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https://www.courtlistener.com/api/rest/v3/opinions/1918004/ | 272 So.2d 559 (1973)
Velma CLEAVER, Appellant,
v.
DADE COUNTY, a Political Subdivision of the State of Florida, Appellee.
No. 72-137.
District Court of Appeal of Florida, Third District.
February 5, 1973.
*560 Hawkesworth & Kay, Horton, Schwartz & Perse, Miami, for appellant.
Fowler, White, Humkey, Burnett, Hurley & Banick, Miami, for appellee.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
PER CURIAM.
The appellant seeks review of a final judgment in favor of the defendant-appellee. The judgment was entered in an action for personal injury after a directed verdict was ordered for the defendant.
The facts shown by the record and viewed in the light most favorable to the plaintiff-appellant may be summarized as follows. Dr. Gilmore, private physician of the plaintiff, testified that he saw the patient in his office and thereafter admitted her to Jackson Memorial Hospital for rehabilitation due to weakness in her arm and leg. She had given Dr. Gilmore a history of frequent falls and he found her to be severely depressed, disoriented, and in need of psychiatric consultation. He had no knowledge of the incident or accident to the patient while hospitalized and knew only of an apparent hematoma to the arm subsequent to admission.
The plaintiff gave the only testimony relating to the alleged incident. She stated that she was being pushed to lunch in a wheelchair and as the chair was being pushed up to the table the hospital aide turned the wheelchair against the table so that her arm resting on the arm of the chair was pinched against the edge of the table. She stated that she did not blame the hospital aide for the injury.
The final witness was the Director of Patient Relations at Jackson Memorial *561 Hospital who testified to the complete absence of any record of the injury, and that there was no "incident report" concerning the injury although the hospital directs all personnel to report such incidents. The Director testified that there was a record of two "incident reports" relating to an injury to appellant's arm describing the patient having been found on the floor in a dazed condition, and the patient having suddenly moved her arm while a nurse was removing a bandage therefrom causing a slight injury.
Motions for directed verdict should not be granted unless it can be said that under no view that the jury might lawfully take of the evidence could a verdict for the party moved against be sustained. See McCabe v. Watson, Fla.App. 1969, 225 So.2d 346; Chowning v. Pierce, Fla.App. 1965, 174 So.2d 42; Deese v. White Belt Dairy Farms, Inc., Fla.App. 1964, 160 So.2d 543. Furthermore, caution must be exercised in granting such motions in negligence cases in view of the established rule that questions relating to the existence of negligence or contributory negligence are normally questions of fact for the jury. See Zimmerman v. Langlais, Fla.App. 1971, 248 So.2d 694; Dambakly v. Mason, Fla.App. 1967, 194 So.2d 35; Le Fante v. Miami Air Conditioning Co., Fla.App. 1959, 111 So.2d 725.
Appellant's testimony was sufficient to raise a prima facie case of simple negligence committed by the hospital aide acting in the course and scope of her employment. The jury might legally have found that the hospital owed plaintiff a duty of reasonable care under the circumstances, that the hospital's employee breached this duty in the manner in which she manipulated the wheelchair, and that this breach of duty proximately caused or contributed to the extensive physical and mental injuries suffered by appellant.
Appellant's statement that she "didn't blame" the hospital employee for injuring her did not constitute a conclusive admission against appellant's interest that the hospital employee was not negligent. The issue as to the defendant's negligence remains for a jury determination giving such weight to the "admission against interest" as the jury might see fit. See Robb v. Pike, 119 Fla. 833, 161 So. 732 (1935).
Reversed and remanded.
HENDRY, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573731/ | 408 S.W.2d 257 (1966)
Verna Glenn BLAIR, Appellant,
v.
Douglas G. BLAIR, Appellee.
No. 16796.
Court of Civil Appeals of Texas, Dallas.
October 21, 1966.
Pat McDowell, Dallas, for appellant.
Clyde, Hines & Craig and Wallace S. Craig, Fort Worth, for appellee.
DIXON, Chief Justice.
Verna Glenn Blair has attempted to appeal from an order of the Juvenile Court of Dallas County, Texas, denying a motion to hold in contempt her former husband, Douglas G. Blair, for failure to pay child support.
The parties were divorced on August 8, 1949 and Douglas G. Blair was ordered to pay ten dollars per week as child support *258 until their child should reach the age of sixteen years. There has been no modification of the child support order.
On November 8, 1965 Verna Glenn Blair filed a motion to hold the father in contempt for failure to pay child support as ordered by the court. She alleged that the father was $7,800 in arrears in his payments. The court set the motion for hearing for December 16, 1965.
On the last named date the parties appeared in court in person and by their attorneys and announced ready for trial. The court considered the pleadings, the affidavits and other facts made known to the court, then denied the motion. The court's reasons for so holding, as recited in the order, are as follows:
"* * * the Court is of the opinion that as a matter of law that it does not have authority to hold the defendant in contempt of Court for failure to pay child support to the plaintiff when the hearing on such contempt motion brought to hold the defendant in contempt of Court for said failure to pay child support to plaintiff is had at a time after the minor child made the subject of the child support order has reached the age of eighteen years;
"It is therefore accordingly ORDERED, ADJUDGED AND DECREED by the Court that plaintiff's motion for contempt herein is denied for the reason that the hearing hereon of December 16, 1965, is after the eighteenth birthday of the minor child made the subject of the custody order heretofore entered by this Court."
Verna Glenn Blair excepted to the ruling of the court and gave notice of appeal to the Court of Civil Appeals.
It is conceded that the motion seeks only to hold the father in contempt for his failure to make payments which became due prior to the time the child reached the age of eighteen years.
In her first point on appeal Verna Glenn Blair asserts that the order in controversy is a final judgment, therefore we have jurisdiction of the appeal. Douglas Blair in his appellee's brief does not attack the appeal on the grounds of jurisdiction. In fact, in oral argument counsel for the father conceded that this court does have jurisdiction of the appeal.
Nevertheless, the question of jurisdiction is fundamental in nature and we cannot ignore it. We have concluded that the record shows on its face that we do not have jurisdiction of the appeal. Mitchell v. Mitchell, Tex.Civ.App., 266 S.W.2d 252; Ex parte Henderson, Tex.Civ.App., 300 S.W.2d 189, 190.
In the above cases the parties attempting to appeal had been held in contempt and sentenced to jail. In both instances it was held that a judgment of contempt was not appealablethe complainants' only remedy being by application for a writ of habeas corpus.
In the instant case the motion for contempt was denied. A release from jail is not involved, so the remedy of habeas corpus is not applicable. But the order of the court is not appealable. Appellant's remedy, if she has one, is by mandamus. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253; Gierczic v. Gierczic, Tex.Civ.App., 382 S.W.2d 495 (no writ hist.); Rushing v. Bush, Tex.Civ.App., 260 S.W.2d 900; Rosenfield v. Campbell, Tex. Civ.App., 276 S.W. 728; 12 Tex.Jur.2d 535.
In Allen v. Woodward, supra, our Supreme Court held that mandamus would lie in a case where a district judge denied a motion for contempt on the ground that he was without authority to grant the order.
We are not here deciding the question whether the Judge of the Juvenile Court has the authority to pass on the motion for contempt under the circumstances presented in this case. We are simply holding that the order complained of is not appealable, therefore the appeal must be dismissed.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573748/ | 408 S.W.2d 857 (1966)
Ruby Jewell MOTSINGER, Plaintiff-Appellant,
v.
QUEEN CITY CASKET COMPANY and Elmer Grant Brown, Defendants-Respondents.
No. 51647.
Supreme Court of Missouri, Division No. 2.
December 12, 1966.
*858 John B. Ewing, Jr., John Gibson, Marvin Brenner, Kansas City, Brenner, Ewing, Lockwood & O'Neal, Kansas City, of counsel, for appellant.
William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, Caldwell Blackwell Sanders & Matheny, Kansas City, of counsel, for respondents.
WESTHUES, Special Commissioner.
Plaintiff Ruby Jewell Motsinger filed a petition seeking damages in the Circuit Court of Jackson County, Missouri, against Queen City Casket Company and Elmer Grant Brown. In the first count of the petition, she asked $20,000 as damages for personal injuries and in a second count, she prayed for $550 as damages to her car. Plaintiff stated that the damages were the result of a collision of a truck driven by defendant Brown and owned by defendant Casket Company with plaintiff's car which she was driving. A trial resulted in a jury verdict for the defendants. Plaintiff appealed from the judgment entered on the verdict by the trial court.
Plaintiff briefed six points, all pertaining to Instruction No. 3, given by the trial court at defendants' request.
Plaintiff's case was submitted to the jury on the theory of defendants' failure "to keep a careful lookout, or drove at an excessive speed, or violated the traffic signal, * * *."
Defendants' defense was submitted by Instruction No. 3, the correctness of which is before this Court for decision on this appeal. We deem it best to quote it in full, as follows:
"Your verdict must be for the defendants, whether or not defendants were negligent, if you believe:
"First, plaintiff either:
failed to keep a careful lookout, or violated the traffic signal, or failed to make her left turn in the manner specified under the ordinance as to left turns which has been read in evidence, or
"Plaintiff knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have applied his brakes but plaintiff failed to do so.
"Second, plaintiff's conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
"Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained."
In the first four points briefed, plaintiff contends that there was insufficient evidence to sustain the charge of negligence relied on by the defendants and submitted by Instruction No. 3 in the disjunctive. In the last two points briefed, plaintiff says that Instruction No. 3 is erroneous for the reason that it violated S.Ct. Rule 70.01, V.A.M.R. We have concluded that plaintiff's last two points must be sustained. In view of the fact that the case must be remanded, it would serve no useful purpose to rule on the first four points. We cannot say that the parties on a retrial will submit the case *859 on the same issues as they did on the first trial.
