal was disclosed on the face of the note. Some of the discussions there of ambiguity and burden of proof were perhaps unnecessary to the decision. Our situation, depending as it does upon the form of the present endorsements, is wholly different. The two other cases cited by defendants do not really merit discussion. And it is perhaps appropriate to repeat here that defendants did not seek to show the supposed intent of the parties by an offer of parol evidence upon a theory of ambiguity.
We note further that it would appear to have been wholly illogical for the holder of the instruments to require endorsements by the respective corporate makers, when their liability was already firmly established as such makers. Gayle-Blevins Lumber Co., Inc. v. Delhomme, La.App., 159 So. 2d 355; Chesebro, Robbins & Graham, Inc. v. Leadbetter, 19 Conn. Super. Ct. 422, 116 A.2d 578.
No discussion of the burden of proof is necessary. Plaintiff here made a prima facie case of individual liability upon the defendants' endorsements when it introduced the instruments and the stipulation of facts. Defendants thereafter offered no evidence whatever and plaintiff had no further burden, either of procedure or proof. The court could, under these circumstances, do nothing but render judgment for plaintiff. The amount of the judgment, as such, is not disputed here.
The judgment is affirmed.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573655/ | 743 N.W.2d 152 (2007)
2007 WI App 237
STATE of Wisconsin, Plaintiff-Respondent,
v.
Thomas C. BURTON, Defendant-Appellant.
Nos. 2006AP2436-CR, 2006AP2437-CR, 2006AP2438-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs September 12, 2007.
Opinion Filed October 31, 2007.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy A. Provis of Port Washington.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Michael J. Losse, assistant attorney general.
Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.
*153 BROWN, C.J.
¶ 1 Thomas C. Burton appeals his convictions stemming from three shootings in Racine. He objects here, as he did in the trial court, to the testimony of a "gang expert" called by the State. The State called the expert for two stated reasons: to explain why certain witnesses might change their stories between the time of the incident and the trial, and to explain that the shootings might have been motivated by Burton's desire to regain respect that he had lost when one of the shooting victims allegedly robbed him and took his pants. Burton argues that absent evidence that he was himself a gang member, the expert's testimony should not have been allowed. We reverse and remand for a new trial. The expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping.
¶ 2 Thomas Burton was tried on fourteen charges arising from three shootings on three separate days. In one incident, Burton allegedly approached a car in which Phillip Bowens was a passenger and fired several shots into the vehicle, hitting Bowens in the thigh. A few weeks later, Burton allegedly fired a gun at Donnis Jones while the two were standing on a public street in the same neighborhood; a ricocheting bullet hit Jones in the leg. One week later, Burton allegedly fired several shots at unknown persons who may also have been shooting at him; one of the bullets struck a young girl in the thigh.
¶ 3 At the trial, various witnesses to the shootings testified. Some of these witnesses stated that they did not see Burton or did not see him with a gun, though police officers testified that these witnesses had stated to the contrary immediately after the shootings. Donnis Jones testified that he was shot by a young man who had attempted to rob him and that while he did not know the shooter, he was certain that it was not Burton. Jones had earlier told police that he knew the person who shot him as "T" and also that "T" had fired several shots at the house Jones fled to immediately after being shot. The State adduced some testimony to the effect that Bowens had earlier robbed Burton of money and the pants he was wearing. Neither Bowens nor Burton testified.
¶ 4 On the last day of its case-in-chief, the State called Detective William Warmington of the City of Racine Police Department. The State had apparently notified Burton of the broad themes of Warmington's expected testimony, and Burton asked the court to conduct a voir dire outside the presence of the jury to determine whether the testimony would be admissible. The State responded that though Warmington could not classify Burton as a gang member, he would be able to label "some of the other people involved in this trial" as members of the Vice Lords gang. This would be relevant
to put a context on who some of these people are we're dealing with . . . why this culture wants to cooperate with us, why they don't, why their stories are different on the street than when they *154 hit a courtroom. . . . They talk to officers one way and . . . they testify in the courtroom in another way.
¶ 5 The State further argued that the expert could testify "to the intent on why the people did what they did. . . . This goes to the gang retaliation . . . that we're dealing with, goes to Mr. Burton's intent and retaliating against Phillip Bowens for a prior confrontation."
¶ 6 Burton's attorney argued that allowing the expert to identify Bowens or Jones as Vice Lords would "be an impermissible comment on their character" and that it would unfairly reflect on Burton. He further questioned whether it would be helpful to the jury to have an expert testify as to the behaviors of gang members. The court ruled that Warmington could testify, stating that "if there is a motion to bar the witness, it is denied. . . . If the testimony of the witness goes beyond . . . being offered for the purpose of intent as an element or dealing with truthfulness, then I think we're in dangerous territory."
¶ 7 Detective Warmington then took the stand. After describing his credentials and experience, he discussed his interactions with Donnis Jones:
Q Do you remember an opportunity to speak with Mr. Jones regarding the case?
A Yes, I did.
Q And was he cooperative with you?
A No.
Q Did he assist you in the prosecution at all?
A No. He flat out said he didn't want to do anything with it.
Q Did you find that unusual?
A No, I didn't.
Q Why not?
A Based on the area of the shooting, the activity up in that area it's not uncommon for people that are victims or witnesses in shootings to not cooperate or want to have anything to do with the police department.
Q Why don't they want to have anything to do with the police department?
A For some it's fear of retaliation, for others it's they in some way, shape or form participated in something that led to them being shot; they didn't want that to be found.
¶ 8 The State then, over Burton's objection of lack of factual foundation, adduced Warmington's testimony that Jones had "a lot" of police contacts and associated with three known Vice Lords. Then the inquiry shifted back to the issue of gang members' cooperation with police:
Q Now, you indicated that witnesses may not want to cooperate, like Mr. Jones did not want to cooperate with you. Do they use police in certain situations by giving them some information but then withdrawing it or how does that work?
A Well, they use the police a lot of times they get caught in a situation where the police are there and they make a statement, I refer to it as kind of an excited utterance where right after an incident happens they're kind of excited, kind of wound up, they will talk to the police and they will say stuff. Later on down the road they'll try to withdraw those statements or deny that they made them.
Q You said later down the road they will try and withdraw the statements, is that to the police department or to prosecutors?
A Both.
Q Both. Do they usually cooperate when they testify?
A No.
*155 Q Why not, do you know?
A A lot of times it's because they want to settle the issue themselves. Lot of times it's because if they're seen as cooperating . . . they will be referred to as snitches. They will be accused of working for the police department or the DA's office and not only will they lose the respect of their fellow gang members, but they could also face some physical retribution because of that.
The expert later added that an excited utterance is "[u]sually . . . a very truthful statement."
¶ 9 The prosecutor also asked the expert about gang members' views regarding respect:
Q Is it important for them to have respect or how is that an issue?
A Respect is probably one of the biggest things that the gang members whether Vice Lords, Latin Kings, La Familia respect is very high on their needs list.
Q And how would a member lose respect?
A If they were to be publicly embarrassed. If they were to you would call it be disrespected. They could be, you know, disrespected by the police, they can be disrespected by a member of their own gang or by a citizen. And then they would feel the need to gain that respect back.
Q Would that be through retaliation?
A That could be through retaliation, through physical confrontation, a fight, a shooting.
¶ 10 Burton claims on appeal that the admission of "gang expert" testimony violated his due process rights. The State responds that we should not consider Burton's claim because he has waived it in two ways: first, because he made limited contemporaneous objections to the detective's testimony; second, because he made no due process claim before the trial court.
¶ 11 As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury's presence. The circuit court denied Burton the requested voir dire[1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton's intent. Burton was not obliged to restate his objections in the jury's presence and thereby emphasize the testimony he believed prejudicial. See State v. Bergeron, 162 Wis. 2d 521, 527-29, 470 N.W.2d 322 (1991).[2]
¶ 12 As to Burton's failure to raise a due process claim below, though Burton now states his claim in Constitutional language, his argument here is essentially the same as the one he made in the trial court: that Warmington's testimony was highly and unfairly prejudicial and that its probative value was very limited. Though Burton identifies the Constitution as the grounds of his appeal, the line of cases on which he *156 relies deals with evidentiary principles.[3] The State has addressed the same cases and arguments. As the State acknowledges, the rule of waiver is one of administration, not authority. See State v. Moran, 2005 WI 115, ¶ 31, 284 Wis. 2d 24, 700 N.W.2d 884. We see no just reason to avoid addressing Burton's claims.
¶ 13 Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. WIS. STAT. § 904.01 (2005-06).[4] Although evidence may be relevant, it nonetheless may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice. WIS. STAT. § 904.03. Evidentiary determinations are within the trial court's broad discretion and will be reversed only if the trial court's determination represents a prejudicial misuse of discretion. See State v. Lindh, 161 Wis. 2d 324, 348-49, 468 N.W.2d 168 (1991). We will find an erroneous exercise of discretion where a trial court failed to exercise discretion, the facts fail to support the decision, or the trial court applied the wrong legal standard. State v. Black, 2001 WI 31, ¶ 9, 242 Wis. 2d 126, 624 N.W.2d 363. "The exercise of discretion contemplates a process of reasoning based on facts that are of record or that are reasonably derived by inference from the record, and a conclusion based on a logical rationale founded upon proper legal standards." Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).
¶ 14 Burton's central argument on appeal is that Warmington's testimony was squarely barred by State v. Long, 2002 WI App 114, 255 Wis. 2d 729, 647 N.W.2d 884. There, we stated that "[f]or a witness's gang affiliation to be relevant to show bias in favor of [the defendant], the State was required to establish [the defendant]'s gang affiliation." Id., ¶ 19. Long relied on United States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir.2000), which in turn cites United States v. Keys, 899 F.2d 983, 986-87 (10th Cir.1990), for the same proposition. All three cases ultimately descend from United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984). In Abel, the prosecution had adduced testimony that both the defendant and a defense witness belonged to a gang which required its members to "lie, cheat, steal [and] kill" to protect each other. Id. at 47-48, 105 S. Ct. 465. The Court upheld the admission of this testimony under the Federal Rules of Evidence, noting that common membership in such an organization showed that the defense witness "had a powerful motive to slant his testimony towards" the defendant. Id. at 54, 105 S. Ct. 465.[5]
*157 ¶ 15 The State argues that despite any lack of evidence that Burton was in a gang with any witnesses, a "logical extension" of Long can accommodate Warmington's testimony here. The State argues that Bowens' and Jones' gang connections are relevant to show not, as in Long, their bias in favor of the defendant, but rather their "bias against the prosecution." Bias is "the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party." Abel, 469 U.S. at 52, 105 S. Ct. 465. It may be "induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest." Id. The State claims that Warmington's testimony established that gang members, for reasons of fear or self-interest, have a bias against aiding the State. Thus, evidence of Bowens' and Jones' gang association was relevant to show that they, too, have such a bias.
¶ 16 But the State's focus only on Warmington's identification of Bowens and Jones as gang members ignores the much broader reach of Warmington's testimony.[6] Identifying witnesses as gang members may be admissible where there is a tight fit between their gang membership and some specific motivation to be untruthful, as is generally present in common-membership cases. See Abel, 469 U.S. at 47-48, 105 S. Ct. 465. But this is not what Warmington testified to; rather, he spoke in generalities about people "up in that area" not cooperating with the police out of fear of retaliation, or because "they in some way, shape, or form participated in something that led to them being shot." Warmington went on to testify that "witnesses" (here it is unclear whether he is talking about gang members or neighborhood residents) will make "excited utterances" to the police that they later deny.[7]
¶ 17 We agree with Burton that this testimony, whether viewed as going to bias or character for truthfulness, was unfairly prejudicial because it invited the jury to discredit the several witnesses who testified favorably to Burton, either by tarring them with undemonstrated gang affiliation or simply based on the neighborhood in which they live. We see little, if any, probative value in this sort of testimony. Our view of the low worth of such evidence is well summed up in People v. Roberts, 65 Cal. Rptr. 2d 17 (Ct.App.1997):
[Allowing generalized "bias" testimony based on group tendencies] invites a flood of dubious evidence about the motives and characteristics of any number of groups and organizations of which a witness may be a member in order to establish the particular witness was *158 more likely to lieor tell the truthon a given occasion. . . .
The possibilities of such testimony are almost endlessinvolving the characteristics and motivations of various racial, ethnic, professional, and religious groups, as well as organizations as different as the Boy Scouts and the Compton Crips. The law has wisely looked askance at evidence of group tendencies and motives to lieor tell the truthwhen making credibility judgments about individual members of those groups. The relevance of such group tendencies in predicting a witness's credibility on a given occasion is extraordinarily weak. Meantime the potential prejudicein favor of certain groups and organizations and against othersis extraordinarily powerful.
Id. at 22 (Johnson, J., concurring).[8]
¶ 18 We also find objectionable Warmington's testimony that a gang member who had been "publicly embarrassed" would "feel the need to gain that respect back . . . through retaliation, through physical confrontation, a fight, a shooting." Though Warmington did not mention Burton by name, the whole line of questions and answers is obviously intended as support for the prosecution theory that Burton shot Bowens in retaliation for the alleged robbery; indeed, the prosecution explicitly sought to introduce this testimony to show Burton's motive. As Burton points out, the State adduced no evidence that he was in any gang, and thus as a matter of logic, Warmington's testimony about how gang members would feel and act, even if true, was not relevant to show how Burton felt and acted.[9] This alone would be reason to exclude it, but the larger problem is that the testimony encouraged the jury to supply the logical link on its own and to connect Burton with the "gang culture" Warmington described. Burton's trial counsel put it well while arguing that Warmington should be voir dired:
What bothers me is that it is unfair to my client to necessarily lump him in with all of this and to do it in a way that disparages his character. It's one thing to say Mr. Burton was caught up in the subculture that we're dealing with in this trial. It's another thing to label him in a pejorative manner by aligning him to the culture itself. . . . There is a difference between living in the ghetto and creating the ghetto. There is a difference between living among gang members and promoting the gang culture, and that is where they're stepping over the line.
¶ 19 So, of the three aforementioned elements of discretion (inferences derived from facts of record, the exercise of appropriate logic and the use of applicable case law), the trial court's determination failed on each of these three levels. *159 First, Warmington implied that Burton who he admitted was not a gang member was beholden to the gang culture, as were the other witnesses, simply by virtue of the fact that he and the witnesses lived in the same neighborhood as gang members. As we have shown, his conclusion was premised on the unsupported inference that those who live in troubled neighborhoods will conduct themselves like gang members, both on the streets and in the courtroom. The trial court misused its discretion on one level by buying into this defective syllogism and accepting this faulty inference which was not derived from any facts of record. And, on another level, the trial court also demonstrated a faulty exercise of logic by buying into the syllogism. The determination fails on the third level as well. The decision expanded the applicable case law (Long, 255 Wis. 2d 729, ¶ 19, 647 N.W.2d 884) well beyond the reasoning employed in Long and without sound basis to do so. In sum, all three components of the discretionary standard were violated here. As such, it was an erroneous exercise of discretion for the circuit court to admit the testimony. See Ocanas, 70 Wis.2d at 185, 233 N.W.2d 457.
¶ 20 The State nevertheless argues that any error was harmless. See WIS. STAT. §§ 805.18(2), 972.11(1). The State makes two related arguments, the first of which is that the evidence that Burton shot each of the victims was, in the State's view, "overwhelming." On review of the record, we agree that there was a significant amount of testimony to this effect. However, there was no physical evidence specifically linking Burton to the shootings (the gun was never recovered) and there were also several witnesses who contradicted or weakened the State's version of events. That is, of course, one reason the State called Warmingtonto attack the credibility of these accounts of the incidents and thereby bolster the credibility of its own version. We cannot hold that his testimony did not contribute to the guilty verdicts. See State v. Smith, 203 Wis. 2d 288, 301, 553 N.W.2d 824 (Ct.App.1996).
¶ 21 The State's second argument is that there could be no unfair prejudice because "the basic facts of the case, and unfortunately the day-to-day life of many of the jurors, were already so laden with violence." We do not deny that the case involved discussion of a great deal of violence by multiple parties, but the entire point of the trial was to determine whether Burton perpetrated the violence at issue. As to the familiarity of the jurors in this case with violence, it is not exactly clear to us what this has to do with the question of harmless error. We doubt that the jury was so inured to violence as to be completely unconcerned with the alleged or implied gang connections of witnesses or of the defendant.
Judgments reversed and cause remanded.
NOTES
[1] The court stated that it would allow voir dire for a limited purpose related to a separate matter not at issue in this appeal.
[2] The State also argues that Burton "adduced some of the evidence now complained about on appeal." All of the testimony herein discussed was elicited by the State's direct questioning, with the exception of Warmington's testimony that an "excited utterance" is "usually . . . a very truthful statement." Though Warmington made this statement during cross-examination, it was not directly responsive to the question asked: "Excited utterance means basically just saying something in the heat of the moment, right?" This question does not constitute a waiver on Burton's part.
[3] See, e.g., State v. Long, 2002 WI App 114, ¶ 17, 255 Wis. 2d 729, 647 N.W.2d 884 (discussing the "common law of evidence"); United States v. Abel, 469 U.S. 45, 54, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984) (discussing the Federal Rules of Evidence).
[4] All references to the Wisconsin Statutes are to the 2005-06 version.
[5] The State correctly notes that the Court in United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984), did not hold that only where the defendant and a witness belong to the same gang can the State introduce evidence of a witness's gang affiliation to show bias in favor of the defendant. In fact, the defendant's complaint in Abel was not that gang affiliation tarnished the witness in the eyes of the jury; rather, he objected that the jury should not know about his own gang membership. See Abel, 469 U.S. at 53, 105 S. Ct. 465. Nevertheless, State v. Long, 2002 WI App 114, ¶ 19, 255 Wis. 2d 729, 647 N.W.2d 884, stated the broader rule, and Long is binding precedent on this court. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).
The State also attempts to call Long into question by contrasting it to State v. Brewer, 195 Wis. 2d 295, 536 N.W.2d 406 (Ct.App. 1995). The issue in Brewer was not the same as the one in Long. In Brewer, the gang expert was called to testify that the presence of gang graffiti is an indicator of drug dealing. Brewer, 195 Wis.2d at 304, 536 N.W.2d 406. In contrast with this case and Long, the purpose of the evidence in Brewer was not to suggest that the defendant or any witness was in a gang. Contrast Long, 255 Wis. 2d 729, ¶ 14, 647 N.W.2d 884, with Brewer, 195 Wis.2d at 308-09, 536 N.W.2d 406.
[6] As noted above, Jones testified; Bowens did not.
[7] We note that the detective's discussion of the truthfulness of "excited utterances" at the very least veers dangerously close to the prohibition against one witness opining on the truthfulness of another's testimony. See State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct.App.1984). Though Warmington did not name any particular witness, we are not blind to the fact that he was called to discredit the stories of Jones and other witnesses helpful to Burton.
[8] There is no denying the existence of a "no snitching" ethic in some tough neighborhoods, along with a tendency to rely on personal confrontation, rather than police, to solve problems. See Eugene Kane, This Professor's Opinions Have "Street Cred," MILWAUKEE JOURNAL SENTINEL, Oct. 13, 2007 at 3B. The roots of these phenomena are more complex than the simple presence of gangs, however. See id.
[9] The State claims that there was evidence that Burton was "affiliated" with gangs "in the sense of virtually being at war with one Vice Lords chapter over mutual affronts to dignity." But the record cites the State provides are to statements by defense counsel and by the court at pretrial hearings, statements and questions by both parties at pretrial voir dire, and the prosecutor's opening argument. None of these statements or questions constitutes evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573695/ | 17 So. 3d 393 (2009)
STATE ex rel. Robert Dewayne GRANT
v.
STATE of Louisiana.
No. 2008-KH-2482.
Supreme Court of Louisiana.
September 18, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573718/ | 408 S.W.2d 122 (1966)
Charles Edward TAWATER, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 39733.
Court of Criminal Appeals of Texas.
October 5, 1966.
Rehearing Denied November 23, 1966.
Ogg, Merrill & Turner, by Joe E. Turner, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
DICE, Commissioner.
The offense is felony theft; the punishment, enhanced under Art. 63, Vernon's Ann.P.C. by reason of two prior convictions for felonies less than capital, life imprisonment.
Appellant was employed by the prosecuting witness as a handyman and lived on the premises in a trailer house. In his employment appellant was furnished a truck and some cooking utensils.
The prosecuting witness, who was a railroad engineer, left home on a Sunday night and returned the following Friday. Upon his return he noticed that his truck was gone and certain property was missing from his house. Appellant had moved out of the trailer and everything was gone from inside.
The prosecuting witness, after receiving information as to appellant's whereabouts, *123 called the police and accompanied them to a motel, where the officers knocked at a certain cabin. Appellant came to the door and invited them in, saying: "`I know what you all want,'" and that he had the "stuff." The officers then entered the cabin and appellant stated that he had certain property belonging to the prosecuting witness which he had taken from his house, and pointed it out to them. The property consisted of a television set found behind a bed, two rifles found in the bathroom, and an electric skillet. He also stated that he had taken two other television sets, which he had pawned. These two sets were later located at two pawn shops.
After the missing property was found in the cabin, appellant was taken into custody and searched by the officers. In the search a set of keys was found on his person. Appellant identified the keys as belonging to the missing truck and stated that he had abandoned the truck under a highway bridge. The following day the truck was found in storage, having been picked up from under the bridge by a constable.
It was shown by the prosecuting witness's testimony that the property was taken without his permission or consent and that it had a value of over $50.
Proof was made of the two prior convictions of appellant alleged in the indictment for enhancement, the first conviction being for the offense of felony theft and the second conviction being for the offense of embezzlement.
Appellant did not testify or offer any evidence in his behalf.
Appellant predicates his appeal upon one point of error, which, as stated in his brief, is "that he has been denied the right to effective assistance of counsel secured by the sixth amendment to the United States Constitution as applied to the states through the fourteenth amendment."
Such contention was urged by appellant in a twenty-six-page motion for new trial prepared by him, which, although not shown to have been filed in the cause, was heard by the trial judge and overruled.
In the motion, appellant alleged that he was convicted upon illegally-obtained evidence and that his court-appointed counsel acted incompetently in presenting his defense, particularly in failing to have witnesses subpoenaed and in failing to file a motion for continuance, which he requested him to do.
At the hearing on the motion it was shown that appellant was represented at the trial by court-appointed counsel, who was licensed to practice law in the year 1962 and a member, in good standing, of the Texas Bar. He testified that he had represented between fifty and a hundred defendants in felony cases, at least fifteen of which were contested. Approximately six were habitual-criminal cases, some of which resulted in acquittals and one reduced to a misdemeanor conviction. He swore that after his appointment he conferred with appellant on two occasions concerning the merits of the charge and that he recommended that "* * * we attempt to work out a plea." He stated that this was not accomplished and in further talking to appellant it became apparent that his defense was based upon the contention of an illegal search and seizure. With this information he proceeded to research the questions of law pertaining to search and seizure as would be applicable to the case. He swore that appellant stated he had no witnesses but did give him the name of the motel manager whom he did not subpoena after ascertaining that she was not present at the time of the search. He further stated that he felt that appellant's defense had very little merit and that appellant gave him no legal grounds for a continuance that could have been in good faith presented to the court.
*124 Appellant testified at the hearing that in consultation he explained to said attorney that his main defense would be "an illegal arrest" and that he furnished the attorney with a list of witnesses to be subpoenaed and requested that a motion for continuance be filed because more time was needed to prepare his defense.
The record reflects that appellant has been represented by three court-appointed counsel since the original indictment was returned against him.
Recently, in Fletcher v. State, 396 S.W.2d 393, this court held that the constitutional right to counsel does not mean errorless counsel.
In the instant case, appellant's court-appointed counsel made various objections to testimony at the trial and raised as a defense appellant's claim that the evidence presented against him was illegally obtained. The record does not sustain such contention.
All of the statements made by appellant leading to the recovery of the stolen property, except the truck, appear to have been voluntarily made before he was taken into custody. His statement made at the time of his arrest which led to the recovery of the stolen truck was admissible as an oral confession, under the provisions of Art. 727, Vernon's Ann.C.C.P., in force at the time of the trial and conviction. Appellant's arrest without a warrant, when he was found in possession of the stolen property, was lawful. Art. 325, V.A.C.C.P., now Art. 18.22 of the 1965 Code; Ringo v. State, 161 Tex. Crim. 93, 275 S.W.2d 121.
Appellant's claim that he has been denied the effective assistance of counsel is overruled.
The evidence is amply sufficient to sustain the conviction.
The judgment is affirmed.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573686/ | 224 S.W.3d 838 (2007)
In the Matter of M.A.H. and S.J.B., Children.
No. 06-06-00081-CV.
Court of Appeals of Texas, Texarkana.
Submitted April 17, 2007.
Decided May 16, 2007.
Rehearing Overruled June 12, 2007.
Michael E. Jarrett, Bain, Files, Jarrett, Bain & Harrison, PC, Tyler, for appellant.
Brandon Baade, Attorney At Law, Quitman, for appellee.
*839 Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice MOSELEY.
Kerri Hass, the mother of M.A.H. and S.J.B., the two children at bar, appeals from an order granting custody of these children to Judy Thorn, the grandmother of the children.
The record on this matter is rife with uncertainty and confusion. On her appeal, Kerri designated that the record on appeal in cause number 95-248 on the docket in the 402nd Judicial District Court of Wood County, Texas (the case from which this appeal was taken), was to include only documents filed after January 1, 2005. The docket sheet shows cause number 95-248 was originally a divorce action between Kerri Sue Hass and Marcus Wayne Hass. The first pleading or order included in the record is a child support enforcement order involving two other children of Kerri (who have both now attained their majority), who were fathered by a different father from either of the children in this appeal.[1] The initial pleadings filed by Thorn which deal with M.A.H. recite that the District Court of Wood County, Texas, acquired jurisdiction over M.A.H. in cause number 92-234 on the docket of that court, but the cause number on the heading is marked out and cause number 95-248 is handwritten in. A separate petition filed simultaneously by Thorn regarding S.J.B. alleges that no court had previously acquired jurisdiction over that child; the previous docket number assigned to the motion relating to her was likewise marked out and it was also filed in cause number 95-248. The record does not reveal why M.A.H. (whose father is Marcus Wayne Hass) and S.J.B. (whose father is Joseph Michael Baker) are the subject of only one action.
The reporter's record shows that there was a hearing held in this matter January 6, 2006-a hearing attended by Thorn, Thorn's attorney, Marcus, and the attorney ad litem who had been appointed to represent Kerri (who had been cited by publication). Marcus had also filed a waiver of service. This was the only hearing on the merits conducted in this matter. At the outset of that hearing, Thorn's attorney pointed out that the fathers of the children were in agreement with Thorn's course of action and that an order would be circulated among them to be presented to the trial court at a later time. During this hearing, it was indicated by Thorn that she had made numerous unsuccessful attempts to achieve personal service citation upon Kerri and detailed those efforts; she also testified concerning the best interests of the children the subject of the suit, relating that S.J.B. had suffered violence at the hands of Kerri and her boyfriend, with whom she cohabits. At the conclusion of the hearing, the court indicated that it was granting Thorn the relief she had requested. Thorn's attorney indicated that an order needed to be circulated and, after this had been accomplished, would be presented to the court for entry.
On March 13, 2006, a waiver of service was filed by Joseph Michael Baker.
An "Order in Suit to Modify Parent-Child Relationship" (which recited that it was taken on the default of Kerri to appear and that the parties waived the making of a record) was filed June 21, 2006, which recited that a hearing took place on that same date; that order bore the signatures of approval by Marcus and Joseph. However, it appears that no hearing was actually conducted on that date; rather, *840 the evidentiary hearing at which the evidence was developed to sustain the complained-of order was held January 6, 2006, and the wrong hearing date was inserted in the order.
In its order, the court removed Kerri as the managing conservator of both minor children[2] and appointed Thorn as managing conservator and Kerri as possessory conservator of both children. The order went on to require Kerri to pay Thorn child support and provide health insurance for the children; it also gave the sole discretion to Thorn to unilaterally determine the times and circumstances for visitation and/or custody of the children.
Kerri filed a motion for new trial, challenging the diligence employed by Thorn in attempting to achieve personal service citation. After a lengthy hearing, the court determined that due diligence had been attempted in an effort to locate and personally serve notice on Kerri prior to the citation by publication and denied the motion for new trial.
On appeal, Kerri raises several unrelated arguments; Thorn chose to file no responsive brief.
Kerri first argues that the custody order must be reversed because the order states that the parties waived a court reporter.[3] Kerri correctly notes that, in child custody cases, the general rule is that a reporter may only be waived on the agreement of all parties and that, where one party does not appear, waiver of the making of a record by the other party is not sufficient. Stubbs v. Stubbs, 685 S.W.2d 643 (Tex.1985);[4]In re Vega, 10 S.W.3d 720, 722 (Tex.App.-Amarillo 1999, no pet.).[5]
However, we also recognize that, as counsel explicitly acknowledges in his brief, and as reflected by the trial court's docket, no hearing was conducted on June 21, 2006. There can be no error in having no record from a nonexistent hearing.[6] Despite the incorrect recitation in the order that the making of a record was waived, a record was actually made of the hearing on the merits held January 6, 2006; the reporter's record of that hearing was proffered as a part of the record on appeal.
Kerri also argues that the trial court abused its discretion in ordering visitation "on the days and times prescribed" by *841 Thorn. That entire section reads as follows:
The Court finds that credible evidence has been presented that KERRI SUE HASS has a history or pattern of physical abuse directed against [S.J.B.] and [M.A.H.]. IT IS THEREFORE ORDERED that visitation shall be under the supervision of JUDY THORN on the days and times prescribed by JUDY THORN.
The best interest of the child is always the primary consideration in determining issues of conservatorship and possession. TEX. FAM.CODE ANN. § 153.002 (Vernon 2002). With regard to issues of custody, control, possession, child support, and visitation, we give the trial court wide latitude and will reverse the trial court's order only if it appears from the record as a whole that the trial court abused its discretion. In re J.R.D., 169 S.W.3d 740, 743 (Tex.App.-Austin 2005, pet. denied); see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (applying abuse of discretion standard to possession order). Because the trial court is faced with the parties and their witnesses and observes their demeanor, it is in a better position to evaluate what will be in the best interests of the children. J.R.D., 169 S.W.3d at 743; see Garza v. Garza, 217 S.W.3d 538, 552 (Tex.App.-San Antonio, 2006, no pet.) (released for publication Apr. 17, 2007) ("[T]he trial judge is in the best situation to observe the demeanor and personalities of the witnesses and can feel the forces, powers, and influences that cannot be discerned by merely reading the record."); In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.-Dallas 2003, no pet.).
Therefore, in reviewing the substance of the trial court's order, we ask whether the court acted without reference to any guiding rules or principles, i.e., whether the order was arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Peck v. Peck, 172 S.W.3d 26, 33 (Tex.App.-Dallas 2005, pet. denied).[7]
Kerri argues that any ordersuch as the one from which she appealswhich gives one party complete discretion to determine when, where, and if the other party will have visitation with a child is an abuse of discretion because it effectively denies any right to visitation to the other party. This argument finds support in several cases, including controlling authority from this Court.
In Roosth v. Roosth, 889 S.W.2d 445 (Tex.App.-Houston [14th Dist.] 1994, no writ), the court reviewed an order limiting a father's possession of children to times mutually agreed to in advance by the mother and did not state in clear and unambiguous terms what the mother had to do to comply with the judgment. Instead, it gave the mother complete discretion to determine when, where, and if the father could exercise visitation with the children. The court found the ruling that the father's visitation periods would depend solely upon the mother's approval to be an abuse of discretion.[8]
*842 This Court addressed a similar situation in In re A.P.S., 54 S.W.3d 493 (Tex.App.-Texarkana 2001, no pet). As in this case, the appellant argued that the trial court abused its discretion by fashioning an order requiring the consent of the other parent (not setting out the periods of possession and/or access); the reasoning in this argument was that such an order effectively denied her any access to the children because it was at the complete discretion of her former spouse.
In that opinion, reviewing a similar restriction on visitation, we stated that the terms of an order giving one party complete discretion over the other party's access to the children allowed for no enforcement of rights by contempt. As we pointed out, this could on the one hand effectively deny one party access to the children, and on the other hand, also leave her without the remedy of contempt against the other party.
We went on to note that the record as it had been developed did not show that the complete denial of access to the children was not supported under that record or under the court's order. As in that case, in this case the trial court's appointment of Kerri as a possessory conservator[9] implies that any threat she poses to the children can be remedied by restricted access to or possession of the children. Counsel does not contest the sufficiency of the evidence to indicate that Kerri would pose some danger to the children if she were given unrestricted possession; however, complete denial of access was not warranted under the paucity of facts presented at the time of trial and, from an examination of the order, was not intended by the trial court. This is not to say that, if the evidence were to be developed to justify it, the court could not completely deny access to the children or that the court could not define extremely limited access if it were to define that access in such a fashion that it could be enforced by an action for contempt.
In reaching this conclusion, we noted, but disagreed with, the Houston First District Court of Appeals' decision in In re R.D.Y., 51 S.W.3d 314 (Tex.App.-Houston [1st Dist.] 2001), pet. denied, 92 S.W.3d 433 (Tex.2002). In that opinion, the trial court named a father, mother, and grandmother joint managing conservators of R.D.Y. The grandmother was given the right to determine the residence of the child and was allowed "sole discretion" to determine if the mother was "mentally and physically capable of properly exercising her visitation with the child." R.D.Y., 51 S.W.3d at 323 n. 1. The court of appeals upheld the trial court's order and based its decision on the fact that a judge has discretion to place conditions on the mother's visitation. Id. at 322-23.
As we recognized in A.P.S., the two cases cited by the Houston court as authority in support of its conclusion were not applicable; neither of the cases upheld an order allowing one conservator complete discretion over another conservator's visitation. See Capello v. Capello, 922 S.W.2d 218, 220 (Tex.App.-San Antonio 1996, no writ) (allowing only appellant's parents or siblings to transport child to and from visitation was not an abuse of discretion); see also Thompson, 827 S.W.2d at 570 (trial court abused its discretion *843 by ordering that appellant be given access to children only at times mutually agreed on between conservators during the summer months of the year).
Thus, we disagreed with the Houston court's decision and concluded that giving total discretion, unenforceable by contempt, to one conservator could effectively completely deny the other conservator access to the children.[10]
This case raises the same problem and is effectively in the same posture as we addressed in our opinion in A.P.S. We see no reason to alter our reasoning and will apply the law as previously explained by this Court. Because the order in the present case could effectively deny Kerri access to the children, because complete denial was not shown at the hearing on the merits held January 6, 2006, to be in the children's best interests, and because Thorn did not show sufficiently good cause at that hearing why specific orders were inappropriate, the trial court is required to fashion an order that specifically articulates the times and conditions of Kerri's access to the children or, alternatively (should there be sufficient evidence provided which would justify it), completely bar access and visitation by Kerri.
We affirm the judgment of the trial court in part and reverse and remand the case in part with the instruction that the trial court either construct a specific custody order that articulates the times and conditions of Kerri's access to the children or, should the facts sustain such a decision, completely bar her from access to the children.
NOTES
[1] There is no further mention of these other children of Kerri in the record.
[2] There is no record of any conservator having previously been appointed for S.J.B. by any court at any time.
[3] She does not raise the lack of a written record of the evidence signed by the judge and filed with the record, as required by Rule 244 of the Texas Rules of Civil Procedure. See TEX.R. CIV. P. 244; Montgomery v. R.E.C. Interests, Inc., 130 S.W.3d 444 (Tex.App.-Texarkana 2004, no pet.). No issue concerning this having been raised, we consider it waived.
[4] The record context is provided more clearly by the underlying court of appeals' decision in Stubbs v. Stubbs, 671 S.W.2d 70 (Tex.App.-Dallas 1984), aff'd, 685 S.W.2d 643 (Tex. 1985).
[5] See TEX. FAM.CODE ANN. art. 105.003 (Vernon 2002).
[6] Counsel suggests briefly that the judgment on its face is erroneous because it states that the trial court heard the case June 21, 2006, rather than January 6, 2006the hearing on custody on which a record is before this Court. At the end of that proceeding, the trial judge directed counsel to provide an order on custody for his signature. That was ultimately done, and signed June 21, 2006. Even though counsel is correct in stating that the hearing did not occur on June 21, a clerical error of this nature is not one that would justify reversal of the judgment. See TEX. R.App. P. 44.1.
[7] The trial court has discretion to determine the possessory conservator's access to the children. In re Walters, 39 S.W.3d 280, 285-86 (Tex.App.-Texarkana 2001, no pet.); Thompson v. Thompson, 827 S.W.2d 563, 566 (Tex.App.-Corpus Christi 1992, writ denied). Under this abuse-of-discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are merely relevant factors in assessing whether a trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.); In re Tucker, 96 S.W.3d 662, 664-65 (Tex.App.-Texarkana 2003, no pet.).
[8] The court did note that there was no evidence that visitation with appellant would endanger the physical or emotional welfare of the children. There is also no such finding in this case, although the order specifically notes that there was evidence of physical abuse. See Wright v. Wentzel, 749 S.W.2d 228 (Tex. App.-Houston [1st Dist.] 1988, no writ).
[9] In an order appointing a parent as possessory conservator, the trial court must specifically state the times and conditions for possession of or access to the children unless a party shows good cause why specific orders would not be in the children's best interests. TEX. FAM.CODE ANN. § 153.006(c) (Vernon 2002).
[10] Recognizing the split in appellate authority, three justices on the Texas Supreme Court authored an opinion dissenting from the denial of the petition for review. R.D.Y., 92 S.W.3d 433. Thus, the matter remains in flux. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573758/ | 17 So. 3d 693 (2009)
Alexander N. BENSON
v.
STATE of Alabama.
CR-07-1530.
Court of Criminal Appeals of Alabama.
February 27, 2009.
*694 Regina Eng, Montgomery, for appellant.
Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
WISE, Presiding Judge.
On February 28, 2008, the appellant, Alexander N. Benson, pled guilty to second-degree receiving stolen property. On March 24, 2008, the trial court sentenced him to serve a term of 31 months in prison, but suspended the sentence and ordered him to serve 24 months on supervised probation. In April 2008, revocation proceedings were initiated. After conducting a hearing, the circuit court revoked Benson's probation. This appeal followed.
Benson argues that the circuit court erroneously revoked his probation based on conduct that occurred before he was placed on probation. In Ex parte Abrams, 3 So. 3d 819 (Ala.2008), the Alabama Supreme Court held that a defendant's probation could not be revoked based on conduct that occurred before he was placed on probation. See also Rutledge v. State, 512 So. 2d 824 (Ala.Crim. App.1987). During the revocation hearing, the following occurred:
"THE COURT: Let me go over the charge in the delinquency with you. You will be given an opportunity to admit or deny the charge and we'll go from there. There is one charge and that is that you violated your probation in that you used marijuana. It says here I put you on probation on March 24 and that you were arrested on an old case in April and you were tested and tested positive for marijuana. Do you admit or deny that you used marijuana in violation of your probation?
"MR. BENSON: Yeah, I admit it, but I hadn't had time to be clean, you know.
"[DEFENSE COUNSEL]: He was arrested 15 days after he was placed on probation.
"THE COURT: Well, unless I'm adding wrong, that means that he was smoking dope between the time that
"[DEFENSE COUNSEL]: While he was on bond.
"THE COURT: Yeah. Between the time that he pled guilty and the time that he was sentenced.
"[DEFENSE COUNSEL]: Yeah.
"THE COURT: Which if I had known that, I wouldn't have ever given him probation, because I just can't deal with people that just keep on smoking dope.
"I find that you violated your probation in that you smoked marijuana, revoke your probation, order that you serve 31 months in the penitentiary."
(R. 3-4.) Further, in its written revocation order, the circuit court found as follows:[1]
*695 "This matter is before the Court upon a written Supervisor's Report on Delinquent Probationer. The Defendant was present in Court with counsel, Hon. D. Wayne Perdue, for probation revocation hearing.
"The Court finds that the Defendant had sufficient notice and understanding of the charges against him.
"Upon consideration of the evidence and testimony presented in open Court and the written report from the Probation Officer, the Court makes the following findings:
"1. Defendant failed to avoid injurious and vicious habits by using marijuana in violation of a condition of his probation and Defendant admitted this violation.
"Based on the admission of the Defendant, this Court is reasonably satisfied that the Defendant has violated the terms and conditions of his probation."
(C.R. 23.)
In this case, the circuit court specifically stated that it was revoking Benson's probation on the ground that he had used marijuana. However, based on the statements of defense counsel and Benson, Benson used marijuana before he was sentenced and placed on probation.[2] Also, the State did not offer any additional evidence to show that Benson had used marijuana after he was placed on probation. Therefore, the circuit court erroneously revoked his probation on the ground that he had used marijuana. See Ex parte Abrams, supra; Rutledge, supra. Accordingly, we reverse the circuit court's judgment and remand this case for that court to set aside its order revoking Benson's probation.
REVERSED AND REMANDED.
WELCH, WINDOM, and KELLUM, JJ., concur.
NOTES
[1] The State argues that Benson did not properly preserve this issue for our review because he did not specifically present this argument to the circuit court. However, the comments of Benson and defense counsel clearly put the court on notice that it was dealing with conduct that occurred before he had been placed on probation. In fact, the court's own comments indicate that it was aware that the conduct occurred before Benson was placed on probation. Therefore, this was adequate to preserve this issue for our review. See Abrams, supra.
[2] The State argues that this case is distinguishable from Abrams because the drug test in this case was administered after Benson had been placed on probation. Initially, we note that the circuit court did not revoke Benson's probation on the ground that he had had a positive drug test. Rather, it revoked Benson's probation solely on the ground that he had used marijuana. Additionally, in Abrams, the Alabama Supreme Court stated,
"We decline to view the subsequent generation of a laboratory report by a third party dealing with activity that clearly predated Abrams's sentence of probation on the sexual-abuse conviction as an act attributable to Abrams occurring after the sentencing that constitutes a violation of his probation as to that conviction."
Abrams, 3 So.3d at 824. Therefore, it appears that the positive drug screen in this case, even though it was administered after Benson was placed on probation, could not be used as the sole evidence to revoke Benson's probation because it was the result of conduct that occurred before he was placed on probation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584998/ | 187 P.3d 678 (2008)
2008-NMCERT-005
GRASSIE
v.
ROSWELL HOSP.
No. 31,079 (COA 28,050).
Supreme Court of New Mexico.
May 28, 2008.
Writ Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/236939/ | 223 F.2d 338
UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA (UE), LOCAL 1113, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 12114.
United States Court of Appeals District of Columbia Circuit.
Argued February 4, 1955.
Decided May 26, 1955.
Mr. Basil R. Pollitt, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for petitioner.
Miss Fannie M. Boyls, Atty., National Labor Relations Board, of the bar of the Supreme Court of Texas, pro hac vice, by special leave of Court, with whom Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, was on the brief, for respondent. Mr. A. Norman Somers, Asst. Gen. Counsel, National Labor Relations Board, and Mr. Robert G. Johnson, Atty., National Labor Relations Board, also entered appearances for respondent.
Messrs. Arthur J. Goldberg and David E. Feller, Washington, D. C., filed a brief on behalf of Congress of Industrial Organizations, as amicus curiae.
Before PRETTYMAN, DANAHER and BASTIAN, Circuit Judges.
PRETTYMAN, Circuit Judge.
1
United Electrical, Radio and Machine Workers of America, Local 1113, which we shall call UE, filed with the National Labor Relations Board charges against the Marathon Electric Manufacturing Corporation, which we shall call the Company, alleging violations of several subparagraphs of Section 8 of the National Labor Relations Act as amended.1 The Board found in favor of the Union in some respects, not now involved, and found that a preponderance of the evidence did not sustain the charges in other respects. These latter portions of the findings and order are the subject matter of the present petition.
2
UE had been the recognized bargaining representative of the Company's employees for more than fifteen years prior to 1952. The last contract entered into by it with the Company was effective July 31, 1951, for a one-year term. The contract contained, inter alia, a unionshop clause, a grievance and arbitration clause, and a no-strike, no-lockout clause. The latter provided in part that "In view of the orderly procedure outlined in this agreement, the Union will not authorize or sanction any strike, stoppage, slowdown, or restriction of out-put * * *. In case [of] any such action * * * any or all of the employees taking part will be subject to discipline or discharge."