The record disclosed that the collision occurred on November 29, 1962, at about 11:45 a.m., at the intersection of Noland Road and Highway 50 in Jackson County, Missouri. Plaintiff was driving her car south on Noland Road, intending to turn left and to the east on Highway 50. Defendant Brown was driving a truck west on Highway 50, intending to go to Kansas City, Missouri. At the time, there was an electric signal device at the intersection. Mr. Brown, the driver of the truck, and plaintiff each testified that the green light was in his or her favor as they neared the intersection; further, each claimed that the speed of his or her vehicle was about 35 miles per hour immediately before they reached the intersection.
Plaintiff testified that as she was approaching the intersection she reduced the speed of her car by taking her foot off the accelerator intending to make a left turn onto Highway 50; that as she entered the intersection, the electric signal was green in favor of southbound traffic; that just as she was beginning the left turn, the impact took place; that when she first saw defendants' truck, "He was coming so fast I didn't have time to do anything." She admitted that she did not apply the brakes, stating that she had no time to do that. Defendants' truck struck plaintiff's car broadside at the left front door. Plaintiff sustained serious injuries and her car was damaged.
Brown testified that as he approached the intersection, and when about 400 feet east of the light, the light turned green for westbound traffic; that he saw plaintiff's car when he was about 250 feet from the intersection; that he applied the brakes but could not stop in time to avoid the collision. He admitted that he did not give any warning nor did he swerve. There was a dispute as to the distance skid marks were visible on the pavement of Highway 50. A police officer measured skid marks in the presence of Brown. The officer testified that the marks extended from the truck back for a distance of 241 feet. Brown claimed the skid marks made by his truck were not more than 50 to 100 feet in length.
Rule 70.01, supra, provides, in substance, that a failure to follow the Missouri Approved Instructions forms shall be deemed error and that the question of whether the error constitutes prejudicial error shall be judicially determined.
In preparing Instruction No. 3, defendants evidently followed forms found in No. 28.01 and No. 17.04 of the Missouri Approved Jury Instructions.
Plaintiff says that in the last paragraph of the part of the instruction marked "First," as above set forth, the defendants used the words "* * * in time thereafter to have applied his [her] brakes * * *" in lieu of the words "slackened her speed" as prescribed in MAI No. 17.04; further, that the word "and" was omitted between the paragraph "First" and paragraph marked "Second." Plaintiff states that the deviation from the approved forms rendered the instruction erroneous.
In answer to plaintiff's contention, defendants stated in their brief that "The trial court properly gave to the jury Instruction No. 3 which used the term `applied her brakes' rather than `slackened her speed,' because that modification of the approved instruction was required in order for the instruction to conform to the evidence." Defendants further stated that "There was no prejudicial error in the failure of Instruction No. 3 to include the word `and' between Paragraph First and Paragraph Second." Defendants also called our attention to Rule 70.01 and contend that the instruction is not prejudicially erroneous.
We cannot agree with defendants that the substitution of the words "applied her brakes" for the phrase "slackened her speed" was required in order for the instruction to conform to the evidence. For *860 example, defendant Brown admitted that he did not sound the horn of the truck at any time while approaching the intersection. If plaintiff had wished to submit her case on failure to warn, she would have been required to use the words prescribed in MAI No. 17.04, "sounded a warning" and not the words "sounded the horn." The speed of the car may be slackened by other means than by applying the brakes. So, a warning may be given by other means than sounding a horn. It is obvious that the instruction, as given, was more favorable to the defendants than it would have been if the instruction had conformed to the prescribed form. The omission of the word "and" after the first portion of the instruction made the instruction erroneous.
Counsel for the defendants took advantage of the language in his argument to the jury. Note what he said: "* * * But, gentlemen there just can't be any dispute about this because this lady said not over an hour ago, `I failed to apply my brakes,' and here's the Judge saying to you that the law is if you believe that she failed to use the highest degree of care in not applying her brakes, and that helped cause the collision, then she can't recover. Well, gentlemen, if this lady had just looked before she did and put on her brakes she could have stopped, but instead we see a path that she just kept on coming until she hit Elmer Brown's truck."
The members of the jury may have concluded (nine signed the verdict) that the court was advising them that a failure on plaintiff's part to apply the brakes justified a verdict for the defendants even if, as plaintiff testified, the traffic signal was green in her favor and she did not have time to apply the brakes because defendants' truck was coming on with great speed.
This Court was asked by The Missouri Bar to provide forms of instructions to be used in jury trials. Outstanding members of the Bar were appointed to perform the task of making recommendations. Their work was approved by this Court en Banc. To accomplish the purpose for which the forms were prepared, the courts must insist that they be utilized. If we permit unnecessary deviations, no useful purpose will have been accomplished. The committee appointed by the Court gave the following warning when it submitted its report to the Supreme Court (MAI,XXI): "There are hundreds of currently acceptable instructions which use language more favorable to one side or the other than the proposed instructions. If counsel are permitted to `improve' the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such `improvement' by one counsel will prompt an offsetting `improvement' by his opponent and after a while the court will not be able to find the original with a divining rod."
The above-quoted warning, taken from MAI, was quoted in an opinion of this Court, prepared by the Honorable John J. Wolfe, Special Judge, in the case of Leathem v. Longenecker, 405 S.W.2d 873. What the Court said in that opinion supports our conclusion.
The judgment of the trial court is reversed and the cause is remanded for retrial. It is so ordered.
PER CURIAM:
The foregoing opinion by WESTHUES, Special Commissioner, 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/1575422/ | 458 S.W.2d 116 (1970)
The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant,
v.
Federico SALAZAR, Appellee.
No. 6098.
Court of Civil Appeals of Texas, El Paso.
July 15, 1970.
Rehearing Denied September 30, 1970.
*118 Scott, Hulse, Marshall & Feuille, George W. Finger, James L. Gallagher, El Paso, for appellant.
Kemp, Smith, White, Duncan & Hammond, Wyndham K. White, El Paso, amicus curiae for Southern Pacific R. R.
Hardie, Grambling, Sims & Galatzan, Harold Sims, El Paso, amicus curiae for Atchison, Topeka & S. F. R. Co.
Dan Sullivan, Andrews, for appellee.
OPINION
FRASER, Chief Justice.
The appellee, Federico Salazar, sued the appellant, The Texas and Pacific Railway Company, for personal injuries and property damage resulting from a car-train accident which occurred in appellant's El Paso, Texas switchyards at the Cotton, or Tornillo, Street crossing on June 30, 1965.
Trial was submitted to the jury on special issues. The jury found, in answer to the first issue, that the crossing in question was extra-hazardous, and answered Issues 2, 3, 4, 7, 8 and 9 as follows: That an ordinarily prudent person in the exercise of ordinary care due to conditions, if any, surrounding such crossing, would have had a flagman at said crossing whose only duty would have been to flag automobiles and foot-traffic on such crossing; that the defendant failed to have such a flagman at the crossing in question; that such failure was a proximate cause of the injuries suffered by plaintiff Federico Salazar; that at the time and on the occasion in question, defendant required its flagman, one George Adkins, to operate the track switches, pass signals to the train engineer, and flag traffic on Cotton Street at the same time; that such requirement by the defendant of its flagman was negligence, and that such negligence was a proximate cause of the injuries suffered by the plaintiff. The jury did not find any other act of primary negligence against appellant, so it appears that the main issue in this case is whether the defendant should have had a flagman whose sole duty was to act as flagman in protecting traffic across the crossing in question.
The record reveals that at the time of the accident, an engine operated by the defendant was pushing 23 cars westerly on Track No. 2. The crossing in question consists of a dirt street with poorly defined boundaries which crossed 14 tracks at approximately right angles. The street runs generally north and south, while the tracks run generally east and west. Prior to the accident, the engine had pulled the 23 cars over the track in an easterly direction in order to switch over the crossing to couple into a string of cars which were standing adjacent to the crossing on the west side. The appellee, Salazar, was driving his automobile across the tracks in a northerly direction when the lead boxcar struck his automobile, shoving it across the dirt street into the string of boxcars standing west of the crossing. This occurred at approximately 9:30 P.M. There were boxcars standing next to the crossing on various tracks and, apparently, a boxcar was standing on the No. 5 track just east of the crossing. This No. 5 track was located approximately 13 feet south of the No. 2 track, on which the accident occurred. Appellee maintains that, as he was driving across the tracks, he saw two men standing approximately 40 yards from the crossing by a switch, and that one of the men suddenly started running toward the crossing, and at that very moment appellee claims *119 that he saw the boxcar at the right-hand side of his automobile. Appellee contended that the flagman was negligent in his manner of signaling, and in failing to properly station himself where he could effectively signal the engine of the train, and also failed to keep a proper lookout. Appellant maintains that the flagman saw the Salazar vehicle proceeding slowly across the crossing and immediately began signaling for said said vehicle to stop, and when the vehicle did not stop, he gave emergency stop signals to the engineer and ran toward appellee's automobile and yelled for Salazar to stop, but the automobile, according to the flagman, continued forward over the No. 5 track and continued on until he stopped on the No. 2 track where the accident occurred.
Appellant does not make any complaint about the submission of Special Issue No. 1, which inquires whether or not the Cotton Street crossing was an extra-hazardous crossing, nor does the appellant complain of the court's definition of the term "extrahazardous". There does not seem to be any contention between the parties that the Cotton Street crossing was, as found by the jury, an extra-hazardous crossing and, in any event, the record amply supports the submission of such issue and the jury's affirmative answer thereto.