3
A dispute over a general wage increase occurred. In the midst of it, on February 28, 1952, UE officers and stewards called a meeting of the full membership of the Union for two o'clock that afternoon. They notified all employees at work and made several announcements over the local radio station. Sharply at two o'clock all of the 446 employees in the plant, except one watchman, stopped work, walked out, and with few exceptions went to the meeting. No prior strike notice had been given the Federal Mediation and Conciliation Service, and the only basis in the record for a claim of notice to the Company is in a telephone conversation between a Union officer and a Company officer one hour before the walkout. The plant employees were given no indication by the Union officers and stewards as to how long the walkout would last or when they would return to work. Neither was the Company given any such information. About thirty minutes after the walkout the manager of the plant directed that the various gates be closed and locked. Some twenty out of forty-nine second-shift employees, due to start work at three o'clock, appeared in the vicinity of the plant. They were advised by their stewards of the Union meeting then in progress. Practically all of those who had come to the plant went on to the meeting. The meeting was occupied with discussion of various features of a strike. At about three o'clock a steward arrived, asked for a point of order, was immediately recognized, and announced, "The gates are now officially locked." After this announcement and some further discussion the chairman directed the employees to report for work at their regular times and to continue to report until told otherwise.
4
The next day, February 29th, the Company sent to every employee on its current payroll a letter, which stated in part:
5
"Since the action taken by the Union and its members Thursday afternoon was the second such violation resulting from irresponsible leadership, the Company has no alternative but to consider that all participants have forfeited any rights as employees and are accordingly being removed from the Company payroll."2
6
The following Monday, March 3rd, the Company advertised by newspaper and radio for employees, and on March 5th sent another letter to all employees (except Union officials) who had been on its payroll, urging them to reenter Company employ. That same day the Company sent UE a letter saying in part:
7
"We hereby notify you that because of the breach of our contract with you dated July 31, 1951, we hereby cancel the contract.
8
"All employees who have taken part in the strike are discharged under Article XII section 3 of the contract.
9
"Therefore, you no longer represent a majority of our employees and we cannot continue to recognize you as a Bargaining agent for our employees."
10
Beginning March 27th a series of demands for bargaining were made upon the Company by UE. The Company did not respond to these requests.
11
* UE says the Company violated the Act by terminating the contract. The Board found the walkout was a breach of the contract3 and concluded that the subsequent cancellation by the Company was justified and not a violation of the statute. Of course, if the breach ipso facto terminated the contract, UE has no support for its contention respecting termination by the Company. But in order to consider the contention we will assume arguendo that the breach by UE was not in itself a complete termination of the contract; that is, we will assume that after the breach the Company elected to rescind and thereupon formally terminated the agreement.
12
It is general law that one party to a contract need not perform if the other party refuses in a material respect to do so.4 And that rule applies to labor contracts.5 Moreover, in cases where the breach is a strike in violation of a collective bargaining agreement, as in the instant case, application of the rule is supported by the rationale underlying such agreements. The prevention of strikes is one of the principal purposes of labor contracts and of the Act.6 A no-strike provision is "The chief advantage which an employer can reasonably expect from a collective labor agreement".7 The walkout was a material breach which justified the subsequent rescission of the contract by the Company.
13
UE makes an argument that the Company's termination of the contract was illegal because contrary to the provisions of Sections 8(a) (5) and 8(d) of the Act. Section 8(a) (5) says that it shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees. Section 8(d) is the section which defines collective bargaining, and it further provides, inter alia, that a collective bargaining agreement shall not be terminated unless the party desiring such termination (1) gives the other party to the contract sixty days prior notice, (2) gives the Federal Mediation Service thirty days prior notice, (3) offers to confer with the other party for the purpose of negotiating a new contract, and (4) continues the contract in full force and effect without resorting to strike or lockout for sixty days after the notice to the other party. The major premise of UE's argument is that "The Employer's action purporting to terminate the agreement was a refusal to bargain under the Act." But UE itself had violated Section 8(d) and so had refused to bargain collectively. The Section provides that "the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification" meets the conditions of the Section.
14
A binding contract was in existence. UE, not the Company, was desiring modification of the existing contract. The contract provided for a wage increase of five cents an hour. There was a further provision for an additional increase of four cents an hour "if permitted by government policy". An increase of seven cents an hour was put into effect by the Company. A joint petition was filed with the Wage Stabilization Board, seeking approval of the remaining two-cent increase. That petition was withdrawn by UE prior to decision by that Board. Thereafter UE took the position that the remaining two cents should be put into effect in the form of fringe benefits. In taking that position UE sought to modify the existing contract. In attempting thus to modify the contract by its demands upon the Company, UE was required to comply with the Section. It complied with none of the provisions of the Section. By not complying it was refusing to bargain collectively within the definition of the Section. This refusal occurred before the alleged refusal of the Company. As we shall see in a moment, under further provisions of Section 8(d) the employees who engaged in the strike without complying with the sixty-day notice requirement lost their status as employees. Under the foregoing conditions it seems clear that the employer was not required to comply with the provisions of Section 8(d). To hold otherwise would mean that one party could flatly refuse to comply with these provisions but at the same time demand for himself all the benefits of the Section.
II
15
The next point concerns the discharge of employees consequent to the strike. The point divides itself into two questions: (1) Did the Company violate the Act when it discharged the strike participants?8 (2) Did the Company discharge non-participants and thereby violate the Act?
16
1. UE urges that the employees who participated in the strike were discharged because of their Union membership and therefore the Company violated Sections 8(a) (1) and 8(a) (3) of the statute. It concedes that, had the Company discharged these employees because of their participation in the breach of the contract, the discharges would not have been in violation of the statute.9 But it contends the discharges were part and parcel of the Company's prior decision to abandon the contract and were not predicated upon the strike. The evidence does not support the contention. Moreover Section 8(d) of the Act specifically provides that "Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee". This strike was within the sixty-day period, and so the participants immediately thereupon lost their status as employees. Section 8(a) (1) refers to "employees", that is, to persons with "status" as employees. Having lost such status the participants were no longer protected by that Section.
17
Section 8(a) (3) makes it an unfair labor practice for an employer to discourage membership in a union by discriminating in respect to hire or tenure of employment. It makes no express requirement that the discrimination be directed to employees, and the Supreme Court has held10 the prohibition to apply to applicants for employment. But this case does not concern hire or tenure; it concerns discharges. The position of UE on the point is not clear, but it seems to rest upon the same premise as does its argument in respect to Section 8(a) (1), supra, and here again the evidence fails to support the contention. The Board's conclusion in respect to it seems to us well grounded in the record.
18
2. The Company's notices of discharge were addressed to "participants" in the strike. Disputes arose before the Board as to whether certain employees, not present at the plant at the time the strike was initiated, were or were not participants. These employees were all members of the Union. The strike was called by the Union at a meeting which every member was entitled to attend, and the strike action received the complete support of every member present. Each of these employees received the Company's letter of February 29th, informing him that "participants" in the strike would be considered to have forfeited any rights as employees. No employee took any steps to indicate that he was not a participant. He had a right to claim and to establish that he was a non-participant. By choosing to remain silent and taking no steps to disavow the action of their agent, despite the invitation from the Company to take such steps, these employees were found by the Board to have acquiesced in, ratified, and become parties to their agent's action. The question was one of fact, and there was evidence on the record as a whole to support the Board's conclusion. We find no merit in UE's argument that the Board's decision on this phase of the case rested upon an inference of guilt from union membership. The record supports a finding of ratification of the illegal strike activity as a factual matter.
III
19
The next point concerns employees who were at the time of the strike in a lay-off status. The contract between the Company and UE accorded laid-off employees a priority in filling vacancies. The Company did not accord these people this priority but rather notified them that they might secure employment by applying as new employees. UE says the Company took this course in order to discourage union membership and thus violated Section 8(a) (3) of the statute. The Company says its course was motivated entirely by the fact that the contract had been terminated. The Board found no evidence in the record to rebut the contention of the Company and therefore concluded the failure to recall these employees was not shown to have been discriminatorily motivated.
20
UE says the Company had a policy, apart from the contract, of seeking out and reemploying former employees. And it says the uneconomic departure from this normal practice demonstrates the sole motive to have been discouragement of union membership. It buttresses this argument by stressing the fact that the advertisement for new workers was issued two days before the formal rescission of the contract. The Board found no evidence to show a practice and policy on the part of the Company. And it found the evidence failed to make out a motivation of discrimination. We find no sufficient basis to disturb these conclusions, matters peculiarly within the area confided to the Board and its function as fact-finder. While there was a bit of evidence indicating a practice apart from the contract, it was a very minute bit; the matter was clearly controlled by the contract, and the contract had been breached by the Union, the representative of all the employees, and was in process of being formally terminated. It seems to us the Board was correct in its view that the contractual rights of these employees could not survive the breach of the contract by the Union, and its evaluation of the evidence was accurate.
IV
21
The next point concerns the refusal of the Company to bargain with UE after the strike had been called. As to such a refusal on February 28th, the Board reasoned that, even if UE was still the bargaining representative of the employees, the Company was under no obligation to bargain in the absence of notification that the illegal strike had been terminated. This has been the policy of the Board.11 In the Times Publishing Company case12 the Board held that a union's refusal to bargain in good faith may remove the possibility of negotiation and thus preclude a finding of a violation by an employer of his duty to bargain. The Report of the House Committee specifically cited that case as obviously correct.13 As we have indicated, when UE, seeking modification of an existing contract by proposing wage adjustments into the agreed scale, called a strike in flat violation of the contract and of the explicit terms of Section 8(d) of the Act, it was guilty of failure to bargain in good faith as that term is defined in Section 8(d). The statute has in it many provisions valuable to labor organizations, and protects them in the exercise of their rights, but it does not give them authority to violate the Act wantonly and at the same time to insist upon full measure of the privileges afforded them when proceeding properly. The Board found that on February 28th the Company had no notice of the termination of the strike. That finding is supported by the record and properly leads to the conclusion that the Company did not violate the Act in refusing to bargain with UE on that date.
22
After February 28th UE made no further efforts to bargain until March 27th. An overture on that date was rejected by the Company, as were all others subsequent thereto. The Board concluded that on those occasions there were no violations of the statute, if UE no longer represented a substantial and representative segment of the Company's normal working force. That rule is well established14 and is not attacked here. UE urges that it did represent a substantial number of the employees at the times involved. But, as we have pointed out, except for four individuals not here involved the persons whom UE represented at these later dates were no longer employees of the Company. We agree with the conclusion of the Board that the Company was under no obligation to bargain with UE on these occasions.
V
23
The final question is whether the Company violated the Act by locking the gates to the plant. The Board found that the decision to close the plant was motivated by economic considerations. UE urges that the action was motivated by discriminatory reasons. The record indicates that at the time of the lockout the Company did not know how long the strike would last. In addition the evidence tended to show that it would not have been economically sound to operate the plant with the second and third shifts alone. The Board's finding is supported by the record as a whole.
24
Affirmed.
Notes:
1
61 Stat. 136 (1947), 29 U.S.C.A. § 151 et seq
2
The expression "second such violation" was a reference to a strike called by UE in July, 1946, which lasted five or six weeks
3
In its Decision and Order the Board stated, "The Trial Examiner found, and the General Counsel concedes, that the * * * walkout was unprotected [by the Act] because it was in breach of the contract". In the present appeal UE makes no argument to the contrary. We agree with that finding
4
5 Williston, Contracts §§ 1455, 1467 (Rev. ed. 1947); Restatement, Contracts § 397 (1932)
5
Boeing Airplane Co. v. Aeronautical Industrial District Lodge No. 751, International Ass'n of Machinists, 9 Cir., 1951, 188 F.2d 356, certiorari denied, 1951, 342 U.S. 821, 72 S.Ct. 39, 96 L.Ed. 621; United Biscuit Co. v. National Labor Relations Board, 7 Cir., 1942, 128 F.2d 771, 775; Boeing Airplane Co. v. National Labor Relations Bd., D.C.Cir., 1949, 85 U.S. App.D.C. 116, 174 F.2d 988
6
S.Rep.No. 105, 80th Cong., 1st Sess. 15-16 (1947); Sec. 1, National Labor Relations Act, 49 Stat. 449 (1935), as amended, 61 Stat. 136 (1947), 29 U.S.C.A. § 151
7
S.Rep.No. 105, 80th Cong., 1st Sess. 16 (1947)
8
There was no issue before the Board respecting the discharges of the first-shift employees, who actually walked off the job to attend the meeting of the Union. We are therefore concerned only with those employees who can properly be classed as participants in the strike even though not among those who in fact walked off the job
9
See National Labor Relations Board v. Sands Mfg. Co., 1939, 306 U.S. 332, 344, 59 S.Ct. 508, 83 L.Ed. 682
10
Phelps Dodge Corp. v. National Labor Relations Board, 1941, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271
11
Higgins, Inc., 90 N.L.R.B. 184 (1950); United Elastic Corporation, 84 N.L.R.B. 768 (1949); Dorsey Trailers, Inc., 80 N. L.R.B. 478 (1948), affirmed in relevant part, 5 Cir., 1950, 179 F.2d 589; Charles E. Reed & Co., 76 N.L.R.B. 548 (1948)
12
72 N.L.R.B. 676 (1947)
13
H.R.Rep.No. 245, 80th Cong., 1st Sess. 27 (1947)
14
J. I. Case Co. v. National Labor Relations Board, 1944, 321 U.S. 332, 337, 64 S.Ct. 576, 88 L.Ed. 762; National Labor Relations Board v. Sands Mfg. Co., supra, note 9; National Labor Relations Board v. Fansteel Metallurgical Corp., 1939, 306 U.S. 240, 262, 59 S.Ct. 490, 83 L.Ed. 627 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1917982/ | 101 B.R. 836 (1989)
In re Gary J. MacDONALD and Christina F. MacDonald, Debtors.
Maurice M. CAHILLANE, Trustee, Plaintiff,
v.
Gary J. MacDONALD and Christina F. MacDonald, Defendants.
Maurice M. CAHILLANE, Trustee, Plaintiff,
v.
Gary J. MacDONALD, Earl MacDonald, Greg MacDonald, Linda MacDonald and Spectrum Wire Corporation, Defendants.
Bankruptcy No. 87-40365-JFQ, Adv. Nos. 88-4003, 88-4022.
United States Bankruptcy Court, D. Massachusetts.
June 15, 1989.
*837 Maurice M. Cahillane, Egan, Flanagan & Egan, Springfield, Mass., trustee.
Joseph Reinhardt, Hendel, Collins & Newton, Springfield, Mass., for MacDonalds debtors/defendants.
Darragh K. Kasakoff, Seder & Chandler, Worcester, Mass., for Earl MacDonald, Greg MacDonald, Linda MacDonald and Spectrum Wire Corp./defendants.
OPINION
JAMES F. QUEENAN, Jr., Bankruptcy Judge.
I. GENERAL FACTUAL OUTLINE
In these two adversary proceedings, Maurice M. Cahillane, the trustee in bankruptcy (the "Trustee"), asserts that the capital stock of Spectrum Wire Corporation ("Spectrum") is beneficially owned by the *838 Chapter 7 debtor, Gary J. MacDonald (the "Debtor"), either singly or jointly with his co-debtor wife. In No. 88-4003 the Trustee seeks an order denying both debtors a discharge in bankruptcy by reason of their having concealed property of the estate within the meaning of 11 U.S.C.S. § 727(a)(2) (Law Co-op.1987 and Supp. 1988). In No. 88-4022 the Trustee seeks turnover to the estate of the stock certificates of Spectrum standing in the name of the Debtor's father, Earl MacDonald, and the Debtor's brother, Greg MacDonald. Set forth here are the Court's findings of fact and rulings of law following a consolidated trial of both adversary proceedings.
For many years, the Debtor held various sales management positions with American Saw & Manufacturing Co., while at the same time successfully investing in real estate on a part-time basis. He usually took title to properties under the name Multiplex Realty, an unincorporated sole proprietorship, and eventually formed a real estate management corporation, Spectrum Management, Inc. In late 1984 he left the saw company and purchased all of the capital stock of State Wire & Cable Corp. ("State Wire") in a $2.4 million leveraged buyout in which he and his wife took joint title to 100 of the corporation's outstanding shares and State Wire redeemed the remaining 900 shares. The sale was made largely on credit through promissory notes payable to the selling stockholders, William and Charlotte Ford (the "Fords"); payment of State Wire's note was guaranteed by the Debtor. He thereafter devoted most of his time to the management of State Wire, serving as its president. His brother, the defendant Greg MacDonald, was the corporation's sales manager. His father, Earl MacDonald, had retired in 1979 from his employment of thirty-four years with J.C. Tarbell Co., a division of Chrysler Corporation. The father held no office in State Wire, but worked for it on a part-time basis taking care of the grounds and performing errands. Bay Bank Valley Trust Company ("Bay Bank") was the corporation's principal lender under a revolving loan arrangement guaranteed by the Debtor and granting Bay Bank a security interest in State Wire's equipment, inventory, receivables and other property. Bay Bank also held a mortgage on the corporation's plant owned by the Debtor through a trust. After the purchase, State Wire's sales increased sharply, mostly from the manufacture and sale of wire for the building industry; its other sales were evenly divided between thermostat wire and telephone wire. The operating results quickly changed from a profit to a loss, largely because of losses in the sales of building wire, which has a highly competitive market.
Defaults arose under the obligations owed Bay Bank and the Fords. In December of 1985, just a year after the purchase, State Wire was forced to accede to Bay Bank's security rights by surrendering possession of all its assets to the bank in lieu of an involuntary foreclosure. Spectrum played a role in this arrangement. On December 19, 1985 articles of organization were signed incorporating Spectrum and naming Earl MacDonald, the Debtor's father, as its president, treasurer, clerk and sole director. The only stock issued at that time was 120 shares of Class A voting stock issued to the father. Spectrum and Bay Bank then entered into an arrangement whereby Spectrum agreed to act as the bank's foreclosure agent to complete work in process and pending contracts, and to wind down all of State Wire's operations.
By March of 1986 Spectrum's role as the bank's foreclosure agent was largely completed. Spectrum then commenced its own wire manufacturing operations, using the same plant owned by the Debtor and the equipment which the bank had repossessed. Spectrum paid rent on the equipment to Bay Bank and rent on the real estate to the Debtor through making the monthly payments due Bay Bank under his mortgage. The sum of $198,800 was obtained from the Debtor's father, Earl MacDonald, who advanced that amount in March of 1986 as a loan, having paid $1,200 the previous December for 120 shares of stock. Of the total $200,000, $37,500 was treated as a capital contribution for which 1000 shares *839 of Class A voting stock were issued, and $162,500 was treated as a loan. In April of 1986 the Debtor's brother Greg furnished $70,000 to Spectrum, receiving 100 shares of Class A voting stock for a $16,250 capital contribution and a note for the balance of the funds. Those were the only shares issued, and they remain outstanding. Spectrum prospered, concentrating on sales of profitable thermostat wire and telephone wire. The Debtor directed its operations, as he had previously directed those of State Wire, and his father continued to perform the same type of odd jobs on a part-time basis that he had performed for State Wire. On September 26, 1986 the Debtor replaced his father as president, and the Debtor's mother replaced his father as treasurer. At the same time, the number on the board was increased to three, with the Debtor and his brother joining their father as directors.
On December 30, 1986 an agreement was reached among Bay Bank, State Wire, Spectrum and the Debtor whereby (i) Bay Bank sold the surrendered equipment and the remaining surrendered inventory to Spectrum, (ii) the Debtor released Bay Bank of a lender liability claim which he had been espousing, (iii) the Debtor gave Bay Bank a $90,000 note secured by a mortgage on his home, and (iv) Bay Bank released the Debtor from a potential deficiency liability of some $500,000 under his guaranty of State Wire's indebtedness. The Debtor remained liable to the Fords under his guaranty of payment of the purchase price for their capital stock of State Wire. The Fords sued him for $1 million, obtaining an attachment on his home. On July 6, 1987 the Debtor and his wife filed a joint petition in this Court requesting a discharge of their debts under Chapter 7 of the Bankruptcy Code. Their schedules filed with the petition listed no ownership interest in Spectrum. The principal liabilities listed were the $1 million disputed claim of the Fords and millions of dollars in disputed "transferee liability" concerning trade debt of State Wire.
The foregoing sets forth the Court's findings of fact in general outline. Additional findings appear with the discussion of applicable legal principles.
II. THE BANKRUPTCY ESTATE AND EQUITABLE PROPERTY INTERESTS
A. Resulting or Constructive Trusts
The Trustee contends that at the time of the bankruptcy filing the Debtor was the beneficial or equitable owner of all of the outstanding capital stock of Spectrum. The bankruptcy estate of course includes any non-exempt equitable property interests owned by the Debtor at the commencment of the case. 11 U.S.C.S. § 541 (Law Co-op.1986 and Supp.1988).
The Trustee does not specify the legal theory under which he says that beneficial ownership of Spectrum resides in the Debtor. The Spectrum shares cannot be regarded as held by the father or brother in resulting trust for the Debtor. A resulting trust can exist only in one of three circumstances, none of which is present here: (i) where property is purchased and the one furnishing the consideration directs that title be taken in the name of another; (ii) where an express trust is fully performed without exhausting the trust estate, and (iii) where an express trust fails in whole or in part. Restatement (Second) of Trusts, ch. 12 gen. prin. (1957); Meskell v. Meskell, 355 Mass. 148, 243 N.E.2d 804 (1969) (resulting or constructive trust denied in real estate; statute of frauds prevented creation of express trust). See generally, Checovich v. Checovich, 339 Mass. 71, 157 N.E.2d 643 (1959) (son deemed to hold real estate under resulting trust for benefit of father who furnished consideration); McPherson v. McPherson, 337 Mass. 611, 150 N.E.2d 727 (1958) (general rule that resulting trust arises for benefit of party furnishing consideration subject to qualification that where transferee is that party's wife a gift is presumed to be intended); In re Snider Bros., Inc., 12 B.R. 87 (Bankr.D.Mass.1981) (resulting trust arose through failure of express trust due to lack of transfer of insurance policies to bank which had agreed to hold them in trust to fund deferred compensation agreement). There was no evidence, nor does *840 the Trustee contend, that the Debtor furnished the consideration for the shares of the father or brother, or that there exists either of the other two circumstances which can give rise to a resulting trust.
The principles of a resulting trust can nevertheless be instructive on the present issue. The Supreme Judicial Court of Massachusetts has had occasion to recognize the existence of a resulting trust in the context of pending creditor claims. In Rand v. Goldblatt, 347 Mass. 566, 199 N.E.2d 207 (1964), a partnership was placed into a Chapter XI proceeding; a new corporation was organized and largely funded by one of the partners; it issued stock to that partner's father-in-law who was named president and treasurer; the Chapter XI receiver then sold the assets of the partnership to the new corporation, which the former partner thereafter managed. Citing resulting trust decisions, the Court ruled that there was ample evidence supporting the trial judge's finding that the father-in-law was not intended to be the beneficial owner of the stock, and it ordered the stock transferred. These facts are quite close to those of the case at bar, and the principles are essentially the same, except that here no resulting trust can exist because the record owners furnished the consideration. See also Gerace v. Gerace, 301 Mass. 14, 16 N.E.2d 6 (1938) (resulting trust arose in favor of son who furnished purchase price from his own funds and loan from father, taking title in name of father because son had been through bankruptcy without receiving a discharge of his debts).
Nor can the Debtor's father or brother be regarded as holding Spectrum's stock in constructive trust for the Debtor's benefit. A constructive trust is "a device employed in equity, in the absence of any intention of the parties to create a trust, in order to avoid the unjust enrichment of one party at the expense of the other where the legal title to the property was obtained by fraud or in violation of a fiduciary relation or arose where information confidentially given or acquired was used to the advantage of the recipient at the expense of the one who disclosed the information." Barry v. Covich, 332 Mass. 338, 342, 124 N.E.2d 921, 924 (1955). See Restatement (Second) of Restitution § 160 (1937). There is no assertion that the Debtor's father or brother acquired the stock through fraud practiced on the Debtor or in violation of any obligation which they owed him. To the contrary, the Trustee charges that the three are acting in concert in a scheme to keep the Debtor's ownership of the stock away from his creditors, and that they have an understanding among them that the Debtor is the true beneficial owner.
The Trustee's case therefore rests on the intentional creation by the Debtor's father and brother of a trust in their shares for the Debtor's benefit, under traditional trust principles.
B. Creation of Trust Under Traditional Trust Principles
A trust can be created by various methods, most commonly by the settlor transferring property to another in trust or manifesting an intention that he himself hold property in trust. Restatement (Second) of Trusts, § 17 (1957). The Debtor has made no transfer of these shares; they were acquired by the father and brother directly from Spectrum. The existence of a trust in the shares thus depends upon a manifestation of an intent by the Debtor's father and brother that they hold their shares in trust for the Debtor. Where, as here, the statute of frauds or wills has no application, the intention to create such a trust may be manifested by either words or conduct in light of all the surrounding circumstances, no particular form of words or conduct being necessary. Restatement (Second) of Trusts, § 24 (1957). A. Scott & W. Fratcher, The Law of Trusts, § 17.1 (4th ed. 1987); G.G. Bogert and G.T. Bogert, The Law of Trusts and Trustees, § 45 (rev. 2d ed. 1984). See, e.g., Cooney v. Montana, 347 Mass. 29, 196 N.E.2d 202 (1964) (trust for benefit of insured's children recognized in insurance proceeds paid to insured's sister, based upon conversation between insured and sister; no particular form of words deemed necessary); Elyachar v. Gerel Corp., 583 F.Supp. 907 (S.D.N. *841 Y.1984) (controlling stockholder held to have impliedly created a trust of shares of family corporation for the benefit of his children and grandchildren through issuance of stock in their names and payment of dividends to them); Trenton Times Corp. v. United States, 361 F.Supp. 222 (D.N.J.1973) (profit sharing trust created through employer's conduct); Winsor v. Powell, 209 Kan. 292, 497 P.2d 292 (1972) (personal property in joint names of decedent and another held to be in trust for other children because of oral and written statements of decedent); Hanley v. Bird, 307 Pa.Super. 153, 452 A.2d 1360 (1982) (stock certificates transferred by father to two children held to be in trust for incompetent child because of father's strong bond for incompetent child); Masterson v. Plummer, 343 S.W.2d 352 (Mo.Ct.App. 1961) (certificate of deposit payable to son in event of mother's death deemed held by mother in trust and not an invalid testamentary disposition); Compare Mass. Gen.L. ch. 203, § 1 ("No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party creating or declaring the trust or by his attorney."). I therefore turn to a determination of whether the Debtor's father or brother has indicated an intent, by words or conduct, that the shares standing in his name are held for the Debtor's benefit.
C. Trust in Shares Held by Father
Although intentions concerning some matters may be hidden, it is extremely difficult to do so when the subject is the controlling ownership interest in a small business. I find that the Debtor's father has manifested an intention to hold in trust for the Debtor the shares of Spectrum stock standing in the father's name, and that this has been done in two ways, either of which is legally sufficient: (i) he and the Debtor have verbally agreed that the Debtor is the beneficial owner of the shares and has the right to demand their transfer to the Debtor at any time, and (ii) the conduct of the father, when viewed with the conduct of the Debtor which has been assented to by the father, indicates the father's intention to create such a trust. I base both of these general findings upon the credibility of the witnesses and the totality of the circumstances, including the following:
1. Father's Testimony Concerning His Shares
The father's initial testimony was relatively candid; he never recanted this testimony when he took the stand a second time, although he obviously regretted his earlier candor. The father testified, in words or substance, that he furnished funds to Spectrum because his sons had had "tough luck" and were starting another business; that the amount of money furnished was determined by what his son Gary, the Debtor, needed to get the business going; that he had no understanding concerning whether the funds were for stock or loans; that there was no discussion of how he would get the money back because "if they are our children, then that's the way we looked at it;" that he admitted almost two years later, at his deposition, that he did not realize he had Spectrum stock standing in his name; that he just wanted to help Gary; and that he did what he was advised to do by Gary and Spectrum's accountant and lawyer.
2. The Continuity of Debtor's Control of Both State Wire and Spectrum, and the Initial Attempt to Mask Debtor's Control of Spectrum
There was an obvious attempt from the beginning to hide the Debtor's role in Spectrum. Spectrum was always operated under the daily management and control of the Debtor, just as State Wire had been, and yet the Debtor's father held the title of president for the first several months until formally replaced by the Debtor in September of 1986. But the Debtor's signature appears as president on the certificates issued to the father and brother dated March and April of 1986. It was the Debtor who drew up Spectrum's business plan in February of 1986, a plan which made no mention of the father. The Debtor had signing and borrowing authority with Bay Bank *842 from the beginning. The father performs maintenance work and runs errands for Specturm, the same type of work which he performed for State Wire. He considers himself to have been retired since 1979 when he left the Chrysler division where he had been employed for thirty-four years. By his own admission, he knows nothing about the wire business. The Debtor has a thorough knowledge of the wire business, and has operated Spectrum successfully by profiting from his mistakes in running State Wire.
3. Absence of any Reason Other Than Fraud of Creditors for Debtor Not to Have a Beneficial Interest in Spectrum
Most of Spectrum's initial funding was treated as loans rather than contributions to capital, which is common. Given the Debtor's ability to obtain the relatively small amount required to purchase stock (either through loans to him from the father or financial institutions or through gifts from the father), there was no reason other than defrauding of creditors for the Debtor not to receive a substantial stock interest in Spectrum. His lack of ownership flies in the face of his entire history as an entrepreneurial owner in State Wire and in the real estate business.
4. Relative Compensation of Debtor and Father
Stockholders of small corporations traditionally obtain substantial income from the corporation through compensation for their services, receiving little or nothing in the way of dividends. Spectrum at all times paid substantial compensation to the Debtor and not to his father. The Debtor was initially paid an annual salary of $58,000, which was soon increased to $75,000 and then to $100,000 by the end of 1986. At all times he has been Spectrum's highest paid employee, even after he was recently replaced as president by one Thomas Copp. Moreover, in December of 1986, when Spectrum was about to become a subchapter S corporation under federal income tax law to obtain tax benefits, the Debtor received advance compensation of salary and bonus totaling $100,000. The corporation also furnished him with a car worth $40,000 and paid his solely owned business, Spectrum Management, Inc., for such matters as recruiting services, snowplowing services and use of office furniture. The Debtor's father, on the other hand, receives compensation from Spectrum of only a few thousand dollars. When Spectrum became a subchapter S corporation, the father received income only in the amounts necessary to satisfy his increased tax obligation under subchapter S. He was not paid the full amount of income chargeable to him under federal and state tax law even though, as testified by Spectrum's accountant, any later dividend to him would likely bring about a second Massachusetts tax to him. His ability to obtain dividends was therefore severely restricted.
5. Absence of Delivery of Father's Stock Certificates
Stock certificates were prepared and signed in the father's name, but they were never delivered to him, remaining at all times in Spectrum's minute book kept at its attorney's office.
6. Disparity in Per Share Prices
A promoter and manager of a corporation often obtains his stock at a lower per share price than do the other investors, a practice which is often defensible on the theory that the promoter provides funds at an early and relatively risky stage of the corporation's evolution, and that he contributes intangible property such as "know-how". The Debtor was unquestionably the promoter and manager of Spectrum. The father's shares were issued somewhat earlier than were those of his brother Greg, and at a much lower per share price. The stock record book indicates that in December of 1985 the father was issued 120 shares for $1,200 at $10 per share, and in March of 1986 he received 880 shares for $36,300, about $41 per share. The Debtor's brother Greg, on the other hand, paid $16,250 for 100 shares in April of 1986, a per share price of $162.50. The comparatively low price for the father's shares is *843 some indication of a stock issuance to a promoter; that promoter was the Debtor.
7. Early Repayment of Father's Loan
Initial loans to a corporation by its controlling stockholders are usually payable over a long period of time in order to leave the new corporation with as much working capital as possible during its early stages. Here the father's $162,500 loan to Spectrum was paid at the rate of $10,000 per month beginning in October of 1986. It has already been paid in full.
8. Intermingling of Debtor's Personal Affairs With Spectrum's Corporate Affairs
One characteristic of an owner of a small corporation is his tendency to mix his personal affairs with those of the corporation, under the thinking that he owns everything. The Debtor certainly did this with Spectrum, with the full consent of his father. When Spectrum was operating in the plant in Westfield owned by the Debtor, Spectrum paid rent to the Debtor in the form of making his mortgage payments directly to Bay Bank. When Spectrum was acting as the Bank's foreclosure agent attempting to reduce the Bank's deficiency claim under the Debtor's guaranty, many of its operations were on a break-even basis. The bank paid all its expenses, but there was little or no profit in it for Spectrum. When Spectrum purchased equipment and inventory from Bay Bank on December 30, 1986, it paid the bank more than the liquidation value of the equipment, and the Debtor gave it a $90,000 mortgage note, all in consideration of the bank releasing the Debtor from a $500,000 deficiency claim under his guaranty of State Wire's debt. During much of 1988 the Debtor spent substantial portions of his working day in the formation (with ownership) of a new business, and yet he continued to draw his full salary from Spectrum.
9. Statements at § 341 Meeting
At the § 341 meeting conducted by the Trustee on August 4, 1987, the Debtor's counsel introduced the subject of the formation of both Spectrum and another company, EMD Corp.; the latter had been formed about the same time as Spectrum and had also issued all its stock to the Debtor's father. In the context of a discussion by the Debtor of EMD Corp. (in which he avoided reference to Spectrum), counsel said: "That after the business was closed it was obvious that Ford wasn't gonna get paid, and Gary had nothing. And it [sic] was absolutely no reason for him to form a business in his own name, individually, I mean that didn't make any common sense at all." Given the similarities in the formation of Spectrum and EMD Corp. (which soon ceased business), and given counsel's previous reference to the formation of both corporations, an inference concerning Spectrum can be drawn from these statements.
10. Ownership of Spectrum's New Plant
In early 1987 Spectrum moved to a new plant in East Longmeadow. The Debtor found this property and negotiated its purchase price. Title was taken by a partnership in which Spectrum was a partner. In light of the Debtor's involvement in this acquisition, his ownership of the previous plant, and his successful history in real estate investment, it is inconceivable that he would not take an ownership interest in the new plant.
D. Shares Held by Brother
I am not persuaded that the 100 shares of Spectrum stock standing in the name of the Debtor's brother Greg are held by Greg in trust for the Debtor. Brothers do not stand in the same donative relationship as father and son. The brother's minority ownership position, moreover, is consistent with his full-time role in Spectrum and with the Debtor's desire, expressed at trial, that Greg have an interest in the Debtor's real estate business. Finally, Greg's shares were issued at a considerably higher per share price than the shares issued to the father for the Debtor's benefit, a disparity which is consistent with the relative roles of the Debtor and Greg in the enterprise.
*844 III. REMEDIES
The Trustee is therefore entitled under § 542 to a turnover of the stock certificates standing in the father's name. The Debtor's beneficial ownership of these shares at the time of the filing has been demonstrated by clear and convincing evidence, as required of turnover proceedings by Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). The Trustee has also established that the Debtor has concealed these shares with the intent to hinder, delay or defraud his creditors within the meaning of § 727(a)(2), so that the Debtor is not entitled to a discharge of his debts. Disclosure of the father's legal ownership is clearly not enough. The Debtor has concealed his beneficial interest, and that concealment has continued up to the bankruptcy filing and thereafter. The Debtor's intentions in this concealment are patent.
The complaint in No. 88-4003 shall be dismissed as against Christina F. MacDonald, the Debtor's wife and a co-debtor in this bankruptcy case. There was insufficient evidence that she was intended to have any beneficial interest in shares standing in the name of either the father or brother.
Separate judgments shall issue.
JUDGMENT
The Court having issued separate findings of fact and rulings of law, it is
ORDERED and ADJUDGED that
The co-debtor Gary J. MacDonald is hereby denied a discharge of his debts in this bankruptcy case.
The complaint is dismissed as against the co-debtor Christina F. MacDonald.
JUDGMENT
The Court having issued separate findings of fact and rulings of law, it is
ORDERED and ADJUDGED that
The defendants, Earl MacDonald and Gary J. MacDonald, shall execute and deliver to the trustee in bankruptcy, Maurice M. Cahillane, an assignment in form reasonably satisfactory to the trustee transferring to the bankruptcy estate all legal and beneficial ownership of the 1000 shares of Class A Common stock of Spectrum Wire Corporation standing in the name of Earl MacDonald.
The trustee's claims against the defendants Greg MacDonald and Linda MacDonald are dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917986/ | 101 B.R. 569 (1989)
In re Elouise L. HAYES, Debtor.
Bankruptcy No. LR 88-1997M.
United States Bankruptcy Court, E.D. Arkansas, W.D.
June 28, 1989.
Stuart Miller, Little Rock, Ark., for Southern Inv. Co.
Willard Proctor, Jr., Little Rock, Ark., for debtor.
A.L. Tenney, Little Rock, Ark., trustee.
ORDER
JAMES G. MIXON, Bankruptcy Judge.
On October 5, 1988, Elouise L. Hayes filed a voluntary petition for relief under the provisions of chapter 13 of the United States Bankruptcy Code. On November 15, 1988, the debtor filed a proposed plan, and Southern Investment Company (Southern) objected to confirmation of the plan. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L), and the Court has jurisdiction to enter a final judgment.
On November 22, 1983, the debtor and Southern entered into a real estate sales contract for the purchase of a duplex at *570 2600-2602 Izard Street.[1] Under the contract, the debtor agreed to pay a $350.00 down payment on the purchase price of $19,487.50, with the balance payable in monthly installments of $200.00, including interest on the principal indebtedness at the rate of 10% per annum, beginning on January 1, 1984. The debtor also agreed to pay all taxes and insurance on the property. The contract provided that:
It is distinctly agreed and understood that time is the essence of this contract, and that the moving consideration for its execution by [Southern] is the prompt payment by [Hayes] of all payments which he stipulates to make as the same become due and payable by the terms hereof. If [Hayes] . . . allows said monthly payments to become delinquent for more than thirty days, [Southern] may, at its option, either declare the entire balance of the purchase price due and collectible, or rescind this contract, and in case of said rescission, all moneys paid by [Hayes] shall be taken and retained by [Southern], not as a penalty, but as and for rent of the land; and thereupon [Southern], upon notice as hereinafter provided, may take possession of said land and [Hayes] agrees to immediately surrender the peaceful possession thereof to [Southern]. It is agreed that no title to the land hereinabove described shall vest in [Hayes] until the full purchase price of said land and interest thereon have been paid in full.
The failure, however, of [Southern] to exercise any option herein given at the time of any default shall not operate to bar or abridge its right to exercise such option upon any subsequent default of [Hayes].
No evidence was introduced of the debtor's payment record from 1984 through August 1987. Beginning with September 1987, payments were made or tendered by the debtor as follows:
Date Payment Date Payment
Due Made or Tendered
9-01-87 10-08-87
10-01-87 12-09-87
11-01-87 12-09-87
12-01-87 2-05-88
1-01-88 2-05-88
2-01-88 2-05-88*
4-11-88
3-01-88 4-11-88
4-01-88 7-25-88**
5-01-88 7-25-88**
6-01-88 7-25-88**
* Partial payment of February installment
** Payment not accepted by Southern
On June 27, 1988, Southern sent a letter to the debtor stating that the contract was rescinded and demanding possession of the property. At that time, the April payment was 87 days late, the May payment was 57 days late, and the June payment was 26 days late. The debtor testified that she did not remember receiving the June 27, 1988, letter,[2] and that she contacted an attorney who sent a certified check for $660.00 to Southern for the April, May and June payments, plus late charges. She testified that the check was dated July 25, 1988. In late August or early September, she sent a check for $400.00 for the July and August payments.
On September 30, 1988, Southern sent another letter to the debtor. This letter stated that, although Southern would not reinstate the rescinded contract, it was giving the debtor an option to execute a new contract for the purchase of the property. Under the new contract, Southern agreed to accept as a new down payment the $1,060.00 that had been submitted by the debtor for the delinquent payments. Southern gave the debtor until October 3, 1988, to execute the new contract. She did not do so, and filed her petition in bankruptcy two days later.
*571 In her bankruptcy schedules, the debtor listed Southern as a secured creditor holding a claim of $16,346.59. The debtor listed the duplex at 2600-2602 Izard as property of the estate. The debtor's twenty-four month plan proposed to pay Southern $58.00 a month on the arrearages as well as the regular $200.00 monthly payment. Southern objected to confirmation and contended that the duplex was not property of the estate because the contract was terminated prior to commencement of the bankruptcy case.
The first issue presented is whether the debtor's interest in the real estate sales contract is property of the estate. 11 U.S.C. § 541 defines property of the estate as "all legal or equitable interests of the debtor in property as of the commencement of the case." The extent of a debtor's interest in property is determined primarily by reference to state law. 4 Collier on Bankruptcy ¶ 541.02[1] (15th ed.1989).
A seller's right to forfeit, without judicial process, a purchaser's interest under a real estate sales contract because of the purchaser's default is recognized in Arkansas. Humke v. Taylor, 282 Ark. 94, 97, 666 S.W.2d 394, 395-96 (1984); White v. Page, 216 Ark. 632, 637, 226 S.W.2d 973, 975 (1950). If time is of the essence in an agreement, failure to pay promptly will constitute a default for which the seller may declare a forfeiture. Vernon v. McEntire, 232 Ark. 741, 746, 339 S.W.2d 855, 858 (1960); Friar v. Baldridge, 91 Ark. 133, 137, 120 S.W. 989, 991 (1909). However, forfeiture provisions may be waived by the conduct of the parties. Courts of equity will seize upon slight circumstances to indicate a waiver of the forfeiture provisions and prevent unjust enrichment. Triplett v. Davis, 238 Ark. 870, 872, 385 S.W.2d 33, 34 (1964); Hatfield v. Mixon Realty Co., 269 Ark. 803, 807, 601 S.W.2d 894, 896 (1980). Under state law, even though a seller has declared a forfeiture of the contract because of the purchaser's default, an action for enforcement of the forfeiture is still subject to a defense in chancery court that the right of forfeiture has been waived. Humke v. Taylor, 282 Ark. at 97-98, 666 S.W.2d at 396. The equitable defense is an interest in property held by the debtor and constitutes property of the estate. Jones v. Vee Jay, Inc. (In re Vee Jay, Inc.), Ch. 11 Case No. FS-86-407M, CMS No. 87-192M (Bankr.W.D.Ark. Sept. 15, 1987), appeal dismissed, Civ. No. 87-2180 (W.D.Ark. May 16, 1988).
Whether a court of equity will enforce a forfeiture for default by the purchaser depends upon the circumstances of the case and the conduct of the forfeiting party. Friar v. Baldridge, 91 Ark. at 137, 120 S.W. at 991; Souter v. Witt, 87 Ark. 593, 600, 113 S.W. 800, 803 (1908). A seller can waive its right of forfeiture if it does not insist on strict compliance with the contract terms regarding prompt payment and repeatedly accepts delinquent payments. Humke v. Taylor, 282 Ark. at 98, 666 S.W.2d at 396; Triplett v. Davis, 238 Ark. at 872-73, 385 S.W.2d at 34-35; Braddock v. England, 87 Ark. 393, 395, 112 S.W. 883, 884 (1908); Welch v. Cooper, 11 Ark.App. 263, 267, 670 S.W.2d 454, 458 (1984). Granting an extension of time for payment without demanding strict compliance in the future has been held to constitute a waiver. Vernon v. McEntire, 232 Ark. at 746-47, 339 S.W.2d at 858; Friar v. Baldridge, 91 Ark. at 139, 120 S.W. at 992; Banks v. Bowman, 83 Ark. 524, 527, 104 S.W. 209, 210 (1907). Failure to declare a forfeiture upon past defaults may constitute a waiver. Goforth v. Eads, 239 Ark. 861, 864, 394 S.W.2d 728, 730-31 (1965). Although a seller may have waived its right to declare a forfeiture by its past conduct, that right may be reinstated by the seller's providing the purchaser with clear and definite notice that a delinquency has occurred and allowing the purchaser a reasonable opportunity to pay the delinquent amounts before declaring a forfeiture. Ashworth v. Hankins, 248 Ark. 567, 573, 452 S.W.2d 838, 841-42 (1970); Note, Land Contract Waiver and Reinstatement of Forfeitures, 24 Ark.L.Rev. 578 (1971).
In the case at bar, the debtor made payments for four and one-half years totalling approximately $10,400.00 in principal and interest. On April 11, 1988, the last date a payment was credited to the debtor's account, *572 a principal balance of $16,350.50 remained on the purchase price of $19,487.50.