The parties, however, violently disagree as to the nature of the protection that appellant provided at the said crossing, as evidenced by appellant's Points 1-8. There are many cases holding that where an extra-hazardous crossing exists, the railroad must protect traffic by such means as would be done by a reasonably prudent person under the same or similar circumstances. It does not matter whether it is a flagman or a form of mechanical or electrical device, the real test being whether the warning given is sufficient and adequate and in operation at the time of the accident. Galveston H. & S. A. Ry. Co. v. Wells, 121 Tex. 310, 50 S.W.2d 247; 48 Tex.Jur.2d § 307; Cisco & N. E. Ry. Co. v. Wood, 244 S.W. 834 (Tex.Civ.App., err. dis'm); Texas and New Orleans Ry. Co. v. Hart, 163 Tex. 450, 356 S.W.2d 901. It has been held that the mere presence of one whose several duties consist of that of flagman may not be enough under the circumstances there present. This point is particularly brought out in Cisco & N. E. Ry. Co. v. Wood (supra). In Southwest Stone Co. v. Symons, 237 S.W.2d 380 (Tex. Civ.App., wr. ref. n. r. e.), the court specifically stated that the duty with regard to hazardous crossings and negligence was to do what a reasonably prudent person would have done under the same or similar circumstances. In Missouri Pacific Railroad Company v. Rose, 380 S.W.2d 41 (Tex.Civ.App., ref. n. r. e.), the court held that the flasher system was not adequate and that the railroad was obligated, in addition, to supply a flagging system. See also Galveston H. & S. A. Ry. Co. v. Wells (supra), where the court stated that the rule to warn travelers at an extra-hazardous crossing is complied with if either mechanical or flagman type warning was sufficient to warn travelers of the dangers inherent to the use of the crossing. As heretofore stated, these cases also point out that whatever method is used, it must be adequate and working. In other words, a mechanical system must be adequate, or the flagman must be a person able to carry out his duties, and it is implied that he must not have any other duties if it detracts from his proper conduct of his job as flagman. Appellee cites two other cases from other jurisdictions where it was held that it was negligence to provide a flagman who was incapable of reasonably discharging his duties because of any physical disability or age. McNamara v. Chicago, R. I. & P. Ry. Co., 126 Mo.App. 152, 103 S.W. 1093; Ryan v. Louisiana Ry. & Nav. Co., 146 La. 40, 83 So. 371.
As stated, the jury in the case before us found the switchyard to be an extra-hazardous crossing, a finding which is amply supported in the evidence. The switchyard, being an extra-hazardous crossing, required the railroad to take such *120 steps as would be reasonably prudent in order to protect traffic at this crossing. As stated above, the railroad provided a flagman whose duties consisted not only of acting as flagman, but handling switches and passing signals to engineers. We do not believe this was reasonably prudent protection, and, in failing to so provide, the appellant was guilty of negligence, and such negligence was a proximate cause of appellee's injuries and damages. The jury found that an ordinarily prudent person, in the exercise of ordinary care, due to the conditions, if any, surrounding such crossing, would have had a flagman at said crossing whose only duty was to flag automobiles and foot traffic on such crossing, and that the appellant's failure to do so was a proximate cause of the injuries suffered by plaintiff, Federico Salazar; and further found that requiring its flagman to operate such switches, pass signals to the train engineer, and flag automobile traffic on Cotton Street, was negligence and a proximate cause of the injuries suffered by Federico Salazar. With these findings we agree.
For the above reasons, appellant's Points 1 through 8 are overruled.
In its Points of Error Nos. 9, 10, 11 and 12, the appellant contends that appellee's Special Issues 2, 3, and 4, inquiring whether the defendant was negligent in failing to provide a flagman at Cotton Street whose only duty was to flag automobile traffic, and whether such negligence was a proximate cause of the collision, is merely the submission of evidentiary issues and, although affirmatively answered by the jury, could not support the judgment, and insists that the controlling issues were whether or not the flagman, George Adkins, properly performed his duties as would a reasonably prudent person. Appellant levels the same complaint against Special Issues 7, 8 and 9, which issues inquire whether or not it was negligence, proximately causing the collision, to require the flagman to operate track switches and pass signals to the engineer at the same time he attempted to flag traffic on Cotton Street. These issues were all answered "Yes" by the jury. We cannot agree with appellant's contention. We believe that these issues or questions inquire into the truth of material propositions of fact which constitute component elements of a ground of recovery or defense. Appellee pleaded that Cotton Street was an extra-hazardous crossing and that defendant was negligent in assigning a flagman or switchman the duties of signaling the train, working the switches, and serving as a flagman at the crossing, all at the same time, and that defendant was negligent in failing to place additional flagmen, a gate, or automatic warning device at such crossing. Appellee further pleaded that, had such been done prior to the collision, the collision would not have occurred; and therefore defendant was guilty of negligence in failing to have either an additional flagman, a gate, or automatic signaling device at such crossing. Appellant did not level any special exceptions to appellee's pleadings relating to matters contained in Special Issues 1, 2, 3, 4, 7, 8 and 9, to the effect that such matters did not constitute a cause of action, and further allowed appellee to offer evidence upon such matters. We feel that these issues were not evidentiary issues, but were controlling issues and necessary components to the cause of action. The Supreme Court has set this matter out very clearly in the case of Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, wherein the court states:
"A fair and commendable practice would be for the trial court to submit substantially the essential component elements of an issue. As an illustration, we will take a negligence case. As a general rule, in such a case the four component elements of the ultimate issue must be shown: (1) that the defendant did an act, (2) that the act was an act of negligence, (3) that the act of negligence was the proximate cause of the plaintiff's damage, and (4) that the plaintiff was damaged."
*121 Appellant's Points 9, 10, 11 and 12 are therefore overruled.
Appellant's Points 13 through 20 complain that Special Issues 2, 3, 4, 7, 8 and 9 of the court's charge would not support a judgment for the reason that a failure to provide a flagman whose only duty was to flag automobile traffic, or the requirement by the railroad company that the flagman also operate track switches, pass signals to the engineer, as well as flag automobile traffic on Cotton Street, could not constitute negligence nor be a proximate cause of the collision as a matter of law. As we have stated, negligence is usually defined as the doing of something that a person of ordinary prudence would not have done under similar circumstances, or the failure to do something that a person of ordinary prudence would have done under the same or similar circumstances. Also, reference is made to the specific definition of negligence set out in Wichita Falls & Oklahoma Ry. Co. v. Pepper (supra). Summed up, negligence is simply failure to observe a legal duty. Here, it has already been established, we think, that the railroad company failed in its duty to use extraordinary means to warn traffic because this was an extra-hazardous crossing, and such failure was the proximate cause of the accident. Further, it must be pointed out that the jury specifically found that appellee did not fail to keep a proper lookout for his own safety, did not fail to apply his brakes at a time that a reasonably prudent person would have applied his brakes, and that he did not receive a proper warning prior to the collision. The jury, therefore, convicted the railroad of negligence and exonerated the appellee of any contributory negligence. Therefore, we feel that Issues 2, 3, 4, 7, 8 and 9 are adequate to support a judgment for the appellee, as the matters contained therein establish negligence and proximate cause of the collision. Appellant's Points 13 through 20 are therefore overruled.
Appellant's Point of Error No. 21 is overruled as the matter raised there has already been disposed of, and Issues 2, 3, 4, 7, 8 and 9 are not controlled by any other issues.
Appellant's Point of Error No. 22 is also overruled, as we find no material conflict with the jury findings.
Appellant's Points of Error 23 through 38 have already been disposed of, and are therefore overruled.
Appellant's Points 39 through 42 complain that the jury's findings with reference to Issues 2, 4, 7, 8 and 9 are against the great weight and preponderance of the evidence. We overrule these points as it is clear from the record, as appears from our previous statements in this opinion, that there is no merit in these points and that there was adequate evidence to support the answers to the issues mentioned.
Appellant's Points of Error 43 and 44 complain that Issues 2, 3, 4, 7, 8 and 9 are duplicitous and constitute a multiple submission of a single theory, and that the court erred in overruling appellant's motion to disregard the jury's findings and motion for judgment non obstante veredicto, and amended motion for new trial, on the ground that Issues 2-4 and 7-9 are duplicitous. We find no merit in these points, as each issue asks clear questions regarding an important component of a matter, and are therefore not duplicitous of the matter in controversy. These points are therefore overruled.
We find no error in appellant's Points 45 and 46, and same are overruled.
Appellant's Points of Error 47 through 57 all complain of the action of the court and jury in assessing the amount of damages and the manner of arriving at said amount. We overrule these points for the following reasons.
*122 The issue as submitted is as follows:
"QUESTION NO. 57
"What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence, will fairly and reasonably compensate the Plaintiff, Federico Salazar, for his injuries, if any, directly and proximately caused by the collision in question, taking into consideration the following elements of damage and none other:
"(A) Such sum or sums of money, if any, as Federico Salazar has lost as a result of time lost from his business, if any, as a direct result of his injuries, if any, directly and proximately caused by the collision in question, from the date of said injuries, if any, down to the date of trial.
"(B) The present cash value of such sum or sums of money, if any, as Federico Salazar will in reasonable probability lose in the future beyond the date of his trial because of his disminished capacity to work and earn money in the future, if any, as a direct result of his injuries, if any, directly and proximately caused by the collision in question.
"(C) Physical pain and mental suffering, if any, suffered by Federico Salazar from the date of the collision to the date of his trial as a direct result of his injuries, if any, directly and proximately caused by the collision in question.
"(D) The present cash value of such physical pain and mental suffering, if any, which in reasonable probability Federico Salazar will suffer in the future, beyond the date of this trial, as a direct result of the injuries, if any, directly and proximately caused by the collision in question.
"You must not take into consideration in determining the amount of damages, if any, any physical pain and suffering, mental anguish, lost earnings, or lost earning capacity, either past or future, which is directly and proximately caused by any pre-existing disease, injury, infection, or bodily infirmity of the Plaintiff, except in so far as such pre-existing disease, injury, infection or bodily infirmity, if any, may have been aggravated by the Defendant's negligence, if any, on the occasion made the basis of this suit, if you have found that they have been aggravated.
"Answer by stating the amount, if any, in dollars, if any, and cents, if any.
"ANSWER: $200,668.00"
We have examined the record and have found voluminous evidence to support the elements of damages pleaded and alleged by appellee. It must be remembered that plaintiff lost an arm and suffered severe internal injuries. Documentary evidence such as income tax returns and profit and loss statements, are all in the record and show, to some extent, his loss of earnings and income. We have examined the cases cited by appellant and find that most of them are lacking in documentary evidence that plaintiff has here produced to show his loss of earnings and income. We feel that the record is amply adequate, from a documentary point of view, to show said loss of earnings and income as evidenced by the many exhibits. In addition, there is testimony from his treating doctor that he sustained a 95 per cent functional disability to his right extremity, or a 55 or 60 per cent disability to the body as a whole. As to future physical pain, appellee himself testified that the pain had continued from the time of the injury to the time of the trial, and his doctor testified that an injury like his was "quite painful", and that in amputations, other than just the traumatic experience and surgery, there is another type of pain which may linger on in various individuals for months and even sometimes for years afterward. It has always been peculiarly within the province of the jury to resolve *123 these matters and assess the amount of such damages. Arrington v. Paschall, 352 S.W.2d 866 (Tex.Civ.App., error ref., n. r. e.); Hunt v. Joske Bros. Co., 300 S.W. 201 (Tex.Civ.App., dis'm). As seen from the quoted issue, the court properly limited the jury's consideration of future damages to those which would "in reasonable probability be sustained by appellee in the future". See also English v. Hegi, 337 S.W.2d 860 (Tex.Civ.App., n. w. h.); Southern Pacific Railroad v. Montalvo, 397 F.2d 50 (5th Cir. 1968). Appellee urges that diminished earning capacity and future pain can be presumed in a case involving the traumatic amputation of the right arm of a right-handed man who operates a wholesale grain business and does most of the physical labor himself. On the basis of the record, which includes the age, earning capacity, etc., before and after the accident, along with pain and suffering, etc., we do not feel that the jury verdict of $200,688.00 was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.
Appellant's Points of Error 58 through 64 must be overruled for the following reasons. In these points appellant complains that the jury verdict was excessive, not supported by the evidence, tainted with passion and manifestly wrong and unjust, and that these matters can be inferred by the large size of the verdict; and that the court erred in refusing to order a remittitur. It has been held that in passing on whether a verdict is excessive, the evidence in support of the award must be viewed in the light most favorable to the award. Hill & Hill Truck Line v. Van Schoubroek, 233 S.W.2d 167 (Tex.Civ. App. n. w. h.); Green v. Rudsenske, 320 S.W.2d 228 (Tex.Civ.App. n. w. h.). Also, change in cost of living and purchasing power of the dollar should be considered. 17 Tex.Jur.2d § 334, p. 408. In 17 Tex. Jur.2d § 335, p. 410, the text points out that the enlightened, conscientious and fair judgment of the jury in the light of the evidence constitutes the sovereign test of a proper award of damages. We do not feel that the award here is excessive and, consequently, not subject to remittitur.
Appellant's Points of Error 65 through 67 deal with the appellee's closing arguments to the jury. We have studied these arguments and do not find that they offend the rules regarding jury argument in this type of case. While vigorous, we do not feel that the arguments inflame the passions of the jury or attempt to inform them of the effect of their answers. Rule 269, Texas Rules of Civil Procedure, expressly provides that counsel shall be required to confine argument strictly to the evidence and to the arguments of the opposing counsel. We do not believe this rule has been violated by the arguments here present. Appellant also complains that attorney for appellee accused appellant of having suborned perjury and further accused appellant of attempting to impeach its own witness, when the witness was not appellant's witness. With this contention we cannot agree, nor do we agree that the cumulative effect of the argument of appellee's attorney was calculated to and probably did cause the rendition of an improper verdict and judgment. Lastly, all of the objections made by appellant were sustained except the last objection. We have studied this argument and do not find reversible error therein.
Appellant's Points of Error 68 through 72 do not show error. These points are concerned with the appellant's allegation that the trial court erred, first, in refusing to permit defendant to offer into evidence portions of the J. M. Madrid deposition. This was not error, because Mr. Madrid did not admit that he was guilty of the theft with which he was charged. It has been held that proof of a mere charge or indictment of an offense involving moral turpitude may be shown only when a witness presently admits that he is guilty of the offense. 62 *124 Tex.Jur.2d § 279, pp. 260-263; Christie v. Brewer, 374 S.W.2d 908 (Tex.Civ.App., err. ref. n. r. e.). Here, the witness Jose M. Madrid testified that he was erroneously accused of theft, and no evidence was introduced that he had been convicted of the offense. Appellant also complains that the court erred in refusing to allow appellant to offer into evidence testimony of Robert E. Eiland. We find no error here, as the bill of exceptions shows that his testimony was based largely on hearsay evidence, and exhibited a lack of personal knowledge of the investigation he purported to testify about. It is also obvious that had the Madrid testimony regarding having been fired on accusation of theft been admitted, it would have created improper bias and prejudice. Points 68 through 72 are overuled.
Appellant's Points of Error 73 through 76 complain of the court's refusal to allow appellant to reopen the case in order to offer additional testimony. These points must be overruled, because we do not see how appellant could have been injured by the court's action. In the first place, appellant wished to offer evidence as to whether or not Harry Cecil was at the scene of the accident on the night in question, which appears to be a collateral issue and an attempt on the part of the appellant to reopen the case in an attempt to bolster the position of the witness. It further appears from the record that appellant had had opportunity to develop the matter before the close of the case. We do not find error in appellant's Point 76, wherein it charges the court with error in overruling appellant's amended motion for new trial on the ground of the court's alleged prejudicial error and abuse of discretion in refusing to permit appellant to reopen.
Appellant's last point, No. 77, simply asserts that the cumulative effect of all errors amounted to a denial of the appellant's right to a fair trial, and probably caused the rendition of an improper and excessive verdict and judgment. This point is overruled.
All of appellant's points of error are accordingly overruled, and the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/310871/ | 478 F.2d 231
KUNSTSAMMLUNGEN zu WEIMAR, Plaintiff-Appellant,v.Edward I. ELICOFON, Defendant-Appellee.FEDERAL REPUBLIC OF GERMANY, Plaintiff-Appellee,v.Edward I. ELICOFON, Defendant-Appellee,Elisabeth Mathilde Isidore Erbgrossherzogin vonSachsen-Weimar-Eisenach (Grand Duchess ofSaxony-Weimar), Plaintiff-Intervenor-Appellee,Kunstsammlungen zu Weimar, Proposed Plaintiff-Intervenor-Appellant.
Nos. 748-749, Dockets 72-2305 and 72-2306.
United States Court of Appeals,Second Circuit.
Argued April 24, 1973.Decided April 25, 1973.
Harry I. Rand, New York City (Lawrence M. Kaye, Botein, Hays, Sklar & Herzberg, New York City, on the brief), for proposed plaintiff-intervenor-appellant.
Richard W. Hulbert, New York City (Cleary, Gottlieb, Steen & Hamilton, New York City, on the brief), for defendant-appellee Elicofon.
Albert D. Jordan, New York City (Elliot Paskoff, Horst Kurnik and Valicenti, Leighton, Reid & Pine, New York City, on the brief), for defendant-appellee Federal Republic of Germany.
Herbert Strong, New York City, for plaintiff-intervenor-appellee Duchess of Saxony-Weimar.
Before BREITENSTEIN,* KAUFMAN and MANSFIELD, Circuit Judges.
PER CURIAM:
1
On January 27, 1969, the Federal Republic of Germany brought suit in the district court for the Eastern District of New York against Edward Elicofon, a New York resident, to recover two valuable paintings by the renowned artist Albrecht Duerer, alleged to have been stolen in 1945 from Schwartzburg Castle in Germany during the American Occupation. The Federal Republic asserts that the paintings, executed in the year 1499, are the property of the German people, having been in the possession of a state museum at the time of theft, and that it is the only government that may properly represent the German people in an American court. On March 25, 1969 the Grand Duchess of Saxony-Weimar was granted leave to intervene, based on a claim that the Duerer masterpieces have been part of the collection of the Grand Duke of Saxony-Weimar since 1824 and that title to the paintings rests in her through an assignment from the Grand-Duke.
2
On April 14, 1969, the Kunstsammlungen zu Weimar (Weimar Art Collection), an entity existing under the laws of the German Democratic Republic, sought leave to intervene, and brought a separate action against Elicofon for return of the paintings. The Kunstsammlungen asserts that it has custody over the art collection from which the paintings allegedly were stolen and is, accordingly, the rightful owner of the Duerer works.
3
The motion to intervene was opposed by all parties, and Elicofon moved to dismiss the separate action brought against him by the Kunstsammlungen zu Weimar. In essence the Federal Republic of Germany, the Grand Duchess and Mr. Elicofon took the position that the Kunstsammlungen Zu Weimar is an arm and agency of the German Democratic Republic, a government not recognized by the United States, and as such is without standing to sue in American courts. In addition, the United States Department of Justice, acting in behalf of the Department of State, filed a "Suggestion of Interest of the United States" indicating the following.
4
1. The United States Government does not recognize the East German regime.
5
2. The United States Government recognizes the Federal Republic of Germany as the only German Government entitled to speak for Germany as the representative of the German people in international affairs.
6
3. The United States Government recognizes the Federal Republic of Germany as entitled in this litigation to represent the Weimar Museum as trustee of its interests.
7
In an opinion filed on June 25, 1970, Chief Judge Mishler ruled that the German Democratic Republic would not be entitled to sue in its own right to recover the two Duerer paintings. Following an evidentiary hearing, Chief Judge Mishler ruled, in an opinion filed September 26, 1972, that the Kunstsammlungen zu Weimar was an arm and agency of the German Democratic Republic and, as such, was barred from suit. Accordingly, leave to intervene was denied and the motion to dismiss made by Elicofon was granted. This appeal followed.
8
We affirm for the reasons given in Chief Judge Mishler's two opinions, reported at 358 F. Supp. 747 (E.D. N.Y.1973). Moreover, we find no merit in the argument advanced here that the Kunstsammlungen zu Weimar is an arm of the government of the Union of Soviet Socialist Republics and therefore an agency of a recognized government previously granted litigant status.
*
Of the United States Court of Appeals for the Tenth Circuit, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1004266/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4051
THOMAS DALE RICE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-99-28)
Argued: December 8, 2000
Decided: May 3, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN
& SAYERS, P.C., Roanoke, Virginia, for Appellant. Anthony Paul
Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Roanoke, Virginia, for Appellee.