According to the proof, the debtor had not made a timely payment under the contract in ten months prior to the notice of rescission. However, there was no evidence that Southern had ever threatened rescission of the contract because of the previous late payments or informed the debtor that late payments were unacceptable. The debtor testified that when her payments were late, she simply took the payment to Southern's office, paid the installment plus a late charge, and received a receipt. At the time the contract was rescinded, the debtor was farther behind in her payments than she had ever been; however, Southern, as had been its prior practice, did not contact the debtor about the delinquent payments. Southern's prior conduct of accepting untimely payments constituted a waiver of its right to forfeit the debtor's equity because the installment payments were delinquent. Southern's rescission letter on June 27, 1988, was the first notice the debtor had that Southern had chosen to enforce the prompt payment provisions of the contract. The debtor remained in possession of the property, and no state action to enforce the rescission was brought. Under these facts, Southern waived its right to forfeit the debtor's equity for making untimely payments. See Hatfield v. Mixon Realty Co., 269 Ark. 803, 601 S.W.2d 894 (1980). Therefore, the June 27, 1988, letter did not constitute a valid rescission of the contract with the debtor.
The debtor has asked that the November 22, 1983, contract be reinstated and that she be allowed to treat the balance due under the contract as a long-term debt in her chapter 13 plan. Under the Court's holding, the contract was still in effect when the debtor filed her chapter 13 petition. The treatment of the contract in her plan depends upon whether the contract is characterized as a lien device or as an executory contract. This Court has construed a real estate sales contract to constitute a lien device, rather than an executory contract, for purposes of the Bankruptcy Code. Thorpe v. Jones (In re Jones), 54 B.R. 697, 698-99 (Bankr.E.D.Ark.1985). Furthermore, under Arkansas law, if the parties to a real estate sales contract intend a present conveyance of real property, with title merely withheld as security for payment of the installments, the contract will be construed to create a mortgage in favor of the seller and vest equitable title in the purchaser. Judd v. Rieff, 174 Ark. 362, 365-66, 295 S.W. 370, 372 (1927); Gunter v. Ludlam, 155 Ark. 201, 203, 244 S.W. 348, 349 (1922); See Pasvogel, Mortgage SubstitutesThe Law in Arkansas, 9 U.Ark. Little Rock L.J. 433, 446-450 (1986-87). Therefore, the debtor will be allowed to treat her obligation under this contract as a lien device securing a long-term debt.
The debtor's plan proposes to pay the regular monthly payment under the contract plus an additional amount until the arrearage is cured, then to maintain the regular payment upon completion of the plan. This treatment is allowed under 11 U.S.C. § 1322(b)(5).[3] However, the plan must be modified so that the payment to Southern includes all arrearages which have accrued since the case was taken under advisement, as well as any taxes paid by Southern under the contract.
Therefore, Southern's objection to confirmation is overruled in part and sustained in part. The debtor has twenty days to file a modified plan, motion to dismiss or motion to convert.
IT IS SO ORDERED.
NOTES
[1] According to the testimony, the property was not the debtor's homestead, but was used as rental property.
[2] The debtor's testimony that she did not receive the letter was weakened by the testimony of a Southern representative who said the debtor called almost weekly to reinstate the contract, and by the undisputed fact that the debtor had an attorney send a certified check for the overdue payments, rather than delivering the payment personally as she had previously done.
[3] (b) Subject to subsections (a) and (c) of this section, the plan may
. . . .
(5) . . . 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 is due after the date on which the final payment under the plan is due; . . . | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918024/ | 101 B.R. 109 (1989)
In re Bobby Noah GRAVEN & Millie Ann Graven, Debtors.
Bankruptcy No. 87-04885-S-2-11.
United States Bankruptcy Court, W.D. Missouri, S.D.
May 23, 1989.
James R. Doran, Springfield, Mo., Samuel Johnson, Riverdale, Ga., for debtors.
Thomas J. O'Neal, Springfield, Mo., for trustee.
Rick Fink, Chapter 12 Trustee.
Thomas J. Carlson, Springfield, Mo., for Boatmen's Mountain Grove Nat. Bank.
Gary A. Powell, Springfield, Mo., for Farm Credit.
Mark Fitzsimmons, Springfield, Mo., for Mercantile Wright County Bank.
MEMORANDUM OPINION
FRANK W. KOGER, Bankruptcy Judge.
Debtors filed for relief under Chapter 12 on November 12, 1987. Their plan was duly filed and a confirmation hearing scheduled for March 2, 1988. Also scheduled *110 were objections thereto. On March 2, 1988, a Motion for Investigation by the Chapter 12 Trustee was filed. The Court announced from the Bench at the conclusion of the hearing that it would order an investigation and did so in its Memorandum Opinion of March 23, 1988, 84 B.R. 630 (1988). The Trustee conducted an extensive and exhaustive investigation, filed reports, and a hearing was set on January 24, 1989. At the start of that hearing, debtors filed a Motion For Dismissal and the assembled creditors, as well as the Trustee, objected orally, subsequently filing assorted motions to dismiss with sanctions, and/or to convert. Hearing was scheduled thereon on April 10, 1989, parties heard, and the matter is now submitted.
The Court believes that there are two issues:
1. Does the Chapter 12 Trustee's investigation establish fraud on the part of the debtors?
2. If so, is a debtor's right to dismiss at any time under 11 U.S.C. § 1208(b) subject to the court's ability to convert to Chapter 7 under 11 U.S.C. § 1208(d), or must the court dismiss no matter what the circumstances?
Since the second issue cannot come into play unless fraud is found, these two items will be discussed in that order.
FRAUD
On or about January 16, 1985, debtor Bobby N. Graven incorporated a Missouri corporation, titled Graven Auction Company, Inc. He was the sole incorporator, the president and one of two directors of the new entity. He held all the issued stock. The other director was Joanne Lashua who was also the secretary of the corporation. She was an employee of Bobby N. Graven. She resigned post petition and her whereabouts are unknown. On or about January 16, 1985, Bobby N. Graven conveyed eight tracts of real estate to the corporation. All of the conveyances were by warranty deed executed by Bobby N. Graven. Approximately one year later (January of 1986), debtor Millie A. Graven executed her warranty deeds on the same properties to the corporation.[1] There was no monetary consideration paid by the corporation to either of the debtors. A schedule is attached hereto showing the item of realty, the purported value, the date of each deed, the notary public involved and the date the deed was recorded.
On January 1, 1986, Bobby N. Graven and Millie A. Graven executed a bill of sale to Graven Auction Company, Inc. covering 169 head of Holstein and Brown Swiss dairy cattle, 5 motor vehicles, 4 tractors, and all the equipment that comprised their dairy operation. They subsequently leased all of said property back from Graven Auction Company, Inc. and at all times between January 1, 1986, and March of 1988, when they sought confirmation, were in full control and possession of all of said personalty.[2] No consideration was paid for the bill of sale. Debtors have never set a value on said property. Debtors now maintain the lease was terminated in November of 1988 and refuse to answer questions about Graven Auction Company, Inc., or what happened to said personal property.
In addition to these specific items, it appears that debtors were owners of a substantial number of promissory notes, deeds of trust, and accounts receivable, which, although not easily traceable, were assigned to Graven Auction Company. Also there is the so called "Manes Farm" which was transferred to the corporation and then back to debtors just prior to bankruptcy.
On January 1, 1986, debtor Bobby N. Graven transferred all of the outstanding shares of the common capital stock of Graven *111 Auction Company to Bobby F. Graven, Trustee for the Bobby N. Graven Irrevocable Trust. The stated consideration was $1.00 and natural love and affection. At the same time 282 shares of the common capital stock of Graven Realty, Inc., another corporation controlled by debtor Bobby N. Graven, was transferred to the same trustee for the same trust for the same identical consideration, or absence thereof. It would appear that this is all the stock of said corporation except for 18 shares. The stated beneficiaries of the irrevocable trust are: Bobby F. Graven, Daniell N. Graven and Gayle A. Graven. The beneficiaries of the irrevocable trust are the children of Bobby N. Graven and Millie A. Graven. Bobby N. Graven retained the power to vote the stock in the two corporations during his life.
Bobby F. Graven, the stated trustee, testified that he had received no money, managed no assets, done nothing in regard to the two corporations or as to the assets the two corporations purportedly owned. He further testified that his father, debtor Bobby N. Graven, took care of all that. This was at the hearing in March of 1988, some two years after the transfers to the trust.
The evidence at the first hearing showed that in January of 1985, Pillsbury Company had obtained a substantial judgment against debtor Bobby N. Graven, and that debtors had substantial debts in 1985.
Moving next to the schedules and statement of affairs filed by debtors, the following items are of interest. Item 4 from Statement of Debtor-In-Possession, File Document # 8, "There are no leases by Debtor". This is signed by both debtors and is patently false if they were leasing the dairy herd and equipment. Likewise in Item 17 of the Statement of Affairs, debtors list a $70.00 per month rental to Graven Realty, Inc., but do not list the lease of 169 head of dairy cattle, the motor vehicles, the tractors and all the dairy equipment. In the first operating report filed December 10, 1987, Document # 10, under Cash Received the debtors show $1,675.70 received from 3 cows sold 11/11/87. This was after the alleged transfer and leaseback of all the milk cows, and yet debtors received these funds. Debtors transferred the Oklahoma property (or at least the mineral rights thereto) after filing.
There are other matters, as set out in the reports of investigation of the Chapter 12 Trustee, such as the alleged termination of the lease on the personalty without court approval, the alleged return of all said property to the Trust (or its corporation), the refusal to answer any questions about the corporate affairs, etc., but they merely fill in the background of an already clear pattern of deliberate fraud perpetrated with the intent to hinder, delay and defraud the creditors of the debtors. Further as shown by the report of the Trustee, although the transfers were purported to take place in 1985 and 1986, the recording dates establish that certain of said transfers were not completed until February of 1987, well within one year of the filing of the petition.
DISMISSAL VERSUS CONVERSION
Since the Court has found that debtors did commit fraud, it must consider the second issue framed above, i.e., must the Court dismiss or may it convert? Debtors want to dismiss. Creditors want to convert. 11 U.S.C. § 1208(b) and (d) contain the two provisions which are apposite and apparently opposite as regards the divergent desires of the parties. As per Lexis and Westlaw, there are no reported cases interpreting which is controlling under Chapter 12, except one recent case from North Carolina. However, there are some interesting parallels found under 11 U.S.C. § 1307(b) and (c). Section 1208(b) and § 1307(b) are identical except for the inclusion of the reference to § 1208 in the latter. Section 1208(d) and § 1307(c) are not identical but at least in the pertinent parts are extremely close. In both § 1208 and § 1307, the debtor's right of dismissal is mandated by the direction to the court that *112 it "shall dismiss" while the right of a party in interest to effect a conversion is couched in the permissive power of the court, i.e., the court "may convert". It is upon this semantic difference that debtors first rely in their contentions. They now seek to fold their tent and silently steal away, perhaps leaving behind all but a few of the larger and more vigilant creditors who may choose to follow the contorted and twisted path of transfers without consideration first to a shell corporation and then to a family trust.
The Court declines to agree with this approach. The first reason is philosophical. Bankruptcy laws have always had as their intent the protection and/or rehabilitation of honest debtors. They are not and have not been intended to shield those parties who have attempted to hinder, delay or defraud their creditors. Second, although this Court recognizes and appreciates the grammatical difference between "shall" and "may", other courts have stated:
Words imparting permission may be read as mandatory and words imparting command may be read as permissive when such construction is made necessary by evident intention or by the rights of the public. Sutherland Statutory Construction, Sards 4th Edition, Volume 3A, pg. 209.
See Jennings v. Suggs, 180 Ga. 141, 178 S.E. 282 (1935), Ewing v. Union Central Bank, 254 Ky. 623, 72 S.W.2d 4 (1934). If such an interpretation is permissible, then this is a case where it is appropriate. Debtors listed eleven unsecured creditors, six of whom have claims ranging from $622.00 to $3,645.27. These parties can hardly afford to pursue their rights in any forum other than the bankruptcy proceedings. In bankruptcy the Trustee can pursue the assets of the estate for the benefit of all the creditors large and small secured and priority alike.
Third, at least one other bankruptcy court has recognized that the apparent mandate of 11 U.S.C. § 1208(b) may be tempered at least by delay. In the very recent case of In re Tyndall, 97 B.R. 266 (Bkrtcy.E.D.N.C.1989), Bankruptcy Judge A. Thomas Small refused the dismissal requested by the Chapter 12 debtors until after the Chapter 12 Trustee had liquidated the collateral securing the debt to FmHA. Judge Small reasons that 11 U.S.C. § 1307(b) does not mandate any time frame within which it must be ruled by the Court and that the Court may rule upon other motions by other parties while the debtor's motion for dismissal is pending. Judge Small rules that the same interpretation should be applied to § 1208(b) and cites 3 Norton Bankruptcy Law and Practice, Section 83.09 (1987).
This Court agrees with Judge Small and also with Bankruptcy Judge Ray Reynolds Graves in In re Vieweg, 80 B.R. 838 (Bkrtcy.E.D.Mich.1987). In that case, Judge Graves held that the court could convert a pending Chapter 13 case under § 1307(c) to a Chapter 7 case over the objection of a debtor who had filed a motion to dismiss under § 1307(b). Judge Graves preferred an analysis of § 1307(b) and (c) that afforded reasonable meaning to both sections. To quote Judge Graves:
"To say Congress intended that a debtor could thwart a creditor's opportunity even to present his proofs by filing a motion to dismiss, thus relegating the creditor to pursuit of his remedies in yet another forum, a state court, defies reason." (Vieweg, id., (l.c. 841)).
In the same vein, see In re Tatsis, 72 B.R. 908 (Bkrtcy.W.D.N.C.1987) wherein Bankruptcy Judge Marvin R. Wooten converted a Chapter 13 proceeding to a Chapter 7 even though debtors had filed a motion to dismiss under § 1307(b). Of course, in the Tatsis case, the debtors withdrew said motion to dismiss, but the principles discussed in said case are pertinent. Nor has the Court ignored the cases that have held to the contrary, i.e., that a § 1307(b) motion by a debtor to dismiss is automatic and overrides other considerations; e.g. In re Looney, 90 B.R. 217 (Bkrtcy.W.D.Va.1988) *113 and earlier cases cited therein. Contrary to what Chief Bankruptcy Judge Pearson opines in that case, this Court believes that there is a common purpose behind subsections (b) and (c) of § 1307. The purpose is to distinguish between the case of the "honest debtor" who for whatever reason chooses to dismiss and is permitted to do so and the debtor who has sought to use the bankruptcy court as a subterfuge rather than a refuge. It is only where there has been a showing of severe impropriety on the part of the debtor that § 1307(c) should or could be invoked.
Finally, there is precedent in the Western District of Missouri for holding that fraud vitiates a voluntary dismissal of a Chapter 13 proceeding. In the case of Wesley Medical Center v. Wallace, 57 B.R. 364 (W.D.Mo.1985), the Honorable Scott O. Wright, Chief Judge, vacated a dismissal granted in a Chapter 13 upon the motion of the debtor where fraud had occurred. This Court believes that if fraud can invalidate an order of dismissal under § 1307(b), fraud can allow a court to convert a Chapter 12 to a Chapter 7 when the public good requires it.
This Court has never, in its brief three plus years on the bench, heretofore refused any motion to dismiss on the part of a debtor under § 1307(b) or § 1208(b). This Court has never, in that same brief tenure, seen conduct of the kind exposed in this case on the part of a Chapter 13 or Chapter 12 debtor. The Court has been unable to discover any other reported case construing either the Chapter 13 issue or the Chapter 12 issue in the Western District of Missouri. The Court freely admits that the view it adopts follows the minority view. But somewhere there must be a starting point in determining how the law in regard to Chapter 12 will evolve. For whatever value then, in the ultimate decision as to the law in this district, this Court shall opt to afford the honest Chapter 12 debtor the unfettered right to dismiss at any time, but shall not reward a debtor it believes has chosen to abuse the legal process and the bankruptcy process by both prepetition and postpetition misconduct and fraud.
The Motion to Convert the proceedings to Chapter 7 is GRANTED. The Motion to Dismiss becomes moot as a result thereof. The United States Trustee is directed to appoint a Trustee.
SO ORDERED this 23rd day of May, 1989.
The foregoing Memorandum Opinion constitutes Findings of Fact and Conclusions of Law as required under Rule 7052, Rules of Bankruptcy.
PARTY
ESTIMATED CONVEYING DATE OF
ITEM VALUE AND DATE NOTARY PUBLIC RECORDING GRANTEE
---------------------------------------------------------------------------------------------
House & 7 acres $125,000.00 BNG-1-16-85 Lloyd Hanna 2-1-85 Graven Auction Co.
Seymour, Mo. MAG-1-1-86 Joanne Lashua 2-18-87
House & 2 acres $ 49,000.00 BNG-1-16-85 Lloyd Hanna 2-1-85 Graven Auction Co.
Seymour, Mo. MAG-1-1-86 Joanne Lashua 2-18-87
House in $ 25,000.00 BNG-1-16-85 Joanne Lashua 2-4-85 Graven Auction Co.
Mountain Grove MAG-1-1-86 Joanne Lashua 2-18-86
2 Office Bldgs. $ 72,000.00 BNG-1-16-85 Joanne Lashua 2-4-85 Graven Auction Co.
Mansfield, Mo. MAG-1-16-86 Joanne Lashua 2-18-86
House in $ 35,000.00 BNG-1-16-85 Joanne Lashua 2-4-85 Graven Auction Co.
Mountain Grove MAG-1-1-86 Joanne Lashua 2-18-86
251 Acres $ 50,000.00 BNG-1-16-85 Joanne Lashua 2-6-85 Graven Auction Co.
Mountain Grove MAG-1-1-86 Joanne Lashua 2-18-87
110 Acres $ 60,000.00 BNG-11-15-86 Joanne Lashua 2-18-87 Graven Auction Co.
Cabool, Mo. MAG-11-15-86 Joanne Lashua 2-18-87
40 Acres $ 60,000.00 BNG-11-10-86 Joanne Lashua 11-10-86 Graven Auction Co.
Oklahoma BNG-11-17-87 Joanne Lashua 11-20-87
NOTES
[1] Mo.R.S. 474.150(2) deems any conveyance of real estate by a married person to be in fraud of the marital rights of a surviving spouse.
[2] Bringing into play Mo.R.S. 428.080, which would strongly suggest that the purported transfer and alleged leaseback was void as to creditors of debtors and that same was still property of the estate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918050/ | 101 B.R. 586 (1989)
In re Gerard L. BILYK and Rose Darlene Bilyk, Debtors.
Bankruptcy No. 88-02638-BKC-JJB.
United States Bankruptcy Court, E.D. Missouri, E.D.
July 13, 1989.
*587 Thomas E. Osterholt, Jr., Clayton, Mo., for claimants.
Susan M. Hais, Clayton, Mo., for debtors.
Gerald A. Rimmel, Clayton, Mo., trustee.
Eileen J. Markey, Clayton, Mo., for trustee.
ORDER
JAMES J. BARTA, Chief Judge.
The lessors of the Debtors' commercial real estate have filed a request for the payment of an administrative expense claim for post-petition rent. The Chapter 7 Trustee has filed an objection to portions of the request, and the matter was submitted to the Court upon a written stipulation of facts and memoranda of law.
The lease agreement was in effect on August 9, 1988, when the Debtors filed a Chapter 7 Petition. The record reflects that no business activity occurred after the commencement of this case, and that the lessors filed a request for payment of administrative rent expenses on November 10, 1988. The unexpired lease was deemed rejected on October 10, 1988, pursuant to 11 U.S.C. § 365(d)(4).
The Chapter 7 Trustee used the premises to store certain personal property until a sale was conducted, after notice, on December 17, 1988. The leased premises was surrendered to the lessors on December 26, 1988. The sale of the stored personal property has resulted in a benefit to the estate in that unencumbered assets may be available for distribution.
Neither party has suggested that the Trustee's continued use of the premises prevented the lessors from re-letting the property, or that they were otherwise prejudiced by the Trustee's actions. In fact, the area which included the Debtor's business was approximately 32% unoccupied prior to the surrender to the lessors.
The question presented here is not based upon a request to require the Trustee to timely perform the obligations of the debtor pursuant to 11 U.S.C. § 365(d)(3). The unexpired lease was deemed to have been rejected before the lessors filed their request for payment. Therefore, this claimant is required to establish its administrative expense status under 11 U.S.C. § 503(b)(1)(A), and the amount of its claim. In re Orvco, 19 B.C.D. 247, 249, 95 B.R. 724, 726 (9th Cir. BAP, 1989).
The Trustee has not disagreed with the lessors' position that these post-petition rent payments are entitled to an administrative expense priority. The arguments in the memoranda addressed the question of the amount of the claim. It has been the position of this Court that in a Chapter 7 case, the terms of a pre-petition lease agreement are but one indication of the amount of a claim for post-petition rent. The Court must consider all the circumstances presented in connection with the request for allowance and payment and determine a fair and reasonable value of the post-petition lease. See, In re Dant & Russell, Inc., 853 F.2d 700, 707 (9th Cir., 1988).
The post-petition use of these premises was limited to storage of certain personal property while the Trustee attempted to obtain a purchaser. The lessors were not prejudiced by the Trustee's actions, and the Court was not presented with a request for possession of the property or delivery of payment until approximately one month after the lease was deemed rejected. The record does not indicate that the Trustee held any assets other than the personal property in the leased premises from which a payment could have been made to the lessors prior to this sale. Therefore, the amount of the lessors' claim will not be determined by the amount of the pre-petition lease payment.
The Trustee has submitted evidence that the reasonable rental value of this type of property when storing inventory and fixtures is approximately 20% of the full rental value. In the circumstances presented in this case, the Trustee's evidence will be accepted as the amount of the lessors' post-petition administrative expense claim. There is nothing in the record to suggest that any different conclusion should apply to the claim which arose for that period *588 after rejection and before surrender. Therefore,
IT IS ORDERED that this hearing be concluded; and that the claim of Irving H. Olian, Frances Olian, Edward Balk, Thomas Stern, Jeffrey Gershman, and Diane Kitzes, Joint Venturers of Forty Mill Realty Venture, for the Trustee's post-petition use of certain leased premises is allowed in the amount of $3,969.84 as a priority expense of administration, for the period through surrender of the premises to the lessors; and that any prepetition rent is allowed as a general unsecured claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2867781/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00502-CV
McLane Company, Inc. and McLane Foodservice-Lubbock, Inc., Appellants
v.
Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas, and Greg
Abbott,1 Attorney General of the State of Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN104253, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
OPINION
1
This appeal was originally filed in the name of the previous attorney general of Texas. We have
substituted the current attorney general of Texas. See Tex. R. App. P. 7.2(a).
This case involves the administration of the Cigarette Recovery Tax Fund (Athe Fund@), a
private trust established to secure payment of cigarette taxes and managed by appellee Carole Keeton
Strayhorn in her official capacity as Comptroller of Public Accounts. See Tex. Tax Code Ann. ' 154.051
(West 2002). Appellant McLane Company2 is the State=s largest cigarette distributor. Dissatisfied with the
Comptroller=s decision to reject an irrevocable letter of credit as collateral for its cigarette taxes, McLane
filed suit. The Comptroller filed a plea to the jurisdiction and a motion for summary judgment. The district
court granted the Comptroller=s plea in part, denied it in part, and granted the Comptroller=s motion for
summary judgment, thus disposing of McLane=s suit. On appeal, McLane argues that the district court had
jurisdiction under the tax code, the Uniform Declaratory Judgments Act, and section 1983 of the United
States Code. For reasons that follow, we conclude that McLane=s suit is barred by sovereign immunity and
we modify the district court=s judgment in part, and affirm as modified.
Procedural and Factual Background
2
Two companies sued the Comptroller: McLane Company, Inc. and McLane Foodservice-
Lubbock, Inc. We will refer to them collectively as AMcLane.@
2
Cigarette distributors in Texas are liable for paying cigarette taxes to the state and must affix
a stamp to each cigarette package that shows the tax has been paid; the stamps are sold by the
Comptroller. See id. '' 154.001(18), .021, .022, .041, .043 (West 2002). In exchange for Athe service
of affixing stamps to cigarette packages,@ distributors are entitled to three percent of the stamps= face value,
a Astamping allowance.@ Id. ' 154.052(a) (West 2002). A distributor must pay for its stamps in advance
unless it participates in the Fund or pledges sufficient collateral. Id. '' 154.050(b), .051(c), (o) (West
2002). A distributor participates in the Fund by establishing an account with the Comptroller, contributing
its stamping allowance until the account balance equals twenty percent of its monthly stamp purchases, at
which time the distributor=s Fund interest Abecomes vested,@ and thereafter maintaining a twenty-percent
balance in the Fund. Id. ' 154.051(c).3 In lieu of prepayment or Fund participation, a distributor may
pledge Asufficient collateral@ in the form of Acertificates of deposit, treasury notes, treasury bills, or other
similar types of collateral acceptable to the comptroller.@ Id. ' 154.051(o).
McLane has participated in the Fund since October 1987. On April 25, 2001, it notified
the Comptroller of its intent to pledge an irrevocable letter of credit in lieu of participating in the Fund and
sought to have its stamping allowance refunded and to continue to obtain stamps without advance payment.
The Comptroller refused to accept an irrevocable letter of credit because it Adid not afford the State with
the appropriate protection against nonpayment of taxes.@ The Comptroller advised McLane that section
3
Until a distributor=s interest in the Fund vests, the Comptroller may require the distributor to post
an irrevocable letter of credit before it may receive stamps without prepayment. Tex. Tax Code Ann. '
154.051(e) (West 2002). As long as a vested distributor stays current on its stamp payments and remains
vested, the distributor receives a quarterly refund of its stamping allowance deposited into the Fund in
excess of the required balance, plus interest. Id. ' 154.051(d).
3
154.051 listed several types of Aacceptable@ securities including Acertificates of deposit, treasury bills, [and]
treasury notes,@ all of which were backed by the federal government. In response, McLane paid two stamp
invoices and, along with the payments, sent a letter of protest pursuant to sections 112.051 and 112.101 of
the tax code (hereafter, the Aprotest statutes@), stating it was paying the invoices as prerequisite to filing suit.
See id. '' 112.051, .101 (West 2001).
McLane then sued the Comptroller, seeking: (1) the recovery of Ataxes@ paid under
protest; (2) an injunction prohibiting the Comptroller from denying McLane the right to provide its letter of
credit as collateral in lieu of Fund participation and from requiring its continued participation to obtain
stamps without prepayment; (3) a declaration that it could pledge an irrevocable letter of credit in lieu of
participating in the Fund, see Tex. Civ. Prac. & Rem. Code Ann. '' 37.001-.011 (West 1997 & Supp.
2004-2005) (the Uniform Declaratory Judgments Act or AUDJA@); (4) a declaration that the Comptroller
violated McLane=s rights by withholding the three-percent stamping allowance and by Aforcing them to pay
the 3% allowance in issue under protest@; and (5) a declaration that the Comptroller was taking McLane=s
property without just compensation and violating the Commerce Clause and its rights to due process and
equal protection. See 42 U.S.C.A. ' 1983 (West 2003) (Asection 1983@).
The Comptroller filed a plea to the jurisdiction and a motion for summary judgment arguing
that (1) McLane=s suit was barred by sovereign immunity because the legislature had not provided McLane
with any cause of action to complain about the Comptroller=s administration of the Fund, (2) jurisdiction lay
with the Texas Supreme Court pursuant to section 22.002(c) of the government code4 because McLane=s
4
Section 22.002 provides that only the supreme court may issue a writ of injunction against an
4
cause of action was in the nature of a mandatory injunction, and (3) the protest statutes were inapplicable
because McLane was not disputing a Atax or fee@ imposed by the Comptroller. After a hearing, the district
court granted the Comptroller=s plea in part, stating that McLane had not established jurisdiction under the
protest statutes. The court denied the remainder of the Comptroller=s plea, but granted her motion for
summary judgment on all non-jurisdictional grounds, thus disposing of McLane=s suit.
On appeal, McLane argues that the district court had jurisdiction over the suit under chapter
112 of the tax code, the UDJA, and section 1983. The Comptroller asserts that the district court properly
granted in part its plea to the jurisdiction but that it was error to deny the remainder of its plea. The
Comptroller argues that McLane=s entire suit is barred by sovereign immunity because it is an attempt to
interfere with the exercise of her lawful authority and thus violates the separation of powers doctrine.
Because jurisdiction is essential to our authority to consider McLane=s issues and is dispositive of this
appeal, we first address the Comptroller=s contention.
Standard of Review
A suit against a state officer lawfully exercising her governmental functions is considered a
suit against the State, and is barred by sovereign immunity absent legislative consent. Director of Dep=t of
Ag. & Env=t v. Printing Indus. Ass=n of Tex., 600 S.W.2d 264, 265-66, 270 (Tex. 1980); King v.
officer of Athe executive departments of the government of this state@ to compel Athe performance of a
judicial, ministerial, or discretionary act or duty that, by state law, the officer [is] authorized to perform.@
Tex. Gov=t Code Ann. ' 22.002(c) (West 2004).
5
Texas Dep=t of Human Servs. ex rel. Bost, 28 S.W.3d 27, 33 (Tex. App.CAustin 2000, no pet.). It is
for the legislature alone Ato waive or abrogate sovereign immunity.@ Federal Sign v. Texas S. Univ., 951
S.W.2d 401, 409 (Tex. 1997). Whether a court has subject-matter jurisdiction and whether a plaintiff has
affirmatively established subject-matter jurisdiction are questions of law that we review de novo. Texas
Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). To determine whether a
plaintiff demonstrated a court=s jurisdiction, we consider the facts alleged in the petition, and to the extent it
is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Id. at 226-27.
In deciding a plea to the jurisdiction, we may not weigh the merits of the plaintiff=s claims but may consider
only the pleadings, construed in favor of the plaintiff, and evidence pertinent to the jurisdictional inquiry.
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If a plaintiff pleads facts that
affirmatively negate jurisdiction and the defect is incurable, dismissal is proper. Id. If the plaintiff=s pleadings
are insufficient to establish jurisdiction but do not show incurable jurisdictional defects, the proper remedy is
to allow the plaintiff an opportunity to amend. Id. We now turn to McLane=s pleadings to determine
whether it established jurisdiction.
Waiver of Immunity Under the UDJA
McLane argued that the district court had jurisdiction over its claims under the UDJA
because the Comptroller acted outside of her legal authority in refusing to accept McLane=s irrevocable
letter of credit as collateral for McLane=s continuing to receive stamps without prepayment and without
Fund participation. The UDJA allows a person Awhose rights, status, or other legal relations are affected by
a statute@ to Ahave determined any question of construction or validity arising under the . . . statute . . . and
6
obtain a declaration of rights, status, or other legal relations thereunder.@ Tex. Civ. Prac. & Rem. Code
Ann. ' 37.004(a) (West 1997).
A party may seek declaratory relief against a state official allegedly acting outside of or
without legal authority and seek to compel the official to act within her official capacity; such a suit is not
considered a suit against the state. Texas Natural Res. Conservation Comm=n v. IT-Davy, 74 S.W.3d
849, 855 (Tex. 2001); W.D. Haden Co. v. Dodgen, 308 S.W.2d 838, 840 (Tex. 1958); Rylander v.
Caldwell, 23 S.W.3d 132, 135-36 (Tex. App.CAustin 2000, no pet.). On the other hand, a suit that
seeks to impose liability on the state or to control state action is a suit against the state and may not be
maintained without a waiver of sovereign immunity. Printing Indus. Ass=n, 600 S.W.2d 265-66, 270;
Potter County Attorney=s Office v. Stars & Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 470-71
(Tex. App.CAmarillo 2003, no pet.); King, 28 S.W.3d at 33. A suit that seeks to control a state official=s
exercise of discretion within her legal authority is a suit to control state action and cannot be maintained
without legislative permission. King, 28 S.W.3d at 33. A discretionary act is one that requires the exercise
of Apersonal deliberation, decision and judgment.@ City of Lancaster v. Chambers, 883 S.W.2d 650,
654 (Tex. 1994).
Therefore, to determine whether McLane may maintain its declaratory judgment suit against
the Comptroller, we must decide whether the Comptroller validly exercised her discretion or acted outside
of her legal authority in refusing to accept the letter of credit, which in turn requires us to construe section
154.051. Statutory construction is a question of law, which we review de novo. Bragg v. Edwards
Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002). We seek to ascertain and give effect to the legislature=s
7
intent for the provision in question. State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979). The legislature=s
intent is determined by reading the language used and construing the statute in its entirety. Id.; see Cornyn
v. Universe Life Ins. Co., 988 S.W.2d 376, 378-79 (Tex. App.CAustin 1999, pet. denied). We read
every word as if it were deliberately chosen and presume that omitted words were excluded purposefully.
Cornyn, 988 S.W.2d at 379. Our interpretation must not lead to foolish or absurd results or attribute to
the legislature an intent to work injustice, but if a legislative policy simply seems Aunwise or inconsistent with
other policies,@ we may not depart from Athe plain meaning of the legislative mandate.@ Id.
The disputed provision here is paragraph (o) of section 154.051, which states that in lieu of
participating in the Fund, a distributor Amay pledge to the comptroller sufficient collateral to secure payment
for the stamps. Such pledge . . . shall consist of certificates of deposit, treasury notes, treasury bills, or
other similar types of collateral acceptable to the comptroller.@ Tex. Tax Code Ann. ' 154.051(o)
(emphasis added). Although a letter of credit is required as collateral from a distributor not yet vested in the
Fund, see id. ' 154.051(e), (f), (g),5 it is not listed among the forms of collateral that allow a distributor to
5
Paragraph (e) requires an irrevocable letter of credit from a distributor that is in the process of
becoming vested in the Fund. Tex. Tax Code Ann. ' 154.051(e). Paragraph (f) provides that A[i]n
addition to any other requirement under this section, the comptroller as a condition for shipping stamps
without advance payment may . . . require a distributor to post a letter of credit.@ Id. ' 154.051(f)(5).
Under paragraph (g), a distributor whose Fund balance drops below the required minimum must post an
irrevocable letter of credit. Id. ' 154.051(g).
8
buy stamps without prepayment or any level of Fund participation. Further, section 151.051(f) provides,
AIn addition to any other requirement under this section, the comptroller as a condition for shipping stamps
without advance payment may . . . take any other reasonable and necessary action to protect the state
treasury from loss due to the nonpayment of cigarette taxes.@ Id. ' 154.051(f)(7).
We conclude that the legislature=s language in section 154.051(o) evidences a clear grant of
discretion. By that language, the legislature clearly gave the Comptroller the authority and responsibility to
manage and administer the Fund, including the authority to decide what collateral to accept in lieu of Fund
participation other than certificates of deposit, treasury bills and notes. That the legislature specifically
referred to or required irrevocable letters of credit in some circumstances and omitted to mention them in
others supports our conclusion. See Cornyn, 988 S.W.2d at 379 (presumption that legislature intended to
include or omit particular words). Contrary to McLane=s assertions, the Comptroller acted within her
statutory authority in refusing to accept an irrevocable letter of credit. McLane=s suit, therefore, is seeking
to control state action and is a suit against the state.6 Under these circumstances, McLane may not maintain
the suit without legislative permission.7 See Printing Indus. Ass=n, 600 S.W.2d at 270 (officials acted
6
A judicial decision overriding the Comptroller=s legislatively granted discretion and requiring her to
accept a particular kind of collateral not enumerated by statute could run afoul of the separation of powers
doctrine. Tex. Const. art. 2, ' 1; see Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim.
App. 1990) (separation of powers violated if one branch of government assumes, to any degree, power
more Aproperly attached@ to another branch or so unduly interferes that other branch cannot effectively
exercise constitutionally assigned powers); see also City of Stephenville v. Texas Parks & Wildlife
Dep=t, 940 S.W.2d 667, 678 (Tex. App.CAustin 1996, writ denied) (AThe judiciary cannot modify an
agency order without usurping the agency=s authority and thereby violating the separation of powers
doctrine.@).
7
We note that our holding is limited to the circumstances presented here. We do not hold that the
9
within scope of authority and thus suit barred by sovereign immunity). The district court lacked jurisdiction
over McLane=s UDJA claims.
Waiver of Immunity Based on the Protest Statutes
McLane also sought to establish jurisdiction under the protest statutes, sections 112.051
and 112.101 of the tax code. Section 112.051 requires a taxpayer contesting the validity of a Arequired@
tax or fee to pay the tax or fee along with a protest and then sue for the payment=s return. Tex. Tax Code
Ann. ' 112.051(a). Section 112.101 authorizes an injunctive action to prohibit the Aassessment or
collection of a tax or fee imposed@ by the State after the complainant pays the disputed tax or fee. Id. '
112.101(a).
McLane stated in its pleadings:
The protested taxes consist of 3% of Plaintiffs= monthly cigarette taxes. Under
' 154.052(a) of the Tax Code, the Legislature directed that Plaintiffs are entitled to retain
those taxes as a fee for stamping cigarettes upon withdrawing from the Fund. The
Comptroller forced Plaintiffs to pay the taxes under protest by refusing to allow Plaintiffs to
withdraw from the Fund.
McLane also sought a refund of its full Fund account balance, less Athe taxes paid in protest.@
Comptroller=s management of the Fund cannot be subject to judicial review. We hold only that McLane
failed to establish the court=s jurisdiction over the particular subject matter at issueCthe Comptroller=s
authority to decide what she will accept as collateral other than certificates of deposit, treasury notes, and
bills.
10
The three percent referenced is the stamping allowance McLane earned for placing stamps
on the cigarette packages. McLane complained that if it was allowed to pledge an irrevocable letter of
credit in lieu of participating in the Fund, it could retain its stamping allowance, but because the Comptroller
would not accept the letter of credit, McLane was Aforced@ to submit its stamping allowance, which
amounted to the imposition and payment of a required tax.
McLane, however, overlooks the voluntary nature of the Fund. While from a business
standpoint securing the payment of taxes by depositing twenty percent of a company=s monthly cigarette
taxes may be preferable to paying the tax in advance, McLane does not dispute that it could have
withdrawn from the Fund, received a refund of its Fund balance, and prepaid for its stamps. McLane also
had the option of pledging an approved security in lieu of participating in the Fund, an option it attempted to
pursue with its letter of credit. See Tex. Tax Code Ann. ' 154.051(o).8
McLane was not seeking the return of the stamp taxes it paid under the invoices but rather
sought both to withdraw from the Fund, receiving a refund of its stamping allowance, and to continue to
obtain stamps on credit. In other words, McLane did not protest the stamp tax itself, but rather the
Comptroller=s terms under which a distributor may obtain stamps without prepayment or Fund participation.
8
We note that the Comptroller is authorized to take action she believes proper to Aprotect the state
treasury from loss due to the nonpayment of cigarette taxes.@ See Tex. Tax Code Ann. ' 154.051(f)(7).
Consequently, although section 154.051 gives distributors alternatives to Fund participation, whether and to
what extent a distributor can avail itself of those options is to some degree left to the discretion of the
Comptroller.
11
McLane was not protesting the stamp tax or other Arequired@ or Aimposed@ taxes or fees and, therefore, its
pleadings affirmatively negate jurisdiction under the protest statutes. See id. '' 112.051(a), .101(a). We
overrule McLane=s third issue.
Waiver of Immunity Based on Section 1983
McLane further asserted jurisdiction pursuant to section 1983, which creates a cause of
action against A[e]very person who, under color of any [state law], subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution.@ 42 U.S.C.A. ' 1983. McLane sued ACarole Keeton Strayhorn in her official capacity as
Comptroller of Public Accounts for the State of Texas.@ The Comptroller argues that McLane=s section
1983 claim was barred by sovereign immunity because she did not fall within the statutory definition of a
Aperson@ under section 1983.
We agree with the Comptroller that McLane=s suit was barred by sovereign immunity and
that the Comptroller, acting in her official capacity, was not subject to suit. In Will v. Michigan
Department of State Police, the Supreme Court held that state officials are entitled to sovereign immunity
and are not Apersons@ under section 1983 to the extent they are sued in their official capacities. 491 U.S.
58, 66-71 (1989) (suit against official in her official capacity is suit not against official but rather her office
and therefore is Ano different from a suit against the state itself@; Aneither a state nor its officials acting in their
official capacities are >persons= under ' 1983@). McLane attempted to paint the Comptroller=s actions as
unauthorized and not undertaken in her official capacity. However, we have held that the Comptroller was
granted the authority to determine whether a proposed form of collateral is acceptable and, thus, to reject
12
McLane=s attempts to pledge an irrevocable letter of credit. Because the Comptroller was both acting and
sued in her official capacity, she was not a Aperson@ under section 1983 and thus is entitled to sovereign
immunity.
Conclusion
We have concluded that the district court did not have jurisdiction under the UDJA, the
protest statutes, or section 1983. We therefore modify the judgment to dismiss for want of jurisdiction
McLane=s complaints brought under the UDJA and section 1983 and affirm the judgment as modified.
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Modified and, as Modified, Affirmed
Filed: October 14, 2004
13 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3038046/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTOPHER C. EDWARDS, No. 04-55752
Petitioner-Appellee,
v. D.C. No.
CV-01-10401-RGK
A. LAMARQUE, Warden,
ORDER
Respondent-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, 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.
8291
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/1575862/ | 17 So. 3d 369 (2009)
STATE ex rel. Huey Lee RICHARDS
v.
STATE of Louisiana.
No. 2008-KH-2345.
Supreme Court of Louisiana.
August 12, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573775/ | 17 So. 3d 5 (2009)
Mary ALEXANDER
v.
SANDERSON FARMS, INC.
No. 2008 CA 2225.
Court of Appeal of Louisiana, First Circuit.
May 8, 2009.
Rehearing Denied June 19, 2009.
*8 Michelle Sorrells, Baton Rouge, LA, for Claimant/Appellant, Mary Alexander.
John T. Roethele, Denham Springs, LA, for Defendant/Appellee, Sanderson Farms.
Before PETTIGREW, McDONALD, and HUGHES, JJ.
HUGHES, J.
This is an appeal from an Office of Workers' Compensation (OWC) ruling denying a claim for additional workers' compensation benefits following termination of benefits by the employer. For the reasons that follow, we amend the judgment in part and affirm as amended.
FACTS AND PROCEDURAL HISTORY
On November 15, 2005 fifty-eight-year-old Mary Alexander injured her neck, back, and foot while engaged in the duties of her employment with Sanderson Farms, Inc. (Sanderson), in Hammond, Louisiana. Ms. Alexander received medical treatment and workers' compensation indemnity benefits from Sanderson.[1]
By June 2006 Ms. Alexander had returned to light duty employment with Sanderson while continuing to receive medical care. On June 19, 2006 and June 20, 2006, Ms. Alexander telephoned Sanderson to state that she would not be at work because of back pain. On June 20, 2006, Ms. Alexander was treated at Lallie Kemp Regional Medical Center (Lallie Kemp) in Independence, Louisiana, given two injections, and instructed to remain off work until June 26, 2006; however, she failed to notify Sanderson that per doctor's orders she would be out for the remainder of the week.
On June 26, 2006 Ms. Alexander called Sanderson to let them know her husband was experiencing chest pains and she was accompanying him to the doctor. On June 27, 2006 Ms. Alexander returned to work but learned that her employment had been terminated on June 23, 2006 for failure to report for work or call in for three consecutive days.
Thereafter, Ms. Alexander was paid indemnity benefits for July and August of 2006 and she continued to receive medical benefits and vocational rehabilitation counseling. In December of 2006 Ms. Alexander became employed as a substitute teacher with the Tangipahoa Parish School System, but she maintains that she is unable to earn 90% of her pre-accident wages.
On July 31, 2006 Ms. Alexander filed a "Disputed Claim for Compensation" with the OWC seeking temporary total disability benefits, supplemental earnings benefits, reimbursement of medical bills, mileage *9 reimbursement, attorney's fees, and penalties.
Following a hearing before the OWC on March 12, 2008, the OWC judge ruled that Ms. Alexander sustained a work-related accident on November 15, 2005 while in the course and scope of her employment with Sanderson, and that she was entitled to reasonable and necessary medical care at Sanderson's expense; however, it was found that supplemental earnings benefits had been paid through August 2006 and that no further compensation benefits were due as "jobs were identified and available [that] would have been in excess of 90% of [Ms. Alexander's] weekly earnings while employed at Sanderson Farms."
Ms. Alexander appeals this decision, urging the following assignments of error:
1. The [workers'] compensation judge manifestly erred in his refusal to order the payment of TTD [temporary total disability] benefits for the time period of 6/19/06-6/26/06, and a penalty and attorney fee for the failure to pay these benefits timely.
2. The [workers'] compensation judge manifestly erred in his failure to award the claimant SEB [supplement earnings] benefits beyond July and August, 2006.
3. The workers' compensation judge manifestly] erred in finding that jobs were identified and available which would have paid more than 90% of the employee's average weekly wage.