2 UNITED STATES v. RICE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Thomas Dale Rice was indicted for crossing the state line between
West Virginia and Virginia for the purpose of engaging in a sexual
act with a thirteen-year-old adolescent. See 18 U.S.C.A. § 2423(b)
(West 2000). Rice pled guilty and was sentenced to a prison term of
sixty-three months. He appeals his sentence on the ground that the
district court erred in applying United States Sentencing Guidelines
Manual (U.S.S.G.) § 2A3.1 rather than § 2A3.2. We are constrained
to agree. We vacate Rice’s sentence and remand the matter to district
court for further consideration.
I.
In February 1999, using the screen name "EP Mentor," Rice came
into contact with a law enforcement investigator posing as "Matt" in
an Internet "chat room." "Matt" told Rice that he was thirteen years
old.1 Rice was fifty-eight years old at the time. "Matt" talked to Rice
about questions "Matt" was having regarding his sexual orientation,
and Rice offered to answer questions about homosexuality, described
a variety of homosexual acts, and offered to meet "Matt" to perform
certain acts of intercourse with "Matt." The Internet conversations
between Rice and "Matt" progressed to the point that Rice revealed
his real name and sent "Matt" pictures of himself, his car, and his
home. He also gave "Matt" phone numbers where he could be reached
during this time period. Eventually, after a number of e-mails and
telephone calls, Rice, who lived in West Virginia, arranged to meet
"Matt" at a motel in Bedford, Virginia, where the boy supposedly
1
There is some discrepancy in the record about whether the investiga-
tor initially indicated that "Matt" was thirteen or fourteen years old, but
Rice concedes that the investigator eventually told him that "Matt" was
thirteen years old.
UNITED STATES v. RICE 3
lived. On February 20, 1999, Rice drove from West Virginia to Bed-
ford and registered at the motel under the name "E.P. Mentor." After
making preparations for the sexual activity, Rice drove to a school
where he had arranged to meet "Matt" and was there arrested.
Rice pled guilty to violating 18 U.S.C.A. § 2423(b), which makes
interstate travel with intent to engage in a sexual act with a juvenile
a criminal offense:
Travel with intent to engage in sexual act with a juvenile.—
A person who travels in interstate commerce . . . for the pur-
pose of engaging in any sexual act (as defined in section
2246) with a person under 18 years of age that would be in
violation of chapter 109A if the sexual act occurred in the
special maritime and territorial jurisdiction of the United
States shall be fined under this title, imprisoned not more
than 15 years, or both.
18 U.S.C.A. § 2423(b).2
Rice was sentenced in January 2000. Under the 1998 version of the
sentencing guidelines, which was then appropriate to use, the district
court was faced with three potentially applicable sentencing guide-
lines for Rice’s violation of section 2423(b): U.S.S.G. § 2A3.1,
U.S.S.G. § 2A3.2, and U.S.S.G. § 2A3.3. See U.S.S.G. App. A. When
more than one guideline is applicable for a particular statute, the sen-
tencing court must "use the guideline most appropriate for the nature
of the offense conduct charged in the count of which the defendant
was convicted." U.S.S.G. App. A, intro. comment.; see U.S.S.G.
§ 1B1.2, comment. (n.1) (1998).
Rice contended, as did the probation officer who prepared the pre-
sentence report, that the most appropriate sentencing guideline for his
offense was U.S.S.G. § 2A3.2, entitled "Criminal Sexual Abuse of a
Minor (Statutory Rape) or Attempt to Commit Such Acts," which
imposed a base offense level of 15. By contrast, the Government
2
Rice also pled guilty to using certain personal property in the commis-
sion of the underlying offense and agreed to the forfeiture of the prop-
erty. See 18 U.S.C.A. § 2253 (West 2000).
4 UNITED STATES v. RICE
asserted that the most appropriate guideline was U.S.S.G. § 2A3.1 —
"Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse"
— which fixed a more substantial base offense level of 27.
The district court agreed with the government that U.S.S.G.
§ 2A3.1 was the proper guideline. The district court observed that
§ 2A3.2 was "analogous to simple statutory rape." J.A. 53. However,
the district court concluded that Rice’s conduct, if successful, "would
not have been simple statutory rape" but "would have been more anal-
ogous to sexual abuse." J.A. 53. The court based this conclusion on
the age disparity between Rice and "Matt" as well as the supposed
immaturity and naivety of the ostensible victim. Accordingly, the dis-
trict court applied U.S.S.G. § 2A3.1 in determining Rice’s sentence
and imposed a term of 63 months.
II.
We review the sentencing court’s selection of the appropriate
guideline de novo. See United States v. Davis, 202 F.3d 212, 218 (4th
Cir.), cert. denied, 120 S. Ct. 2675 (2000). Our task is simply to select
the most appropriate guideline for the nature of the offense by "com-
par[ing] the guideline texts with the charged misconduct." United
States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993). When a
defendant is to be sentenced for a crime such as Rice’s where the gra-
vamen of the offense is crossing a state line with intent to commit one
of several defined crimes, we hold that in choosing between allowable
guidelines sections the court should use the guideline for the offense
that the court reasonably finds, based upon all the facts and circum-
stances, would have been committed if the defendant’s efforts had
continued to fruition. With this principle in mind, we review the issue
before us.
The district court selected the criminal sexual abuse guideline set
forth in U.S.S.G. § 2A3.1. This guideline was drafted to cover con-
duct prohibited by 18 U.S.C.A. §§ 2241 and 2242 (West 2000).
Broadly speaking, sections 2241 ("Aggravated sexual abuse") and
2242 ("Sexual abuse") criminalize conduct in which the victim,
regardless of his or her age, has been coerced into sexual activity by
force or threats, or conduct in which a person has engaged in sexual
activity with an incapacitated victim. See 18 U.S.C.A. §§ 2241, 2242.
UNITED STATES v. RICE 5
Section 2241 covers sexual abuse under aggravated circumstances
that unquestionably are not present in this case, including the actual
application of force or the use of death threats against the victim. See
18 U.S.C.A. § 2241(a).
Section 2242 is likewise inapplicable to Rice’s anticipated miscon-
duct. Section 2242 provides:
Whoever, in the special maritime and territorial jurisdiction
of the United States or in a Federal prison, knowingly—
(1) causes another person to engage in a sexual act by
threatening or placing that other person in fear (other than
by threatening or placing that other person in fear that any
person will be subjected to death, serious bodily injury, or
kidnaping); or
(2) engages in a sexual act with another person if that
other person is—
(A) incapable of appraising the nature of the con-
duct; or
(B) physically incapable of declining participation
in, or communicating unwillingness to engage in,
that sexual act;
or attempts to do so, shall be fined under this title, impris-
oned not more than 20 years, or both.
18 U.S.C.A. § 2242. We find nothing in the indictment or the record
of Rice’s guilty plea that convinces us that Rice threatened "Matt" or
attempted to place him in fear or otherwise overcome his will such
that the intended sexual encounter would have been nonconsensual.3
3
Likewise, Rice’s charged misconduct simply does not indicate that
Rice attempted to employ deception and "psychological force" in per-
suading "Matt" to agree to a rendezvous. The Government argues that
Rice applied "psychological force" by telling "Matt" that Rice was a "fa-
6 UNITED STATES v. RICE
Rice’s offense conduct, therefore, fits better within the attempted
statutory rape guideline — U.S.S.G. § 2A3.2. This guideline specifi-
cally refers to the federal statute criminalizing sexual abuse of a
minor, 18 U.S.C.A. § 2243(a) (West 2000), which makes it a crime
to "knowingly engage[ ] [or attempt to engage] in a sexual act with
another person who— (1) has attained the age of 12 years but has not
attained the age of 16 years; and (2) is at least four years younger than
the person so engaging." 18 U.S.C.A. § 2243(a). The conduct pro-
scribed by this provision would be consensual but for the age of the
victim. Rice’s plan falls within this guideline more comfortably than
the criminal sexual abuse guideline. Despite the offensive nature of
Rice’s proposal, he never threatened or attempted to coerce "Matt"
and there is nothing before us indicating that he intended to do so.
Rice was also forthcoming about his age, his own identity, and the
conduct he proposed. There was no secret scheme, so far as the record
goes, that Rice concealed from "Matt." Thus, we are unable to say
that the proposed encounter would not have been consensual.
Moreover, the Government’s position leads to an unlikely result.
On this record, had Rice actually carried out his plan to completion,
his conduct could not have constituted sexual abuse under section
2242, which would have required Rice to have threatened "Matt" or
placed him in fear, unless "Matt" was "incapable of appraising the
nature of the conduct." 18 U.S.C.A. § 2242(2)(A). The factual basis
for Rice’s plea simply does not allow us to conclude without exces-
ther figure" who could not only instruct "Matt" in sexual matters but
could also provide exciting opportunities for "Matt" to participate in vari-
ous activities that would interest a thirteen-year-old boy. None of this
evidence, however, was charged in the indictment or put into the record
during Rice’s guilty plea. Thus, it would be inappropriate to consider this
evidence in the initial selection of the proper guideline. See Lambert, 994
F.2d at 1092 (explaining that "selection of the appropriate sentencing
guideline must turn . . . on the perceived similarity of the crime charged
in the indictment and the guideline ultimately selected"); U.S.S.G.
§ 1B1.2 comment. (backg’d) ("Where a stipulation . . . made between the
parties on the record during a plea proceeding specifically establishes
facts that prove a more serious offense . . . than the offense [charged in
the indictment], the court is to apply the guideline most applicable to the
more serious offense.").
UNITED STATES v. RICE 7
sive speculation that "Matt" was incapable of understanding what
Rice was proposing. Rice’s proposed conduct did not rise to the level
of attempted sexual abuse but would have instead, if completed, con-
stituted the crime of statutory rape. Therefore, U.S.S.G. § 2A3.2 is the
applicable guideline in this case.
We hasten to add, however, that the factors identified by the dis-
trict court — such as the ostensible victim’s tender years and the age
disparity between the two, as well as the use of the Internet — may
indeed make Rice’s offense different from the run-of-the-mill statu-
tory rape and remove this case from the heartland of cases sentenced
under U.S.S.G. § 2A3.2. Although the district court suggested it
would depart upward if we determined U.S.S.G. § 2A3.2 was the
proper guideline, it did not in fact depart or follow the procedure out-
lined in Koon v. United States, 518 U.S. 81 (1996). Accordingly, that
issue is not currently before us.