4. The workers' compensation judge manifestly erred in his failure to award penalties and attorney fees for the failure to authorize the injection ordered by Dr. Logan in a timely manner.
5. The [workers'] compensation judge manifestly erred in his failure to award the reimbursement of the claimant's out-of-pocket medical expenses, and a penalty and attorney fees for the failure to pay this medical expense timely.
LAW AND ANALYSIS
The Workers' Compensation Act provides coverage to an employee for personal injury by "accident" arising out of and in the course of his employment. An "accident" is defined by LSA-R.S. 23:1021(1) as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."
An employee must prove the chain of causation required by the workers' compensation statutory scheme as adopted by the legislature. He must establish that the accident was employment-related, the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Const, XXXX-XXXX, p. 2 (La.App. 1 Cir. 2/15/02), 807 So. 2d 1199, 1201, writ denied, XXXX-XXXX (La.5/24/02), 816 So. 2d 851. A claimant has the burden of proving disability by clear and convincing evidence. See Walker v. High Tech Refractory Services, Inc., XXXX-XXXX, p. 3 (La.App. 1 Cir. 6/25/04), 885 So. 2d 1185, 1188.
In ruling in favor of Sanderson, the workers' compensation judge included within the written judgment the following reasons for his decision:
Upon review of the evidence and the law, and particularly upon observing the witnesses['] demeanor as they testified, the Court concludes as follows[:]
... that Mary Alexander, employee, sustained a work related accident with injury on November 15, 2005, while in *10 the course and scope of her employment with Sanderson Farm[s], the employer/defendant herein.
... that employee Mary Alexander is entitled to reasonable and necessary medical care provided by or at the direction of Dr. Bryant and within the medical fee schedule, payable by the employer, Sanderson Farms.
... that given the unreliable nature of the employee's testimony, and the Court accepting as credible the testimony of the employer's personnel manager, nurse and the vocational rehabilitation specialist, the Court finds SEB to be paid for the months of July 2006 and August 2006 as evidenced by the post dated LDOL-WC 1020 (Employee Monthly Earnings Report) accepted into evidence as Joint Exhibit Q. Otherwise, jobs were identified and available which would have been in excess of 90% of employee's weekly earnings while employed at Sanderson Farms.
... that the defendant herein, Sanderson Farms, has reasonably controverted the claims brought by employee, Mary Alexander.
The OWC judge determined that Ms. Alexander had suffered a compensable work-related accident and medical benefits were ordered to be paid; however, Ms. Alexander contends that she is also entitled to temporary total disability benefits for the period of June 19 through June 26, 2006, supplemental earnings benefits after August 2006, and reimbursement of out-of-pocket medical expenses. Ms. Alexander further contends she should have been awarded penalties and attorney's fees for failure of Sanderson to timely pay for a prescribed injection, as well as for nonpayment of temporary total disability benefits and reimbursement of her out-of-pocket expenses.
After a careful examination of the record presented on appeal, we conclude that the credibility issues that concerned the OWC judge were not relevant to the legal questions presented for resolution in this case. Although the OWC judge stated that Ms. Alexander's testimony was "unreliable" and that he accepted "as credible" the testimony of defendant's witnesses, there was no real conflict in testimony on relevant points of fact.
Temporary Total Disability
An employee seeking temporary total disability benefits in accordance with LSA-R.S. 23:1221(1)(c) must prove by clear and convincing evidence that he is unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of injury. In determining whether an employee has discharged his burden of proof, the workers' compensation judge should accept as true a witness' uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of that testimony. A workers' compensation judge's determinations of whether an employee's testimony is credible and whether he has discharged his burden of proof regarding his entitlement to temporary total disability benefits are factual determinations that will not be disturbed upon review absent manifest error. Moran v. G & G Construction, 2003-2447, pp. 5-6 (La.App. 1 Cir. 10/29/04), 897 So. 2d 75, 80, writ denied, 2004-2901 (La.2/25/05), 894 So. 2d 1148. See also Russell v. Regency Hospital of Covington, LLC, XXXX-XXXX, p. 5 (La.App. 1 Cir. 11/14/08), 998 So. 2d 301, 305.
Ms. Alexander seeks temporary total disability benefits for the week beginning June 19, 2006. At that time, Ms. Alexander was employed by Sanderson but she called in sick on June 19, 2006, stating that she had aggravated her injured back. Ms. *11 Alexander stated that she tried to get an appointment with her regular doctor but could not get there at the time available, so on June 20, 2006, she went to Lallie Kemp for treatment. Ms. Alexander notified Sanderson on both June 19th and 20th that she would be out sick. The Lallie Kemp doctor issued Ms. Alexander an excuse from work for that week, indicating she could return to work on June 26, 2006. Ms. Alexander did not provide this information to Sanderson or call in to indicate she would not be coming to work on either June 21, 22, or 23, 2006. On June 26, 2006 she did call and inform Sanderson she would not be coming to work because she had to accompany her husband to the doctor. When Ms. Alexander reported for work on June 27, 2006, she was informed that her employment had been terminated effective June 23, 2006 for violation of the company policy prohibiting employees from failing to report for work without notifying the company for three days. Ms. Alexander testified that although she was aware of this rule, she did not believe it applied to her in that instance because she had completed a Family Medical Leave Act (FMLA) package in connection with her absences in May 2006. At the trial of this matter, Ms. Alexander was asked why she had stated to the Lallie Kemp doctor that she had not previously been off work in connection with her back injury, when in fact she had been off work from May 17, 2006 until June 1, 2006 because of her back. Ms. Alexander explained at trial that even though she was off for two prior weeks under the FMLA, she could have been "called in" to work by Sanderson, so "it wasn't like I was just off ... [t]o me, it wasn't."[2]
Sanderson paid no compensation benefits to Ms. Alexander for the week beginning June 19, 2006, and although she was paid supplemental earnings benefits in July and August of 2006, she received no further compensation benefits even though her later employment as a substitute teacher provided her with income less than 90% of her prior Sanderson wages.
To prove her claim for temporary total disability, Ms. Alexander introduced documentary medical evidence, including MRI reports, establishing that she in fact had objective back pathology. Sanderson introduced no evidence to contradict these findings or that would call into question whether Ms. Alexander's condition was related to her fall at work.
The June 20, 2006 Lallie Kemp emergency department records introduced into evidence stated that Ms. Alexander presented complaining of "chronic back pain from protruding disc in lower back" and that due to an increase in activities "@ work" her back pain had "flared-up" such that her medication was not providing her with relief. These records further indicated that Ms. Alexander complained of the pain in her back getting worse after lifting "over 50 lb [sic] of chicken." The Lallie Kemp doctor found a decreased range of motion and muscle tenderness. Ms. Alexander was given two injections and instructed to see her regular physician, rest for six days, and return to work the following Monday, June 26, 2006.
*12 In her testimony before the OWC, Ms. Alexander stated that her duties at work had aggravated her back condition, so she sought treatment at Lallie Kemp. No witnesses testified and no medical evidence was presented by Sanderson to contradict either Ms. Alexander's testimony or the Lallie Kemp doctor's assessment that Ms. Alexander's flare-up was connected to her work-related injury.
Sanderson defends against the claim for temporary total disability by asserting that Ms. Alexander's treating physicians had previously released her to light duty work, and that the Lallie Kemp work excuse received when Ms. Alexander returned to work did not provide any notation relating the absence to her back. Sanderson further makes the following assertion in brief to this court:
The Claimant can not simply go into hiding and not tell the employer and then expect the employer to pay her workers' compensation benefits for days when she failed to live up to her employment obligation which included all days between June 20, 2006 and June 26, 2006. Accordingly, the Claimant's claim for compensation indemnity benefits for the period of time between June 19, 2006 and June 20, 2006 should have been and were denied by the trial court.
We find no merit in these arguments.
An employer has an ongoing duty to review medical reports concerning an injured employee's disability, and may not deny or discontinue workers' compensation based on inconclusive medical reports. Further, employers must demonstrate that they made reasonable efforts to medically ascertain a workers' compensation claimant's exact condition before denying benefits. Redler v. Giorlando's Restaurant Corporation, 2007-658, p. 8 (La. App. 5 Cir. 2/6/08), 979 So. 2d 512, 517, writ denied, XXXX-XXXX (La.6/6/08), 983 So. 2d 925. An employer must rely on competent medical advice when making the decision to deny benefits. Baullion v. Old American Pottery Company, XXXX-XXXX, p. 14 (La.App. 3 Cir. 11/21/01), 801 So. 2d 567, 576. In the instant case, Sanderson failed to show that it made any attempt to obtain a medical opinion prior to denying Ms. Alexander's claim for temporary total disability for the week beginning June 19, 2006.
We find no merit in Sanderson's argument that Ms. Alexander was restricted to treatment by her specialists, Dr. Logan or Dr. Bryant, or that these doctors' prior release to light duty work justified Sanderson's assessment of this claim. Louisiana Revised Statute 23:1142(C)(1) provides: "In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider." The Lallie Kemp doctor concluded after examining Ms. Sanderson that two injections were immediately warranted and that six days of rest were justified by her condition. No medical testimony was introduced to contradict the appropriateness of this treatment. Lallie Kemp records were available to Sanderson upon request, pursuant to LSA-R.S. 23:1127. Faced with a perceived conflict between Lallie Kemp's diagnosis and treatment and that previously ordered by Doctors Logan and Bryant, Sanderson had a duty to investigate further the extent of Ms. Alexander's disability. See Pekinto v. Olsten Corporation, 587 So. 2d 68, 73 (La.App. 4 Cir.1991).
Sanderson's assertion that Ms. Alexander went "into hiding" both exaggerates exceedingly the facts of this case and lacks relevancy to the issues before the court. Sanderson's own records reveal that Ms. Alexander called in "sick" on both June 19, 2006 and June 20, 2006, and that Ms. Alexander turned in a Lallie Kemp "Return *13 to Work or School Authorization," dated June 20, 2006, which stated that she was to "[r]est for 6 days" and that she could "return to work on Monday 6-26-06," which she turned in to Sanderson on or about June 27, 2006. During the hearing before the OWC, Sanderson placed much emphasis on the fact that Ms. Alexander failed to either call in sick or submit the Lallie Kemp excuse on the other days she was scheduled to work that week, June 21st, 22nd, or 23rd, and was terminated accordingly to Sanderson policy. Although Sanderson may have had a valid reason to terminate Ms. Alexander's continued employment, this does not bear on the issue of whether Sanderson was obligated to pay Ms. Alexander temporary total disability benefits for her inability to work due to a compensable medical condition.
We conclude the OWC erred in denying temporary total disability benefits to Ms. Alexander for the week beginning June 19, 2006, and we hereby amend the OWC judgment to award Ms. Alexander these benefits.
Supplemental Earnings Benefits
An employee is entitled to supplemental earnings benefits in accordance with LSA-R.S. 23:1221(3)(a) if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Once the employee meets this burden, the burden of proof shifts to the employer, who, in order to defeat the employee's claim for supplemental earnings benefits or to establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic area. Hayes v. Louisiana State Penitentiary, XXXX-XXXX, pp. 12-13 (La.App. 1 Cir. 8/15/07), 970 So. 2d 547, 558, writ denied, 2007-2258 (La.1/25/08), 973 So. 2d 758.
Ms. Alexander testified at the trial of this matter that she was unable to find employment until December of 2006 when she was hired by the Tangipahoa Parish School Board as a substitute teacher and that she does not earn 90% of her pre-accident wages as a substitute teacher.
To justify its refusal to pay further supplemental earnings benefits, Sanderson presented the testimony of Angelle Nash, a vocational rehabilitation counselor with Cascade Disability Management, Inc., who testified that in the fall of 2006 and early 2007, she provided vocational counseling to Ms. Alexander. On December 4, 2006 Ms. Nash provided Ms. Alexander with information identifying at least five local businesses that had available full time job openings that met her restrictions.[3] Ms. Nash testified that she met with Ms. Alexander on December 21, 2006, and was informed by Ms. Alexander that she was going to wait to look for a job until after the first of the year because her husband had surgery, one of her grandchildren was *14 ill, and she did not have time to look for a job. Ms. Alexander testified that she did contact the prospective employers but was unable to obtain one of these jobs.[4]
Sanderson does not dispute the fact that Ms. Alexander does not earn 90% of her pre-accident wages in her employment with the school board. Rather, Sanderson attempted to prove that there were other jobs available that were disclosed to Ms. Alexander by the vocational rehabilitation counselor, Ms. Nash, that paid at least 90% of Ms. Alexander's pre-accident wages. Concerning this issue, testimony was elicited at trial that raised a question as to whether Ms. Alexander timely applied for these jobs. However, it is not necessary to reach this credibility issue. By Ms. Nash's own admission, she failed to ascertain whether the jobs she identified were still available when they were approved by Ms. Alexander's doctor.
When a defendant employer is unable to show that job opportunities were still open at the time claimant's treating physician approved them, the employer fails to meet its burden of proving that a claimant is employable at 90% of her pre-injury wage. See Davis v. Cippriani's Italian Restaurant, XXXX-XXXX, p. 4 (La. App. 1 Cir. 2/14/03), 844 So. 2d 58, 61, writ denied, XXXX-XXXX (La.5/9/03), 843 So. 2d 403.[5]See also Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 9 (La.1997), 696 So. 2d 551, 556 (holding, that in order to defeat the employee's claim for supplemental earnings benefits or establish the employee's earning capacity, an employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region).
In the instant case, because Sanderson failed to establish that jobs were available to Ms. Alexander that her treating physician had approved as being jobs Ms. Alexander was physically able to perform, Sanderson failed in its burden to show that there were suitable, available jobs in Ms. Alexander's community.[6] Thus, Ms. Alexander *15 is entitled to collect supplemental earnings benefits; we hereby amend the OWC judgment to award these benefits.
Claim for Medical Expenses Incurred for Treatment by Dr. Gaudin
Ms. Alexander contends that the trial court erred in failing to award her reimbursement of a $75.00 charge for treatment by Dr. Gaudin at the Hammond Walk-In Clinic. Prior to Ms. Alexander seeing Dr. Gaudin, she had previously been treated by Dr. Mark Daunis at North Oaks Occupational Health Services, and by Dr. Paul Van Deventer at the Orthopaedic Clinic of Mandeville, both of whom were chosen by Sanderson.
Louisiana Revised Statute 23:1121(B) provides in pertinent part:
(1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers' compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
(2)(a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.
(b) When the employee is specifically directed to a physician by the employer or insurer, that physician may also be deemed as the employee's choice of physician, if the employee has received written notice of his right to select one treating physician in any field or specialty, and then chooses to select the employer's referral as his treating specialist after the initial medical examination as signified by his signature on a choice of physician form. The notice required by this Subparagraph shall be on a choice of physician form promulgated by the director of the office of workers' compensation and shall contain the notice of the employee's rights provided under R.S. 23:1121(B)(1). Such form shall be provided to the employee either in person or by certified mail.
(3) Paragraph (2) of this Subsection shall not apply to other physicians to whom the employee is referred by the physician selected by the employer unless the employer or insurer has obtained the choice of physician form provided for under Subparagraph (2)(b) separately for any such physician after the initial medical examination with that physician.
Sanderson did not establish that either Dr. Daunis and Dr. Van Deventer were Ms. Alexander's choice of physician under LSA-R.S. 23:1121(B). Therefore, Ms. Alexander's first choice of a treating physician was Dr. Gaudin, and Sanderson's failure to pay the charge for his fee was not justifiable. Consequently, the OWC erred in failing to award the $75.00 charge of Dr. Gaudin payable by Sanderson; we hereby amend the OWC judgment to reflect the award of $75.00 to Ms. Alexander.
Penalties and Attorney Fees
Ms. Alexander claims she is entitled to collect penalties and attorney fees for the *16 failure of Sanderson to pay: temporary total disability for the week beginning June 19, 2006, the $75.00 charge of Dr. Gaudin, and the failure to authorize an injection recommended by Dr. Logan/Dr. Bryant in November 2006. (Ms. Alexander concedes that Sanderson reasonably controverted her claim for supplemental earnings benefits and she had not requested penalties and attorney fees on this portion of her suit.
Pursuant to LSA-R.S. 23:1201(F),[7] when an employer fails to commence payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely, both penalties and attorney fees are recoverable unless the claims are reasonably controverted. A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Zavala v. St. Joe Brick Works, 2007-2217, p. 9 (La.App. 1 Cir. 10/31/08), 999 So. 2d 13, 20-21, writ denied, 2008-2827 (La.1/30/09), 999 So. 2d 762. See also Joseph v. J.E. Merit Constructors, Inc., XXXX-XXXX, p. 9 (La.App. 1 Cir. 6/21/02), 822 So. 2d 72, 77-78, writ denied, 2002-2295 (La.4/4/03), 840 So. 2d 1201.
The mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claim. While a utilization review process has its place in the workers' compensation process, it has been consistently held that a long-distance diagnosis by a physician advisor is not an acceptable basis for denial of treatment and benefits. Rose v. Maison Deville Care Center, XXXX-XXXX, pp. 5-6 (La.App. 3 Cir. 4/5/06), 927 So. 2d 625, 629, writ denied, XXXX-XXXX (La.9/1/06), 936 So. 2d 205; Harrington v. Coastal Construction & Engineering, 96-681, pp. 3-4 (La.App. 3 Cir. 12/11/96), 685 So. 2d 457, 459-60, writ denied, 97-0109 (La.3/7/97), 689 So. 2d 1375.
With respect to the claims of temporary total disability, Sanderson produced no medical evidence to rebut that presented by Ms. Alexander to establish that her disability prevented her from working the week of June 19, 2006; thus, the claim was not reasonably controverted *17 and Ms. Alexander is entitled to penalties and attorney fees as to this claim.
With respect to Ms. Alexander's claim for reimbursement of her visit to Dr. Gaudin, the denial of which was contrary to the provisions of LSA-R.S. 23:1121 (allowing a claimant a first choice of a physician within each field or specialty without prior approval), this claim was likewise not reasonably controverted and Ms. Alexander is entitled to penalties and attorney fees thereon.
With respect to the injection recommended by Ms. Alexander's treating physician in November 2006, which was denied by Sanderson, the record reflects that this denial was made pursuant to Sanderson's workers' compensation insurer's peer utilization review process, during which a physician selected by the insurer reviews the medical records and makes a recommendation to the insurer as to whether the proposed treatment should be approved or denied. In the instant case, there was no indication in the record that the peer review doctor ever examined Ms. Alexander. Under these circumstances, the peer review process does not constitute competent medical advice sufficient to reasonably controvert the claim. For this reason, the requested November 2006 injection was improperly denied, entitling Ms. Alexander to penalties and attorney fees.
In accordance with the LSA-R.S. 23:1201(F), for each of these three claims Ms. Alexander is entitled to a penalty "in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim." Accordingly, Ms. Alexander is entitled to a $2,000.00 penalty on each of these three claims, for a total penalty of $6,000.00. We also award Ms. Alexander $5,000.00 in attorney fees for the presentation of her claim before the OWC, and an additional sum of $2,500.00 in attorney fees for the successful prosecution of this appeal. The OWC judgment is hereby amended to include these awards.
CONCLUSION
For the reasons assigned, the judgment of the Office of Workers' Compensation is amended in part, as stated hereinabove, and affirmed as amended. All costs of this appeal are to be borne by defendant/appellee, Sanderson Farms, Inc.
AMENDED IN PART AND AFFIRMED AS AMENDED.
PETTIGREW, J., concurs.
McDONALD, J., dissents.
NOTES
[1] Evidence was introduced indicating that Ms. Alexander had been paid a total of $8,302.85 in indemnity benefits and $16,194.59 in medical benefits by the time of trial.
[2] Stephen "Chip" Blessy, the personnel manager for Sanderson when Ms. Alexander worked there, testified that even though Ms. Alexander was off work in May 2006 because of her back injury, the Sanderson home office had requested that she fill out FMLA paperwork. Nevertheless, because Ms. Alexander had been released to return to light duty, when Sanderson determined that it had a light duty job available that met Ms. Alexander's work restrictions, she was asked to come back to work June 1, 2006, which she did.
[3] These businesses included: Cingular Wireless, Advance America Cash Advance, Capital One Bank, Express Check Advance, Huntington Learning Center, and AmSouth Bank. In January 2007 Ms. Nash further provided Ms. Alexander information on jobs available with the following companies: Books-a-Million, Networktel, and Landmark Hotel. (The Express Check Advance and the Books-a-Million positions were not approved by Ms. Alexander's doctor.)
[4] As to the Cingular Wireless and the Huntington Learning Center jobs, Ms. Alexander testified that the locally available jobs were only part-time. As to the Advance America Cash Advance job, Ms. Alexander testified that she filled out an application and was never called by the company. Regarding the Capital One Bank job, Ms. Alexander said that she was told that only Internet applications were being accepted and she was unable to access the online application. As to AmSouth Bank, Ms. Alexander submitted an online application, but she stated that she did not pass the qualifying test administered by the bank. Ms. Alexander also testified that the Landmark Hotel only had a housekeeping job available that involved bending, which she was restricted from doing. Ms. Alexander did not indicate whether she contacted Networktel.
[5] Accord Lanthier v. Family Dollar Store, 2006-779, p. 4 (La.App. 3 Cir. 11/2/06), 942 So. 2d 732, 735, and East-Garrett v. Greyhound Bus Lines, 99-421, pp. 7-8 (La.App. 3 Cir. 11/3/99), 746 So. 2d 715, 720 (concluding that it is implicit in the holding of Banks v. Industrial Roofing & Sheet Metal Works, Inc. that the employer must establish that the jobs are still in existence when it is determined that they are within the employee's capabilities; otherwise, the employee may be put in a position of having to apply for jobs that she might not be capable of performing, essentially a vain and useless act).
[6] On this issue, Sanderson further argues that if not for Ms. Alexander's "misconduct" in failing to follow company sick leave notification policy, which led to her termination, she would have continued in a light duty job with Sanderson in which she would have earned 90% of her pre-accident wages. We find no merit in this argument. Chip Blessey testified that Sanderson does not have permanent light duty positions. Mr. Blessey also testified that after an employee has been on light duty for more than ninety days, Sanderson requires the employee to be on FMLA status, and although he has known of an employee being maintained on light duty for more than a year, light duty status for that length of time has to be approved by the Sanderson home office.
[7] Louisiana Revised Statute 23:1201(F) provides in pertinent part:
F. Failure to provide payment in accordance with this Section or failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers' compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers' compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573880/ | 553 F. Supp. 1047 (1983)
Leslie GRIFFEN, Plaintiff,
v.
The CITY OF MOUNT VERNON and P.O. John Trippodo, Defendants.
No. 82 Civ. 5068 (DNE).
United States District Court, S.D. New York.
January 13, 1983.
*1048 Friedman, Levy, Smith & Bottiglieri, P.C., New York City, for plaintiff; Richard D. Friedman, New York City, of counsel.
Wilson, Elser, Edelman & Dicker, New York City, for defendants; Vincent Fontana, New York City, of counsel.
MEMORANDUM OPINION AND ORDER
EDELSTEIN, District Judge:
On August 4, 1982 plaintiff Leslie Griffen ("Griffen") filed a complaint in this action under the Civil Rights Act, 42 U.S.C. § 1983 against the City of Mount Vernon ("Mount Vernon") and one of its police officers, Officer John Trippodo ("Trippodo") alleging claims for unlawful detention, assault, battery, negligence and false arrest. Griffen alleges that on or about October 31, 1980, while he was waiting for Trippodo to give him a ticket for obstructing traffic, Griffen was, without provocation, unlawfully detained, and willfully and maliciously assaulted and beaten by Trippodo. Complaint, ¶¶ 12, 13. Plaintiff seeks damages in the amount of $1,000,000 with respect to each of four claims. On January 9, 1981 Griffen pleaded guilty to charges of disorderly conduct and harassment arising out of the October 31, 1980 incident.
On September 7, 1982 the court referred this action to Magistrate Kent Sinclair, Jr. pursuant to 28 U.S.C. § 636 to report and make findings and recommendations. On September 20, 1982 defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim under § 1983 upon which relief can be granted and for failure to commence the suit within the applicable statute of limitations.
On December 22, 1982 Magistrate Sinclair submitted to the court a "Recommended Decision on Motion to Dismiss."[1] Magistrate Sinclair recommended that defendants' motion to dismiss the action as time-barred should be denied, that Mount Vernon's motion to dismiss the § 1983 claims should be granted and that defendants' motion to dismiss the § 1983 claims based upon false arrest and false imprisonment should also be granted.
The court has considered Magistrate Sinclair's report, and agrees that defendants' contention that Griffen's claims are time-barred is without merit. In Pauk v. Board of Trustees of City University of New York, 654 F.2d 856, 861-66 (2d Cir. 1981) the court of appeals expressly rejected defendants' argument herein that the appropriate statute of limitations for § 1983 actions arising in New York is the one-year-and-ninety-day limitations period contained in N.Y.Gen.Mun.Law §§ 50-i, 50-k(6) (McKinney 1977 & Supp.1982). The Pauk court adopted the three-year limitations period contained in N.Y.Civ.Prac.Law and Rules § 214(2) (McKinney 1972), concluding that "§ 214(2) is the New York limitations provision that best fulfills the federal policies underlying § 1983 actions." Id. at 858. Thus, under the three-year statute of limitations, Griffen's complaint was filed within the appropriate time period.
The court also concurs in Magistrate Sinclair's analysis of the municipal liability issue under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) and *1049 Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980, 100 S. Ct. 483, 62 L. Ed. 2d 407 (1979). In Monell, the Court held that municipalities may be liable where the allegedly unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, supra. Subsequent decisions make it clear that a municipality's mere failure to supervise its employees is not a sufficient predicate for liability under § 1983. Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). However, a municipality may be held liable if it impliedly authorized, approved or encouraged the constitutional violation, Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980), or if the failure to supervise was so severe as to constitute "gross negligence" or "deliberate indifference" to the deprivation of the plaintiff's constitutional rights. Owens v. Haas, supra, at 1246; Leite v. City of Providence, 463 F. Supp. 585, 589-91 (D.R.I.1978).
In response to Mount Vernon's motion to dismiss, plaintiff proposed amendments to his complaint to add allegations that Mount Vernon failed to adequately train, supervise and control Officer Trippodo and police officers generally, and failed to adequately discipline them for past misconduct. Plaintiff's Memorandum in Opposition at 17. Magistrate Sinclair deemed the complaint to be amended by the incorporation of these allegations and considered the motion to dismiss as if it were made against the proposed amendment. The court adopts this construction of the pleadings pursuant to Fed.R.Civ.P. 15(a).
The amended complaint is silent as to any facts that would support Griffen's claim that the municipality failed to supervise, train or discipline its police officers so as to bring it within the decision in Owens v. Haas, supra. Accordingly, the court agrees with Magistrate Sinclair's determination that under Fed.R.Civ.P. 12(b)(6) the amended complaint fails to state a claim under § 1983 against Mount Vernon upon which relief can be granted, and that the amended complaint should be dismissed as to it without prejudice. Griffen's request for limited discovery is inappropriate since the allegations are facially invalid. See Owens v. Haas, id.; Whitley v. City of New York, 518 F. Supp. 1318, 1320 (S.D.N.Y.1981).
The court also finds Magistrate Sinclair's assessment of the false arrest and false imprisonment claims to be correct. On January 9, 1981 Griffen pleaded guilty to charges of disorderly conduct and harassment arising out of the events of October 31, 1980. It is well settled that a plea of guilty is an effective bar to a subsequent § 1983 action based on a claim of false arrest and false imprisonment. Pouncey v. Ryan, 396 F. Supp. 126 (D.Conn.1975); Bradford v. Lefkowitz, 240 F. Supp. 969 (S.D.N. Y.1965). Therefore, Griffen's false arrest and false imprisonment claims are hereby dismissed.
SO ORDERED.
NOTES
[1] Pursuant to 28 U.S.C. § 636, the parties were given the opportunity to lodge written objections to the disposition recommended by Magistrate Sinclair within ten days of the date of the Recommended Decision. On January 4, 1983 plaintiff submitted to the court its "Objections to Recommended Decision on Motion to Dismiss." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575937/ | 743 N.W.2d 592 (2008)
STATE of Minnesota, Respondent,
v.
Timothy Kenbert ENGLE, Appellant.
No. A05-2423.
Supreme Court of Minnesota.
January 3, 2008.
Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis MN, for Appellant.
Lori Swanson, Attorney General, Criminal, and Mark Nathan Lystig, Ramsey County Attorney, St. Paul, MN, for Respondent.
Heard, considered, and decided by the court en banc.
OPINION
ANDERSON, RUSSELL A., Chief Justice.
We granted review in this case to determine whether a conviction under Minn. *593 Stat. § 609.66, subd. 1a(a)(3) (2006), which proscribes recklessly discharging a firearm in a municipality, requires proof that the firearm was intentionally discharged. We hold that a conviction under Minn.Stat. § 609.66, subd. 1a(a)(3), does not require proof of an intentional discharge, but rather requires proof of a conscious or intentional act, in connection with the discharge of a firearm, that creates a substantial and unjustifiable risk that the actor is aware of and disregards. We remand to the district court for reconsideration consistent with this opinion.
Appellant Timothy Kenbert Engle was convicted of recklessly discharging a firearm in a municipality in violation of Minn. Stat. § 609.66, subd. 1a(a)(3). The court of appeals affirmed. State v. Engle, 731 N.W.2d 852 (Minn.App.2007).
On November 2, 2003, Engle, a private security guard, arrived at a St. Paul housing complex to assist a fellow security guard in apprehending a suspected thief. The suspect attempted to flee, but eventually the guards held him at gunpoint, sitting in the driver's seat of a stolen car. Somehow, in the course of removing the suspect from the car, Engle discharged his gun, shooting and paralyzing the suspect. Both parties concede that the discharge was unintentional.
After a bench trial, the district court found Engle guilty of recklessly discharging a firearm within a municipality. The court defined "recklessly" as "a conscious and intentional act that the defendant knew or should have known created an unreasonable risk of harm to others." The court noted that "[b]oth parties agree that the discharge of the firearm was unintentional" but concluded that "[t]he law is clear to me that no intent to discharge * * * needs to be established." The court found that the reckless act satisfying the statutory requirement "was having the weapon positioned so that it could be discharged and cause harm while [Engle extracted the suspect] from the car." The court stayed imposition of Engle's sentence and placed him on probation for 2 years.
Engle appealed, arguing to the court of appeals, among other things that the district court erred in not requiring proof that he intentionally discharged his weapon. Engle, 731 N.W.2d at 854. The court of appeals affirmed, holding that discharge need not be intentional. Id. at 862. Engle petitioned this court for review, which we granted only as to the issue of whether subdivision 1a(a)(3) requires an intentional discharge of a firearm.
I.
We review questions of statutory interpretation de novo. State v. Wiltgen, 737 N.W.2d 561, 570 (Minn.2007). "The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions." Minn.Stat. § 645.16 (2006). If a statute is unambiguous, it is to be given its plain meaning. Id.; State v. Al-Naseer, 734 N.W.2d 679, 684 (Minn.2007). If a statute is ambiguous or unclear, we consider "(1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained;" (5) any former law; "(6) the consequences of a particular interpretation;" (7) legislative history; and "(8) legislative and administrative interpretations of the statute." Minn.Stat. § 645.16.
Minnesota Statutes § 609.66, subd. 1a(a), provides that a person who "(2) intentionally discharges a firearm under circumstances that endanger the safety of another; or (3) recklessly discharges a firearm within a municipality" is guilty of a *594 felony. In subdivision 1a(a)(3), the adverb "recklessly" modifies the verb "to discharge." On its face, then, the statute prohibits discharging a firearm in a reckless manner. Whether there is ambiguity depends on the definition of "reckless," to which we now turn.
"Reckless" is an ambiguous term. It is not defined in the Minnesota criminal code. See Minn.Stat. § 609.02 (2006). The term has not always been used consistently, although it is generally used to define a level of culpability more serious than ordinary negligence and less serious than specific intent to harm. 1 Wayne F. LaFave, Substantive Criminal Law § 5.4, at 365-66 (2d ed.2003). Recklessness often describes conduct that exceeds ordinary negligence in two respects: a higher degree of risk, and a higher degree of fault the actor must be subjectively aware that his conduct creates the risk. Id. at 366; see also 1 Charles E. Torcia, Whartons Criminal Law § 27, at 167-68 (15th ed. 1993) (A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.).
Two distinct lines of our cases offer two different definitions of recklessness. We were called upon in State v. Cole to define recklessness for purposes of, among other provisions, Minn.Stat. § 609.66, subd. 1(1) (2006), which proscribes recklessly handling a gun so as to endanger the safety of another. 542 N.W.2d 43, 51 (Minn.1996). Relying on State v. Zupetz, in which we defined "recklessly" in the context of reckless homicide, 322 N.W.2d 730, 733-34 (Minn.1982), we said, "A person acts `recklessly' when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct * * *. [Both the reckless actor and the intentional] actor [create] a risk of harm. The reckless actor is aware of the risk and disregards it." Cole, 542 N.W.2d at 51-52 (alterations in original); see also State v. Mauer, 741 N.W.2d 107, 115 (Minn.2007); State v. Frost, 342 N.W.2d 317, 319-20 (Minn.1983).
The definition of "recklessness" in the second line of cases is embodied in the model jury instruction for Minn.Stat. § 609.66, subd. 1a(a)(3), upon which the district court relied in this case. The instruction states that "`[r]ecklessly' means a conscious and intentional act that the defendant knew, or should have known, created an unreasonable risk of harm to others." 10A Minn. Dist. Judges Ass'n, Minnesota Practice Jury Instruction Guides, Criminal, CRIMJIG 32.10 (5th ed.2006). This definition originated in our reckless driving jurisprudence. See State v. Bolsinger, 221 Minn. 154, 157, 21 N.W.2d 480, 484 (1946).
We conclude that the Cole definition applies to Minn.Stat. § 609.66, subd. 1a(a)(3). The Cole definition comports with the most common usage of the term. See Torcia, supra, § 27; 22 C.J.S. Criminal Law § 51 (2006) ("A person is said to act recklessly when he or she consciously disregards a substantial and unjustifiable risk that an injury will occur, or when his or her action is grossly heedless of consequences."); 21 Am.Jur.2d Criminal Law § 138 (2d ed. 1998) ("Recklessness requires that an actor consciously disregard a substantial and unjustifiable risk."). We see no reason why this general definition of "recklessness" should not apply to felony weapons offenses.
By contrast, the Bolsinger line of cases expressly limits its definition of "recklessness" to the unique context of reckless driving, which involves criminal negligence concepts. See Minn.Stat. §§ 169.11, 169.13 *595 (2006) (current statutes dealing with criminal negligence and reckless driving); State v. Meany, 262 Minn. 491, 495-96, 115 N.W.2d 247, 251 (1962) ("The crime of criminal negligence is defined in Minn. St. 169.11 * * *. The meanings of the terms `reckless' and `grossly negligent,' as used in this statute, are exhaustively reviewed in State v. Bolsinger * * *." (emphasis added)); Bolsinger, 221 Minn. at 157, 21 N.W.2d at 484 ("In order to apply § 169.11 * * *, we must first determine what it means. * * * The meaning of the word `reckless,' so far as it relates to driving, is found in § 169.13." (emphasis added)). We find no indication that the legislature intended to apply a reckless driving standard to a wholly separate regulatory scheme. Accordingly, we adopt the Cole definition and hold that for purposes of Minn.Stat. § 609.66, subd. 1a(a)(3), one acts recklessly by creating a substantial and unjustifiable risk that one is aware of and disregards.
II.
Having clarified that "recklessly" as used in Minn.Stat. § 609.66, subd. 1a(a)(3), requires the creation of a substantial and unjustifiable risk that the actor is aware of and disregards, it remains for us to determine whether the act creating that risk must be the intentional act of discharge or whether other acts can also constitute reckless discharge. Any crime, including reckless crimes, requires some voluntary act. See 1 Torcia, supra, § 25. It is not clear from Minn.Stat. § 609.66, subd. 1a(a)(3), whether that act must be the act of discharge or whether any act in connection with the discharge of a firearm evincing a conscious disregard of a substantial and unjustifiable risk can suffice. In arguing that an intent requirement should be read into the statute, Engle cites dicta in State v. Richardson, 670 N.W.2d 267, 283 (Minn.2003).[1]
The court of appeals relied upon the provision in Minn.Stat. § 645.16 that statutes should be construed to give effect to every provision. Engle, 731 N.W.2d at 862. The court reasoned that reading an intent component into subdivision 1a(a)(3) would render subdivision 1a(a)(2) superfluous, because intentional discharge in a reckless manner within a municipality necessarily falls within the ambit of intentional discharge in a manner that endangers another's safety. Id. Although much conduct would fall under both statutes, one could arguably be reckless in violation of subdivision 1a(a)(3) without endangering another in violation of subdivision 1a(a)(2).
It is significant, however, that subdivision 1a(a)(2), which existed in its current form when 1a(a)(3) was added in 1993, explicitly includes an intent requirement. See Act of May 20, 1993, ch. 326, art. 1, § 15, 1993 Minn. Laws 1974, 1986. This fact strongly suggests that the legislature deliberately decided against using the same "intentionally discharges" language in the new section. Had the legislature wanted subdivision 1a(a)(3) to mean "intentionally discharges a firearm in a reckless manner within a municipality," it could have mirrored the existing language in subdivision 1a(a)(2).[2]
*596 Engle argues that not reading an intent component into subdivision 1a(a)(3) leads to an absurd result, namely that it "would render any licensed, trained individual (including law enforcement officers), acting entirely in accordance with accepted procedures, subject to criminal prosecution and conviction for any unintentional firearm discharge caused by a reflexive response." This argument misleadingly suggests that rejecting Engle's proposed intent requirement would negate any mental state requirement. On the contrary, the statute requires on its face that the discharge be reckless. A reckless crime requires both intentional conduct and the creation of a risk. Mere reflex, where an actor had not taken voluntary actions creating a risk, could not in any event subject a person to penalty under the statute.
Moreover, the policy of the statute protecting the community from death or injury by firearms is best served by holding actors responsible for consciously disregarding risks of harm, whether they do so by intentionally pulling the trigger or by another act that increases the likelihood that the gun will discharge accidentally, involuntarily, or reflexively. In light of the absence of any language of intent in subdivision 1a(a)(3), the corresponding presence of the word "intentionally" in an adjacent and preexisting section, and the legislative policy of protecting the public from the irresponsible use of firearms, we conclude that a person need not intend the discharge. We disavow any dicta in Richardson that says otherwise. We hold that a person has the requisite mental state for Minn.Stat. § 609.66, subd. 1a(a)(3), if he commits a conscious or intentional act in connection with the discharge of a firearm that creates a substantial and unjustifiable risk that he is aware of and disregards.
Although the district court correctly concluded that the State need not prove that Engle intentionally discharged his firearm, the court applied the model jury instruction definition of recklessness, requiring only that Engle knew or should have known of the unreasonable risk he created. Because we hold here that a higher standard is proper for purposes of Minn.Stat. § 609.66, subd. 1a(a)(3), we must remand for reconsideration based on the existing record in light of this opinion. On remand, the district court must determine whether Engle committed a conscious or intentional act, in connection with the discharge of a firearm, that created a substantial and unjustifiable risk that he was aware of and disregarded.
Remanded.
NOTES
[1] In Richardson, the appellant argued that the jury should have received an instruction on Minn.Stat. § 609.66, subd. 1a(a)(3), as a lesser-included offense. 670 N.W.2d at 283. In rejecting appellant's argument, we stated, citing to the CRIMJIG, that "[r]eckless discharge of a firearm within a municipality requires proof that the defendant intentionally discharged a weapon in a municipality in a manner that the defendant should have known created an unreasonable risk of harm to others." Id.
[2] Indeed, several states have statutes that delineate distinct mental state requirements for the act of firearm discharge and for the result. E.g., Iowa Code § 724.30 (2007) (penalizing one who "intentionally discharges a firearm in a reckless manner"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573822/ | 224 S.W.3d 226 (2005)
David CRUZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 08-03-00313-CR.
Court of Appeals of Texas, El Paso.
February 17, 2005.
Discretionary Review Granted September 28, 2005.
*228 M. Clara Hernandez, El Paso County Public Defender, El Paso, for Appellant.
Jaime E. Esparza, Dist. Atty., El Paso, for State.
Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
DAVID WELLINGTON CHEW, Justice.
Appellant David Cruz appeals his conviction for capital murder. Over Appellant's not guilty plea, the jury found Appellant guilty of the offense. He was sentenced to life imprisonment. We reverse the trial court's judgment and the case is remanded for a new trial.
On May 18, 2002, the body of Mike Mendivil was found near Capistrano Park on a dirt road by a cotton field in the Lower Valley area of El Paso. An autopsy revealed that the victim had four stab wounds, none of which were fatal, but he had died from multiple blunt force injuries to his chest and abdomeninjuries sustained when he was run over by an automobile. That same day, Mendivil's damaged pickup truck was found abandoned at a different park near Henderson and Pendale Streets. There was damage to the vehicle's rear bumper and bloodstains on the vehicle's exterior, interior, and the undercarriage.
The police obtained an arrest warrant for Appellant. After he was arrested, Appellant gave a voluntary statement to the police. According to his statement, on the day of the incident, he went to the La Bamba Bar on Alameda around 6 p.m. At approximately 10:30 p.m., Mendivil, walked up to the bar and stood next to Appellant while ordering a beer. Mendivil made sexual advances towards Appellant, which Appellant rejected. Mendivil walked away to the opposite end of the bar. Appellant's friend told him that Mendivil was "known for that." Appellant told his friend that he was going to leave because Mendivil had offended him and he did not feel comfortable being there.
As Appellant was walking home, Mendivil drove up in his pickup truck. Mendivil asked Appellant if he wanted a ride home. Mendivil agreed to take Appellant straight home, but started driving in a different direction than Appellant had requested. Mendivil kept driving even though Appellant had told him to drop him off.
Mendivil drove to an area by some cotton fields and stopped the truck. Appellant tried to jump out of the truck, but could not. Appellant noticed that Mendivil had unzipped his pants and was moving towards him. Mendivil tried to grab his "front area" and tried to take off Appellant's pants. Appellant stated that he felt like crying because he could not get Mendivil off of him. Appellant told Mendivil to get off of him or he would hit him, but Mendivil did not stop his attack. Appellant felt very scared and worried that he would be killed. Appellant hit Mendivil several times, but Mendivil continued to come at him. Appellant remembered that he had a knife in his pocket. Appellant took it out and stabbed Mendivil twice in the rib area. The struggle continued outside and Appellant stabbed Mendivil again. Mendivil fell down and Appellant got into the truck. As Appellant was backing out of the area, he noticed that he had hit Mendivil. Appellant drove forward so as not to hit Mendivil again and then backed out of the area in reverse.
*229 As Appellant was driving in reverse, he struck a cement barrier and the truck was stuck there. Two guys from a nearby house came up and offered to help, but were unable to get the truck unstuck. Their father brought over some ramps and a jack and they got the truck off the barrier.
Appellant admitted in his statement that he had taken Mendivil's keys, sunglasses, and a souvenir from the truck and that those items were in a trash bag outside his house. Appellant also admitted to taking Mendivil's cell phone, but did not know where he had left it. Appellant stated that he had never talked to Mendivil before that night, but had seen him around at the La Bamba Bar. He only knew the guy's name was Mike because he recalled seeing an ID card inside the truck.[1]
At trial, the State called several witnesses who were in the park area on the night of the incident. Javier Lopez testified that he was visiting with friends that evening when he heard a crash and saw a pickup truck stuck on a curb. He and his friend "Tury" went over to the truck and tried to help dislodge it. Lopez asked Appellant why there was blood on his shirt and his arms. Appellant told him that he had picked up a girl at a club, had bought some beer, had taken her to some street in that area, and found out that the girl was actually a guy. Appellant told Lopez that he got mad and started beating up the guy. Lopez recalled that Appellant told him he had pulled the guy out of the truck and started beating him up and then a car came by and picked up the guy. Lopez also recalled that Appellant asked them to go partying with him. Eventually, they were able to get the truck unstuck after Tury's father arrived with a jack and ramps. Appellant then thanked them and left in the truck.
Arturo Casillas, Jr. testified that he heard the crash and saw the truck hit the curb while it was driving in reverse. He and Lopez went over to help. He recalled that Appellant offered them beer from the truck, which they hid behind some bushes or a tree. Casillas, Jr.'s father arrived after they had hid the beer. The three of them tried to push the truck while Appellant pressed the gas pedal, but the truck remained stuck. Casillas, Jr. recalled that his father asked Appellant about the blood on his shirt and Appellant said, "I got in a fight with my friend," but after his father left to get the jack and the ramps, Appellant told Casillas, Jr., "he stabbed some it was a guy because he thought it was a chick and he was defending HIMSELF because he didn't like that stuff and he didn't know what to do."[2] Appellant told him that after stabbing the guy, Appellant pushed the guy out of the truck and left. Appellant also told Casillas, Jr. that the truck belonged to him and that he had recently bought it.
April Saladin, another witness in the group of friends, testified that while they were outside in front of her cousin's house, *230 she saw the truck drive by. Saladin saw two people in the truck. The driver was wearing a dark cap and a checkered shirt. Saladin later saw the same pickup truck, but only the driver was in the truck. When she saw the truck the second time, the driver was reversing out really fast and hit a concrete barrier.
Appellant raises ten issues on appeal, however, we find that Issue Six is dispositive, and will therefore, address this complaint first. In his sixth issue, Appellant asserts that the trial court erred in not granting a mistrial because the prosecutor's alleged comment on the defendant's failure to testify during closing argument.
A defendant has a state and federal constitutional right not to be a witness against himself. See U.S. CONST. AMEND. V; TEX. CONST. art. I, § 10. It is well established that the failure of an accused to testify may not be the subject of comment by the prosecution. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App.2001). Such comments violate the privilege against self-incrimination contained in Article I, § 10 of the Texas Constitution and the Fifth Amendment to the United States Constitution and also offend the provisions of TEX.CODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979)("[T]he failure of any defendant to . . . testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.").
To determine whether a prosecutor's comment was an improper comment on Appellant's failure to testify, we must consider whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily consider it to be a comment on the failure of the accused to testify. Bustamante, 48 S.W.3d at 765. The comment must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Id. It is not sufficient that the language might be construed as an implied or indirect allusion to the accused's right to remain silent. Id.; Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996).
Appellant objected to the complained-of comments and the trial court sustained the objection. Appellant then moved for a mistrial and the trial court denied the motion. If a trial court sustains an objection to improper jury argument, the complaining party must request an instruction to disregard to preserve error on appeal if an instruction to disregard could have cured the prejudice resulting from the argument. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App.), cert. denied, 525 U.S. 967, 119 S.Ct. 414, 142 L.Ed.2d 336 (1998). If, on the other hand, the prejudice arising from an erroneous jury argument was incurable, a defendant would be required to request a mistrial to preserve error on appeal because a mistrial would be the appropriate remedy. Id.; see also Cockrell v. State, 933 S.W.2d 73, 96-97 (Tex.Crim.App.1996)(concurring, Maloney, J.)("When an objection is made, followed by a motion for mistrial in the case of argument that is so inflammatory that an instruction to disregard would be of no value, Rule 52(a) [now Tex.R.App.P. 33.1] has been satisfied."). Thus, in determining whether Appellant preserved error on this issue, we must determine whether the jury argument, if erroneous, was also incurable.
The following exchange occurred during the prosecutor's closing argument:
[Prosecutor]: They want to say first that it's self-defense. Well, in order to have self-defense, what has to happen is someone says, `Yeah, I committed *231 this crime. I committed this murder. I did this and I intended to do this because I was in fear of my life.'
[Defense]: Your Honor, we object. That is, number one, a comment on the Defendant's right to remain silent. Number two, that is not the law. You can deny it. You can say it was an accident and still say you acted in self-defense, and Counsel knows that's the law. We demand a mistrial.
[Court]: Your objection is sustained. Your Motion for Mistrial is denied.
[Prosecutor]: That's the gist of the self-defense. I had to do this because I was in fear of my life. Look at it. It's in your charge.
Appellant asserts that the prosecutor's comment is a blatant example of an improper comment on the defendant's failure to testify, in that the prosecutor literally stated that the defendant must testify that he was in fear of his life. We agree.
The Court of Criminal Appeals has held that use of the word "I" in a prosecutor's jury argument may constitute harmful error. See Cook v. State, 702 S.W.2d 597, 599 (Tex.Crim.App.1984); Cherry v. State, 507 S.W.2d 549, 550 (Tex.Crim.App.1974). In Cherry v. State, the prosecutor argued, "`Now what defenses are available to a person in a case like this? Number one, alibi, I was somewhere else, I was with someone else.'" Cherry, 507 S.W.2d at 550. [Emphasis added]. The Cherry Court found that the choice of the word "I" contradicted any theory that the prosecutor was referring to witnesses other than the defendant. Id. Likewise, in Cook v. State, the Court determined the following comments constituted reversible error:
I told you first of all there are several defenses we usually heard. A., would be mistaken identity. They couldn't do that because everybody identified him. B., using the alibi. Someone else, because `I was somewhere else. I've got my alibi, because I was playing poker with the guys.' It wasn't that. Again, because all of the evidence involved. C., consent. There was no affirmative consent shown as to what happened during the attack. Only innuendoes and suppositions about what may have happened. [Emphasis in original].
Cook, 702 S.W.2d at 598.
Examining the comment from the jury's standpoint, the Cook Court stated, "[w]hen the word `I' is used in reference to something the defendant might have testified to, but did not, it is illogical to think that the jury is not reminded of the defendant's failure to testify." Cook, 702 S.W.2d at 599. We find no meaningful distinction between the blatant and direct reference to evidence that could only have been supplied by Appellant in this case and the improper comments that were found deplorable in Cherry and Cook. Here, the use of the word "I" in the prosecutor's argument directed the jury's attention to Appellant's election not to testify in this case, in particular, on the issue of self-defense, which was a subject that only defendant could have testified to in context of the evidence presented by the State. The prosecutor's comment undoubtedly pointed to a lack of evidence that could only have come from Appellant, and therefore was improper. See Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App.1992); Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim.App.1982).
Ordinarily, an instruction to disregard cures an improper comment on a defendant's failure to testify. See Long v. State, 823 S.W.2d 259, 269-70 (Tex.Crim. App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). The inquiry is whether the argument was extreme, manifestly improper, injected new *232 and harmful facts into the case, or violated a mandatory statutory provision and was so inflammatory that an instruction to disregard could not cure its prejudicial effect. Id. at 267. Article 38.08 prohibited the prosecutor from commenting on Appellant's decision not to testify. See TEX. CODE CRIM.PROC.ANN. art. 38.08. We find that the use of the word "I" left no doubt in the jury's mind that the prosecutor was passing judgment on Appellant's failure to testify and as such was inflammatory, flagrant, and its prejudicial effect was therefore incurable. Thus, the trial court erred in denying Appellant's motion for mistrial.
Harm Analysis
Having determined that the State's argument constituted an improper comment on Appellant's failure to testify, we must conduct a harm analysis under TEX.R.APP.P. 44.2. See Madden v. State, 799 S.W.2d 683, 699-700 (Tex.Crim.App. 1990); TEX.R.App.P. 44.2(a). We apply a constitutional harm analysis in situations where the State comments on a defendant's failure to testify and we must reverse a judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See TEX.R.APP.P. 44.2(a); Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd).
In applying this standard, we do not consider whether there is overwhelming evidence of guilt. Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). Instead, we focus on the error and whether the error might have prejudiced the jurors' decision-making. Id. We must examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Id. at 587. Further, we must also determine whether declaring the error harmless would encourage the State to commit the error again with impunity. Id.
Here, the source of the error was the State and error was constitutional in nature as well as a statutorily protected right of Appellant. The only disputed issue in this case was the intent of Appellant, that is, his culpable mental state when he hit the victim with the pickup truck. This case turned in large part on the issue of self-defense. Evidence of this claim was introduced by the State in the form of Appellant's voluntary statement, which was taken shortly after the incident. There were no witnesses to the incident thus, the prosecutor's comment may have weighed heavily on the jury's decision-making on the issue of self-defense. We find that the improper comment probably had collateral implications beyond mere forceful closing argument. While the State did not emphasize the improper comment beyond use of the "I" pronoun again after the motion for mistrial was denied, we find that in declaring the error harmless, the State would be encouraged to make such arguments with impunity. For these reasons, we cannot determine beyond a reasonable doubt that the error did not contribute to Appellant's conviction. Issue Six is sustained. Finding that Issue Six constitutes reversible error, we do not reach Appellant's remaining issues.
We reverse the trial court's judgment and remand for a new trial.
NOTES
[1] At trial, Appellant stipulated that blood found on his clothing contained Mendivil's DNA, that blood from the driver's seat and door of Mendivil's truck contained Mendivil's DNA, that blood on the steering wheel contained both Appellant's and Mendivil's DNA, and that a cigarette butt found inside an ashtray in the vehicle contained Appellant's DNA.
[2] Arturo Casillas, Sr. also testified at the trial. He stated that when he went to pick up his son that evening, he saw his son over by a truck that was stuck. When he asked the driver of the truck about the bloodstain on his shirt, Arturo, Sr. recalled that the driver said, "he got into a fight with his homie." According to Arturo, Sr., Appellant looked normal and did not appear nervous when he told him about the fight. Appellant told Arturo, Sr. that it was his mother's truck. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/359573/ | 583 F.2d 443
78-2 USTC P 9748
Thomas K. McMANUS and Margaret F. McManus, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.ESTATE of John C. GUTLEBEN, Deceased, United CaliforniaBank, Executor, and Vera B. Gutleben, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.ESTATE of Eleanor and Nelson CHICK, Deceased, Nelse ChickSiler, Executrix, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
Nos. 76-1527, 76-1528, 76-1531, 76-1532, 76-1760 and 76-1761.
United States Court of Appeals,Ninth Circuit.
Oct. 4, 1978.
Paul E. Anderson (argued), San Francisco, Cal., for petitioners-appellants.
Gilbert S. Rothenberg (argued), of Dept. of Justice, Washington, D. C., for respondent-appellee.
Petition to Review a Decision of The Tax Court of the United States.
Before CARTER, Circuit Judge, KUNZIG, Judge,* and TANG, Circuit Judge.
TANG, Circuit Judge:
1
The taxpayers1 appeal from a decision of the tax court, published at 65 T.C. 197 (1975), upholding the Commissioner's assessment of additional income taxes. We affirm.
2
Most of the facts were stipulated. The taxpayers were long-time associates in two construction companies. In 1954, they purchased a tract of land in Oakland, California. The tract was subdivided, and streets and utilities were installed. The subdivided parcels were then sold, with the last sale occurring in 1960.
3
In 1961, the taxpayers acquired a second tract, Tract 2347, which is the subject of this appeal. Tract 2347 is prime industrial real estate, and is located directly across the freeway from the taxpayers' earlier tract. Title was taken as tenants in common. The property, about 36 1/2 acres, was purchased for $926,000.00.
4
Shortly after the purchase, the taxpayers applied to the city planning commission for permission to subdivide the property. A plat was filed in May, 1962, showing 14 separate plots and a street.
5
Between March and September, 1962, the taxpayers spent about $240,000.00 installing roads, sewer lines, water, gas and electrical facilities. The taxpayers also commissioned a study by the Stanford Research Institute on the feasibility of building an office building on the site. The report was generally unfavorable.
6
At various times between 1963 and 1973 portions of Tract 2347 were leased. The leases were for pipe storage, amusement rides, billboard advertising and car parking. All these leases were for short periods and the tax court found the total rental income over the period was nominal.
7
Between 1961 and 1973, various parcels of Tract 2347 were sold, and a parcel was condemned by the State of California. The parties disagree as to how many sales occurred during the period. The taxpayers claimed that there were only eight voluntary sales, while the Commissioner asserted that there were at least 15 sales.2 The property was listed in the Western Real Estate News, the California Site Selection Handbook, and publications of the California Chamber of Commerce. Each of these publications received wide circulation within the real estate industry. The taxpayers did not authorize the inclusion of Tract 2347 in these publications, nor did they take any steps to remove the listings though they were aware of them. The listings were made without charge. At one time, a broker was given an exclusive listing for one parcel. The tax court found that it was generally known among brokers that Tract 2347 was available for sale or lease. The taxpayers' connection with Tract 2347 ended in 1973 when the remaining portions of the property were sold to the Continental Development Company. At the time of this sale, Gutleben had died, and Chick was in poor health.
8
From 1961 to 1970, the financial transactions regarding the property were recorded by the taxpayers in a system of books that listed the property as an asset of McManus, Gutleben and Chick. Some of the entries in this account are labelled "Drawing 3 partners". Such draws were made in equal amounts to the individual taxpayers. In 1967, the taxpayers opened a bank account at the United California Bank in San Leandro, California; the signature card indicated all three were co-partners and the card was signed in their capacity as partners. From 1961 to 1970 partnership tax returns were filed in the name of McManus, Gutleben and Chick, which included the Tract 2347 transactions. After 1970, on the advice of counsel, the filing of partnership returns was discontinued. During the course of the audit preceding this suit, McManus wrote two letters to the Internal Revenue Service which stated that Tract 2347 was owned by the partnership of McManus, Gutleben and Chick, and that he was a member of the partnership.
9
In 1968, after the California condemnation, McManus purchased property in Fremont, California which he believed constituted replacement property under 26 U.S.C. § 1033. McManus did not notify the Commissioner that he had purchased replacement property until after April 1, 1970. No election under 26 U.S.C. § 703 was ever filed on behalf of the partnership.
10
In their individual tax returns, the taxpayers claimed the gain realized on the California condemnation as capital gains. On previous returns, gains from the sale of parcels of Tract 2347 had been reported as ordinary income. During the audit the taxpayers signed Form 872-A which provided for an extension of the statute of limitations for tax year 1968 until 90 days after either the Commissioner or the taxpayer gave written notice to the other revoking the extension. The Commissioner, on March 23, 1973, assessed deficiencies against the taxpayers on the basis that gain realized from Tract 2347 was ordinary income and not capital gains as reported.3 The matter was heard by the tax court, which found for the Commissioner on all counts. The taxpayers now bring this appeal.
11
The taxpayers raise four issues. They claim that Form 872-A was ineffective, and therefore the assessments for 1968 were beyond the statute of limitations. They claim that the tax court erred in finding that Tract 2347 was not a capital asset and in finding that Tract 2347 was owned by a partnership. Finally, McManus claims that the tax court erred in holding that he could not avail himself of the benefits of 26 U.S.C. § 1033. Each of these matters will be discussed in turn.
A. The Statute of Limitations
12
The statute of limitations, 26 U.S.C. § 6501, provides for a three year assessment period for income taxes, § 6501(a). However, § 6501(c)(4) also provides,
13
Where, before the expiration at the time prescribed in this section for the assessment of any tax imposed by this title, except for the estate tax provided in chapter 11, both the Secretary or his delegate and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
14
Absent an extension the assessment period for the tax year 1968 would have expired on April 15, 1972. The Commissioner issued the deficiency notices March 23, 1973.
15
The taxpayers argue that the form which they signed (Form 872-A)4 is ineffective under the language quoted above because it does not set a definite time when the limitations period would end. In the taxpayers' view, Form 872-A extends the limitations period forever contrary to the intent of § 6501(c)(4). We are not persuaded.
16
This form does not, as the taxpayers contend, extend the limitations period forever. The tax court held that the waiver would be accepted and operative for a reasonable time only. The taxpayers do not contend that the assessments here, filed 11 months after the three year period, were unreasonably delayed, nor could they prevail on such a contention.
17
Nor does § 6501(c)(4) demand the reading the taxpayers give it. The statute requires an agreement between the taxpayer and the Commissioner; it does not require an agreement for a fixed period of time. If a fixed period is agreed to, it can be extended. The taxpayers could have cut the extension period to 90 days by sending a letter. They failed to do so. We fail to see any significant difference between not sending a letter here and granting a further extension. A similar agreement was upheld in United States v. Mortell, 248 F.Supp. 706 (N.D.Ill.1965). We hold that the 1968 assessments were not beyond the limitations period.
B. Capital Asset
18
The question here is whether Tract 2347 was "property held . . . primarily for sale to customers in the ordinary course of . . . trade or business" within the meaning of 26 U.S.C. § 1221(1). The taxpayers contend they bought the property and held it for investment and rental purposes. The Commissioner asserts the taxpayers were in the business of buying raw land, developing it, and selling it for profit, and that their activities with regard to Tract 2347 were part of this business.
19
In this circuit, a finding that a particular asset was or was not a capital asset is a finding of fact and must be upheld unless clearly erroneous. Rule 52(a), Fed.R.Civ.P.; Parkside, Inc. v. Commissioner, 571 F.2d 1092 (9th Cir. 1977); Los Angeles Extension Co. v. United States, 315 F.2d 1 (9th Cir. 1963). The case law has developed a series of factors to be evaluated in determining whether land is held for sale in the ordinary course of business. These factors are:
20
The length of holding of the property, the nature of the acquisition of the property, the frequency and continuity of sales over an extended period of time, the nature and the extent of the taxpayer's business, the activity of the seller about the property, and the extent and substantiality of the transactions.
21
Parkside, supra at 1096 quoting Los Angeles Extension Co., 315 F.2d at 3.
22
Applying these factors to the facts here, we can not say that the tax court's finding was clearly erroneous. The taxpayers spent considerable time, money and effort in subdividing and improving the land; the sales were reasonably constant over time; there was active promotion of the site, which the taxpayers did not discourage; and the short-term leases which were granted were consistent with a desire to sell the property. Further, the taxpayers had been involved in a prior land development operation, thus, their activities with respect to Tract 2347 can reasonably be viewed as a continuation of their land development business. The taxpayers' contentions that the land was held primarily for leasing purposes is not necessarily supported by the record. The leases entered into were short-term at nominal rentals. The taxpayers' own study showed the site was not favorable for rental purposes. Parcels of land were sold. The contention that the sales were part of a liquidation is arguable. The sale to Continental Development Co. in 1973 may have been a liquidation but that was after the tax years involved here. The tax court's finding that Tract 2347 was held for sale in the ordinary course of business is not clearly erroneous and must be affirmed.
23
The taxpayers make a further argument that even if the property was held for sale in the ordinary course of business, once the State of California began condemnation proceedings, their holding of the condemned parcel changed to one for investment because the taxpayers could no longer sell the property. The circuits are presently in disagreement as to the effects of condemnation in these circumstances. The Fifth Circuit agrees with the taxpayers' argument, Ridgewood Land Co. Inc. v. Commissioner of Internal Revenue, 477 F.2d 135 (5th Cir. 1973). The Third Circuit views the condemnation as merely the method of effecting the sale of the property; the court noted that the price paid for the condemned land included the value of the improvements and was affected by the surrounding sales. Juleo, Inc. v. Commissioner of Internal Revenue, 483 F.2d 47 (3rd Cir. 1973) Cert. denied, 414 U.S. 1103, 94 S.Ct. 737, 38 L.Ed.2d 559. We agree with the reasoning of the Third Circuit. The taxpayers had negotiated with various governmental agencies about the sale or lease of parts of Tract 2347. One parcel was purchased by the California Department of Motor Vehicles. Condemnation proceedings in this context meant only that the parties were unable to agree on the price, not that the character of the holding of the land was changed. See Stockton Harbor Industrial Co. v. Commissioner of Internal Revenue, 216 F.2d 638, 656 (9th Cir. 1954) Cert. denied 349 U.S. 904, 75 S.Ct. 581, 99 L.Ed. 1241 (1955).
C. Partnership
24
The tax court found that the taxpayers had conducted their land business as a partnership. Whether this finding was correct matters only with respect to McManus' election under 26 U.S.C. § 1033. This finding was not erroneous.
25
Partnership for tax purposes is broader than common law partnership. See 26 U.S.C. § 761(a); Regs. § 1.761-1(a). Here the taxpayers kept their account books on a partnership basis, opened a partnership bank account, and most importantly filed partnership tax returns. That title to the land was taken as tenants in common is not determinative since that may be considered neutral evidence. A taxpayer is estopped from later denying the status he claimed on his tax returns. See In re Steen, 509 F.2d 1398, 1402 n. 4 (9th Cir. 1975); Demirjian v. Commissioner of Internal Revenue, 457 F.2d 1 (3rd Cir. 1972); Maletis v. United States, 200 F.2d 97 (9th Cir. 1952) Cert. denied 345 U.S. 924, 73 S.Ct. 782, 97 L.Ed. 1365 (1953).
26
D. McManus' Election under 26 U.S.C. § 1033
27
Under the provisions of 26 U.S.C. § 1033(a)(3) the gain realized when property is involuntarily converted will not be recognized if the proceeds are reinvested in similar or related property. Condemnation is a type of involuntary conversion. But § 1033 is effective only if a proper election to defer recognition is made.
28
In this case only McManus, in his individual capacity, purchased replacement property. The tax court held that the election had to be made by the partnership under the terms of 26 U.S.C. § 703(b), and McManus' election was therefore invalid. Demirjian v. Commissioner of Internal Revenue, 457 F.2d 1 (3rd Cir. 1972) is exactly on point and supports the tax court.
29
McManus argues that since a partnership is not a taxable entity, each partner can make his own elections. While it is true that a partnership is not liable for tax, the rest of the argument fails. A partnership is required to file returns, 26 U.S.C. § 6031, and the partners are required to conform their individual returns to the partnership returns. If each partner could determine his share of the partnership income separately, confusion would result, confusion which Congress meant to avoid by enacting 26 U.S.C. § 703(b). The tax court is correct on this point.
30
AFFIRMED.
*
Honorable Robert L. Kunzig, Judge of the United States Court of Claims, sitting by designation
1
As used in this opinion, the term "taxpayers" refers to Thomas McManus, John Gutleben, and Nelson Chick. All three men filed joint returns with their wives for the years in question, but their wives had no other connection with the transactions involved and though parties to this action they are not separately referred to. Gutleben died in 1972 and his estate was substituted for him in this suit. Chick died in 1975 and a similar substitution was made
2
Part of this discrepancy may be due to a difference of opinion on what constitutes a "voluntary" sale. Apart from the parcel taken by the State of California, another parcel was acquired by the California Department of Motor Vehicles. The Department does have condemnation power though it was not used in this instance because the parties were able to agree on a price. After the California condemnation, the taxpayers agreed to exchange a parcel previously sold to Shell Oil Co. for another parcel. The original Shell parcel lacked highway access after the condemnation
3
The amounts assessed were as follows:
McManus Gutleben Chick
--------- --------- ---------
1968 43,235.00 21,897.00 25,538.00
1969 1,120.00 1,577.00 1,667.00
1970 21,861.00 22,510.00 22,622.00
1971 1,113.00 0 0
--------- --------- ---------
TOTAL 67,332.00 45,984.00 49,827.00
4
Form 872-A, in pertinent part, reads as follows:
That the amount(s) of any Federal income tax due under any return(s) made by or on behalf of the above-named taxpayer(s) for the tax year(s) ended . . .
under existing or prior revenue acts, may be assessed at any time on or before the 90th day after (1) mailing by the Internal Revenue Service of written notification to the taxpayer(s) of termination of Appellate Division consideration, or (2) receipt by the Regional Appellate Division branch office considering the case of written notification from the taxpayer(s) of election to terminate this agreement, except that if in either event a statutory notice of deficiency in tax for any such year(s) is sent to the taxpayer(s), the running of the time for making any assessment shall be suspended for the period during which the making of an assessment is prohibited and for 60 days thereafter. If such statutory notice is sent to the taxpayer(s) and neither of the conditions enumerated (1) and (2) in the preceding sentence have occurred, the time for making such assessment will expire 60 days after the period during which the making of an assessment is prohibited. However, this agreement will not reduce the period of time otherwise provided by law for making such assessment. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2584975/ | 187 P.3d 752 (2008)
KIM
v.
CITY OF FEDERAL WAY.
No. 81080-0.
Supreme Court of Washington, Department II.
July 9, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917969/ | 272 So.2d 209 (1973)
The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND of the State of Florida, Appellant,
v.
MEDEIRA BEACH NOMINEE, INC., a Georgia Corporation, Appellee.
No. 71-812.
District Court of Appeal of Florida, Second District.
January 26, 1973.
*211 Robert L. Shevin, Atty. Gen., Jerry E. Oxner, Asst. Atty. Gen., and M. Stephen Turner, Gen. Counsel, Board of Trustees, Tallahassee, for appellant.
Theodore C. Taub, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellee.
LILES, Acting Chief Judge.
This is an appeal from a final summary judgment in the Circuit Court for Pinellas County, ruling that the state had no interest in accreted lands and quieting title thereto in appellee.
Appellee, Medeira Beach Nominee, Inc., is owner of a tract of land on Sand Key in the City of Madeira Beach. The property lies between Gulf Boulevard and the waters of the Gulf of Mexico. The deeds conveyed all riparian rights and the westerly boundary was the mean high tide line. In February, 1971, appellee began construction of improvements, including a seawall upon the accreted land. In April, appellant Board of Trustees of the Internal Improvement Trust Fund of the State of Florida sued to enjoin further construction on the property for a distance approximately 115 feet landward of the existing mean high tide line, claiming same to be sovereignty lands. Appellee cross-claimed seeking to quiet title to the property and obtain a judicial determination of the westerly boundary. The trial judge granted summary judgment for appellee on its cross-claim.
The lands in dispute, or some undetermined part of them, were accreted in front of appellee's riparian uplands apparently as a result of a public erosion control and beach stabilization program, the first phase of which was completed in 1957 by the City of Madeira Beach. The program was financed by bond issue and special assessment of beachfront property. The 1957 program consisted of 37 wooden groins constructed on the beach below the existing mean high tide line, one of which was located in front of appellee's property. In 1968 the wooden panels of some or all of the groins were replaced with concrete slabs. These projects were carried out with the permission and authorization of the appropriate state and municipal agencies. While the parties agreed below that the natural processes of accretion were influenced by these projects, the trial court made no findings on the issues of when, where, how much and proximate cause. This was because these issues were not deemed material, the trial judge having determined that appellee would hold title to all the accreted lands even if no accretion would have occurred but for the state projects.
The question is: Does a strip of accreted land become the property of the upland riparian owner even where the accretion is the result of a lawful exercise of the police power by a municipality to prevent beach erosion?
Accretion is the gradual and imperceptible addition of soil to the shore of waterfront property. The test as to what is gradual and imperceptible is, that though witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. St. Clair County v. Lovingston, 90 U.S. (23 Wall.) 46, 68, 23 L.Ed. 59 (1874). Title to accreted lands by the great weight of *212 authority vests in the riparian owners of abutting lands. Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); Mexico Beach Corp. v. St. Joe Paper Co., 97 So.2d 708, 710 (1st D.C.A.Fla. 1957); cert. den. 101 So.2d 817 (1958).
The fact that the strip of land involved was true accretion is not in dispute. The disagreement between the parties appeared to be whether the established rule of law should be followed or whether there should be recognized or created an exception to the general rule. One exception to the general rule is that accretion does not belong to the riparian owner where the riparian himself causes the accretion. E.g., Brundage v. Knox, 279 Ill. 450, 117 N.E. 123 (1917); State v. Sause, 217 Or. 52, 342 P.2d 803 (1959). The reason for this exception is that since land below the ordinary high water mark is sovereignty land of the state, to permit the riparian owner to cause accretion himself would be tantamount to allowing him to take state land. Here the defendant riparian owner did nothing to cause the accretion to the uplands. Therefore, under the facts of this case, there is no exception to the general rule as stated above.
Historically, courts have attempted to distinguish between natural accretions and artificial accretions caused by the riparian owner. There is little authority for distinguishing between natural and artificial accretions generally. St. Clair County v. Lovingston, 90 U.S. (23 Wall.) 46, 23 L.Ed. 59 (1874). That case holds that whether the accretion is the effect of natural or artificial causes makes no difference. Contra, People v. Hecker, 179 Cal. App.2d 823, 4 Cal. Rptr. 334, 343 (2nd Dist. Div. 1 1960); South Shore Land Co. v. Petersen, 230 Cal. App.2d 628, 41 Cal. Rptr. 277, 279 (1st Dist. Div. 2 1967). The instant case is very similar in that the accretions there were caused by the erection of a dike connecting an island with the main shore of Illinois. The city of St. Louis, exercising its police power, caused the accretion, albeit unintentionally. The United States Supreme Court held that the riparian right to future alluvion or accretion is a vested right similar to the rights of a tree owner to the fruits of the tree.
The state urges that the court make a distinction between artificial accretion and artificial accretion produced by the state or municipality in the exercise of its police power. To do so would be usurping the authority vested in the Legislature to make sweeping changes in property rights assuming constitutional problems are properly avoided.
It would appear at first blush that Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927), represents some support of authority for such a distinction. Upon examination the court in that case ruled that land exposed by a state program of draining Lake Okeechobee remained the property of the state even though that land was now upland of the ordinary high water mark. The court said:
"If to serve a public purpose, the state, with consent of the federal authority, lowers the level of navigable waters so as to make the water recede and uncover lands below the original high-water mark, the lands so uncovered below such high-water mark, continue to belong to the state." Id. 41 Cal. Rptr. at 287.
It therefore appears that decision deprived the upland owner of his status as a riparian. In order for the instant case to be analogous, the groin project of the City of Madeira Beach would have had to be intended to produce the accretion which occurred and the groin system would have to be in fact the cause of the accretion. Even if this were shown, we would not be inclined to follow the court's treatment of reliction in Martin in this case dealing with accretion.
There are four reasons for the doctrine of accretion: (1) de minimis non curat lex; (2) he who sustains the burden of losses and of repairs imposed by the contiguity of waters ought to receive whatever *213 benefits they may bring by accretion; (3) it is in the interest of the community that all land have an owner and, for convenience, the riparian is the chosen one; (4) the necessity for preserving the riparian right of access to the water. See, St. Clair County v. Lovingston, 90 U.S. (23 Wall.) 46, 67, 23 L.Ed. 59 (1874); Maloney, Plager and Baldwin, Water Law and Administration: The Florida Experience, page 386 (1968).
An additional reason behind the doctrine of accretion relates to the riparian owner's ability to use his land. The ordinary high water mark is well established as the dividing line between private riparian and sovereign or public ownership of the land beneath the water. This dividing line was not chosen arbitrarily.
The use of this dividing line has been reaffirmed in Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967), where the court reaffirmed the Lovingston accretion doctrine in a contest between the state and a private riparian. There the court said:
"Any other rule would leave riparian owners continually in danger of losing access to water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines." Id. at 293-294, 88 S.Ct. at 440-441.
It is apparent that the reasoning behind this line is demonstrated in the day to day utilization of the waterfront property by its riparian owner. Although the mean or high water mark is an average over a number of years, the daily mark of a high tide on the shore gives both the riparian and the public notice of their possible use of the land on either side of the mark. Freezing the boundary at a point in time, such as was done in Martin or as is suggested here by the state, not only does damage to all the considerations above but renders the ordinary high water mark useless as a boundary line clearly marking the riparian's rights and the sovereign's rights.
In this case the de minimis doctrine does not seem to apply initially due to the extent of the accretion involved. Nevertheless, the holding in this case will affect riparians other than those before us. What of riparians further along the shore where accretion is not as great? Should they be deprived of their status as riparians merely because the state wishes to claim title to one or two or ten feet of accreted land? If true accretion is the subject, i.e., a gradual and imperceptible buildup, the de minimis doctrine is applicable at all times regardless of the particular amount of buildup at a point in time. Were the state to gain title to this accreted land we believe that riparian titles around the state would be in jeopardy of unmarketability.
The second idea that the riparian owner who must risk the losses of erosion should gain the benefits of accretion is applicable here and, although not persuasive, is a fair and reasonable approach. It may be argued that the riparian here risks no erosion loss due to the existence of erosion control programs. Yet, the riparian here has paid for the additional benefits he has gained through the program by special assessment taxes. And, the program could have gone awry and contributed to erosion in which case he would not have been entitled to compensation. Paty v. Palm Beach, 158 Fla. 575, 29 So.2d 363 (1947).
Public policy weighs heavily in this decision as well. The public today stands in danger of losing access to beaches entirely in many places. Yet, quieting title here in the state will not solve the access problem. Nor will quieting title in the upland owner result in any loss of public rights in the foreshore or beach which the public always has a right to use. The foreshore between the mean high and low tide lines is public property.
*214 It should be remembered that even beachfront property owners are members of the public. Their status as riparian owners, however, has historically entitled them to greater rights, with respect to the waters which border their land, than inure to the public generally. They have the exclusive right of access over their own property to the water. Ferry Pass Inspectors' & Shippers' Ass'n v. Whites River Inspectors' & Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 645 (1909). The public has no right to cross private property to reach navigable waters. See, Annot., 53 A.L.R. 1191 (1928); F.S. § 821.03 (1971), F.S.A. The riparian owner suffers special injury when a nuisance obstructs his right to navigation. See, e.g., Webb v. Giddens, 82 So.2d 743 (Fla. 1955). The riparian has the right to an unobstructed view over the waters (Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 58, 78 So. 491, 501 (1918)) subject to the rights of the public to pass along the shore (State ex rel. Taylor v. Simberg, 2 Fla. Supp. 178 (1952)). The impact of governmental regulation on the rights to swim and fish may be greater on the riparian than on the public. Thus, a police power regulation prohibiting swimming, fishing, or boating may be unchallengable by the public but constitute a taking with respect to a riparian. See, Richardson v. Beattie, 98 N.H. 71, 95 A.2d 122 (1953); People v. Hulbert, 131 Mich. 156, 91 N.W. 211 (1902). Riparians appear to have a qualified common law right to wharf out to navigable waters in the absence of a statute. Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927); Williams v. Guthrie, 102 Fla. 1047, 137 So. 682 (1931). The riparian has the right to make his water access available to the public in a commercial context. Webb v. Giddens, 82 So.2d 743 (Fla. 1955); Florio v. State ex rel. Epperson, 119 So.2d 305 (2d D.C.A.Fla. 1960). The riparian may make reasonable use of the water and may consume water in a reasonable manner. See, Cason v. Fla. Power Co., 74 Fla. 1, 76 So. 535 (1917); Koch v. Wick, 87 So.2d 47 (Fla. 1956).
Although this enumeration of riparian rights hardly exhausts the list it should be evident that quieting title in the state will little benefit the state while causing great harm to the appellee riparians. We see no reason for causing such a result. It should be noted that this case commenced in a suit by the state for injunctive relief, attempting to enjoin the riparian from building a seawall on the basis that it might thwart a public erosion control program. The defendant cross-claimed to quiet title to the accreted land and this is the basis upon which the case reached this court.
Finally, the state urges a retroactive application to Florida Statute § 161.051, F.S.A. which purports to vest title to accretions caused by public works in the state. The erosion projects here were begun in 1957 while the statute was enacted in 1965. Even if the statute is constitutional with respect to riparian owners we are not convinced that a legislative intent that the statute be applied retroactively has been shown. Statutes are presumed to be prospectively applied unless legislative intent to the contrary clearly appears. Miami v. Bd. of Public Instruction, 72 So.2d 901 (Fla. 1954); State ex rel. Hill v. Cone, 140 Fla. 1, 191 So. 50 (1939). Retroactive statutes may be invalid where they impair vested rights. The title of a statute intended to operate retrospectively should convey notice of that intent. See, Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641 (1943). In view of the foregoing we do not believe Florida Statute § 161.051 should be applied here, especially where no substantial evidence has been taken to show that the erosion project was the cause of the accretion.
If, in fact, the state can show that erection of this seawall will endanger the effectiveness of Madeira Beach's erosion control program we have no doubt that an injunction to prevent the wall is a proper remedy. We see no reason to quiet title in the state merely to prevent the erection of *215 a seawall. Furthermore, we have stated other factors which we believe call for the opposite result.
The judgment is therefore affirmed.
HOBSON, J., and PIERCE, J., (Ret.) concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917979/ | 272 So.2d 23 (1973)
ALLIED NAVIGATION CO., INC., et al.
v.
INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS, Henry M. Stegall, et al.
No. 5478.
Court of Appeal of Louisiana, Fourth Circuit.
January 2, 1973.
Rehearing Denied February 6, 1973.
Writ Refused April 5, 1973.
Terriberry, Carroll, Yancey & Farrell, Walter Carroll, Jr., and Monroe & Lemann, David E. Walker, New Orleans, for plaintiffs-appellees.
Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, C. Paul Barker, New Orleans, and Schulman, Abarbanel, Perkel & McEvoy, Howard Schulman, New York City, for defendants-appellants.
Before SAMUEL, CHASEZ and BOUTALL, JJ.
*24 BOUTALL, Judge.
This suit seeks to enjoin certain labor unions and their officials from picketing and preventing the operation of four vessels of foreign nations which were docked in the Port of New Orleans. The appeal before us, taken by the defendants cast, is not from a final judgment on the merits, but from a motion to dissolve a preliminary injunction. It may be well at the outset to review the procedural aspects of the case.
On November 5, 1971, plaintiffs filed their petition seeking an injunction, and in connection therewith obtained from the court a temporary restraining order. The next day, the defendants sought to remove the case to the United States District Court for the Eastern District of Louisiana and filed pleadings to that effect. Upon objection made by the plaintiffs, the United States District Court held a hearing at which it was determined that the case should be remanded to the State Court. Application was then made to the United States Court of Appeal for the Fifth Circuit seeking the exercise of its supervisory jurisdiction to require the United States District Court to take jurisdiction of the matter, but the application was unsuccessful, the appellate court refused to intervene and the suit was returned to the Civil District Court for the Parish of Orleans, where it had commenced.
A supplemental and amended petition was filed on December 3, 1971, which requested the court to extend its protection to other shipowners, charterers and operators similarly situated, apparently converting the original petition into a class action. The defendants filed exceptions of jurisdiction, no cause of action, no right of action, improper use of class action procedure, improper amendment of petition, res judicata and collateral estoppel.
The temporary restraining order was kept in effect from time to time until a trial of the rule for preliminary injunction, which was held on March 6 and 7, 1972. The exceptions were referred to the merits of the rule and were tried at the same time. On March 17, 1972, judgment was rendered by the court, overruling the various exceptions urged as defense, and granting a preliminary injunction against the defendants. It should be noted at this time that there was no request for a new trial nor any appeal taken from that judgment. It should also be noted that there was no immediate issuance of the writ of preliminary injunction because no bond was filed as required, nor had any been issued at the time of the motion to dissolve.
Thereafter, on June 22, 1972, slightly more than 3 months after the judgment, the defendants filed a motion to dissolve the judgment of preliminary injunction, and in the same motion re-urged all of the exceptions previously filed praying for dismissal of the suit. This motion to dissolve was tried on July 7, 1972, and a judgment was rendered on July 10, 1972, denying the motion to dissolve the preliminary injunction of March 17, 1972, and refusing to dismiss the suit. On July 12, 1972, the defendants filed an ex parte application for stay of the preliminary injunction, which was denied by the court. On the same date, the defendants filed an application for writs of certiorari, prohibition and mandamus to this court, and also filed a motion and order for appeal. We refused writs on August 7, 1972, Docket Number 5455. The matter before us now is the appeal.
The appeal is from the judgment of court dated July 10, 1972, denying a motion by the defendants to dissolve a preliminary injunction, granted in a judgment issued on March 17, 1972. Appellants have argued to us all of the issues covered and decided in the judgment of March 17, 1972, as well as all of the new matter brought up in the motion to dissolve. Therefore, our primary inquiry is to determine the scope of this appeal, and the issues before the court.
*25 We refer to the provisions of LSA-C.C.P. art. 3612 as follows:
"* * *
"An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
"An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided. * * *."
The matter that is before us is, of course, the judgment of July 10, 1972. See Tharp v. Richardson, 179 La. 285, 153 So. 885 (1934). This judgment arises from the motion to dissolve the preliminary injunction under the provisions of C.C.P. art. 3607. The motion to dissolve has two basic demands, one to dissolve the preliminary injunction, and one to re-iterate the exceptions previously ruled upon, seeking dismissal of the suit. Reference to C.C.P. art. 3612, partly quoted above, indicates that the appeal permissible is from a judgment relating to a preliminary injunction and the motion to dissolve meets this requirement. Tharp v. Richardson, supra.
However, a different rule applies to that portion of the motion re-urging the exceptions seeking to dismiss the suit. Generally speaking, there is no appeal from a judgment overruling exceptions because such a judgment is simply interlocutory in nature. Waters v. Waters, 264 So.2d 275 (La.App. 4th Cir., 1972); Alexander v. Hancock Bank, 241 So.2d 810 (La.App. 3rd Cir., 1970) and Woodcock v. Crehan, 28 So.2d 61 (La.App. 1st Cir., 1946). Additionally, as set forth in this motion, the exceptions previously overruled were simply reargued, in effect an attempt to use the motion to dissolve the preliminary injunction as a procedural vehicle to obtain a new trial on the previous judgment overruling the exceptions. There is no right of appeal from a judgment denying a motion for a new trial. General Motors Acceptance Corp. v. Deep South Pest Control, 247 La. 625, 173 So.2d 190 (1965); Fruehauf Trailer Company v. Baillio, 204 So.2d 139 (La.App. 4th Cir., 1967).
Additionally, the record shows that the judgment of preliminary injunction and overruling of exceptions was dated March 17, 1972. The motion to dissolve was filed June 22, 1972, and the appeal taken July 12, 1972. It is easily seen that both the time for requesting a new trial, and for appeal from the March 17th judgment had long passed. Morris v. Transtates Petroleum, Inc., 234 So.2d 243 (La.App. 2nd Cir., 1970).
We conclude that the only issue before us is whether the judgment of preliminary injunction should be dissolved under the facts and circumstances of the case as it stood at the time of the trial of the motion, and we do not consider the exceptions although they have been argued to us. Similarly, we do not feel it appropriate to consider the merits of the original rule for preliminary injunction. Although there are no codal restrictions as to the time for filing a motion to dissolve nor as to the basis for filing the motion, because of the length of time involved (over 3 months as opposed to the appellate period of 15 days), we do not feel disposed to treat a motion to dissolve as simply a vehicle for a complete new trial. However, we must point out that while that proposition has given us considerable difficulty, we do not necessarily so rule because of the result we reach herein.
We are of the opinion that the motion to dissolve should have been granted because the judgment of preliminary injunction is improper on its face.[1]*26 The judgment reads as follows:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon plaintiffs furnishing bond in the sum of $5,000, let a preliminary injunction issue herein as prayed for in the original and supplemental petitions against the defendants International Organization of Masters, Mates and Pilots, Henry M. Stegall, Radio Officers Union, Kenneth J. Wright, the American Radio Association, AFL-CIO, [Floyd] J. K. Kepting, National Maritime Union of America, S. D. George, Seafarers International Union of North America, AFL-CIO, and C. J. `Buck' Stephens, according to law."
LSA-C.C.P. art. 3605 states:
"Art. 3605. Content and scope of injunction or restraining order
"An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise."
A comparison of the judgment and art. 3605 clearly shows that the judgment does precisely what the article denounces. The judgment is insufficient to constitute a legal preliminary injunction. See Kelone v. Kelone, 209 So.2d 803 (La.App. 3rd Cir., 1968) for a similar situation relating to a temporary restraining order. The Federal Rule comparable to art. 3605 is Federal Rule 65(d), and it has been similarly interpreted. See 28 U.S.C.A. Rule 65 and Barron and Holtzoff Federal Practice and Procedure, §§ 1436, 1437 esp. footnote (50).
An injunction is a harsh remedy and violation of it carries severe penalties. It is necessary therefore, and our statute requires, that the act sought to be restrained be described in reasonable detail. The use of a motion to dissolve is a proper procedural device to attack the application to defendants of a judgment of preliminary injunction, and in this instance, the motion should have been granted.
In passing, we note that, although this was a preliminary injunction, more than 3 months had elapsed at the time of hearing without plaintiff posting the bond or seeking issuance of the writ of injunction. We are informed in argument that bond was posted and a writ of preliminary injunction issued after the appeal was taken. However, we are not apprised of the basis for the issuance of that writ, or whether it springs from the judgment of March 17, 1972, or was issued after a hearing. See Kelone v. Kelone, supra, and C.C.P. art. 3607. We therefore make no ruling thereon as it does not appear to be part of the record on appeal.
For the reasons above stated, it is ordered that the judgment appealed from, dated July 10, 1972, is annulled and reversed in part as it applies to dissolving the preliminary injunction and judgment is now rendered granting the motion to dissolve the preliminary injunction, decreeing the judgment of preliminary injunction rendered March 17, 1972, null and void, and remanding this matter back to the trial court for such further proceedings as may be appropriate consistent with the views expressed herein. It is further ordered that the judgment appealed from is affirmed in all other respects.
The cost of this appeal shall be borne by appellee. All other costs to await a final determination.
Reversed in part.
Affirmed in part.