We also reject the Government’s argument that statements in the
Background Commentaries dictate a different result. The Government
first refers to language appended to U.S.S.G. § 2A3.1 which states:
"Sexual offenses addressed in this section are crimes of violence."
U.S.S.G. § 2A3.1 comment. (backg’d) (1998). From this the Govern-
ment argues that Rice’s proposed conduct would have been a crime
of violence and hence covered by § 2A3.1 only. The Government
points to the fact that Rice was much older than the purported victim
and argues that his conduct presented a substantial risk of physical
harm and a substantial risk that, during the rendezvous, Rice would
end up employing physical force to ensure "Matt’s" compliance.
Given the complete disclosures made in this case, we are not comfort-
able with this degree of speculation. Simply as a matter of logic, it
seems to us the same risks identified by the Government inhere in
conduct that violates section 2243(a) even if there is no extreme age
disparity.
Additionally, the Background Commentary to U.S.S.G. § 2A3.1
provides as follows: "Any criminal sexual abuse with a child less than
twelve years of age, regardless of ‘consent,’ is governed by § 2A3.1."
The government’s argument implies that, even absent sufficient indi-
cia of violence or force, "Matt’s" young age — thirteen — renders
§ 2A3.1 applicable. Were we to agree, we would necessarily adopt a
8 UNITED STATES v. RICE
categorical rule mandating the application of § 2A3.1 instead of
§ 2A3.2 when the contemplated sexual offense involves a thirteen
year old victim. Given that the Guidelines currently provide for such
a categorical rule with respect to victims who are under the age of
twelve, we decline to extend the rule to thirteen year old victims.
Second, the Government argues that the Background Commentary
to U.S.S.G. § 2A3.2 controls our decision. It reads in toto as follows:
"This section applies to sexual acts that would be lawful but for the
age of the victim. It is assumed that at least a four-year age difference
exists between the victim and the defendant, as specified in 18 U.S.C.
§ 2243(a). An enhancement is provided for a defendant who victim-
izes a minor under his supervision or care." The Government directs
our attention to the first sentence and asserts that the test of lawful-
ness should be under state law. Because Virginia outlaws the particu-
lar sexual acts Rice proposed, the Government believes U.S.S.G.
§ 2A3.2 should be excluded from consideration.
We do not accept the Government’s argument. The statute under
which the defendant was prosecuted expressly requires that the sexual
act intended be one as defined by federal law, and prosecutable as
well as a federal offense:
A person who travels in interstate commerce . . . for the pur-
pose of engaging in any sexual act (as defined in section
2246) with a person under 18 years of age that would be in
violation of chapter 109A if the sexual act occurred in the
special maritime and territorial jurisdiction of the United
States shall be fined under this title, imprisoned not more
than 15 years, or both.
18 U.S.C.A. § 2423(b) (emphasis added). Given these statutory
requirements, we decline to pull a sentence out of the Background
Commentary to impose another layer of consideration that would be
based on the vagaries of state laws regulating sexual activities.
Indeed, to do so would be inconsistent with the policies underlying
the Sentencing Guidelines. A primary Congressional aim in establish-
ing the Sentencing Guidelines was the promotion of "reasonable uni-
formity in sentencing by narrowing the wide disparity in sentences
imposed for similar criminal offenses committed by similar offend-
UNITED STATES v. RICE 9
ers." U.S.S.G. Ch. 1 Pt. A, p.s. Although we recognize that the Sen-
tencing Guidelines direct us to refer to state law on occasion, see, e.g.,
U.S.S.G. § 4B1.2 (defining "crime of violence" to include "offense[s]
under federal or state law"), we should read the Guidelines with fed-
eral law in mind unless specifically instructed otherwise. See United
States v. Reed, 94 F.3d 341, 344 (7th Cir. 1996) (explaining that
"[l]ike any other federal statute, the Guidelines must be interpreted in
accordance with federal law, even when those Guidelines refer to
some event occurring in state court" and noting that the Guidelines
section at issue contained "[n]othing . . . suggest[ing] that [the court]
should look to state law").
III.
In sum, we conclude that U.S.S.G. § 2A3.2, the statutory rape
guideline, is the most analogous guideline for Rice’s offense. Accord-
ingly, we vacate Rice’s sentence and remand for the sentencing court
to apply that guideline and for further consideration, including
whether an upward departure would be appropriate.
VACATED AND REMANDED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1917956/ | 272 So.2d 610 (1973)
Henry E. HOUSTON
v.
STATE.
1 Div. 284.
Court of Criminal Appeals of Alabama.
January 23, 1973.
*611 Delano J. Palughi, Mobile, for appellant.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.
WALLACE, Circuit Judge.
Defendant appeals from a conviction for robbery with a sentence of ten years imprisonment.
I
The State's evidence is to the effect that around 6:30 P.M., August 17, 1971, Willie F. Watson, while on duty as manager of Watson's Apothecary in Mobile, Alabama, was robbed at gunpoint of approximately $111.00. The apothecary was well lighted with four rows of double eight-foot fluorescent lights. The person committing the robbery was in the immediate presence of Mr. Watson, being as close as two feet, "or closer", for five or six minutes and was engaged in brief conversation by Mr. Watson.
As soon as the robber left the store, Mr. Watson called the police and the report of the robbery was broadcast over the police radio immediately and was received by Prichard Patrolmen, C. D. Everett and Smith at approximately 6:30 P. M. The patrolmen were about one and a half miles from the scene of the robbery when they received the report and proceeded immediately to the scene and within two or three minutes after first receiving the report saw the automobile in which the defendant and two companions were riding emerging from the only exit to Watson's drug store. After a short chase, defendant's car was stopped and while the driver was getting his driver's license out, Officer Everett observed bullets on the rear floorboard. Upon seeing the bullets, Officer Everett ordered defendant and his two companions to get out of the automobile and when they had done so a search of the automobile was made which disclosed a "wad" of money stuck down between the back seat and the paneling of the automobile as well as two pistols, one being loaded, under the front seat on the passenger side. Two shirts were also found in the automobile. It was not shown from the evidence where the shirts were located nor was it shown whether the pistols and money were in plain view of the officers or where defendant and his companions were standing with relation to the automobile and such objects at the time they were seized.
A Polaroid picture of defendant was made by the officers at the place the car was stopped and then defendant was taken to the police station. Two of the officers went from the place where the automobile was stopped to the scene of the robbery. There they talked with the victim, Mr. Watson, and showed him the Polaroid pictures of defendant, along with pictures of several other persons, to see if he could identify either of them as the person who had robbed him. The victim was unable to identify defendant from viewing the pictures. *612 An objection was sustained to an unresponsive answer made by one of the officers to the effect that Mr. Watson stated the reason he could not identify the defendant from the Polaroid picture was because the picture was too dark. No motion was made to exclude this answer.
Mr. Watson was taken to the police station where he identified the defendant from a line-up composed of defendant and six other persons. This line-up was held approximately one and a half hours after the robbery.
At the trial of the case, five months after the robbery, Mr. Watson testified concerning the robbery and his identification of defendant at the police line-up and made an in-court identification of defendant. No objection was made by defendant to the testimony of Mr. Watson concerning his identification of defendant at the police line-up and his further in-court identification of defendant as being the person who robbed him.
The officers testified without objection concerning the search of the automobile and the seizure of the money, pistols, and shirts.
The defendant testified in his own behalf and denied his guilt.
At the close of the case the trial judge, outside of the presence of the jury, made known to the lawyers his misgivings concerning the police line-up, expressing his view that it was not in keeping with the "Wade" decision of the United States Supreme Court. During this discussion, the District Attorney produced a Waiver of Counsel purportedly signed by the defendant prior to the line-up, whereupon, over the objection of defendant, the trial judge marked and introduced such waiver into evidence "as the Court's exhibit."
The defendant then moved to exclude all of the State's evidence upon the grounds that (1) improper suggestion, and error, was made by exhibiting defendant's photograph to the victim prior to the police station line-up and (2) the defendant was not represented by counsel at such line-up. Defendant's motion to exclude all of the State's evidence was overruled.
II
The first claim of error is that it was not shown from the evidence that the line-up was performed properly and that it was not done in violation of the defendant's constitutional rights.
This court has examined the whole record and has found nothing to support defendant's claim of error in the manner in which the line-up was conducted. The line-up was composed of seven black males, as is the defendant, and nothing is shown in the record whereby any improper influence or suggestion was made in any manner upon the victim who viewed the line-up from behind a two-way mirror and identified the defendant approximately one and a half hours after having seen him in a good light from as close as two feet, and having been in his presence for five minutes and had a brief conversation with him.
Defendant complains of the fact that the victim was shown defendant's photograph prior to the line-up and argues that this was suggestive to the point that his subsequent identification and victim's testimony of such upon the trial violated his right to due process. It should be pointed out that for some reason, Mr. Watson did not recognize the defendant from the pictures shown him prior to the line-up. Therefore, it is hard to see how the act of showing him a number of pictures could have influenced his later identification of defendant at the line-up. Assuming the victim had been able to identify the defendant from the photographs shown him, this, standing alone, would be insufficient to show improper suggestion to the extent that his later line-up identification would be inadmissible. In Simmons v. United States, 390 U.S. 377 p. 384, 88 S.Ct. *613 967 p. 971, 19 L.Ed.2d 1247 (1968), the Court said:
"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. * * *"
See also People v. Caldwell, 117 Ill.App.2d 64, 253 N.E.2d 904. Assuming an identification, the Court finds nothing in the evidence to indicate any impermissible suggestiveness in the photographic identification procedure as to give rise to a very substantial likelihood of irreparable misidentification.
Moreover, the Court thinks that there was sufficient evidence before the trial court, already alluded to herein, to show that the in-court identification by the victim had an independent origin; hence, fulfilling the requirements of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
The defendant also argues that error was committed because the defendant did not have counsel at the time of the line-up.