NOTES
[1] There were 12 defendants sued and all have appealed. The motion to dissolve was filed by all defendants, but the judgment of preliminary injunction was only issued against 10 defendants, omitting defendants C. E. De Fries and National Marine Engineers Beneficial Association, AFL-CIO. There is not issue raised as to this. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585018/ | 187 P.3d 751 (2008)
STATE
v.
TU.
No. 80021-9.
Supreme Court of Washington, Department I.
July 8, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573760/ | 408 S.W.2d 744 (1966)
Roy E. GREEN, Appellant,
v.
TEMPLE-STUART COMPANY et al., Appellees.
No. 16771.
Court of Civil Appeals of Texas, Fort Worth.
November 18, 1966.
*745 Monroe Clayton, Wichita Falls, for appellant.
Thomas A. Melody, Dallas, for appellees.
OPINION
MASSEY, Chief Justice.
Roy E. Green, retail furniture dealer of Wichita Falls, Texas, brought suit for damages against Temple-Stuart Company, furniture manufacturing corporation of Massachusetts, and its Texas agent-representative, Cedric Norred. Gist of the action was that as the result of an agreement or undertaking entered into by the defendants with a competitive Wichita Falls retail furniture dealer, under the provisions of which defendants would in that trade area sell its products to said competitor "exclusively", plaintiff had sustained damages in the consequent denial to him of the defendants' products. Following a jury trial the court rendered judgment for the defendants non obstante veredicto and the plaintiff appealed.
Judgment affirmed.
We consider the case initially as though no question exists but that the defendants' business was of an intrastate character, and that the transaction might be tested by the provisions of T.R.C.S. Art. 7428, "Conspiracies against trade". We note the similarity of the situation to that considered in Robison v. Roberts, 279 S.W.2d 484 (Texarkana Civ.App., 1955, error refused) where it was held that a defendant was privileged to cease to sell its products to plaintiff in favor of another. A difference exists in the present case from that in Robison v. Roberts in that Norred, as agent for Temple-Stuart Company, admitted that he had agreed to give plaintiff's competitor an "exclusive" on his principal's line of merchandise in Wichita Falls, and was going to proceed to honor such agreement though he knew it would injure plaintiff's business.
The remedy sought in the case before us is for damages, while in Robison v. Roberts the remedy sought was a mandatory injunction, so we necessarily are concerned as to whether we would be applying language found therein to a situation not within the contemplation of the Texarkana Court. We have concluded that the cited case is authoritative despite this difference.
The question is whether Norred's admission that plaintiff's denial of a subsequent supply of Temple-Stuart Company's products stemmed from the agreement to give plaintiff's competitor an "exclusive", coupled with circumstances analogous to those in Robison v. Roberts, sufficed to make out a prima facie case. Of course the plaintiff had no right to Temple-Stuart furniture, and the company at all times was privileged to sell its products to whomever it saw fit without compulsion by the state.
If a manufacturer or dealer has a right to sell or refuse to sell his product to any person he sees fit without compulsion by the state, the legal situation would not be altered (and make him liable where he otherwise would not be liable) merely because he might inform him to whom sale is refused that such was founded in a promise made to another that he have the "exclusive" right to buy the seller's product in a particular town or area.
For purposes of this case Norred, the agent, and Temple-Stuart Company, his *746 principal, would in Texas be considered as one person and not independent under respondeat superior. Hence, no combination against plaintiff in the statutory sense could have existed through any agreement between such parties. Padgitt v. Lone Star Gas Co., 213 S.W.2d 133, 136 (Dallas Civ. App., 1948, no writ hist.). It has also been held that illegality in the statutory sense, relating to concert of action among those who would otherwise be in competitive business, does not exist unless such participants are independent and capable of acting in competition with one another. State v. Fairbanks-Morse & Co., 246 S.W.2d 647, 659 (Dallas Civ.App., 1951, writ ref. n. r. e.). As applied to Temple-Stuart Company and its agent, on the one hand, and to plaintiff, on the other, one was in the manufacturing business and the other in the retail furniture business and in no sense were they competitive with one another.
Under search is the right, if any, which accrued to plaintiff through what he contends to have been a contract which was void for illegality under Texas law as between the parties thereto. Though the agreement might have been in violation of the Anti-Trust laws in so far as the two parties thereto were concerned (unenforceable in any action by one against the other, and one in which money which might be contractually owed from one to the other would be uncollectible) as to third persons not in privity, including the plaintiff, the situation would be one where the parties to the agreement had made "promises" to one another which neither would be obliged to keep. Should one of the parties nevertheless elect to keep his promise, and therefore refuse to sell to plaintiff to his damage, no cause of action would enure to the benefit of plaintiff or like third person under existent Texas law. See Jax Beer Co. v. Palmer, 150 S.W.2d 452, 454 (Fort Worth Civ.App., 1941, no writ hist.) and cases analyzed, concerning which it was stated: "The gist of these opinions is that one or more persons may refuse to have any business dealings with another person and not be liable for their acts, but they `may not with impunity influence another person, whether a party to the conspiracy or not, to refrain from business relations with such person without being guilty of an actionable wrong.'" See also Delz v. Winfree, 80 Tex. 400, 16 S.W. 111 (1891).
For these reasons the judgment non obstante veredicto was proper when the case is considered as one where the material transaction was of an intrastate character.
In a test of its true character, however, we are of the opinion and hold that the material transaction and all the business shown to have been conducted by Temple-Stuart was interstate and not intrastate. Hence only the Federal Anti-Trust Act could apply. Plaintiff would for this reason be unable to recover under the theory upon which his suit was brought and presented.
All the shipments of furniture to plaintiff were shown to have been under the "original package" doctrine of interstate commerce law, giving transactions with plaintiff the character of interstate commerce. Temple-Stuart Company had a contract with a warehouse in Dallas, Texas for the storage of its furniture. It attempted to keep a supply of "packaged" units of various kinds of its products on hand therein for more prompt delivery to its approved customers, among which plaintiff was numbered until his competitor was given an "exclusive". Upon receipt of an order for such a "packaged" unit Temple Stuart was able to fill the "order" by having its products "forwarded" from the Dallas warehouse rather than through direct shipments from its factory or warehouse in Massachusetts. By contract of the parties, transfer was treated the same as though shipment was from outside Texas, to-wit: shipped at purchaser's expense "f. o. b." the location of the factory. There was no evidence raising the issue that the actual practice involved any intrastate *747 transaction. Indeed, the evidence established that it did not. See 26 A.L.R. 971, Anno.: "What is an `original package' within interstate or international commerce"; 12 Tex.Jur.2d p. 172, "Commerce", § 10, "Original package doctrine".
Judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573738/ | 408 S.W.2d 504 (1966)
INTERNATIONAL HARVESTER COMPANY and Eaton, Yale & Towne, Inc., Petitioners,
v.
Honorable Lyle BROWN, Circuit Judge, Respondent.
No. 5-4043.
Supreme Court of Arkansas.
November 21, 1966.
Owens, McHaney & McHaney, Little Rock, and Autrey & Goodson, Texarkana, for petitioners.
Charles A. Potter, Texarkana, for respondent.
*505 WARD, Associate Justice.
This is a Petition for a Writ of Prohibition asking this Court to enjoin the Circuit Judge from proceeding further in a damage suit filed in his court in Miller County.
The pertinent facts, which are not in dispute, are hereafter briefly stated.
On February 28, 1966 Arney Hayes filed a suit, in Miller County Circuit Court, against the International Harvester Company (called International) and Eaton, Yale & Towne, Inc. (called Eaton) for damages resulting from the purchase of an allegedly defective truck from International, parts of which had been manufactured by Eaton, and "that by reason thereof defendants breached the implied warranty of merchantability". The complaint alleged: that International was a foreign corporation, authorized to do business in Arkansas, and that the designated agent for service is The Corporation Company, 221 West Second Street in Little Rock, and; that Eaton is also a foreign corporation, and its designated agent for service was R. G. Hengst, 100 Erieview Plaza, Cleveland, Ohio. The prayer was for judgment against both defendants in the sum of $3,298.94. Service of summons on International was had on its agent in Little Rock, and service on Eaton was had by mailing a copy of the summons to its office in Ohio.
To the above complaint the defendants (petitioners herein) filed separate "Motions to Quash Service", alleging: Both are foreign corporations, duly qualified to do business in Arkansas; both have registered agents for service in Little Rock, and; neither has a place of business or office in Miller County.
The allegations in the motion not being disputed, the trial court overruled said motion as to International, holding its designated agent in Little Rock was served and that Miller County was the proper venue. The court sustained the Motion to Quash as to Eaton because service was attempted by mailing the summons and a copy of the complaint by registered mail to R. G. Hengst in Cleveland, Ohio. The court further held, however, that Eaton had a designated agent for service in Little Rock and that service on that agent would give Miller County jurisdiction.
Both petitioners objected to the above ruling of the trial court, and they now petition this Court to enjoin further proceedings in Miller County.
All parties agree that only one decisive question is presented to this Court, to-wit: Is the action below governed by Ark.Stat. Ann. § 27-611 (Repl.1962), as contended by respondent, or by Ark.Stat.Ann. 27-613 (Repl.1962), as contended by petitioners.
For reasons hereafter set forth we have concluded the petitioners are correct, and that the Writ of Prohibition must be granted.
Section 27-611, relied on by respondent, reads:
"Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose."
We construe this section to apply only where there has been "personal injury" or where there has been actual force or violencesuch as a collision between two automobiles. This is the interpretation placed on the statute in Terry v. Plunket-Jarrell Grocery Co., 220 Ark. 3, 246 S.W.2d 415, 29 A.L.R. 2d 1264, and we think the decision is sound. No such factual situation exists in the case under consideration. Here Hayes' cause of action is predicated on a breach of contract, or on a breach of an implied warranty.
*506 Section 27-613 reads:
"Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned."
It is here admitted that neither of the petitioners resided in or was served in Miller County.
It is to be noted that section 27-611 originated as a part of Act 317 of 1941, but that section 27-613 is an exact copy of § 96 of the Civil Code of Arkansas. Section 27-613 is clearly shown to be a "venue" statute. It is preceded in the Code by more than ten other sections relating to venue in different factual situations, none of which include those in this case.
It cannot be disputed that section 27-613 applies to corporations. See: Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W.2d 485.
Writ granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573746/ | 224 S.W.3d 575 (2006)
Bedri BEQIRI, Appellant
v.
STATE of Arkansas, Appellee.
No. CA CR 04-307.
Court of Appeals of Arkansas, Division IV.
January 25, 2006.
William R. Simpson Jr., Public Defender, by: Clint Miller, Deputy Public Defender, Little Rock, for appellant.
Mike Beebe, Ark. Att'y Gen., by: David J. Davies, Ass't Att'y Gen., Little Rock, for appellee.
JOSEPHINE LINKER HART, Judge.
Bedri Beqiri was convicted in a Pulaski County bench trial of passing a hot check in an amount greater than $2,500, and he was sentenced to sixty months' probation and ordered to make restitution. Beqiri's appellate counsel had previously submitted a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. However, in an unpublished opinion, handed down on June 29, 2005, we denied Beqiri's appellate counsel's motion to withdraw and ordered that he submit a merit brief addressing the trial court's order of restitution. We were specifically concerned with whether the trial court complied with Arkansas Code Annotated section 5-4-205(a)(3)(A) (Supp. 2003). Beqiri now argues on appeal that *576 the trial judge erred in failing to require the State to prove in a restitution hearing the amount of restitution that he owed. We agree, and we reverse and remand for the trial court to hold a restitution hearing.
In charging Beqiri with a single count of violating the Arkansas Hot Check Law, the State alleged that on February 28, 2003, he did "make, draw or utter checks in an amount in excess of $2,500." A food distributor, Quality Foods, was identified as the victim. At Bequiri's November 3, 2003, bench trial, Jane Elder, Assistant Credit Manager of Quality Foods, testified that, on February 28, 2002, Beqiri issued a worthless check for $6,336.48 worth of food that had been delivered to his restaurant. According to Elder, the check was twice returned by Quality Foods's bank, Bank of America. Tommie Abrams, Vice President of Operations at Beqiri's bank, The First State Bank in Conway, testified that, on the date that he wrote the check, Beqiri did not have sufficient funds to cover it. Testifying on his own behalf, Beqiri asserted that he had reimbursed Quality Foods for the dishonored checks through payments that he made to Quality Foods salesman Ralph Burley. Nonetheless, the trial court found Beqiri guilty.
At the December 1, 2003, sentencing hearing, when the trial judge took up the issue of restitution, Beqiri's trial counsel informed the court that Beqiri denied that he owed restitution and requested a restitution hearing. The trial court brushed aside the request and asked the prosecutor for the amount of restitution. The State replied, "six thousand four hundred and thirty-six dollars and forty-eight cents," and confirmed that the restitution was only owed to Quality Foods. The trial court subsequently entered an order of restitution in the amount that was recited by the prosecutor.
On appeal, Beqiri argues that the circuit judge erred in failing to require the State to prove the amount of restitution that he owed at a hearing held during the sentencing phase of the trial. He contends that the plain wording of Arkansas Code Annotated section 5-4-205(a)(3)(A) requires the State to put on proof as to the amount of restitution, and the "State put on no proof whatsoever," because the statement by the prosecutor was not evidence. Further, he notes, the amount asserted by the prosecutor was $100 more than the amount of the check that was returned for insufficient funds. He finally argues that, because the State failed to put on any evidence, this case should be reversed and dismissed. We agree the trial court erred in refusing to hold a restitution hearing, but rather than dismissing this case, we reverse and remand.
Arkansas Code Annotated section 5-4-205(a)(3)(A) requires that the amount of restitution be determined "by the preponderance of the evidence presented to the sentencing authority during the sentencing phase of the trial." The record is clear that no such evidence was presented; instead, the record shows only the incorrect recitation by the prosecutor of the amount of a dishonored check. It is axiomatic that a statement by counsel is not evidence. See, e.g., Wright v. State, 67 Ark.App. 365, 1 S.W.3d 41 (1999). Regarding the final disposition of this case, we have held that the remedy for irregularities in the calculation of restitution lies in remand for a new hearing. Tumlison v. State, 93 Ark. App. 91, 216 S.W.3d 620 (2005). Accordingly, we reverse and remand with instructions for the trial court to hold a restitution hearing.
Reversed and remanded.
BAKER and GLOVER, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573761/ | 224 S.W.3d 783 (2007)
Elizabeth Ann Lisa RODRIGUEZ, Appellant,
v.
STATE of Texas, Appellee.
No. 11-06-00266-CV.
Court of Appeals of Texas, Eastland.
April 26, 2007.
Tiffani N. Helms, Abilene, for appellant.
James Eidson, Dist. Atty., Patricia Dyer, Asst. Crim. Dist. Atty's Office, Abilene, for appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
OPINION
RICK STRANGE, Justice.
Pursuant to TEX.CODE CRIM. PROC. ANN. art. 55.01(a) (Vernon 2006), Elizabeth Ann Lisa Rodriguez sought the expunction of records from a 2001 theft charge. The trial court denied Rodriguez's request, and she appealed. We affirm.
I. Issues
Rodriguez presents three issues on appeal in which she contends that the trial court erred in not granting an expunction because (1) she met all of the statutory requirements, (2) limitations bars any further *784 charges for issuing a bad check, and (3) the State failed to establish that she is still subject to conviction for the offense of theft by check.
II. Expunction
The petitioner in an expunction proceeding has the burden of proving that the statutory requirements are met. Harris County Dist. Attorney's Office v. Hopson, 880 S.W.2d 1, 3-4 (Tex.App.-Houston [14th Dist.] 1994, no writ). We review the trial court's ruling on an expunction under an abuse of discretion standard of review. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied).
A. Statutory Requirements.
The legislature intended for Article 55.01(a) to permit the expunction of records of wrongful arrests. Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991). Article 55.01(a) provides that a person who was placed under arrest for the commission of a felony or a misdemeanor is entitled to have all records relating to that arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
B. Did Rodriguez Meet the Requirements of Article 55.01(a)?
The record in this case shows that Rodriguez was originally charged in 2001 with theft by check but that, pursuant to a plea agreement, she pleaded nolo contendere to the charge of issuance of a bad check, a Class C misdemeanor. See TEX. PEN.CODE ANN. § 31.03 (Vernon Supp. 2006), § 32.41 (Vernon 2003). Pursuant to the plea agreement, Rodriguez paid off the bad checks and paid a fine of one dollar, and the State waived the original charge of theft by check. The trial court accepted the plea and convicted Rodriguez of the offense of issuance of a bad check. The trial court did not place her on community supervision.
*785 We hold that Rodriguez failed to meet the requirements of Article 55.01(a). Rodriguez was not tried and either acquitted or pardoned. Thus, Rodriguez did not meet the requirements of Article 55.01(a)(1). Rodriguez also failed to satisfy Article 55.01(a)(2) because the record shows that, although the theft charge was dismissed, Rodriguez was convicted of a Class C offense for issuing a bad check. Thus, the charge resulted in a final conviction rendering Rodriguez's records ineligible for expunction. Tex. Dep't of Pub. Safety v. Aytonk, 5 S.W.3d 787 (Tex.App.-San Antonio 1999, no pet.).
III. Validity of Conviction
Rodriguez asserts, and the trial court found, that the judgment convicting her of issuing a bad check is null and void because the trial court, a county court at law, had no jurisdiction over a Class C offense.[1] We disagree.
A. Justice Court Jurisdiction.
A justice court has original jurisdiction in misdemeanor criminal cases that are punishable by a fine only. TEX. CONST. art. V, § 19; TEX.CODE CRIM. PROC. ANN. art. 4.11 (Vernon 2005). A municipal court also has such jurisdiction. TEX.CODE CRIM. PROC. ANN. art. 4.14 (Vernon 2005). Because the offense of issuing a bad check is a Class C misdemeanor punishable only by a fine,[2] a justice court or municipal court would have had jurisdiction to convict Rodriguez of that offense. Nothing in Article V, section 19; Article 4.11; or Article 4.14, however, provides that such jurisdiction is exclusive.
B. County Court Jurisdiction.
A county court at law generally has jurisdiction over all causes and proceedings prescribed by law for county courts. TEX. GOV'T CODE ANN. § 25.0003(a) (Vernon Supp.2006). TEX. GOV'T CODE ANN. § 26.045 (Vernon 2004) provides that "a county court has exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $500 or less" (emphasis added).[3] TEX.CODE CRIM. PROC. ANN. art. 4.07 (Vernon 2005) provides that a county court has "original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars."
Although Article 4.07's language seems to limit the jurisdiction of county courts to those cases in which the fine could exceed $500 and, thus, to exclude jurisdiction in cases in which the fine could not exceed $500, this interpretation was first rejected in 1878. See Solon v. State, 5 Tex. Ct.App. 301 (1878). The Texas Court of Criminal Appeals has consistently applied this construction of the county court's jurisdiction since.[4] In Solon, the court reasoned:
*786 [T]he fact that the original jurisdiction of the County Court is limited . . . to cases where the fine to be imposed shall exceed $200[5] does not, as we conceive, deprive it of concurrent jurisdiction in cases where the fine to be imposed is less than $200, except in those cases where exclusive jurisdiction was already given to the justices' courts.
When Solon was decided, the relevant language was in TEX. CONST. art. V, § 16.[6] This provision has been comprehensively rewritten since, and the relevant language is now Article 4.07.[7] The fact that this language is now contained within a statute rather than a constitutional provision is of no consequence, and nothing in the present version of Article V, section 16 alters our analysis. In this case, no statute excluded the county court's jurisdiction or provided for exclusive jurisdiction in a justice or municipal court; therefore, jurisdiction in those courts was concurrent. Consequently, we conclude that Rodriguez's conviction for issuing a bad check is not void and that the trial court erred in determining that it was void.
IV. Holding
Because Rodriguez did not meet the requirements of Article 55.01(a)(2)(B), she was not entitled to have her records expunged. Therefore, we hold the trial court did not abuse its discretion in denying Rodriguez's request for expunction. The first issue for review is overruled. We need not address Rodriguez's second and third issues since the first issue is dispositive of the appeal. TEX.R.APP. P. 47.1.
*787 The judgment of the trial court is affirmed.
NOTES
[1] Although the State asserts that the judgment may not be collaterally attacked in an expunction proceeding, we note that a conviction may be challenged by collateral attack as being void. See Galloway v. State, 578 S.W.2d 142 (Tex.Crim.App.1979).
[2] TEX. PEN.CODE ANN. § 12.23 (Vernon 2003) provides that a person convicted of a Class C misdemeanor shall be punished by a fine not to exceed $500.
[3] We note that Section 26.045's grant of exclusive jurisdiction to county courts in criminal cases in which the fine may exceed $500 has been determined to be unconstitutional as a violation of TEX. CONST. art. V, § 19, which grants jurisdiction to justice courts in criminal cases punishable by a fine only, regardless of the amount of the potential fine. Op. Tex. Att'y Gen. No. DM-285, n. 4 (1994); see also Op. Tex. Att'y Gen. No. DM-277 (1993).
[4] See Fouke v. State, 529 S.W.2d 772, 773 (Tex.Crim.App.1975); Gamble v. State, 466 S.W.2d 556, 558 n. 2 (Tex.Crim.App.1971) (stating that county courts have concurrent jurisdiction over all misdemeanors with the justice and corporation courts even though the punishment for the misdemeanor is by a fine of not more than $200); Hullum v. State, 415 S.W.2d 192 (Tex.Crim.App.1966); Skaggs v. State, 157 Tex. Crim. 195, 247 S.W.2d 906 (Tex.Crim.App.1952); Rose v. State, 148 Tex. Crim. 82, 184 S.W.2d 617 (Tex.Crim.App. 1944) (county court and justice court have concurrent jurisdiction in theft cases where value of property is less than $5); Young v. State, 139 Tex. Crim. 509, 141 S.W.2d 315, 317 (Tex.Crim.App.1940); Patterson v. State, 122 Tex. Crim. 502, 56 S.W.2d 458 (Tex.Crim. App.1933).
We note that in Burke v. State, 915 S.W.2d 551, 553 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd), the court's opinion suggests that county courts do not have jurisdiction unless the maximum fine is greater than $500. That language, however, was not essential to the court's holding because the potential fine was $1,000 and the defendant's argument was that county courts do not have jurisdiction when the only possible punishment is a fine. Consequently, the court was not called upon to decide the county court's jurisdiction if the maximum fine was $500 or less.
[5] We note that, prior to amendment, the limitation in Article 4.07 was $200, instead of the current $500.
[6] This provision provided: "[T]he County Courts shall have original jurisdiction in all misdemeanors of which exclusive original jurisdiction is not given to the justice's court, or may be hereafter prescribed by law, and where the fine to be imposed shall exceed two hundred dollars." See Solon, 5 Tex. Ct.App. 301.
[7] Section 16 now reads:
The County Court has jurisdiction as provided by law. The County Judge is the presiding officer of the County Court and has judicial functions as provided by law. County court judges shall have the power to issue writs necessary to enforce their jurisdiction.
County Courts in existence on the effective date of this amendment are continued unless otherwise provided by law.
When the judge of the County Court is disqualified in any case pending in the County Court the parties interested may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573754/ | 224 S.W.3d 642 (2007)
STATE of Missouri, Plaintiff-Respondent,
v.
William R. HARTMAN, Defendant-Appellant.
No. 27926.
Missouri Court of Appeals, Southern District, Division Two.
May 31, 2007.
*644 Irene Karns, of Columbia, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., and Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for Respondent.
GARY W. LYNCH, Judge.
William R. Hartman ("Defendant") was convicted following a jury trial of committing murder in the second degree, in violation of § 565.021.[1] The court sentenced him as a prior and persistent offender under §§ 558.016 and 557.036 to a term of twenty-five years' imprisonment in the Department of Corrections. Defendant appeals, contending the trial court erred in admitting alleged hearsay testimony, giving a jury instruction on accomplice liability, and allowing the prosecutor to show enlargements of certain admitted photographs to the jury. We affirm.
1) Factual and Procedural Background
Defendant does not challenge the sufficiency of the evidence to support his conviction. Viewing the evidence in the light most favorable to the conviction, State v. Stanley, 124 S.W.3d 70, 72 (Mo.App.2004), the following facts were adduced at trial.
On February 4, 2003, Defendant and his wife, Sherry Hartman, entertained several friends at their home in Joplin, drinking and eating dinner together. Their guests included the victim, Alfred Smith ("Smitty"), Curtis Downton, and John Adams and his girlfriend, Tina Schacht. At some point in the evening, Defendant, Smitty and Downton began fighting. Smitty was yelling loudly, and Defendant and Downton pushed him out of the house. They then pushed Smitty off of the porch and into the street, where the three men continued to fight. When the men reached the other side of the street, Defendant "slew" Smitty into a ditch. Defendant then crushed Smitty's face with a rock. Defendant and Downton left Smitty lying in the ditch and returned to Defendant's house.
The next morning around 6 a.m., Adams woke up and left his house, which was near Defendant's house, to walk to work. As Adams walked by the ditch across from Defendant's house, he saw a body lying in the ditch. He ran to his landlord's house, told him about the body, and asked him to call 9-1-1. The men walked back over to the ditch and looked at the body; Adams then realized that it was Smitty.
Paramedics arrived at the scene and attached a cardiac monitor to Smitty to see if there was any cardiac activity; there was none. Sergeant Michael Hobson was the first officer to respond to the scene around 7:20 a.m. Smitty's body was lying face-up in the ditch with his face swollen and bloody. Sergeant Hobson recognized the victim as Alfred "Smitty" Smith. He then called in some other officers and secured the crime scene.
The pathologist who performed the autopsy determined that Smitty died as a result of severe blunt-force trauma to the face that caused a subdural hematoma. His injuries were consistent with being hit at least twice in the head. In the pathologist's opinion, the two rocks found at the scene lying on either side of Smitty's head could have caused his death if used with enough force. Red stains on the rocks were later determined to be human blood.
*645 Based on information received from Adams, Detective Jim Wallace with the Joplin Police Department contacted Defendant, Downton and Schacht. At the police department, Detective Wallace interviewed Defendant after Defendant signed a written waiver of his Miranda rights.[2] Defendant admitted that he threw Smitty out of his house, followed him into the street where they fought, and then "slew" Smitty into the ditch. Defendant also said he returned to the ditch about ten minutes later and saw that Smitty was breathing and his face was bloody, but he walked away and left Smitty there because he was still angry with him. At that point, Detective Wallace ended the interview and had Defendant arrested for Smitty's murder.
After speaking with Downton, Detective Wallace interviewed Defendant again. Defendant signed another written waiver of his Miranda rights. Detective Wallace told Defendant he had spoken to Downton and did not believe that Defendant was telling him the complete truth. This time, Defendant said that Smitty had gotten loud and that he and Downton pushed Smitty out of the house and into the street where they continued fighting. Defendant said that when they reached the other side of the street, Defendant "slew Smitty into the ditch." Defendant described Smitty's body as lying on his side in the ditch with his feet pointed toward the road. Defendant said he and Downton left him there. About three to ten minutes later, Defendant went back to the ditch and saw that Smitty was breathing, but not bloody. Defendant said he went home and then checked on Smitty after another ten minutes; Downton went with him. Smitty was still in the ditch and was bloody. Defendant said he saw a rock on Smitty's face, but did not call the police because he knew that he would get into trouble for assaulting Smitty. At that point, the interview was interrupted because Schacht had arrived at the police station. Detective Wallace spoke with Schacht separately and then resumed his interview of Defendant, after reminding him of his rights. Detective Wallace told Defendant that he "had gotten some information that [Defendant's] wife had made a comment that he told her that he threw the final blow." Defendant began to cry and said that he did not want to die in prison. Detective Wallace told him that the information was serious and he was going to go speak to Sherry, Defendant's wife, because she had lied to him earlier. Defendant said that he did not want Sherry to get into trouble. Detective Wallace told Defendant that he did not intend to arrest Sherry and asked why he thought Sherry was going to be in trouble. Defendant did not respond and Detective Wallace told him that he just needed the truth. Defendant stopped crying, looked Detective Wallace dead in the eyes, and said, "I killed the son of a bitch and I smashedcrushed his face with a rock." Defendant paused and then said that the only reason he confessed was because he did not want his wife to get into trouble. Detective Wallace asked Defendant for more details about the incident, and Defendant just looked at him and said, "I killed the son of a bitch; isn't that enough?"
Forensic analyses performed on Defendant's clothing, which was seized when he was arrested, revealed that Smitty's DNA was present in the blood found on Defendant's pants.
The state charged Defendant, as a prior and persistent offender under §§ 558.016 and 557.036, with committing the class A felony of first-degree murder in violation of § 565.020. Tina Schacht was murdered *646 before the trial, about six weeks after Smitty's death. Defendant filed a pre-trial motion in limine asking the court to exclude witnesses from repeating at trial any statements made by Schacht prior to her death. The court sustained that motion. At trial, the State presented the testimony of Detective Wallace, another detective, the pathologist who performed the autopsy, a forensic analyst, a paramedic, and other police officers. Defendant, his wife, and a DNA analyst testified on Defendant's behalf. After the close of the evidence and the attorneys' arguments, the jury convicted Defendant of second-degree murder, a class A felony. § 565.021. Thereafter, the court sentenced Defendant as a prior and persistent offender to a term of twenty-five years' imprisonment. §§ 558.016; 557.036. This appeal followed.
2) Discussion
a) Point I: Admission of Alleged Hearsay Testimony
In his first point on appeal, Defendant contends the trial court erred in admitting over objection the testimony of Detective Wallace that he "had gotten some information that [Defendant's] wife had made a comment that [Defendant] told her that he threw the final blow." Defendant argues this testimony is inadmissible hearsay, in that "the testimony did not fall under any of the recognized exceptions to the evidentiary bar against hearsay evidence, and served to corroborate a confession that Defendant had disavowed." Defendant also asserts that the trial court granted his pre-trial motion in limine, ruling that witnesses could not repeat Schacht's statement, but could only testify as to what they did in response.
Trial courts have broad discretion in admitting or excluding evidence, and this court will not disturb the ruling absent a clear abuse of that discretion. State v. Robinson, 111 S.W.3d 510, 513 (Mo.App.2003). "In reviewing the trial court's errors on direct appeal, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Manwarren, 139 S.W.3d 267, 273 (Mo.App.2004).
"A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value." State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). "Generally, courts exclude hearsay because the out-of-court statement is not subject to cross-examination, is not offered under oath, and is not subject to the fact finder's ability to judge demeanor at the time the statement was made." Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 120 (Mo. banc 1995). "However, exceptions to the general rule prohibiting hearsay statements do exist when the circumstances assure the trustworthiness of the declarant's statement." Skay v. St. Louis Parking Co., 130 S.W.3d 22, 26 (Mo.App.2004).
The alleged hearsay statement at issue was offered by Detective Wallace while the prosecutor was questioning him about his interview of Defendant following Schacht's interruption:
Q. [by Prosecutor] Okay. You remind [Defendant] of his rights and then what happens?
A. [by Detective Wallace]: I tell him that I had gotten some information that his wife had made a comment that he told her that he threw the final blow.
Q. Okay. You confront [Defendant] with information, you say: I understand.
BY [Defense Counsel]: Well, wait a second. Your Honor, can we approach?
*647 THE COURT: Just state your objection. What's your objection?
BY [Defense Counsel]: I object to him repeating anything told to him by another witness.
BY [Prosecutor]: It doesn't make any sense to ask him.
THE COURT: The objection is overruled.
Q. [by Prosecutor]: You confront [Defendant] by telling him you had information that [Defendant] told his wife, Sherry Hartman, that [Defendant] delivered the final blow to Smitty?
A. [by Detective Wallace]: Right.
The same subject arose later, during the prosecutor's cross-examination of Defendant:
Q. [by Prosecutor]: Now, didn't Officer Wallace tell you specifically that [sic] Tina [Schacht] had said?
A. [by Defendant]: Tina toldhe told me that Tina said that my wife, Sherry, had told her that I delivered the final blow.
Q. Okay.
While defense counsel did object to Detective Wallace's testimony, he did not object to his own testimony on the same subject.[3] Defendant does not claim error with the admission of his testimony. Therefore, Detective Wallace's testimony was cumulative in that other properly-admitted evidenceDefendant's own testimonyestablished the fact that Defendant's wife said that Defendant told her he delivered the final blow. State v. Nettles, 216 S.W.3d 162, 165 (Mo.App.2006). Consequently, we need not determine whether the court erred in admitting Detective Wallace's testimony, because even if it did, Defendant is unable to establish prejudice. State v. Nichols, 200 S.W.3d 115, 120 (Mo.App.2006). "A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evidence admitted without objection." Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007). Point I is denied.
b) Point II: Submission of Jury Instruction on Accomplice Liability
In this case, the trial court submitted instructions to the jury for both first-degree murder and second-degree murder. The jury found Defendant guilty of second-degree murder. Defendant's second point claims the submission of the instruction on second-degree murder was erroneous because it was based on accomplice or accessorial liability and was unsupported by substantial evidence that Defendant and another person acted together (accomplice liability), or that Defendant aided another person (accessorial liability), in committing the murder.[4] The instruction read:
If you do not find the defendant guilty of murder in the first degree, you must *648 consider whether he is guilty of murder in the second degree.
A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about February 5, 2003, in the County of Jasper, State of Missouri, the defendant or another person caused the death of Alfred L. Smith by striking him in the head with a blunt object, and
Second, that defendant or another person knew or was aware that his conduct was practically certain to cause the death of Alfred L. Smith,
Then you are instructed that the offense of murder in the second degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Third that with the purpose of promoting or furthering the commission of that murder in the second degree, the defendant acted together with or aided another person in committing that offense,
Then you will find the defendant guilty of murder in the second degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
The trial court has discretion in deciding whether to submit a tendered jury instruction. State v. Davis, 203 S.W.3d 796, 798 (Mo.App.2006). Our review is limited to whether the trial court abused its discretion in submitting the instruction. Id. Each theory within a submitted jury instruction must be supported by evidence which, if true, would support a verdict for the party submitting the instruction. State v. Norman, 145 S.W.3d 912, 921 (Mo.App.2004). In determining the sufficiency of the evidence to support the giving of an instruction, this court views the evidence in the light most favorable to the party giving the instruction, "taking all favorable inferences drawn from the evidence and disregarding all evidence and inferences to the contrary." Id.
"In order to submit the accomplice liability theory to the jury, the evidence must have supported a finding that (1) someone killed the victim; (2) this person acted with the intent to cause serious physical injury; and (3) the person acted together with or aided and encouraged the other person with the purpose of furthering the commission of the murder." Id. at 921-22.
Defense counsel's objection to the instruction at trial, and Defendant's argument on appeal, is that "the evidence in this case is either [Defendant] did it or Downton did it or that a third party did it[,]" but not Defendant and another person acting together. Our review of the record causes us to disagree, because when viewed in the light most favorable to the state, the evidence supports the conclusion that Defendant aided or acted with Downton in murdering Smitty. There was evidence that both Defendant and Downton fought with Smitty in the street, and that both men left Smitty lying in the ditch after Defendant threw him in there and smashed his head with a rock. Defendant confessed that he killed Smitty, and the evidence that he told his wife he "delivered the final blow[,]" along with the evidence Smitty was hit in the head at least twice and that two bloody rocks were found next to his head, reasonably infers another person *649 was acting with Defendant. There was evidence that Defendant and Downton returned later to find Smitty lying bloody in the ditch, and again left him there and returned to the house. Finally, DNA evidence showed that Smitty's blood was present on Defendant's clothing and human blood was present on Downton's pants.[5] There was sufficient evidence to support a finding that Defendant acted together with or aided Downton in causing Smitty's death. Therefore, the trial court did not abuse its discretion in submitting the instruction for second-degree murder to the jury. Point II is denied.
c) Point III: Allowing Prosecutor to Show Enlargements of Admitted Photographs to Jury
Defendant's third point claims the trial court abused its discretion in permitting the prosecutor to show enlargements of certain photographs to the jury. Eleven photographs of Smitty's body taken during the autopsy were admitted into evidence during the testimony of a detective who was present at the autopsy. Defense counsel did not object to the admission of the photographs. At a later point in trial, the prosecutor showed the same eleven photographs to the pathologist who performed the autopsy. The pathologist confirmed that the photographs fairly and accurately depicted the condition of Smitty's body during the various stages of the autopsy. The prosecutor then asked the court for permission to publish the photographs to the jury, to aid the pathologist as he testified about the details of the autopsy. Defense counsel objected, arguing the photographs were "highly prejudicial" and their "prejudicial effect outweigh[ed] any probative value." After examining a few of the "worst" photographs,[6] the court overruled defense counsel's objection. Enlarged versions of the eleven photographs were projected onto a screen for the jury to see and for the pathologist to reference as he testified in detail about the autopsy.
Defendant now claims that the trial court erred in permitting the projected enlargements of seven of the eleven photographs. Defendant does not claim the seven photographs were improperly admitted into evidence, nor did he object to their admission at trial. He claims only that the manner in which the seven photographs were published to the jury was "unduly prejudicial."
"Photographs, although gruesome, may be admitted where they show the nature and location of the wounds, where they enable the jury to better understand the testimony, and where they aid in establishing any element of the State's case." State v. Rhodes, 988 S.W.2d 521, 524 (Mo. banc 1999) (quoting State v. Feltrop, 803 S.W.2d 1, 10 (Mo. banc 1991) (citations omitted)). "The decision to publish evidence to the jury is within the discretion of the trial court." State v. Wolfe, 13 S.W.3d 248, 260 (Mo. banc 2000). An abuse of discretion exists only if the trial court's decision was clearly against reason and resulted in an injustice to Defendant. Id. at 260-61. "The projection of previously admitted photographs is permissible when the enlarged photographs serve legitimate purposes." Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006), *650 cert. denied, ___ U.S. ___, 127 S. Ct. 83, 166 L. Ed. 2d 75 (2006).
After reviewing the record, we have not found anything, and the Defendant has failed to direct us to anything other than the gruesome nature of the pictures, that indicates that the manner in which the enlarged photographs were projected before the jury did not serve a legitimate purpose, or that it had a prejudicial effect on the jury. Defendant has not articulated any facts or argument supporting his contention that the publication of the pictures in this manner was somehow prejudicial to Defendant while the admission of the pictures into evidence, which would be published to the jury in some manner, was not.
The projected enlargements had the legitimate purpose of illustrating the pathologist's testimony for the jury as he described the details of the autopsy showing the nature and location of the victim's wounds which led to his death. See State v. Love, 546 S.W.2d 441, 451-52 (Mo.App. 1976) (photographs "possess probative value if they enable the jury to better understand the facts elicited from various state witnesses"). There is no evidence in the record indicating the extent to which the photographs were enlarged when they were projected onto the screen before the jury or the proximity of the screen to the jury. Likewise, there is no evidence in the record of any adverse reactions by any juror or anyone else in the courtroom to the exhibition of the pictures in this manner. The lack of either of such types of evidence coupled with the legitimate purpose served by publishing the pictures in this manner and the trial court's superior position to view the proposed and actual manner of publishing the pictures to the jury, leaves us with no basis upon which to second guess this exercise of the trial court's discretion. See id. at 452.[7]
Accordingly, the trial court did not abuse its discretion in overruling Defendant's objection and permitting the projection of the enlargements of the eleven pictures before the jury. Point III is denied.
3) Decision
The judgment of the trial court is affirmed.
BATES, P.J./C.J., and GARRISON, J., concur.
NOTES
[1] All references to statutes are to RSMo Cum. Supp.2003.
[2] See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] We note also that the filing of a motion in limine preserves nothing for appellate review unless the matter is also timely raised at trial. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007).
[4] We want to clarify that the instruction is not written in the disjunctive with a choice between accomplice liability and accessorial liability. The instruction is patterned off of MAI-CR.3d 304.04, which "applies when the evidence shows that the defendant acted with or aided another person or persons in the commission of an offense." Notes on Use 4, MAI-CR.3d 304.04. The second paragraph of the instruction simply explains the nature of accessorial liability; it is not asking the jury to choose between accomplice liability and accessorial liability. State v. Thompson, 112 S.W.3d 57, 65-66 (Mo.App.2003).
[5] Although no DNA testing was performed on the human blood found on Downton's pants, given the other evidence of his involvement in the events surrounding Smitty's death, the jury could have reasonably inferred that this was Smitty's blood.
[6] There is nothing in the record to indicate which specific pictures the trial court reviewed.
[7] We note that Defendant's objection at trial was to the projected enlargements of all eleven photographs, whereas on appeal he specifically claims error as to only seven of them. During trial, Defendant objected that the eleven enlarged photographs as a group were more prejudicial than probative because of the manner in which they were projected. He did not articulate to the trial court any specific prejudice elicited by any particular individual photograph. Objections to evidence must be specific so that the trial court is fully informed of the reasons of the objection, and can thereby make a reasoned and informed ruling. State v. Hoy, 219 S.W.3d 796, 2007 WL 1160269, *11 (Mo.App. S.D.). "Any grounds that are not raised in the objection are considered waived, and a party is prevented from raising such grounds for the first time on appeal." Id. "Changing the grounds for the objection or broadening the grounds is also prohibited." Id. Defendant did not articulate to the trial court the specific prejudice elicited by any one photograph; consequently, we cannot review his claims as to specific photographs on appeal. Defendant has not articulated any specific prejudice as to individual photographs on appeal either. The only basis for Defendant's objection at trial was that the manner in which all eleven photographs were enlarged made them more prejudicial than probative, so we approach and dispose of Defendant's third point on that basis. State v. Love, 546 S.W.2d 441, 451 (Mo.App.1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918006/ | 101 B.R. 997 (1989)
Marvin G. FINSTROM
v.
Wesley B. HUISINGA, et al.
Civ. No. 4-89-159, Bankruptcy No. 4-88-3835.
United States District Court, D. Minnesota, Fourth Division.
June 30, 1989.
*998 Marvin G. Finstrom, Kerkhoven, Minn., pro se.
John W. Riches, Benson, Minn. and Raymond R. Waechter, Willmar, Minn., for defendants.
ORDER
ROSENBAUM, District Judge.
This matter is before the Court on appellant Marvin G. Finstrom's appeal from an order of the Honorable Nancy A. Dreher, United States Bankruptcy Judge, dated November 30, 1988. The bankruptcy court dismissed appellant's Chapter 11 case on the basis of appellant's failure to file proper statements and schedules.
The bankruptcy court's decision rested partly on a question of fact: were the statements and schedules submitted by appellant sufficient to proceed under Chapter 11? The bankruptcy court held appellant failed to comply with his duty pursuant to 11 U.S.C. § 521 and declined to accept his submissions.
The appropriate standard of review on appeal of a question of fact is set forth in Bankruptcy Rule 8013. Rule 8013 states "findings of fact shall not be set aside unless clearly erroneous." Bankruptcy Rule 8013. Based upon a review of the record, the Court concludes that the bankruptcy court's factual determination is not clearly erroneous.
The bankruptcy court's decision also rested on a question of law: may the bankruptcy court, sua sponte, dismiss a Chapter 11 case if appropriate filings are not made? The Bankruptcy Code does not specifically grant a bankruptcy court such power. Although the bankruptcy court did not address this specific question, it dismissed appellant's case on its own initiative.
The appropriate standard of review on appeal of a question of law is de novo. In re Pierce, 809 F.2d 1356, 1459 (8th Cir. 1987). Under the de novo standard, this Court "must independently determine the correctness of the ultimate legal conclusion adopted by the bankruptcy judge on the basis of the facts found." Matter of Hammons, 614 F.2d 399, 403 (5th Cir.1980).
A bankruptcy court "may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions" of the bankruptcy code. 11 U.S.C. § 105(a). Yet, the bankruptcy court is limited to the powers expressly, or by necessary implication, conferred upon it by Congress. Johnson v. First Nat. Bank of Montevideo, Minnesota, 719 F.2d 270, 273 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). A bankruptcy court is a court of equity, Kenneally v. Standard Electronics Corp., 364 F.2d 642, 647 (8th Cir.1966), and its equitable powers may only be exercised in a manner consistent with the Bankruptcy Code. Johnson, 719 F.2d at 273; see In re Briggs Transportation Co., 780 F.2d 1339, 1343 (8th Cir.1985).
Section 1112 of Title 11 permits a dismissal upon the "request of a party in interest." 11 U.S.C. § 1112(b). Section 1112 *999 allows a bankruptcy court to dismiss a case for a variety of reasons, including "unreasonable delay by the debtor that is prejudicial to creditors." 11 U.S.C. § 1112(b)(3). The issue in this case is, therefore, narrowed to a more pointed determination of whether a case involving inappropriate filings by a debtor may be dismissed only if one of the parties moves for such dismissal.[1]
The Court declines to limit the bankruptcy court's ability to dismiss litigation to cases in which one of the parties desires termination. A bankruptcy court has the inherent power to dismiss cases as it deems necessary. In re Ray, 46 B.R. 424, 426 (S.D.Ga.1984); In re Jephunneh Lawrence & Associates Chartered, 63 B.R. 318, 321 (Bankr.D.Col.1986); In re Connelly, 59 B.R. 421, 447-48 (Bankr.N.D.Ill. 1986); In re Coram Graphic Arts, 11 B.R. 641, 644 (Bankr.E.D.N.Y.1981); see also Banque de Financement v. First Nat. Bank of Boston, 568 F.2d 911, 915-16 (2d Cir.1977). Without such a power, the bankruptcy court could not fully accommodate the other powers expressly and implicitly granted to it by Congress. In re Ray, 46 B.R. at 426. A bankruptcy court must be able to dismiss sua sponte in order to perpetuate the proper and effective utilization of the "bankruptcy mechanism." Id.
Failure to vest a bankruptcy court with this most basic ability would enable debtors to take advantage of the bankruptcy courts through posturing and delay. In re Coram Graphic Arts, 11 B.R. at 645. Bankruptcy courts would lose the ability to supervise and guarantee orderly administration of the debtor's estate and the creditors' interests. Id. at 645. With respect to the necessity of filing statements and schedules as in the instant cause a bankruptcy court must be able to ensure that creditors receive notice of proceedings which affect their interests. See Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 456 (6th Cir.1982).[2]
In this matter, appellant was given ample time and warning to prepare a schedule comporting to Bankruptcy Code requirements. On October 7, 1988, appellant applied for and received a thirty day extension to submit his schedule. Appellant was also forewarned to enlist an attorney to aid him in the bankruptcy proceedings. At the hearing held November 30, 1988, appellant was informed his filings were deficient, but was given an additional five days to submit satisfactory statements and schedules and was once again encouraged to enlist counsel. Appellant failed to rectify his submissions and declined to obtain an attorney. The bankruptcy court, therefore, dismissed appellant's case on the basis of his failure to file appropriate statements and schedules.
In dismissing appellant's case, the bankruptcy court exercised its inherent power to manage its own proceedings. In the face of such non-compliance and stalling, the bankruptcy court was entitled to use its discretion in extinguishing a case which at that time showed no indications of meaningful progression. The bankruptcy court properly refused to extend the protection of the bankruptcy procedure to a debtor unwilling to abide by the tenets of the Code. Continuation of this matter would have burdened the bankruptcy court *1000 and exposed appellant's creditors to prejudicial delay.
Accordingly, for the reasons set forth above, and based on the files, records, and proceedings herein, IT IS ORDERED that:
The order of the bankruptcy court is affirmed.
NOTES
[1] Title 11, United States Code, Section 305, provides, in relevant part, that "[t]he court, after notice and a hearing, may dismiss a case . . . if . . . the interests of creditors and the debtor would be better served by such dismissal." 11 U.S.C. § 305. Section 305, however, is concerned with a bankruptcy court exercising abstention in the face of jurisdictional questions.
[2] The Supreme Court has historically disfavored attempts by debtors to usurp the benefits created by the bankruptcy laws:
That the law should give a creditor remedies against the estate of a bankruptcy, notwithstanding the neglect or default of the bankrupt, is natural. The law would be, indeed, defective without them. It would also be defective if it permitted the bankrupt to experiment with it, to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding, without penalty to him. It is easy to see what results such looseness would permit, what preference could be accomplished and covered by it.
Birkett v. Columbia Bank, 195 U.S. 345, 350-51, 25 S.Ct. 38, 40, 49 L.Ed. 231 (1904). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918012/ | 101 B.R. 210 (1989)
In re Merlin J. HARRIS, aka Mel Harris and dba Mel Harris Insurance Agency, a sole proprietorship, and Margaret R. Harris, Debtors.
John R. ROBERTS, A Professional Corporation, Trustee, Plaintiff,
v.
Alan D. HARRIS, Margaret R. Harris, Merlin J. Harris, and M.M.H. Trust, Defendants.
Bankruptcy No. 287-01741-B-7, Adv. No. 287-0230.
United States Bankruptcy Court, E.D. California.
May 31, 1989.
*211 John A. Tosney, Sacramento, Cal., for debtors.
Linda A. Selig, Sacramento, Cal., sp. counsel for John R. Roberts, Trustee.
MEMORANDUM OF DECISION
DAVID E. RUSSELL, Bankruptcy Judge.
The Chapter 7 Trustee, John R. Roberts, has objected to all of the exemptions claimed by Debtors MERLIN J. and MARGARET R. HARRIS. He has also filed a motion for summary judgment on his adversary complaint which seeks to set aside the "fraudulent transfer" of the Debtors' residence for the benefit of the Chapter 7 estate. Both matters were consolidated for hearing since the facts were related and all issues must be resolved in order to determine whether or not the Debtors can keep the house in which they have continuously resided with their children for the last 20 years.
FACTUAL BACKGROUND
Debtor MERLIN J. HARRIS contracted hepatitis after an operation in 1974. Diabetes compounded his health problems which continued for several years. Becoming increasingly concerned about what might happen to his family and their economic well being should his health deteriorate further, he sought the advice of a non-lawyer friend who "knows a lot about trusts." In December 1977 the friend, who, in his own words, "was thoroughly aware of the benefits of trusts because I had been preparing them since 1964 and had seen them benefit many people" typed up a document entitled,
M.M.H. TRUST
IRREVOCABLE
which shall, for convenience, be referred to hereinafter as "the Trust".
Acting upon the instructions of their friend, the Debtors executed the Trust and other documents on December 26, 1977. One document was a notarized Quit Claim Deed from MARGARET as grantor to MERLIN as grantee. Another document was a notarized Individual Grant Deed from MERLIN as grantor to his son, ALAN D. HARRIS, wife MARGARET, and himself as "TRUSTEES for the M.M.H. TRUST". Both deeds set forth the legal description of the Debtors' residence at 2671 Louisiana Street in Sacramento, California (the residence) as the property conveyed. However, neither deed was recorded at that time.
ALAN joined his parents as one of the trustee signatories to the Trust document and the minutes of the first meeting of the trustees (minutes). According to the minutes, MERLIN was appointed as the "chairman" and "General Manager" while MARGARET was appointed as "Secretary and Recorder of Trust Minutes" and "Treasurer". "Schedule `A'" was attached to the eight page Trust document and signed by the three trustees and again by MERLIN as "Grantor". It listed the property "included in the foregoing Trust Agreement" in two categories. Under "Real Property" was the legal description for the residence and under "Personal Property" was "Furniture, Antiques, Tools, Office Equipment and Miscellaneous but not including licensed vehicles." "Schedule `A'" acknowledged delivery of the listed assets by the Grantor and receipt thereof by the trustees.
The Debtors' obvious purpose in executing the foregoing documents was to create an inter vivos trust and transfer to it all of their assets, except for "licensed vehicles". It is equally obvious from reading the Trust document, however, that neither the drafting friend nor the Debtors knew how to legally accomplish their purpose. Suffice it to say that the executed documents created more problems than they solved. For instance, no beneficiaries are named or described in the Trust document. Instead, it provides that "the names of the beneficiaries of this trust shall be set forth in the minutes thereof" in order "not to publicize the names of the beneficiaries". However, no beneficiaries are mentioned in the minutes. Despite the lack of any provision in the Trust document therefor, the Debtors *212 nevertheless claim that certificates representing 100 "units of beneficial interest" in the Trust were issued to the Debtors in exchange for the "transferred" assets.
ALAN resigned as trustee in January 1978. Since that time the Debtors have apparently been the sole trustees and sole beneficiaries of the Trust, but have taken virtually no action in respect thereto. In fact, the Debtor subsequently developed doubts about the protection afforded to their assets by the Trust. "Because I was not sure whether the trust was legal," MERLIN executed and recorded a homestead declaration in respect to the residence on August 1, 1983 "to protect my home". Almost three years later and for unexplained reasons, on June 12, 1986 MERLIN finally recorded the two deeds executed and notarized on December 26, 1977.
Having thus tidied up their financial affairs and apparently feeling the pressure from judgment creditors, the Debtors filed their voluntary petition for relief under Chapter 7 on March 30, 1987 without consulting an attorney. They did not list the residence, beneficial interests in the Trust, or household goods as assets nor claimed them as exempt on their B schedules. They did not mention the Trust nor the June 12, 1986 recordation of the two deeds in their Statement of Affairs.
At the first meeting of creditors held on May 7, 1987, the Trustee, in questioning the Debtors, found out about the Trust and the omissions from the Debtors' Schedules and Statement of Affairs. One week later the Trustee had filed his adversary complaint herein seeking to have the residence set over to the Chapter 7 estate. After answering the Trustee's complaint, the Debtors finally hired John Tosney as their attorney. Mr. Tosney and the Trustee reached an agreement to settle and the Trustee noticed his Application to Approve Compromise of Controversy. The application was denied by this court on February 3, 1988, however, upon the objections of judgment creditor ROBERT D. MERRILL, as Trustee of the bankruptcy estates of UNIVERSAL CLEARING HOUSE COMPANY, INDEPENDENT CLEARING HOUSE COMPANY and ACCOUNTING SERVICES COMPANY now pending in the United States Bankruptcy Court for the District of Utah, Central Division, who obtained his judgment against the Debtors on May 5, 1985. MERRILL's Sacramento attorney, LINDA SELIG, was subsequently appointed as special counsel to the Trustee to pursue the estate's claims against the Debtors.
On March 14, 1988 the Debtors filed amendments to their B schedules, listing household goods and their beneficial interest in the residence as assets and claiming them both as exempt on Schedule B-4. Whereas the Debtors had utilized California Code of Civil Procedure (C.C.P.) § 703.140 to claim their original filing, they chose the regular California exemption scheme (C.C.P. § 704.010 et seq.) in their amended Schedule B-4. The Trustee timely filed his objections to the Debtors' amended claim of exemptions, and the Debtors filed a second amended Schedule B-4 on May 18, 1988 with their Response to the Trustee's objections. Both of the amended B-4s claimed the residence exempt pursuant to C.C.P. § 704.920 (the Debtors actually cited § 704.910), the "declared" homestead exemption, rather than the "statutory" homestead provided in C.C.P. § 704.720. The May 18, 1988 amendment was filed by the Debtors in response to the Trustee's objections that household items were not listed and that the Debtors had not placed values on all of their listed assets.
DISCUSSION
As a preliminary matter, the Debtors contend that the Trustee's special counsel is outside her scope of authority in bringing this motion and, furthermore, has a conflict of interest due to her representation of one of Debtors' creditors. We note that the Trustee's application for this court's approval of special counsel included a request that counsel prepare objections to the Debtors' amended claim of exemptions. With respect to the allegation of conflict of interest we feel that special counsel does *213 not violate the requirements of disinterestedness as set forth in 11 U.S.C. §§ 101(13)(e) and 327(a), (c) and consequently find her to be qualified to represent the Trustee in this matter.
OBJECTIONS TO DEBTORS' AMENDMENTS
The Trustee does not dispute the general right of the Debtors to amend their schedules at any time before the case is closed as provided in Bankruptcy Rule (B.R.) 1009(a). He does, however, object to giving any effect to the Debtors' amended exemption claims on the grounds that the Debtors acted in bad faith and that their delay in making their claims has prejudiced their creditors and the estate. He correctly points out that it was his objections to the Debtors' claims that caused the Debtors to file their amendments and that his efforts have incurred costs and fees to the estate.
At this point, the court notes the very practical problem facing trustees when debtors have either failed to claim assets as exempt or have made improper exemption claims. When the trustee attempts to administer the unclaimed asset or objects to the improperly exempted asset, the debtor files an amended exemption claim pursuant to B.R. 1009(a) and the trustee's efforts are thwarted unless he can show bad faith, concealment of property, or prejudice to a party in interest. In re Andermahr, 30 B.R. 532 (9th Cir.B.A.P.1983), citing In re Doan, 672 F.2d 831, 833 (11th Cir.1982); Matter of Williamson, 804 F.2d 1355, 1358 (5th Cir.1986); Tignor v. Parkinson, 729 F.2d 977 (4th Cir.1984). It is this court's position that the diligent trustee should not go unrewarded. Thus, when he has taken appropriate action but is ultimately thwarted due to the debtor's overriding rights, debtor, having caused the trustee to act because of the debtor's initial negligence, should be required to reasonably compensate the trustee and reimburse him for his reasonable fees and expenses.
In the case at bar, the Debtors not only failed to claim their household goods and residence as exempt, they did not even list those assets on their Schedules. However, this court cannot find, as the Trustee alleges, that the Debtors concealed their assets or acted in bad faith. The Debtors revealed the existence of the Trust at the first meeting of creditors. Since the Trustee was able to file his complaint within one week after the first meeting of creditors, it is clear that the Debtors provided him with all necessary information in respect to the Trust and the residence, including the fact that the 1977 deeds were recorded on June 12, 1986. The Debtors' statements that they believed they did not have to list Trust assets on their Schedules, although inherently suspicious, is more believable than not, particularly when they had not consulted an attorney until well after the petition herein was filed.
Because of the Trustee's early discovery of the omitted assets, no prejudice can be shown by any interested party, other than the Trustee in respect to the omitted assets and exemption claims, as discussed above.
However, the Trustee complains that eight earned but unpaid insurance commissions amounting to about $2,500.00 were collected by the Debtors without challenge by the creditors due to their previously exempt status. Now that the Debtors no longer claim these premiums as exempt, the Trustee argues, the creditors are prejudiced.
MERLIN HARRIS, however, has acknowledged the receipt of these funds and has declared that an accounting would be made and the funds relinquished to the trustee upon allowance of the claimed exemptions. (Declaration of MERLIN J. HARRIS, at p. 4). Consequently, we find that any prejudice with respect to these funds is inconsequential and insufficient to bar the Debtors' amendments, provided that the Debtors surrender all of the premiums to the Trustee.
OBJECTIONS TO DEBTORS' HOMESTEAD
The Trustee contends that because the Debtors' residence constitutes property under a trust, it cannot qualify as a "declared" homestead under C.C.P. *214 § 704.910(c).[1], [2] These arguments and the counter-arguments of the Debtors need not be addressed, however, in light of the fact that regardless of the effect of § 704.910(c), the Debtors' residence is nonetheless eligible for a homestead exemption under C.C.P. § 704.710 et seq., which does not contain a provision precluding the homesteading of an interest of a beneficiary of a trust.
The statutory provisions for homestead exemptions are set forth in Article 4 (§§ 704.710 704.850) and Article 5 (§§ 704.910-704.995) of Title 9, Division 2, Chapter 4 of the C.C.P. Article 4 provides debtors with a "statutory" homestead exemption, while Article 5 provides for "declared" (i.e., recorded) homesteads. As stated in In re Anderson, 824 F.2d 754 (9th Cir.1987) at 756, "Article 4 and Article 5 each confer different rights on the debtor, and there is no overlap between those rights. A debtor may thus have Article 4 rights, Article 5 rights, or both or neither." However, under both Articles a debtor's homestead rights are protected by the same statutory procedure set forth in Article 4. That protection is provided by C.C.P. § 704.740(a) which in pertinent part states ". . . the interest of a natural person in a dwelling may not be sold under this division to enforce a money judgment except pursuant to a court order for sale obtained under this article and the dwelling exemption shall be determined under this article." C.C.P. § 704.970(a) specifically subjects declared homesteads to levies under writs of execution, and a dwelling must be levied upon to start the process of obtaining a court order to sell it [see C.C.P. § 704.750(a)]. C.C.P. § 704.970(b) then provides that after any levy on a dwelling the debtor's and creditor's rights in respect thereto shall be determined under Article 4.
Thus, under California procedure, the Debtors need only claim the exemption at a properly noticed hearing to show cause as to why the judgment creditor's motion to sell the property should not be granted (C.C.P. § 704.770 et seq.), and so long as the interest qualifies as a "homestead" (C.C.P. § 704.710(c)[3]), the property, or proceeds from the subsequent sale of the property, will be exempt up to the statutory amount allowable pursuant to C.C.P. § 704.730, whether or not the Debtors have declared a homestead.
The Trustee does not contend that the real property claimed by the Debtors as exempt would otherwise not qualify as a homestead and it appears by virtue of the declaration of homestead signed by the Debtors and recorded on August 1, 1983 that the residence would most likely qualify as a homestead as contemplated by C.C.P. § 704.710(c).
MOTION FOR SUMMARY JUDGMENT
In his motion for summary judgment the Trustee points out that the Debtors recorded the deeds conveying the Debtors' residential property to the Trust within one year prior to their filing bankruptcy. The Trustee also contends that the Debtors received no consideration for the property and were insolvent on the recordation date. Since these facts are essentially uncontested *215 by the Debtors, the Trustee argues that he is entitled to a summary judgment on his adversary complaint to avoid the "transfer" of the residential property under the provisions of Rule 56 of the Federal Rules of Civil Procedure as incorporated by B.R. 7056.
According to the Trustee the recordation of the deeds was a fraudulent transfer either under 11 U.S.C. § 548(a)[4] or under the Uniform Fraudulent Conveyance Act (U.F.C.A.) as adopted in California in California Civil Code §§ 3439 through 3439.12[5] made applicable by 11 U.S.C. § 544(b). The Trustee then concludes that the Debtors' residence can be recovered from the Trust for the benefit of the bankruptcy estate by reason of 11 U.S.C. § 550(a).[6]
The parties apparently presumed that the "transfer" of the property occurred upon the recordation of the 1977 deeds in June of 1986 rather than their execution in 1977 because a bona fide purchaser of real property in California is not bound by an unrecorded deed. Thus the "transfer," if it occurred at all, had to occur for 11 U.S.C. § 548 purposes when title was perfected in the Trust upon recordation of the deeds.[7] But a more important legal issue remains, namely; whether a "transfer" within the meaning of the Code has actually occurred so as to trigger the equitable relief provided under 11 U.S.C. §§ 544, 548, and 550.
Addressing first the issue of whether a "transfer" occured as a matter of law, the Bankruptcy Code defines a "transfer" as follows:
"Transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption. (11 U.S.C. § 101(50); emphasis added.)
The definition of "transfer" is necessarily broad as it was Congress' intention to include any disposition of any interest in property. (Senate Report No. 95-989, 95th Cong.2d Sess. 26-27 (1978), U.S.Code Cong. & Admin.News 1978, 5787, 5811-5813.) Given such a broad definition for what is a transfer under the Bankruptcy Code, it would seem at this stage of our analysis that the Trustee should be entitled to avoid the "transfer" for the benefit of the estate.
Considering the facts as they existed at the time of the recordation, the parties do not dispute that the Debtors were the sole settlors, trustees, and beneficiaries. California law has consistently and unequivocally recognized that although a trustor may create a valid trust naming himself as beneficiary, the assets in the trust are not immune from the claims of creditors. (See, e.g., Nelson v. California Trust Co., 33 Cal.2d 501, 202 P.2d 1021 (1949); California Probate Code § 15304(a)). Thus, in the case at bar, although a valid trust conceivably might have existed at the time of recordation, any transfer of a property interest by the Debtors at that time to that *216 Trust would have been illusory because the assets were no less susceptible under the Trust to the claims of the Debtors' creditors than they would have been had no trust ever been created. Furthermore, because the assets of the Trust were subject to creditor's claims, the Trust, even if it was valid under California law, was not a "spendthrift trust," the assets of which would be excluded from the estate as contemplated by 11 U.S.C. § 541(c)(2). Finally, if the Trust were invalid under California law, the "transfer" in question would merely be a transfer from the Debtors to themselves. Therefore, the "transfer" that concerns the Trustee is illusory because the assets of the Trust, whether the Trust was valid or not, were never beyond the reach of the Debtors' creditors and thus never "transferred" from the Debtors' estate.
Although several issues of material, disputed fact might remain unresolved, this court's finding that no "transfer" occurred within the contemplation of the Code has rendered an analysis of those issues moot. More importantly, as a "transfer" of an interest is a necessary prerequisite to a § 548 or § 544 action, the above finding of no "transfer" deprives the Trustee's adversary complaint of merit. Therefore, in the interest of judicial economy and with an eye towards preventing further, unnecessary costs of litigation, it is hereby
ORDERED, ADJUDGED, and DECREED that the Trustee's motion for summary judgment is DENIED, and, furthermore, that the Trustee's adversary complaint number 287-0320 is DISMISSED due to this court's finding that no legal or equitable basis exists upon which the relief sought may be granted.
IT IS FURTHER ORDERED that the Trustee's objection to the Debtors' amendments to their schedules is OVERRULED provided that (1) the Debtors account to the Trustee for insurance commissions earned pre-petition but collected post-petition and pay the same to the Trustee and (2) that the Debtors make appropriate arrangements with the Trustee to reimburse him for all reasonable fees and expenses directly related to the Debtors' failure to reveal the existence of the Trust assets and their negligence in claiming their exemptions.
IT IS FURTHER ORDERED that the Trustee provide the court and the Debtors with an accounting of all fees and costs so incurred within 30 days of the effective date of this Order so that the aforesaid reasonable fees and expenses can be finally determined.
IT IS FURTHER ORDERED that the Debtors' homestead exemption claim of $45,000.00 is hereby approved and allowed.
NOTES
[1] § 704.910(c) provides as follows: "Dwelling" means any interest in real property . . . that is a "dwelling" as defined in § 704.710, but does not include . . . the interest of the beneficiary of a trust. (Emphasis added).
[2] The Trustee also argues that because the Debtors' are mere beneficiaries of the trust they do not qualify as "owners" for the purpose of meeting the residential requirements of C.C.P. § 704.920 which provides as follows: "A dwelling in which an owner or spouse of an owner resides may be selected as a declared homestead pursuant to this article . . ." (Emphasis added).
Although the Debtors failed to respond to this argument, it seems to be without merit in light of the broad definition of "Declared Homestead Owner" found in § 704.910(b)(1) which includes ". . . the owner of an interest in the declared homestead who is named as a declared homestead owner in a homestead declaration recorded pursuant to this article." The Harris' clearly qualify as "owners" under this section.
[3] § 704.710. DEFINITIONS
As used in this article:
(c) "Homestead" means the principal dwelling (1) in which the judgment debtor or the judgment debtor's spouse resided on the date the judgment creditor's lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor's spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead . . .
[4] Section 548. Fraudulent transfers and obligations.
(a) The trustee may avoid any transfer of an interest of the debtor in property . . . that was made . . . on or within one year before the date of the filing of the petition, if the debtor voluntarily involuntarily
(2)(A) received less than a reasonably equivalent value in exchange for such transfer . . .; and
(B)(i) was insolvent on the date that such transfer was made . . .
[5] The end result in this case would be the same under both the U.F.C.A. and 11 U.S.C. § 548. Consequently, our analysis will be limited to 11 U.S.C. § 548.
[6] 11 U.S.C. § 550(a) provides in pertinent part as follows:
. . . to the extent that a transfer is avoided under section 544 . . . (or) . . . 548 . . . of this title . . ., the trustee may recover, for the benefit of the estate, the property transferred . . . from
(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made . . .
[7] 11 U.S.C. § 548(d)(1) provides that:
(d)(1) For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee . . . | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918016/ | 101 B.R. 301 (1989)
In re Dennis Wayne SCHULZ, Debtor.
Bankruptcy No. 88-04770.
United States Bankruptcy Court, N.D. Florida, Pensacola Division.
April 25, 1989.
*302 Harold F. Peek, Jr., Valparaiso, Fla., for debtor.
No appearance for plaintiff.
M. Alan Rhodey, Ft. Walton Beach, Fla., for trustee.
ORDER ON OBJECTION TO EXEMPTIONS
LEWIS M. KILLIAN, Jr., Bankruptcy Judge.
THIS MATTER is before the Court on the objection by the trustee in this Chapter 7 case to the claim of exempt property made by the debtor herein. The essence of the objection is that the property claimed as exempt lies outside the State of Florida and accordingly cannot be claimed as exempt under the Florida Constitution or statutes.
In this case, the debtor resided in the Northern District of Florida until approximately one month prior to the filing of this petition for relief under Chapter 7 at which time he moved his residence to Wisconsin. Since he had not resided in Wisconsin for either 180 days prior to the time he filed his petition or for the greater part of 180 days prior, he was required to file the case in the Northern District of Florida. 28 U.S.C.S. § 1408(1). In his schedules, the debtor claimed the exemptions provided for under Article 10, § 4 of the Constitution of the State of Florida, and Chapter 222, Florida Statutes. The trustee objected to the exemptions on the basis that under the Florida Constitution and Chapter 222, the exemptions provided for thereunder are available only to residents of the State of Florida. The trustee is correct in this assertion. In re Gilman, 68 B.R. 374 (Bankr.S.D.Fla.1986); Cooke v. Uransky, 412 So.2d 340 (Fla.1982). Section 522(b)(2)(A) provides that the applicable exemption law is the "state or local law that is applicable on the date of the filing of the petition at place in which the debtor's domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180 days than in any other place;". This provision appears to place the debtor in a "catch 22" since the Florida exemptions are not available to a non-resident and it appears that he can only claim the Florida exemptions. Thus, as the trustee argues, this debtor is not entitled to any exemptions whatsoever.
We do not agree that the debtor in this situation is precluded from availing himself of any exemptions. Section 522(b)(1) allows the debtor to claim the federal exemptions of § 522(d), "unless the state law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize;". Florida has chosen to "opt out" of the federal exemptions pursuant to § 222.20 (Fla. Stats.) which provides:
In accordance with the provision of § 522(d) of the Bankruptcy Code of 1978 (11 U.S.C. § 522(d)), residents of this state shall not be entitled to the federal exemptions provided in § 522(d) of the Bankruptcy Code of 1978 (11 U.S.C. § 522(d)). Nothing herein shall affect the exemptions given to residents of this state by the state constitution and the Florida Statutes. (emphasis supplied.)
Since this statute applies only to residents of the State of Florida, we find that it does not apply to prevent non-residents of this state who because of the venue provisions of 28 U.S.C. § 1408 are required to file in Florida from claiming the exemptions provided for under § 522(d) of the Bankruptcy Code. To find that this debtor is not entitled to claim any exemptions would be contrary to the "fresh start" policy of the Bankruptcy Code. Therefore, this debtor is entitled to claim the federal exemptions. However, he is not entitled to claim the Florida exemptions. Accordingly, it is hereby
ORDERED AND ADJUDGED that the trustee's objection to the claim of exemptions be and same is hereby sustained and the exemptions claimed by this debtor are hereby disallowed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918039/ | 101 B.R. 816 (1989)
In the Matter of Benjamin HERSHKOVITZ and Haya Hershkovitz, Debtors.
Joan Turner DWYER and Joan Turner Dwyer as Guardian of Kelly Turner, Plaintiffs,
v.
Benjamin HERSHKOVITZ and Haya Hershkovitz, Defendants.
Bankruptcy No. 88-09863-ADK, Adv. No. 89-0173A.
United States Bankruptcy Court, N.D. Georgia, Atlanta Division.
July 6, 1989.
*817 David H. Cofrin, Lamar, Archer & Cofrin, Atlanta, Ga., for plaintiffs.
John C. Ringhausen, Lamberth, Bonapfel, Cifelli & Willson, P.A., Atlanta, Ga., for defendants.
ORDER
A. DAVID KAHN, Chief Judge.
Plaintiffs filed the above-styled adversary complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2). It is before the Court on Defendant-Debtors' Motion to Dismiss and Plaintiffs' Motion for Change of Venue. For the following reasons, the Court will deny both Motions.
A. MOTION TO DISMISS
Defendant-Debtors move to dismiss the instant complaint on the ground that it is untimely. Bankruptcy Rule 4007(c) provides that
A complaint to determine the dischargeability of any debt pursuant to § 523(c) of the Code shall be filed not later than 60 days following the first date set for the meeting of creditors held pursuant to § 341(a). The court shall give all creditors not less than 30 days notice of the time so fixed in the manner provided in Rule 2002. On motion of any party in interest, after hearing on notice, the court may for cause extend the time fixed under this subdivision. The motion shall be made before the time has expired.
In the case sub judice, the Clerk's Office generated by computer and caused to be served on all creditors and parties in interest an "Order for Meeting of Creditors, Combined with Notice Thereof and of Automatic Stay" dated November 21, 1988 in which December 19, 1988 was set for the meeting of creditors and February 17, 1989 was given as the last day to file complaints pursuant to § 523(c). That Order and Notice also listed the name of the interim trustee. Later it was discovered that the interim trustee had a conflict and could not serve in the case.
Upon notice of the conflict, the Clerk's Office then generated by computer and caused to be served on all creditors and parties in interest another "Order for Meeting of Creditors, Combined with Notice Thereof and of Automatic Stay" dated January 9, 1989. This new Order and Notice set the meeting of creditors for February 1, 1989 and gave April 3, 1989 as the last day to file complaints pursuant to § 523(c). It also listed the name of the new interim trustee. "A.D. Kahn, Bankruptcy Judge" appeared at the bottom of both the first and second Order. In reliance upon this second Order and Notice, Plaintiffs filed the instant complaint on March 31, 1988.
It is clear that the Clerk's issuance of the second Order and Notice containing a new bar date was erroneous in that it violated Bankruptcy Rule 4007(c). Pursuant to that Rule, the last day to file complaint under § 523(c) is "60 days following the first date set for the meeting of creditors." (emphasis added). That date can only be extended "[o]n motion of any party in interest after hearing on notice." Bankr.Rule 4007(c). The motion must be made prior to the expiration of the bar date. Id.
The question remains: Which party must bear the consequences of the Clerk's mistake? *818 The Court has carefully examined the cases on point. The general trend of the cases is to strictly enforce Bankr.Rule 4007(c). The Eleventh Circuit Court of Appeals has stated that
The dictates of the Code and Rules are clear. It is not our place to change them. Under Rule 4007(c), any motion to extend the time period for filing a dischargeability complaint must be made before the running of that period. There is "almost universal agreement that the provisions of F.R.B.P. 4007(c) are mandatory and do not allow the Court any discretion to grant a late filed motion to extend time to file a dischargeability complaint." See In re Maher, 51 B.R. 848, 852 (Bankr.N. D.Iowa 1985) (and cases cited therein).
Byrd v. Alton (In re Alton), 837 F.2d 457, 459 (11th Cir.1988) (emphasis in original) (footnote omitted). In Alton, the debtor had failed to list Byrd as a creditor in his bankruptcy schedules. As a consequence, Byrd had received no notices from the Bankruptcy Court including notice of the bar date for complaints pursuant to § 523(c). However, the debtor's counsel had served Byrd with notice of the filing of the bankruptcy petition. The Court of Appeals held that actual notice of the bankruptcy was sufficient. Once aware of the bankruptcy, Byrd had the burden of ascertaining all of the pertinent dates and necessary information from the bankruptcy file.
The Alton case did not deal with a clerical error as in the proceeding sub judice. The cases dealing with clerical errors are split as upon whom the burden of the error should fall. In Montgomery Ward and Co. v. Gardner (In re Gardner), 55 B.R. 89 (Bankr.D.C.1985), the clerk's office had sent a notice containing the wrong bar date. The correct bar date was January 29, but the notice gave the bar date as January 31. In reliance on the clerk's notice, Montgomery Ward filed its dischargeability complaint on January 31. In granting the debtor's motion to dismiss, the court stated that "the plain meaning of Bankruptcy Rules 4007(c) and 9006(b)(3) is that a court may extend the sixty-day period of Rule 4007(c) only upon a motion of an interested party made before expiration of the sixty days." Gardner at 90 (emphasis in original).
In Neeley v. Murchison, 815 F.2d 345 (5th Cir.1987), the clerk of court had mailed the § 341 notice to all creditors. The notice set the § 341 meeting of creditors but left blank the bar date for complaints under § 523(c). Upon inquiry, the creditor's attorneys were verbally informed by employees of the clerk's office that no bar date had been set. The creditor filed his complaint after the bar date prescribed by Bankr.Rule 4007(c) had passed. The Fifth Circuit Court of Appeals dismissed the complaint. It held that
[i]n today's case Neeley was not notified of the exact bar date but he knew of the bankruptcy proceedings. Neeley's counsel received notice of the date of the initial meeting of creditors and in fact attended the meeting. Indeed, even before the meeting, Neeley had himself obtained a modification of the stay from the bankruptcy court. At that time, the factual basis of his objection, the fraudulent conduct of the debtor, was established. Under these circumstances, counsel's reliance on the blank in the form and on the oral assurances from the clerk's employees was misplaced. At the very least, Rule 4007(c) plainly requires that a creditor file his § 523(c) complaint, or his motion for extension, within 60 days from the date set for the initial creditors' meeting.
Neeley, 815 F.2d at 347.
Although Neeley seems to stand for the proposition that the deadline for complaints contained in Bankr.Rule 4007 must be strictly enforced under all circumstances, it does contain a footnote which supports an exception to the rule under facts similar to those present in the proceeding sub judice. In Footnote 5, the Court noted that "[f]or example, today's case is not one in which the clerk gave an affirmative but erroneous notice of a bar date upon which the creditor might reasonably have relied." 815 F.2d at 347, n. 5 (citations omitted). In the instant proceeding, the Clerk did affirmatively give Plaintiffs erroneous notice of the bar date.
*819 A case which has similar facts to this proceeding is Francis v. Riso (In re Riso), 57 B.R. 789 (D.N.H.1986). In Riso, the debtor filed a voluntary Chapter 7 bankruptcy petition in the Southern District of Florida. A notice went out setting September 7, 1984 as the deadline for filing dischargeability complaints pursuant to § 523(c). The Court then found venue improper and transferred the case to the United States Bankruptcy Court for the District of New Hampshire. Francis, a creditor obtained an extension of time for filing complaints through October 27, 1984 from the Bankruptcy Court for the District of New Hampshire. On September 13, the clerk sent a routine order setting a new deadline of December 3, 1984 for filing complaints pursuant to § 523(c). Francis, in reliance on the new bar date, filed his dischargeability complaint on November 29, 1984.
The district court upheld the bankruptcy court's refusal to dismiss the complaint as untimely. "This court concludes the bankruptcy court has the inherent equitable power to correct its own mistake to present [sic] an injustice. Based on the facts in the present case, this court believes that an injustice would occur if plaintiff Francis were not allowed to file his objection to discharge." Riso, 57 B.R. at 793. Like the court in Riso, this Court finds that it would be a great injustice if Plaintiffs were precluded from maintaining their dischargeability complaint against Defendant-Debtors simply because they relied on an order of the court which was erroneously entered.
The Court agrees that, in almost all instances, Bankr.Rule 4007(c) should be strictly enforced. The Court will only step in under extreme circumstances with its equitable powers under § 105 to relieve a party from Rule 4007(c)'s explicit time table. However, where the clerk issues a second § 341 notice containing a new bar date prior to the expiration of the first bar date and there is no reason for a creditor to question the second notice, this Court's equitable powers will be used to prevent an injustice. Therefore, the Court will deny Defendant-Debtors' Motion to Dismiss.
B. MOTION FOR CHANGE OF VENUE
Plaintiffs seek a change of venue of this proceeding from the Northern District of Georgia to the Eastern District of Michigan. In support of their Motion, Plaintiffs state that all of the acts upon which the debt in question is based took place in the state of Michigan and all of the witnesses, except for Defendant-Debtors, reside in Michigan. Plaintiffs allege that Defendant-Debtors "moved to Atlanta primarily to file bankruptcy in an area remote from their creditors in order to frustrate potential efforts to defeat the dischargeability of their debts." Plaintiffs' Brief in Support of Motion for Change of Venue at 2.
In opposition to the Motion for Change of Venue, Defendant-Debtors assert that they moved to Atlanta, Georgia in May of 1986 in order to obtain employment, which was approximately two and one-half years prior to their filing bankruptcy. They further assert that a change in venue would be inconvenient and impose a great financial burden upon them. They also state that Defendant-Debtor Haya Hershkovitz has been ill and that travel would pose a medical risk to her.
From the record before the Court, it appears that Defendant-Debtors' liability has been fixed pursuant to a Consent Judgment entered on or about January 21, 1987 by the Circuit Court for the County of Oakland, Michigan. See Consent Judgment attached as Exhibit C to Plaintiffs' Complaint. Although the Consent Judgment determined the amount of Defendant-Debtors' liability, it reserved the issue of fraud. The Judgment provides that "[t]he Court specifically makes no finding with respect to Plaintiffs' claim that the damages suffered by them were caused by the fraudulent acts of Defendants preserving a determination of that question for some future court should the question arise." Consent Judgment at 2. This Consent Judgment was entered after Defendant-Debtors had moved to Atlanta.
*820 After considering the relevant factors discussed in Commonwealth of Puerto Rico v. Commonwealth Oil Refining Co., (In re Commonwealth Oil Refining Co.), 596 F.2d 1239 (5th Cir.1979), the Court finds that venue of this proceeding should remain in the Northern District Georgia. The financial burden and the state of Defendant-Debtor Haya Hershkovitz's health weigh heavily toward retaining venue in this District. The Court finds another fact highly significant. The Consent Judgment reserving the issue of fraud was entered after Defendant-Debtors moved to Atlanta. In reserving the issue of fraud "for some future court should the question arise," it is clear that the Parties, including Plaintiffs, contemplated that Defendant-Debtors could file a bankruptcy petition. Therefore, Plaintiffs knew or should have known that there was a strong possibility that they would be litigating in a jurisdiction other than the Eastern District of Michigan. They chose not to pursue a determination of the issue of fraud in the Circuit Court for the County of Oakland, Michigan. Thus, although the Court is somewhat sympathetic to the Plaintiffs' burden in litigating the dischargeability complaint in the Northern District of Georgia, it cannot override the great burden it would place upon Defendant-Debtors to litigate the matter in the Eastern District of Michigan. Therefore, the Court will deny Plaintiffs' Motion for Change of Venue.
In accordance with the reasoning above, IT IS THE ORDER OF THE COURT that Defendant-Debtors' Motion to Dismiss be, and the same hereby is, DENIED.
IT IS THE FURTHER ORDER OF THE COURT that Plaintiffs' Motion for Change of Venue be, and the same hereby is, DENIED.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1812082/ | 368 So.2d 50 (1979)
WASH AND DRY, INC., a Florida Corporation, d/b/a All Miami Appliances, Appellant,
v.
BAY COLONY CLUB CONDOMINIUM, INC., a Florida Corporation, D/B/a Bay Colony Club, Appellee.
No. 77-2312.
District Court of Appeal of Florida, Fourth District.
January 17, 1979.
On Rehearing March 21, 1979.
Richard W. Driscoll and S. Charles Adams, Hialeah, Lawrence Rogovin of Cohen, Angel & Rogovin, North Miami, for appellant.
Kay Latona of Becker, Poliakoff & Sachs, P.A., Fort Lauderdale, for appellee.
LETTS, Judge.
A washing machine company here appeals from a summary judgment denying its complaint for specific performance and injunctive relief against a condominium association. We affirm.
The developer originally entered into some twenty (20) different contracts to supply various buildings with laundry machines, service and repair. Thereafter when the condominium association took over control in accordance with the declaration, it cancelled some of the contracts pursuant to Florida Statute, 711.13(4) (1973) and as to the remaining contracts, signed later, pursuant to the succeeding statute which replaced § 711.13(4) namely Florida Statute 711.66(5) (1975).
The trial judge held that both of these statutes applied,[1] while the washing machine company argues that neither of them do.
The first of these statutes, § 711.13(4) (1973) provides in part:
Any initial or original contracts first entered into by the condominium association or its fiduciaries or appointees for maintenance, management, or operation of condominium property shall be subject to cancellation at any time subsequent to the time any individual unit owners assume control of their association ... (emphasis supplied)
The second statute § 711.66(5) (1975) reflects a change of language from the above provision and states:
Any grant or reservation made by a declaration or cooperative document, lease, or other document, and any contract made by an association prior to assumption *51 of control of the association by unit owners other than the developer, that provides for operation of a condominium or cooperative or for maintenance, management, or operation of condominium or cooperative property or of property serving the unit owners of a condominium or cooperative shall be fair and reasonable and may be cancelled by unit owners other than the developer under the following circumstances... . (emphasis supplied)
We are of the view that both of these statutes cover the installation and operation of washing machines in the laundry rooms of condominium buildings.
Taking them in reverse order, it seems to us to be clear beyond doubt that the language of the amended statute [§ 711.66(5)] covers washing machines because of the words "or of property serving the unit owners... ." The washing machine company argues that this language refers only to real property which is a part of the common elements. We cannot agree and must conclude that both personal and real property was intended to be covered.[2] A washing machine is certainly a form of personal property serving the unit owners and we are convinced that the language adopted by this latter statute was designed for this very purpose.
As to § 711.13(4) (1973) the pertinent language there is not as clear when it simply states: "contracts ... for maintenance, management, or operation of condominium property... ." Predictably the washing machine company makes the same argument that this refers to real property only, an argument which we again reject. More significantly however, they also argue that because of the amendment to the latter statute, [§ 711.66(5)] which adds the language: "of property serving the unit owners ... ." this leads to the conclusion that property serving the unit owners was excluded by the previous statute. Again we do not agree. It is true that the language of the amendment makes it much clearer, but we still think the original language is sufficient. Washing machines located and operating in a condominium laundry room constructed for the purpose, appear to us to be property for the maintenance, management or operation of the condominium and we do not believe that such language was only intended to cover "sweetheart" management contracts.
The washing machine company also argues that because the condominium association continued to pay on these contracts for many months after they took over the management of the corporation, that this act of continuing payment plus a direction that the checks be made out to a different payee, amounted to a ratification of the contracts which precludes the cancelation of same, even if the statutes do apply. This might indeed be the result under certain circumstances, but we can detect nothing in this particular record that would preclude the trial judge from entering a summary judgment.
AFFIRMED.
ANSTEAD, J., and JOHNSON, THOMAS H., Associate Judge, concur.
ON REHEARING GRANTED
LETTS, Judge.
By petition for rehearing the appellant has called to our attention the fact that the last paragraph of the opinion filed January 17, 1979 contains a factual misstatement and should be amended to read as follows:
"The washing machine company also argues that because the condominium association continued to receive payments on these contracts for many months after they took over the management of the corporation, that this act of receiving payment plus a direction that the checks be made out to a different payee, amounted to a ratification of the contracts which precludes the cancellation of *52 same, even if the statutes do apply. This might indeed be the result under certain circumstances, but we can detect nothing in this particular record that would preclude the trial judge from entering a summary judgment."
In all other respects the opinion as filed is herewith reaffirmed.
ANSTEAD, J. and JOHNSON, THOMAS H., Associate Judge, concur.
NOTES
[1] His judgment does not expressly so state, but the holding is evident from the motion for summary judgment.
[2] "The term `property' is sufficiently comprehensive to include every species of estate, both real and personal, and everything that one person can own and transfer to another." 25 Fla.Jur. Property § 3 (citing cases.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584974/ | 187 P.3d 270 (2008)
163 Wash.2d 1039
STATE
v.
B.J.C.
No. 80409-5.
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/730768/ | 101 F.3d 715
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Daniel W. BRADLEY, Plaintiff-Appellant,v.CHIRON CORPORATION, William J. Rutter, Edward E. Penhoet,Michael Houghton, Qui Lim Choo, Ortho DiagnosticSystems, Inc., and George Kuo,Defendant-Appellees. (Two Cases)
Nos. 96-1516, 96-1536.
United States Court of Appeals, Federal Circuit.
Nov. 13, 1996.
APPEAL DISMISSED.
ON MOTION
PAULINE NEWMAN, Circuit Judge.
ORDER
1
Daniel W. Bradley moves for a 45-day extension of time, until December 17, 1996, to file his principal brief. Chiron Corporation, William J. Rutter, Edward E. Penhoet, Michael Houghton, Qui Lim Choo, Ortho Diagnostics Systems, Inc., and George Kuo (collectively Chiron) oppose. Chiron moves (1) to dismiss appeal no. 96-1516 for failure to file a brief and failure to comply with Fed.Cir.R. 30(b) and (2) to dismiss appeal no. 96-1536 as moot.
2
Briefly, on July 16, 1996, the United States District Court for the Northern District of California entered an order, inter alia, granting Chiron's motion to dismiss Bradley's second amended complaint without further leave to amend. Judgment was entered on July 30, 1996. On August 13, 1996, Bradley filed a notice of appeal from the July 16, 1996 order. That appeal was docketed as appeal no. 96-1516. On August 26, 1996, Bradley filed a second notice of appeal "from the final appealable order and judgment ... entered in this action on July 30, 1996." That appeal was docketed as appeal no. 96-1536.