The United States Supreme Court in the recent case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, stated:
". . . it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. * * *"
The Court held that a routine police investigation prior to the filing of formal charges, preliminary hearing, indictment, information or arraignment, as in this case, is not a formal prosecutorial proceeding, and, therefore, prior cases holding that a defendant is entitled to counsel at any "critical stage of the prosecution" do not apply.
No counsel being required, any error committed in the introduction into evidence by the Court of the Waiver of Defendant without proof that it was an "intelligent" waiver would be without injury.
III
The next claim of error by the defendant is that the State presented as evidence during the trial testimony regarding some money, bullets, shirts and two pistols found in the car in which the defendant was a passenger and that, no search warrant having been first obtained, such search and seizure were unlawful.
No objection was made by the defendant to such testimony at the trial, nor was any motion to exclude made nor any request for verdict or instructions nor any motion for a new trial made by him on such ground. There is a long line of decisions which hold that our review is appellate in nature and we are limited to questions which are properly raised in the court below. This matter, not being raised *614 in any manner in the trial court, cannot be raised here on appeal for the first time. Astronautical Development Company v. University of Alabama, Huntsville Foundations, Incorporated, 285 Ala. 149, 229 So.2d 783; Thompson v. Havard, 285 Ala. 718, 235 So.2d 853; Meeks v. State, 38 Ala. App. 172, 81 So.2d 616.
The next claim of error by the defendant are three remarks made by the District Attorney in his closing argument to the jury. They are:
1. "Here's a twenty-three year old man not working for a year prior to this robbery."
2. "Where does a man get money if he's not working? We hope they don't go out and rob in this town, but. . ."
3. "He got laid off in December of 1970, and he was drawing welfare checks."
As to the first statement quoted above, this is simply a comment by the District Attorney upon testimony the defendant gave upon direct examination. Defendant was asked and stated that he had been in the United States Air Force three years, having "gotten out" in February of 1970. He then stated, in response to a question by his attorney, that he had worked for Alabama Dry Dock and Shipbuilding Company and International Paper Company and that he had not worked at all since December, 1970. This court fails to see where defendant's work history is relevant but the defendant injected it into the case and no prejudicial error was made by the State in the District Attorney's comment upon it.
The first part of the second statement is a further comment on defendant's testimony that he was not working. In objecting to this statement, defendant's attorney stated that the District Attorney was "trying to imply that the defendant did anything other than what he is accused of today." We do not agree and find no prejudice therein.
As to the third statement quoted above, the evidence showed that the defendant was drawing unemployment compensation. The objection to the District Attorney's statement was that it was a "direct fabrication. He wasn't drawing welfare checks." The court ruled "as to welfare checks, I sustain the objection; it's not based on the evidence." No further action was requested of the court in relation to this statement. This court does not believe that this statement was so prejudicial that its improper influence, if any, could not have been removed by proper instruction.
IV
Conclusion
We have considered the entire record under Code of Alabama 1940, Tit. 15, § 389, and conclude that the judgment below is due to be affirmed.
The foregoing opinion was prepared by Hon. Jack W. Wallace, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, Tit. 13, Code 1940, as amended; the Court has adopted his opinion as its own.
The judgment below is hereby
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573802/ | 17 So. 3d 1284 (2009)
Jason Todd RICE, Appellant,
v.
Sheriff Roy RAYMOND, Appellee.
No. 4D08-2756.
District Court of Appeal of Florida, Fourth District.
October 7, 2009.
Jason Todd Rice, Orlando, pro se.
James G. Harpring, Vero Beach, for appellee.
STEVENSON, J.
In this appeal, Jason Todd Rice challenges a "Default Final Judgment of Forfeiture" entered by the trial court after Rice, who was then incarcerated, failed to appear for a docket call. The record before us demonstrates that, following the filing of the sheriff's petition for forfeiture, Rice filed a pro se response to the trial court's probable cause order. An order was entered setting the docket call date for May 30, 2008, and scheduling the case for trial. Approximately ten days prior to the May 30th docket call, appellant filed a "Response to [Sheriff's] Joint Pre-Trial Stipulation." In that response, appellant *1285 asserted that the Jeep was not subject to forfeiture because he had not been convicted of a qualifying crime and that he was currently incarcerated in Orlando, but desired to participate in the May 30th hearing, seeking either transportation to the hearing or permission to appear by phone. The trial court did not rule on appellant's request for transportation or to appear by phone and, instead, entered a "Default Final Judgment of Forfeiture" when appellant failed to appear at the docket call.
We reverse the default final judgment as it was entered without first affording appellant notice of the court's intent to enter a default and under circumstances where the appellant's failure to attend the docket call could not be characterized as willful, i.e., the appellant was incarcerated and had advised the court of such fact and requested that arrangements be made to enable him to participate. See Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla.4th DCA 1996) (stating that "[w]hether the default was entered pursuant to rule 1.200(c) [failure to attend case management conference], 1.380(2)(C) [failure to comply with discovery obligations] or 1.500(b) [default judgments] `it is fundamental that in order to properly enter a default after a party has appeared, notice of the intention to enter a default must be served on the party'" and that excusable neglect and a meritorious defense need not be demonstrated to set aside a default where the default was entered as a sanction (quoting Zeigler v. Huston, 626 So. 2d 1046, 1048 (Fla. 4th DCA 1993))); Int'l Energy Corp. v. Hackett, 687 So. 2d 941, 943 (Fla. 3d DCA 1997) (noting that even where a uniform order for attendance at calendar call "specifically listed default as a possible sanction for noncompliance, notice and opportunity to be heard" was still required prior to entry of default "for a determination of whether the noncompliance was willful or in bad faith" (citing Neder v. Greyhound Fin. Corp., 592 So. 2d 1218, 1218 (Fla. 1st DCA 1992))); see also BLL Props., Inc. v. TRS Juniors, Inc., 679 So. 2d 365, 366 (Fla. 4th DCA 1996) (recognizing that entry of a default as a sanction must be accompanied by express finding that failure to comply with the court's order was willful).
Reversed and Remanded for further proceedings consistent with this opinion.
GERBER, J., and BROWN, LUCY CHERNOW, Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645127/ | 994 So. 2d 1 (2008)
STATE of Louisiana
v.
Ted ADDISON.
No. 2008-KP-1249.
Supreme Court of Louisiana.
October 10, 2008.
This application is transferred to the Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that court's en banc resolution of September 9, 2008. See State v. Cordero, 08-1717 (La.10-03-08), 993 So. 2d 203.
CALOGERO, C.J., recused.
WEIMER, J., concurs in part and dissents in part for the reasons assigned in State v. Cordero, 08-1717 (La.10-03-08), 993 So. 2d 203. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/76840/ | 400 F.3d 1325
UNITED STATES of America, Plaintiff-Appellee,v.Terrance SHELTON, Defendant-Appellant.
No. 04-12602. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
February 25, 2005.
Humberto R. Dominguez (Court-Appointed), Miami, FL, for Defendant-Appellant.
Carol E. Herman, Anne R. Schultz, Asst. U.S. Atty., Laura Thomas Rivero, Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before CARNES, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:
1
Terrance Shelton appeals his 190-month sentence, imposed after he pled guilty to drug and firearms offenses.
2
In his initial brief on appeal, Shelton timely raised the numerous issues we address in this case based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L.Ed.2d. 403 (2004), and now United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which we collectively refer to herein as the "Booker issues."
3
After review, we conclude there were no Sixth Amendment violations in Shelton's sentence under Booker. However, the district court erred under Booker in sentencing Shelton under a mandatory Guidelines regime, and Shelton has established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime. Thus, for the reasons outlined in this opinion, we vacate Shelton's sentence and remand for resentencing under Booker.
I. BACKGROUND
A. Shelton's Guilty Plea
4
On July 17, 2003, Shelton was indicted for: (1) knowingly and intentionally distributing " at least five (5) grams" of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and 18 U.S.C. § 2 (counts 1, 2, and 4); (2) knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and 18 U.S.C. § 2 (counts 5 and 6); (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (counts 3, 7, and 10); (4) knowingly carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2 (count 9); and (5) knowingly possessing with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count 12).1
5
In a written plea agreement, Shelton pled guilty to the drug charge in count 4 and the firearms charge in count 9. During the plea colloquy under Rule 11, the district court explained that the mandatory minimum for the drug charge in count 4 was 10 years' imprisonment (120 months) and the maximum was life imprisonment. Shelton's three prior drug convictions increased Shelton's statutory, mandatory minimum sentence from 5 to 10 years' imprisonment and his statutory maximum penalty from 40 years' to life imprisonment. 21 U.S.C. § 841(b)(1)(B).2 During the plea colloquy, the district court further explained that as to the firearm charge in count 9, Shelton would face a mandatory minimum sentence of 5 years' imprisonment (60 months) to run consecutively to his drug sentence for count 4.
6
Also during the plea colloquy, the government offered facts showing that Shelton and co-defendant Hunter sold drugs and two firearms to a confidential informant ("CI") under surveillance on June 23, 2003. According to the government's recitation of the facts, Shelton's drug transaction with the CI on that one day involved 16.7 grams of crack and 15 grams of cocaine powder. During the plea colloquy, Shelton agreed to the government's recitation of the facts. The district court then accepted Shelton's guilty plea as to counts 4 and 9, and the remaining counts in the indictment were dismissed on the government's motion.
B. The Presentence Report
7
The Presentence Investigation Report ("PSI") reported that Shelton had participated not only in the above drug offense on June 23, 2003, but also in two other drug transactions with the CI on June 18 and 20, 2003, respectively. The PSI also reported that, on June 26, 2003, an additional amount of drugs were found in a car abandoned by Shelton.
8
According to the PSI, Shelton's total drug quantity for sentencing purposes was 47 grams of crack cocaine and 87.2 grams of cocaine powder, which represented the total amount of drugs in these four events: (1) the offense conduct on June 23, 2003 that involved 16.7 grams of crack and 15 grams of cocaine powder; (2) the drug transaction on June 18, 2003 that involved 17.1 grams of crack transferred to a confidential informant; (3) the drug transaction on June 20, 2003 that involved 13.2 grams of crack transferred to a confidential informant; and (4) the 72.2 grams of cocaine powder recovered from a car abandoned by Shelton on June 26, 2003.