3
Bradley filed duplicative appeals. However, the second appeal, no. 96-1536, more properly referred to the judgment. Thus, we dismiss appeal no. 96-1516 as unnecessary and retain appeal no. 96-1536.
4
With respect to Bradley's failure to comply with the requirements of Fed.Cir.R. 30(b), Chiron asserts that Bradley has failed to provide Chiron with a designation of materials from which the appendix will be prepared and a statement of issues to be presented on appeal. Fed.Cir.R. 30(b) instructs the parties to cooperate in preparing the Joint Appendix. We urge the parties to confer and begin the process of preparing the Joint Appendix.
5
Accordingly,
IT IS ORDERED THAT:
6
(1) Bradley's motion for an extension of time to file a brief is granted. His brief is due December 17, 1996. No further extensions should be anticipated.
7
(2) Chiron's motion to dismiss appeal no. 96-1516 is granted.
8
(3) Chiron's motion to dismiss appeal no. 96-1536 is denied.
9
(4) Bradley and Chiron shall promptly begin the process of preparing the Joint Appendix. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/730812/ | 101 F.3d 717
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Raymond MAREZ, Claimant-Appellant,v.Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
No. 96-7032.
United States Court of Appeals, Federal Circuit.
Nov. 21, 1996.
Before LOURIE, Circuit Judge, SKELTON, Senior Circuit Judge, and RADER, Circuit Judge.
RADER, Circuit Judge.
1
Raymond Marez appeals from a decision of the United States Court of Veterans Appeals affirming the decision of the Board of Veterans Appeals (Board). The Court of Veterans Appeals noted an administrative deficiency in the Board's decision, but eschewed remand because the administrative deficiency did not amount to prejudicial error. Because the Court of Veterans Appeals' decision on this matter is not within the jurisdictional limits of 38 U.S.C. § 7292(d)(2) (1994), this court dismisses.
DISCUSSION
2
Mr. Marez is a Vietnam War veteran who suffered a leg and foot injury when he stepped on a land mine. In 1969, the Veterans Administration proclaimed Mr. Marez's wounds service-connected, but assigned those wounds a 0% disability evaluation under diagnostic code 7805, "Scars, other." See 38 C.F.R. § 4.118, DC 7805 (1995).
3
In 1991, Mr. Marez requested an increase in rating for his wounds. After denial of Mr. Marez's claim, he appealed to the Board. On May 11, 1994, the Board granted Mr. Marez a "10 percent evaluation for the residuals of the shrapnel wounds to the lower legs and the right foot" under diagnostic code 5310. Diagnostic code 5310 relates to "Group X, Intrinsic muscles of the foot." 38 C.F.R. § 4.73, DC 5310 (1995).
4
On appeal, the Court of Veterans Appeals affirmed the decision of the Board, but noted that Mr. Marez's lower leg wounds could not be covered under diagnostic code 5310, which relates only to foot-related wounds:
5
The appellant's leg scars should remain service connected and rated under DC 7805 unless and until proper severance procedures are undertaken. The right foot should continue to be rated under DC 5310.
6
The Court of Veterans Appeals, however, determined that this error was a mere "administrative deficiency" that could be fixed by "ministerial correction." Without evidence of a current disability in Mr. Marez's lower leg, the court concluded that a remand was not necessary. Mr. Marez now challenges the court's determination that the Board's error could be corrected without reversal or remand.
7
This court has limited jurisdiction over appeals from the Court of Veterans Appeals. 38 U.S.C. § 7292. This court has jurisdiction over decisions "with respect to the validity of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [court] in making the decision." 38 U.S.C. § 7292(a). Challenges to factual determinations or to application of the law to the facts are beyond this court's jurisdiction. 38 U.S.C. § 7292(d)(2); Livingston v. Derwinski, 959 F.2d 224, 225 (Fed.Cir.1992); Johnson v. Derwinski, 949 F.2d 394, 395 (Fed.Cir.1991).
8
The Court of Veterans Appeals properly noted the Board's improper reclassification of Mr. Marez's wounds into a category that excluded his leg injuries. The court recognized that such a matter could be rectified by ministerial correction. The Department of Veterans Affairs has consented to make this correction. To the extent that Mr. Marez asks this court to go further and determine whether his properly classified leg wounds should be accorded a rating above 0%, his appeal is beyond the jurisdiction of this court. Accordingly, this appeal is dismissed. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1917983/ | 272 So.2d 399 (1973)
Frances Marie Duffy PETREE, Plaintiff-Appellant,
v.
David CROWE et al., Defendants-Appellants, Intervenor-Appellant, Defendant-Appellee.
No. 12001.
Court of Appeal of Louisiana, Second Circuit.
January 9, 1973.
Rehearing Denied February 6, 1973.
Writs Refused March 26, 1973.
*400 Booth, Lockard, Jack, Pleasant & LeSage by Henry A. Politz, Shreveport, for plaintiff-appellant Francis Marie Duffy Petree.
Mayer & Smith by Alex F. Smith, Jr., Shreveport, for intervenor-appellant Continental Ins. Co.
Cook, Clark, Egan, Yancey & King by Gordon E. Rountree and Pugh & Nelson by Robert G. Pugh, Shreveport, for intervenor-appellant Mrs. John D. Whitaker and for defendants-appellants Aetna Casualty & Surety Co. and John D. Whitaker.
John S. Stephens, Coushatta, for defendant-appellee David Crowe.
Philip K. Jones, Norman L. Sisson, Robert J. Jones and William J. Doran, Jr., Baton Rouge, for defendant-appellee State of La., Through the Department of Highways.
Before AYRES, HEARD and HALL, JJ.
En Banc. Rehearing Denied February 6, 1973.
HALL, Judge.
The primary issue presented on appeal by appellants in this automobile accident case is whether the defendant-appellee, Louisiana Department of Highways, was guilty of negligence which was a proximate cause of the accident resulting in the death of plaintiff's husband and in injuries to the third party plaintiff and intervener. A second issue is the amount of damages awarded to plaintiff individually and on behalf of her minor daughter against another defendant, David Crowe.
The accident happened on Louisiana Highway 1 in Red River Parish approximately 1.5 miles north of Harmon on May 5, 1969, at approximately 3:15 p. m., during a heavy rain. Plaintiff's husband, A. T. Petree, Jr., was driving north following a 1966 Chevrolet being driven by David Crowe. The Crowe vehicle suddenly veered or slid to its left across the centerline, striking an oncoming Thunderbird driven by John S. Whitaker who was accompanied *401 by his wife. The impact caused the Whitaker vehicle to cross the centerline into the northbound lane where it collided with the Petree station wagon. After striking the Thunderbird, Crowe's vehicle also struck a pickup truck traveling south behind the Whitaker vehicle. Petree sustained severe injuries from which he died five days later. The Whitakers were also injured.
Plaintiff brought suit against (1) Crowe, who was uninsured; (2) Whitaker; (3) Aetna Casualty & Surety Company, Whitaker's liability insurer; and (4) State of Louisiana, through the Department of Highways. The petition charged the Department of Highways with negligence in (a) repairing the concrete highway at the accident scene with an asphalt mix which created an area which was much slicker in rainy weather than the concrete, thereby creating a trap for motorists; (b) allowing depressions to develop in the highway at the scene of the accident, which depressions held water during rainy weather causing motorists to lose control of their vehicles; (c) failing to take any measures to remedy these conditions after receiving notice that the conditions were causing motorists to lose control of their vehicles during rainy weather; and (d) failing to erect signs to warn unsuspecting motorists of the dangerous conditions.
Continental Insurance Company intervened seeking reimbursement out of the proceeds of any judgment rendered in favor of plaintiff for workmen's compensation benefits and medical expenses paid by intervenor under a policy of workmen's compensation insurance issued to Petree's employer. Continental also sought recovery against defendants for the amount of damage to the vehicle driven by Petree paid by intervenor under a collision insurance policy covering the vehicle. Whitaker and Aetna made third party demands and Mrs. Whitaker intervened against Crowe and the Department of Highways seeking recovery for property damage, personal injuries and medical expenses sustained by the Whitakers, Aetna being subrogated for amounts paid under its collision and uninsured motorist coverage afforded Whitaker. All defendants and third party defendants answered denying liability.
After trial, the district court held the sole proximate cause of the accident was the negligence of Crowe in operating his vehicle to the left of the highway centerline, thus colliding with the Whitaker vehicle which in turn struck the Petree vehicle. The court found no negligence on the part of Whitaker. The court also found no negligence on the part of the Department of Highways as the Department had no notice or knowledge prior to the accident of the dangerous condition of the highway if, in fact, it was dangerous.
Judgment was rendered against Crowe in favor of (1) plaintiff, individually, for $31,079.14, less 70.27% of $14,805 paid by Continental in workmen's compensation benefits; (b) plaintiff, as natural tutrix of her minor daughter, for $27,500, less 29.73% of $14,805 paid by Continental Insurance Company in workmen's compensation benefits; (c) Whitaker, for $4,692.75, less $2,092.75 paid by Aetna Casualty & Surety Company under its uninsured motorists coverage; (d) Mrs. Whitaker, for $5,500, less $1,500 paid by Aetna under its uninsured motorists coverage; (e) Aetna, for $5,892.75; and (f) Continental, for $16,605. All other principal and incidental demands against all other parties were rejected.
From this judgment appeals were perfected by plaintiff, Continental, Aetna and the Whitakers. Crowe did not appeal nor answer the appeals and his negligence and liability is not at issue before this court.
The central issue on appeal is the alleged negligence and liability of the Department of Highways. Appellants specify that the district court erred in failing to find that (1) a dangerous situation existed at the scene of the accident as a result of the condition of the highway; (2) the dangerous *402 situation caused or contributed to the accident; (3) the Department of Highways created the dangerous condition; and (4) the Department knew or should have known of the dangerous condition and had a duty to correct or warn motorists of the dangerous condition which it failed to do.
At the scene of the accident Louisiana Highway 1, one of the state's major north-south arteries carrying a substantial volume of traffic, consists of two lanes and is straight and level. The highway is paved with concrete but the stretch of the highway on which the accident occurred was overlaid with an asphalt surface covering the entire width of the highway and extending from 300 to 1,000 feet in length, according to the various witnesses.
Crowe was in the Navy and unavailable at the time of trial and his deposition taken earlier for purposes of discovery and/or use as evidence was offered into evidence. A student at Northwestern State University at the time of the accident, Crowe was traveling from Natchitoches to his home in Bossier City. He testified it was raining very hard as he proceeded north on Highway I with rain coming from the north hitting his windshield with considerable force. He was traveling at about 45 miles per hour and had noticed one automobile behind him. He suddenly hit what looked to him like "a lake" across the highway, skidded sideways, crossed the centerline, sideswiped the oncoming Thunderbird, continued sliding in the southbound lane and then hit the pickup truck. He traveled some 400 feet after hitting the Thunderbird. Crowe said he did not turn his steering wheel or hit his brakes or make any other maneuver prior to going into the skid. When he hit the water it came up over his windshield and the car turned sideways. Crowe testified the whole highway was wet and slick as glass. The water covered the highway but he did not realize it was that deep at the point of the skid. Visibility was very bad. When his car hit the water, "it just picked it up."
John Whitaker testified that he was driving his Thunderbird south on Highway 1 at a speed of about 55 miles per hour. It had been raining hard and water was everywhere on the road. The road was full of indentations where it had been worn and the indentations filled with water. If the water was bad enough it would slow your car down. Whitaker testified that the approaching Crowe automobile looked like it hit one of these puddles of water and just jumped up and went sideways and slid right into him striking the Whitaker automobile behind the door. The impact started the Whitaker automobile sliding and it crossed the centerline into the northbound lane at an angle resulting in a collision with the Petree vehicle. Whitaker testified Crowe stated at the scene of the accident that he hit a puddle of water and lost control.
Mrs. Whitaker testified that she looked up and saw the Crowe car begin to make a strange sideways slant and she felt like he was coming right into them.
The accident was also witnessed from a distance by two highway department employees, Albert Newman and Lloyd L. Bourgeois, who were driving north on Highway 1 about 300 or 400 yards from the point of the accident. Newman looked up and saw a car up in the air. It was raining very hard at the time. They stopped at the scene and did not notice any puddles on the road and did not see anything unusual about this particular stretch of the road. Crowe told Newman the accident was his fault and that his car hit a "sludge" and jumped. On cross-examination Newman testified Crowe may have said he hit a slick spot.
Bourgeois saw the accident from about 500 yards away. The road was puddling up in little spots but he did not think there was a lot of water on the road and there was nothing unusual about the road surface other than being wet. Bourgeois testified he could not tell much about the accident *403 because of the distance and weather conditions but it seemed as though some cars were sliding in the air and there was a crash.
The accident was investigated by State Trooper Lester S. Huckaby, III, who got to the scene of the accident about 30 to 45 minutes after it occurred. He testified it had rained and the roads were very slick. Crowe told him he hit some water that was standing on the highway and lost control of his vehicle. The highway at this point had been repaired and patched a good while back.
The state trooper had prepared an incident report on May 4, the day before the accident, noting previous accidents in the same area on November 15, 1968, December 8, 1968, February 1, 1969, March 23, 1969, April 27, 1969, and May 4, 1969. Most of the accidents happened when the highway was wet. The trooper testified that tar had bled through at this location and the highway was very slickslicker than the other parts of the road. There was no water standing on the highway and no puddles when he got there. On cross-examination it was brought out that the prior accidents in February, March and April involved more than one car. The trooper did not recall the facts of the May 4 accident. The accident of February 1 did not happen at the same spot. The trooper testified he investigated a number of single-car accidents where the cars left the road at this same location but did not make a report on them as he is not required to do so. The condition of the road with the tar bleeding through was apparent to anyone inspecting the road, according to the trooper. The condition was about 1,000 feet in length. Crowe told him his speed was about 55 miles per hour.
Plaintiff called several witnesses who testified concerning the condition of the highway. Ralph Bierden testified that he lives in the area and that the highway department did some work on that part of the road possibly five or six months before the accident. He was involved in an incident at the same spot. While driving along he hit a little bumpy spot and slid over into the other lane while the road was wet. This was in January, 1969, after the road had been patched. He knew of several accidents at the location, usually one-car accidents, and all during rainy weather. He reported the accident he was involved in to his brother, J. T. Bierden, Jr. who was on the police jury.
J. T. Bierden, Jr., a resident of Coushatta, testified he was a member of the police jury for twenty years and was chairman of the parish road committee. He was familiar with the scene of the accident. The road had gotten real rough and bad and the highway department patched it several months before the accident. The tar bled through the gravel and caused a slick condition when it got wet. His brother, Ralph, talked to him about the condition of the highway in the early part of February, 1969, on the way to a cattlemen's convention. His brother told him about sliding on the road. About three weeks later he reported the incident to the local highway department officialprobably Winfred Ross, during a conversation in a restaurant over a cup of coffee. Bierden testified he had personal knowledge of other incidents in the general area while it was raining.
A. P. Dill, a member of the police jury who lives on Clear Lake Road, testified Highway 1 had been patched thirty days or more before the accident. It was patched with tar or a black substance making this area darker than the other parts of the road.
B. D. Morgan, a retired state police officer, testified the highway department had put an overlay of asphalt on the highway. He had seen cars in the ditch in that area during rainy weather. The condition of the road when it rained was slick.
Testifying for the defendant was W. L. Ross, who was employed by the Department of Highways for twenty years. He was made highway maintenance superintendent *404 for Red River Parish in January, 1969, and before that was a road construction foreman. The place where the accident happened was overlaid about a year before the accident. Ross' responsibility was to check the roads and he rode over them at least once a week and sometimes more often. He checked the road in bad weather and if he found a place that was dangerous the department would patch it as soon as possible.
Ross went to the scene of the accident shortly after it happened. There was a spot there that had been patched years before. He did not notice any water standing in the road but there were ruts and depressions up and down the road that collected small pools of water. Ross testified that J. T. Bierden talked to him at a cafe one day and said there was a place or two on Highway 1 that he wanted him to ride over and look at where there had been a number of accidents and where there were some spots on the road. Bierden wanted Ross to ride up there with him and look at it. This was not too long before the accident. Bierden did not tell Ross the exact spot where the accidents were happening and never did come to ride over the area with him.
After the accident the Department of Highways put some catatonic asphalt and lightweight aggregate on the highway at the scene of the accident. Signs were put up after the accident also. Ross did not detect this particular spot as a trouble spot in riding over the road before the accident. He did not think this area was any worse than any other part of the highway but he made the repairs after the accident because the state police wanted him to. It was no worse there than anywhere else on the road. They repaired three different spots. He had no other reports of accidents at the spot except Mr. Bierden's report to him. There was no particular drainage problem at the spot of the accident and there were less depressions at this point because it had been patched over previously. Ross conceded that a patched spot can become slick if not properly put down.
Testimony was also given by Clarence Cole, a former employee of the Department of Highways who was Red River Parish foreman until he retired on December 31, 1968. Cole testified a slick spot can be caused when the rain hits the blacktop. Most every blacktop is slick when it rains. The slick condition can be caused by too much tar and bleeding. Such a condition is generally cured with an application of gravel or sand. When it goes to bleeding they ordinarily put something on the highway to keep the slickness down. Cole had no knowledge of any prior accidents in this area.
Barron Clinton testified he had been a highway department employee for twenty-two years and was foreman of blacktopping in Red River Parish. He recalled putting the patch down about five years ago. It stretched about 100 yards along the highway all the way across the road. The department did some patching in the same area after that. Clinton testified he never noticed any particular problem with this patch and never noticed it being slick. He rode up and down the road often and if the spot had been bad he would have fixed itthat was his job. He testified that after the accident they put down a coat of catatonic asphalt with clay rock to keep the area from being slick.
Melton Pickett, a highway department employee for more than ten years testified he worked in Clinton's crew. They patched this area probably six months prior to the accident. The patched area was 300 to 500 feet in length and covered both sides of the road. They put down asphalt and rock. After the patch was put on he would characterize the highway as in fair condition. They did not have any problems regarding the patch.
Roy E. Mitchell, Jr., district engineer for the Department of Highways, testified he visited the scene of the accident two days after the accident. He drove back and *405 forth over the patch at speeds up to 20 or 25 miles per hour and hit the brakes and found the skid resistance was not bad. He had no difficulty in going over this section of the highway. There was no trouble with drainage. The situation was not abnormally slick and did not warrant erection of barricades. The patch was about 500 feet long. He instructed Mr. Ross to put some gravel down and asphalt if needed.
Mitchell testified that in applying an asphalt overlay, if you put too much tar down it might bleed and come through. The highway department manual states that resealing before the first of May and after the middle of the month of September is seldom satisfactory. Hot, dry weather is ideal for this activity.
Harold Haire, assistant district engineer, testified he drove with Mitchell over the area and tested it by putting on the brakes of their car. They determined the area was not slippery and there were no spots holding water or any slick spots.
Joseph W. Holliday, assistant maintenance engineer, testified he went with Mitchell and Haire to the site on May 7. Mitchell had no trouble when he drove his car to check if the area was slippery. Holliday did not see anything that needed to be done to the highway. He did not particularly find the road slippery but as a precautionary measure he concurred in putting down lightweight aggregate to provide more traction.
L. D. Hughes, a highway department employee, testified that he went to the scene of the accident with Ross after they got a call. There was no water standing on the highway and he did not notice anything unusual or any particular slickness. He testified he drives this area often in rainy weather and never had any difficulty.
The parties are in agreement as to the principles of law applicable to this case.
The duty imposed upon a state or its Department of Highways or other appropriate authority is to construct and maintain highways which are reasonably safe for public travel. In the performance of this duty the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies safety for the general or ordinary travel, or use for any lawful or proper purpose. Kilpatrick v. State, 154 So.2d 439 (La.App. 2d Cir. 1963). See also, McCallum v. State Department of Highways, 246 So.2d 46 (La.App. 3d Cir. 1971); Reeves v. State, 80 So.2d 206 (La.App. 2d Cir. 1955); and Hogg v. Department of Highways of the State, 80 So.2d 182 (La. App. 2d Cir. 1955).
The Department of Highways has a duty of maintaining the highways in a safe condition. This includes the duty of providing proper safeguards or adequate warnings of dangerous conditions in the highway. What constitutes proper safeguards and adequate warnings to motorists varies with the dangers presented and should be of such a nature that it is commensurate with the danger. The negligence of the Department of Highways may be predicated on its knowledge or information of the existence of a dangerous or defective condition of the highway and subsequent failure to safeguard such condition. See McCallum v. State Department of Highways, supra. See also Falgout v. Falgout, 251 So.2d 424 (La.App. 1st Cir. 1971); Walker v. Jones, 230 So.2d 851 (La.App. 1st Cir. 1970); Hall v. State Department of Highways, 213 So.2d 169 (La. App. 3d Cir. 1968); Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1st Cir. 1968); Kilpatrick v. State, supra; and Davis v. Department of Highways, 68 So. 2d 263 (La.App. 2d Cir. 1953).
The general rule is also well established and recognized in the jurisprudence that a motorist using a public highway has a right to presume, and to act upon the presumption, that the highway is safe for usual and ordinary traffic, either in daytime or at night, and that he is not required *406 to anticipate extraordinary danger, impediments, or obstructions to which his attention has not been directed and of which he has not been warned. See Kilpatrick v. State, supra; Falgout v. Falgout, supra; and Reeves v. State, supra.
Plaintiff's evidence falls short of proving that a dangerous condition existed at the point where Crowe's vehicle slid across the centerline or that the condition of the highway caused Crowe to lose control of his vehicle.
The weight of the evidence leads to a conclusion that the accident resulted from the failure of Crowe to maintain control of his vehicle in a heavy rainstorm which caused the presence of water on the highway, and not from any particular defect in the condition of the highway. Crowe himself, in statements made to others at the scene of the accident and in his testimony, emphasized the hitting of a "puddle" or "lake" of water as the precipitating cause of his losing control.
While the evidence would support a finding that Highway 1 in the vicinity of the accident is not a first-class, perfect road, the evidence does not establish a particular defective condition at the scene of the accidenteither in the nature of an unusually slick spot or deep depression or improper drainage. The evidence does not establish that the highway was not reasonably safe for motorists exercising care commensurate with the prevailing weather circumstances and general nature and condition of the highway.
The testimony relating to prior accidents in the vicinity is not persuasive. The manner in which the prior accidents happened and the cause or causes thereof are not clearly established, nor is the exact location of the prior accidents with relation to the specific point of the accident involved here.
Since we find that plaintiff has failed to prove the existence of a dangerous condition in the highway or that such a condition, even if it existed, was a cause in fact of the accident, it follows that there is no liability on the part of the Department of Highways.
The second issue presented on appeal is the amount of damages awarded to plaintiff individually and on behalf of her minor daughter against defendant Crowe. The judgment of the district court reflects awards of $27,500 each to the widow and child, plus special damages to the widow. Plaintiff urges the awards are inadequate and should be increased.
The evidence shows defendant Crowe was uninsured, was a student at Northwestern at the time of the accident, and was in the Navy at the time of trial. The implication from these facts is that Crowe may be financially unable to respond to the judgment rendered by the district courtmuch less to any increased award. However, no evidence was offered as to Crowe's inability to pay a judgment and in spite of any implications drawn from the facts in the record, we cannot consider his inability to respond in the absence of proof thereof.
At the time of his death, Petree was twenty-three years of age, with a life expectancy of forty-five years. He was survived by his widow who was also twenty-three and a two year old daughter. The evidence shows a close family relationship. Petree earned $6,555.29 during the calendar year 1968, and $3,217.25 during the first four months of 1969. Petree lived for five days after the accident before succumbing to the injuries received.
The awards of the district court are inadequate and amount to an abuse of that court's much discretion. The widow and child are each entitled to recover for loss of support, loss of love and affection, and for the pain and suffering of their husband and father. The widow is also entitled to recover the proven special damages. Considering all factors, we find appropriate awards are $100,000 plus special damages *407 to the widow and $30,000 for the child. See Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967); Hebert v. Patterson Truck Line, Inc., 247 So.2d 886 (La.App. 3d Cir. 1971); Luttrell v. State Farm Mutual Automobile Insurance Company, 244 So.2d 97 (La.App. 3d Cir. 1971); Gant v. Aetna Casualty & Surety Company, 234 So.2d 776 (La.App. 1st Cir. 1970); Allien v. Louisiana Power & Light Company, 202 So.2d 704 (La.App. 3d Cir. 1967); Tison v. Fidelity And Casualty Company Of New York, 181 So.2d 835 (La.App. 2d Cir. 1965); Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3d Cir. 1962); and Swillie v. General Motors Corporation, 133 So.2d 813 (La.App. 3d Cir. 1961).
For the reasons assigned, the judgment of the district court is amended to provide for judgment in favor of plaintiff, Frances Marie Duffy Petree and against defendant, David Crowe, as follows:
(a) Individually, in the amount of One Hundred Three Thousand, Five Hundred Seventy-Nine and 14/100 ($103,579.14) Dollars, less 70.27% of the Fourteen Thousand Eight Hundred Five and no/100 ($14,805.00) Dollars received from Continental Insurance Company in workmen's compensation benefits; and
(b) As Natural Tutrix, for the use and benefit of the minor, Christine Rene Petree, in the amount of Thirty Thousand and no/100 ($30,000.00) Dollars, less 29.73% of the Fourteen Thousand Eight Hundred Five and no/100 ($14,803.00) Dollars received from Continental Insurance Company in workmen's compensation benefits;
and, as amended, the judgment is affirmed. Defendant, David Crowe, is cast for all costs of appeal.
Amended, and as amended, affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917991/ | 272 So.2d 218 (1973)
Ethel G. BYRNES, Appellant,
v.
PUBLIX SUPER MARKETS, INC., a Florida Corporation, and Florida Dust Control Service, Inc., a Florida Corporation, Appellees.
No. 71-926.
District Court of Appeal of Florida, Fourth District.
January 15, 1973.
Rehearing Denied February 12, 1973.
*219 Henry L. Kaye, of Simons & Schlesinger, Hollywood, for appellant.
Dieter K. Gunther, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for appellee Publix.
Charles Desmond Crowley, Fort Lauderdale, for appellee Florida Dust Control.
PER CURIAM.
Plaintiff appeals a summary final judgment entered in favor of the defendants. Our review of the record convinces us that there are genuine issues of material fact so as to preclude a summary disposition. Allen v. Kamp's Beauty Salon, Inc., Fla.App. 1965, 177 So.2d 678; Holmes v. Forty-Five Twenty-Five, Inc., Fla.App. 1961, 133 So.2d 651; Humphrys v. Jarrell, Fla.App. 1958, 104 So.2d 404; Cowan v. Turchin, Fla.App. 1972, 270 So.2d 449, Fourth District Court of Appeal opinion filed December 20, 1972; Jenkins v. Brackin, Fla.App. 1965, 171 So.2d 589. See also Luckey v. City of Orlando, Fla.App. 1972, 264 So.2d 99.
As was pointed out in Holmes v. Forty-Five Twenty-Five, Inc., supra, 133 So.2d at p. 652:
"Negligence cases are extremely troublesome due to the varied fact situations which they present. It has been held that where the case is extremely close on the question of negligence or contributory negligence, `doubt * * * should always be resolved in favor of a jury trial.' ..."
In the instant case plaintiff alleged that upon entering the premises of Publix that "she was caused to trip and fall over said dust rug or mat because of the dangerous and defective condition of said mat and/or by reason of the improper placement of said mat and/or by reason of the fact that said mat was placed in a negligent and careless manner upon the floor of the Defendant's PUBLIX premises in the entrance way thereof."
In addition to denying the allegations with respect to the circumstances under which plaintiff was alleged to have tripped and fallen defendants claim, among other things, that plaintiff was guilty of contributory negligence. There are genuine issues of fact with respect to the duty owed to the plaintiff, the condition of the premises including the placement of the dust rug as well as the plaintiff's own contributory negligence which should be evaluated and determined by a jury. The following observations made by the court in Nance v. Ball, Fla.App. 1961, 134 So.2d 35, 37-38, are pertinent:
"Some cases are clearly disposable by summary judgment. There are also marginal cases posing colorable issues which the trial court may consider so weakly supported as to indicate the futility of a full hearing on the merits. In such a case, where adherence to the rule of caution results in a denial of summary judgment, the court may feel that there has been an unjustified extension of fruitless litigation. Our own experience attests an occasional impulse to amputate at once rather than face the prospect of surgery by painful stages, but herein lies the occasional margin of error.
"The trial court may be convinced that a doubtful or marginal case would be practically unprovable, and most frequently that could be the net result. We do not apprehend, however, that the denial of summary judgment in such cases would likely result in ultimate miscarriage of justice. There are other stages along the procedural panorama where the court may terminate a case or control its direction, viz., (1) on motion for directed verdict at the conclusion of *220 plaintiff's case, (2) on motion for directed verdict at the conclusion of all the evidence, (3) on motion for a new trial, and (4) on motion for judgment notwithstanding the verdict. There remains also the possibility that further proceedings might bring out added factors which could change the complexion of the case."
Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
OWEN, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918002/ | 375 Mich. 683 (1965)
135 N.W.2d 420
BLADES
v.
GENESEE COUNTY DRAIN DISTRICT NO. 2.
Calendar No. 63, Docket No. 50,540.
Supreme Court of Michigan.
Decided June 7, 1965.
Cline & George and Thomas & Delaney, for plaintiffs.
McTaggart & Lattie and Dickinson, Wright, McKean & Cudlip (Charles R. Moon, of counsel) and *686 John G. David, Genesee County Corporation Counsel, for defendants.
DETHMERS, J. (dissenting).
Plaintiffs filed their complaint in the Genesee county circuit court, asking that the establishment of a special assessment district and assessment roll be set aside. They appeal from entry of summary judgment[*] for defendants.
The Genesee county drain district No. 2 covers most of the northwesterly quarter of Genesee county. Plaintiffs are members of a class of upwards of 375 landowners in that district, mostly farmers, with large parcels of land. Proceedings for creation of the district were instituted in June, 1959, under the drain code of 1956, PA 1956, No 40 (CLS 1961, § 280.1 et seq. as amended [Stat Ann 1960 Rev § 11.1001 et seq.]), and bids were taken for a sanitary sewer artery trunk line as a sole and separate construction project. At the same time, the Genesee county board of supervisors adopted a resolution or ordinance under PA 1939, No 342 (CLS 1961, § 46.171 et seq. [Stat Ann 1958 Rev and Stat Ann 1963 Cum Supp § 5.2767(1) et seq.]), providing for a revenue bond issue to finance construction of a sewage disposal plant. The mentioned trunk line is intended to be connected with that plant and to extend out east and south therefrom for several miles in a manner designed to make it available to laterals sufficient to serve the entire drainage district. Operating costs of the plant and retirement of the revenue bonds are to be collected from connection charges and users of the system who hook up with the trunk line or laterals to be built and leading thereto. Contracts, under PA 1939, No 342, supra, with two cities and five townships comprising the drainage district are contemplated, under which any of those governmental *687 units which so desires will make charges to any of its residents connected with the system, collect usage fees from them and remit for operation costs of the plant and retirement of the bonds. All of this would necessitate construction of laterals through those units from the property of users to the trunk line. No governmental unit is obligated to do so.
Plaintiffs, acting for themselves and others in the class similarly situated, some of them owning land located several miles from the trunk line, say that no benefit could or would accrue to their properties from the construction and laying of the trunk line. This is the basis of their contention that inclusion of their lands within the special assessment district and on the assessment roll is invalid.
Plaintiffs say that inclusion of their properties in the district on the theory that they have been or will be benefited amounts to a fraud in law. Their chief reliance is on Panfil v. City of Detroit, 246 Mich 149, and Fluckey v. City of Plymouth, 358 Mich 447. In Panfil this Court held, inter alia, that under a charter provision permitting assessment of costs of paving a street against property abutting the street, it was a fraud in law for the city to so assess plaintiff's property which abutted property ostensibly condemned and taken by the city for street widening purposes when the portion thereof immediately adjoining plaintiff's lot was not needed or used for street purposes but, apparently, was taken only for the purpose of making plaintiff's lot abut the street and subject to the special paving tax. In Fluckey this Court held it a fraud in law to impose a special assessment on residential properties along a two-lane, 22-foot, black-topped street to pay for widening the pavement to a 48-foot, reinforced concrete pavement to accommodate truck and other industrial *688 traffic, which would come, in part, from a new plant which a company had been induced to locate nearby. In effect, in Fluckey, this Court held that as a matter of law there was no benefit to those residential properties. This Court stated that conversion of a peaceful country road to a four-lane thoroughfare to accommodate and attract new heavy truck traffic, so far from benefiting the residential properties, actually would detract from their values and that the special assessment, imposed on a theory of benefit thereto, was, therefore, invalid.
The Panfil and Fluckey situations do not obtain in the instant case. It is true that here a sewer trunk line is to be installed to which plaintiffs will not have immediate access unless connecting laterals are constructed. However, the construction of the trunk line will make available for the benefit of plaintiffs' properties and others that which is not now in existence, namely, a line to which such laterals may be connected to carry sewage from their properties. Without its construction such benefit would not be available to these properties. To deny that this constitutes a benefit to plaintiffs' properties differs only in degree from saying that a sewer in the street running along plaintiffs' properties would not benefit them because plaintiffs' had not elected to make the necessary connections thereto. To those who might urge that, traditionally, on the typical American farm scene there is no need for indoor plumbing or a modern sewer system, defendants point out that the very accessibility of the indicated service, created by the trunk line, would make lands theretofore usable only as farm lands more desirable for development into platted, residential areas and, thus, create an enhanced value of the lands. We cannot say as a matter of law that this is not so.
*689 That brings us to a consideration of whether we treat here with a question of fact or a question of law, inasmuch as a summary judgment is involved. We proceed with the assumption that the question of benefit to plaintiffs' properties is one of fact, in the first instance, for determination by the drain commissioner. If so, may the court make a determination as a matter of law warranting the entry of a summary judgment accordingly?
In Cummings v. Garner, 213 Mich 408, this Court quoted with approval from the trial court's opinion in that case as follows (p 420):
"`The boundaries of the district specially benefited, the per cent of benefit derived by the lands therein, the township or townships benefited and the per cent of such benefit, and the per cent of benefit derived by the county at large, are all matters to be determined first by the board of road commissioners and then all are subject to review by an impartial tribunal appointed by the probate court for that special purpose, to which hearing on review all parties are given due and timely notice and provided full and adequate opportunity to be heard. It has been held time and again that these questions are purely legislative in character and must be left to the agencies provided by legislative authority, and so long as a free and fair opportunity is given to be heard no one is in position to complain and no question of judicial cognizance is raised. Troost v. Fellows, 169 Mich 66, 70; Township of Clinton v. Teachout, 150 Mich 124.'"
In Marks v. City of Detroit, 246 Mich 517, 523, this Court quoted with approval from Brown v. City of Grand Rapids, 83 Mich 101, 109, the following:
"`It is not for this Court to set its judgment up in opposition to that of the board of commissioners and the council, and to say that this parcel of land or that is assessed too much or too little. The assessments *690 were to be made according to benefits to each parcel of property, and there is nothing in the record showing that the commissioners did not assess the complainant's lands in accordance with their best judgments.'"
In Fluckey this Court said (p 454):
"The assessors, not the court, weigh the benefits, if, in truth, there are benefits to be weighed."
In its opinion granting summary judgment the trial court in the instant case said:
"It is apparent that the courts in Michigan will limit the scope of their review of drain proceedings very drastically. The courts will not substitute their discretion and judgment for that of the drain commissioner in (1) deciding the type of drain improvement to be constructed, (2) the location of such improvement, (3) the area which will be served or benefited thereby, (4) the engineers, contractors and consultants to be employed and (5) the many other details involved in locating, establishing and constructing a drain. The courts will also not determine the amounts of or make the apportionments of benefits and they will not review the details of bond financing or the wisdom of the pledging of full faith and credit by the county or by any other public corporation involved. All decisions of this nature, made by the drain commissioner, are conclusive and are not subject to judicial review of any kind."
We approve the statement of the trial court. It follows that while the determination of benefits presented the commissioner with a question of fact, after he has made that determination it is not for the court to substitute its judgment and to make either a concurring or contrary determination of facts, but, only, to determine the legal question of whether there is a lack of any reasonable basis or *691 theory to support the commissioner's factual determination of benefit. No dispute of facts is presented by the pleadings in that respect. Plaintiffs' complaint alleges no facts which, if taken as true, require a holding that, as a matter of law, no benefits will be conferred, as this Court did in Fluckey. In City of Grand Rapids v. Grand Trunk Railway System, 214 Mich 1, this Court said (pp 5, 11):
"It is a legislative policy of this State that railroad properties shall be subject to tax for local improvements. But if the track, roadbed, or right-of-way of a railroad is not susceptible of benefit from a local improvement a taxing of such property for such improvement would be wanting in the due process of law required by the Constitution. * * *
"The weight of authority is, and we so hold, that the court may not say, as a matter of law, that the track, roadbed, or right-of-way of a railroad may not be benefited or susceptible of benefit by a local improvement. No bad faith is charged and to what extent the property included in the assessment district was benefited and whether benefited or not were questions to be determined in the special proceedings. We cannot review the assessment."
The question of benefit to plaintiffs' properties, if viewed as a question of fact, was for determination by the commissioner. In the absence of any charge of bad faith or wilful fraud the function of the court was solely to determine the legal question of whether there was a lack of any reasonable theory to support the commissioner's finding of benefit. Only upon such determination could the court reverse the commissioner's finding of benefit and hold as a matter of law that there was no benefit. On this question of law the court properly found for defendants, namely, that there was a reasonable theory of benefit to support the commissioner's finding thereof as a fact. That being decided as a matter *692 of law, the summary judgment for defendants properly followed. As applied to equitable actions we find in 1 Honigman and Hawkins, Michigan Court Rules Annotated, p 360, and approve the following:
"Summary judgment should also be permissible in an equitable type of action, even though the plaintiff is not, strictly speaking, `entitled to judgment as a matter of law' but only as a matter of equitable discretion. There is no good reason why the absence of disputed facts cannot be shown by the summary judgment procedure and the requested relief be given or denied according to equitable principles, just as would be the case after the facts were established by trial. See 3 Barron & Holtzoff, Federal Practice and Procedure, § 1232.3. The phrase `according to law' means according to the rules of decision whether statutory, common law, or equitable by which the courts dispose of cases when factual issues have been resolved. It was not intended to limit summary judgment to what were historically legal actions as distinguished from equitable."
The judgment should be affirmed. Costs to defendants.
O'HARA, J., concurred with DETHMERS, J.
BLACK, J.
Whatever view one may take of the majority and minority opinions of Crampton v. City of Royal Oak, 362 Mich 503, one contrasting fact stands forth from that like equity case. There the plaintiffs received, as was due, a full testimonial hearing of their claim that the proposed local improvement would not specially or otherwise benefit properties owned by them and included in the special assessment district. Here that fundament of due process was denied to similarly appealing plaintiffs. They were thrown out of court, summarily *693 under GCR 1963, 117, without so much as a supporting affidavit attesting facts distinguished from verification of the public records on which the defendant drain commissioner relies. Such plaintiffs are here, requesting reversal for trial. That they should have.
This complaint for adjudicatory and injunctive relief reached, in circuit, the very nadir of curtly peremptory justice. Denied all semblance of a trial of their seemingly just factual issue; that is, that their agricultural properties will receive no benefit (no benefit at all that is) from this proposed drain and sewage disposal project, they were told that the question of partial presence or total absence of benefit to such properties was exclusively for the county drain commissioner. Then, as declaredly controlling, they were treated to that part of the trial court's opinion which Justice DETHMERS has quoted. Although my Brother's opinion does not disclose the fact, such quoted part was based exclusively on our wholly inapplicable decision of In re Macomb Drain Commissioner, 369 Mich 641.
I rise to observe that both courts in the cited Macomb Case provided complete judicial review, by certiorari and appeal as sought, of the therein assailed special drain assessments. Questions of law only were advanced for judicial consideration by the petitioner in certiorari. Too, that petitioner did not (p 652) "deny that some benefit, concededly substantial, will accrue to it from each project." Here the plaintiffs want only an opportunity to prove, if they can, a total absence of specially assessable benefit to them or to their respective parcels. To deny them such opportunity is no more nor less than a denial of constitutionally guaranteed due process.[1]
*694 Enough has been written recently about the vaulting growth of abuses Court Rule 117 started a little over two years ago. On the face of this record, considering it solely in array with the technical questions that are raised in defendants' motion for summary judgment, plaintiffs have a right to say that nothing has been given or offered in return for that which the assessing authorities would exact. Defendants' sole answer, advanced below and here, is that the statutory proceedings thus far taken by the drain commissioner are conclusive; that plaintiffs' sole remedy of review was by certiorari, and that the time for pursuit of that remedy has long since passed. So a drain commissioner's determination of special benefit, no matter how fanciful, speculative, whimsical, capricious, arbitrary, or downright outrageous it may be, is beyond the controlling hand of equity. I would let that chestnut burn. It was charred beyond recognition from the very beginning of equity's growth.
Constitutional questions automatically arise when a quick judgment is entered on fast motion, before trial, in a case which from its very nature presents a controlling question or questions of fact. A true day in court is part and parcel of constitutionally guaranteed due process. And when a landowner seeks relief in equity from an assessment of his property for special benefit, alleging as these plaintiffs have fairly and adequately done no benefit in actual fact, he thereby raises a question of taking of his property, under the guise of taxation, for public use without compensation.
*695 I go to early principles of the law of taxation and the right of special assessment for special benefit; principles which Justice COOLEY announced first with widespread acceptance throughout the country.
In Norwood v. Baker, 172 US 269 (19 S Ct 187, 43 L ed 443), which was another like equity case, the Supreme Court observed in a preliminary way that there is a point (p 278) "beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen's right of property," and that "the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement." Then the Court, relying principally upon Justice COOLEY'S work on Taxation, laid down this rule (p 279):
"In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say `substantial excess,' because exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment." (Emphasis by Justice Harlan.)
COOLEY'S text, cited in Morton Salt Co. v. City of South Hutchinson, supra at 902, accents the need for trial rather than summary disposition of this equity case. Morton reads in part as follows:
"Whether the exaction is in the form of a special assessment for a special improvement, or a general *696 tax for the general welfare, the constitutional test is always whether anything is given or offered for that which is taken. Indeed, the underlying purpose for the creation of special taxing districts is to attain a constitutional balance in relationship to benefits conferred for burdens imposed. 1 Cooley, Taxation (4th ed), § 320."
For present purposes it is sufficient to say that the presented question, whether plaintiffs' lands will receive actual distinguished from speculative benefit from the proposed project, is one of fact (Briscoe v. District of Columbia, 221 US 547, 551 [31 S Ct 679, 55 L ed 848]; 48 Am Jur, Special or Local Assessments, § 29, p 588). That consideration, viewed with the general rule,[2] calls for reversal.
I note in conclusion that every Michigan decision cited and quoted by my Brother DETHMERS came to submission here on a full meritorious hearing below; not upon a granted or denied motion for summary judgment.
The circuit court's judgment of dismissal should be reversed with instruction to order denial of defendants' motion for summary judgment. Plaintiffs should have costs of both courts.
T.M. KAVANAGH, C.J., and SOURIS and ADAMS, JJ., concurred with BLACK, J.
KELLY and SMITH, JJ., did not sit.
NOTES
[*] See GCR 1963, 117. REPORTER.
[1] "If the tax imposed clearly results in such a flagrant and palpable inequality between the burden imposed and the benefit received that it amounts to an arbitrary taking of property without compensation, it is said to violate the due process guaranty under the Fourteenth Amendment. All of the cases which have affirmed the broad powers of taxation have recognized these limitations, i.e., see Dane v. Jackson, 256 US 589 (41 S Ct 566, 65 L ed 1107); Henderson Bridge Co. v. Henderson City, 173 US 592, 614 (19 S Ct 553, 43 L ed 823); Houck v. Little River Drainage District, 239 US 254 (36 S Ct 58, 60 L ed 266), 1 Cooley, Taxation (4th ed), § 144." Morton Salt Co. v. City of South Hutchinson (CCA 10), 159 F2d 897, 901.
[2] "§ 28. Character of Benefit as Certain, Speculative, Pecuniary, et cetera.
"It has been ruled that benefit to property from a public improvement to sustain a special or local assessment must be actual, physical, and material, and not merely speculative or conjectural. In order to justify the assessment, the benefits must be substantial, certain, and capable of being realized within a reasonable time. Benefits arising from improvements which depend upon contingencies and future action of public authorities cannot be considered in estimating the assessment, although they may form part of a general plan for public improvement." (48 Am Jur, Special or Local Assessments, pp 587, 588.) | 01-03-2023 | 10-30-2013 |
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