9
The PSI noted a marijuana equivalency of 957 kilograms for the total quantity of 47 grams of crack and 87.2 grams of cocaine powder. The marijuana equivalency corresponded to a base offense level of 30. See U.S.S.G. § 2D1.1(c)(5) (providing for base offense level of 30 when drug quantity is at least 700 but less than 1,000 kilograms of marijuana). Shelton filed no objection to the factual statements in the PSI that detailed his offense conduct and the above relevant conduct and drug quantities.
10
Shelton's PSI further recommended a two-level reduction for acceptance of responsibility and a one-level reduction for assistance to the government, resulting in an adjusted offense level of 27. Based on his prior convictions, the PSI noted that Shelton had 13 criminal history points, which corresponded to a criminal history category of VI. According to the PSI, the sentencing range for offense level 27 and criminal history category VI was 130-162 months' imprisonment for count 4, followed by a mandatory term of 60 months' imprisonment for count 9, to run consecutively with the term for count 4. Shelton did not object to any of the PSI's calculations.
C. Sentencing Hearing
11
At the sentencing hearing, Shelton again raised no objections to the factual statements in the PSI. When the district court inquired about the PSI, Shelton's counsel stated that he had reviewed the report with Shelton and that they did not dispute the factual matters. The district court then sentenced him to 130 months' imprisonment for count 4 and 60 months' imprisonment for count 9, to run consecutively.3
12
In sentencing Shelton, the district court expressed dissatisfaction with Shelton's sentence, but indicated the Sentencing Guidelines and the relevant statutes dictated the result. For example, the district court commented that Shelton's sentence was "very, very severe" due to Shelton's criminal history points and the mandatory, consecutive 5-year sentence on the § 924(c) firearms count.
13
The district court noted that "unfortunately" the Guidelines criminal-history calculation takes into account each of the defendant's past charges and does not take into account the fact that the sentences imposed on those charges were short as a result of such factors as the youth of the defendant or amount of drugs involved. The district court later expressed its disapproval of the severity of the sentence again, stating that Congress has taken a "very, very hard stance when it comes to guns and drugs." Most significantly for Shelton, the district court indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
II. STANDARD OF REVIEW
14
While Shelton's initial brief on appeal timely raised various Booker issues in this case, he did not raise these issues in the district court. Thus, our review is only for plain error. United States v. Rodriguez, 398 F.3d 1291, at 1297, 2005 WL 272952, at *6 (11th Cir. Feb.4, 2005). "An appellate court may not correct an error the defendant failed to raise in the district court unless there is: `(1) error, (2) that is plain, and (3) that affects substantial rights.'" Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d 860 (2002))." `If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting Cotton, 535 U.S. at 631, 122 S. Ct. at 1785).
III. DISCUSSION
15
As noted above, on appeal, Shelton raises several Booker issues, which we address here.
A. Sentencing Enhancements
16
Shelton first argues that the district court erred when it enhanced his sentence based on a judicial fact-finding of drug quantity and based on his prior convictions. We readily dispense with that issue. The Supreme Court consistently has rejected Shelton's argument that a district court errs when it considers prior convictions in sentencing a defendant under the Guidelines. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), the Supreme Court "held that the government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence." United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (citation omitted). This conclusion was left undisturbed by Apprendi, Blakely, and Booker.
17
Moreover, in Booker, the Supreme Court reaffirmed its holding in Apprendi. See Booker, 125 S.Ct. at 756 (opinion of Stevens, J.) (reaffirming that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt" (emphasis added)). Thus, a district court does not err by relying on prior convictions to enhance a defendant's sentence.4
18
Nor did the district court err in sentencing Shelton based on a drug quantity greater than the quantity alleged in the indictment. We recognize that count 4 of his indictment, to which Shelton pled guilty, charged only "at least five (5) grams of a mixture and substance containing a detectable amount of cocaine base, commonly known as crack cocaine," which corresponds to a base offense level of 26. It is also clear that the district court started with a base offense level of 30 based on its finding that Shelton's offense and relevant conduct together involved a total of 47 grams of crack and 87.2 grams of cocaine powder, which was converted to a marijuana equivalent of 957 kilograms.
19
Nonetheless, the first prong of the plain-error test is not satisfied in this case because Shelton's sentence was not enhanced as a result of judicial findings as to drug quantity that went beyond the facts admitted by Shelton. Shelton admitted to part of this drug quantity in his plea colloquy and to the rest of this drug quantity at sentencing. Not only did Shelton raise no objections to the PSI's factual statements about his relevant conduct, but Shelton's counsel also stated, "[W]e don't dispute the factual matters" in the PSI. Thus, Shelton has admitted the facts in the PSI. See United States v. Walters, 269 F.3d 1207, 1213 (10th Cir.2001) ("Walters did not challenge the accuracy of the relevant facts contained in the PSR. Therefore, under the law of this circuit, they are deemed admitted as true." (citation omitted)); United States v. Joshua, 40 F.3d 948, 952 (8th Cir.1994) ("Joshua did not dispute the PSR's rendition of his criminal history, and the facts therein therefore stand as admitted." (citation omitted)). Because Shelton admitted to the facts that enhanced his sentence, there is no Sixth Amendment violation under Booker in this case. See United States v. Frye, 2005 WL 315563, at *4 (11th Cir. Feb.10, 2005).
20
B. "Mandatory" Nature of the Guidelines Error
21
In this case, Shelton was sentenced under the pre-Booker mandatory Sentencing Guidelines. Thus, we must determine whether under Booker there is error in Shelton's sentence because the district court considered and applied the Guidelines as binding.
1. Error
22
In Booker, the Supreme Court excised the two parts of the Sentencing Reform Act that rendered the mandatory Guidelines system unconstitutional: the part in 18 U.S.C. § 3553(b)(1) making the Guidelines result binding on the sentencing court; and the part in § 3742(e) requiring de novo review of sentences on appeal. Booker, 125 S.Ct. at 764. In doing so, the Supreme Court stated that "[w]ith these two sections excised (and statutory cross-references to the two sections consequently invalidated), the remainder of the Act satisfies the Court's constitutional requirements." Id. The Supreme Court in Booker further instructed that its remedial holding applies to cases on direct review. Id. at 769 ("[W]e must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.").5
23
Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker. Thus, we conclude that it was Booker error for the district court to sentence Shelton under a mandatory Guidelines scheme, even in the absence of a Sixth Amendment enhancement violation.6
24
In reaching this conclusion, we note that Booker error, as succinctly stated in Rodriguez, is as follows:
25
The constitutional error is the use of extra-verdict enhancements to reach a guidelines result that is binding on the sentencing judge; the error is the mandatory nature of the guidelines once the guidelines range has been determined.
26
Rodriguez, 398 F.3d at 1300, 2005 WL 272952, at *9. As a result of Booker's remedial holding, Booker error exists when the district court misapplies the Guidelines by considering them as binding as opposed to advisory.
2. Plain
27
The next issue is whether the error was "plain." In this case, "[a]lthough the error was not `plain' at the time of sentencing, `where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that the error be "plain" at the time of appellate consideration.'" Rodriguez, 398 F.3d at 1298, 2005 WL 272952, at *7 (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997)). Booker made plain the district court's error in sentencing Shelton under a mandatory Guidelines scheme that is now advisory. See Barnett, 398 F.3d at 524, 2005 WL 357015, at *8. Thus, we move on to the third prong of plain error, which is exceedingly difficult for defendants to overcome. See, e.g., Rodriguez, 398 F.3d at 1297, 2005 WL 272952, at *6.7
3. Effect on Shelton's substantial rights
28
Under the third prong of plain-error review, Shelton is required to demonstrate that the plain error "affects [his] substantial rights." United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d 860 (2002) (quotation marks, citation, and brackets omitted). In this third prong, "[i]t is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993). "The Supreme Court has instructed us that plain error review should be exercised `sparingly.'" Rodriguez, 398 F.3d at 1297, 2005 WL 272952, at *6 (citation omitted). Further, "the plain error test is difficult to meet," and in particular, the "burden of showing prejudice to meet the third-prong requirement is anything but easy." Id. at 1297-98, *6-7 (quotation marks and citation omitted).
29
Further, the defendant's burden with respect to prejudice is to show that the error "actually did make a difference." Rodriguez, 398 F.3d at 1299, 2005 WL 272952, at *8. In other words, in post-Booker sentencing cases, "in applying the third prong, we ask whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion by the sentencing judge in this case." Id. at 1300, *9.8 A reasonable probability of a different result means a probability "sufficient to undermine confidence in the outcome." Id. at 1298, *7 (quotation marks and citations omitted).
30
A defendant sentenced pre-Booker faces difficulty in establishing that a mandatory, as opposed to an advisory, Guidelines scheme actually affected the outcome of the proceedings. To establish the third prong takes something more than showing the district court sentenced within the Guidelines range and felt bound to do so, especially given that the Guidelines range remains an important factor in sentencing.9 But Shelton has carried that heavy burden in the instant case.
31
Here, the district court during sentencing expressed several times its view that the sentence required by the Guidelines was too severe, and noted that "unfortunately" Shelton's criminal history category under the Guidelines was based on his past charges rather than on the actual nature of the crimes as reflected in the sentences imposed in those cases. The district court not only sentenced Shelton to the lowest possible sentence it could under the Guidelines, 130 months, but also stated that sentence was "more than appropriate" in this case. All of these comments taken together convince us that there is a reasonable probability the district court would have imposed a lesser sentence in Shelton's case if it had not felt bound by the Guidelines.10 In addition, and importantly too, Shelton has established a reasonable probability that some sentence below the Guidelines range would be permissible and reasonable in light of Booker and the § 3553(a) factors.11 Thus, we proceed to the fourth prong.
32
4. Fairness, integrity or public reputation of judicial proceedings
33
Finally, under the fourth prong of plain-error review, we consider whether the "plain error" at sentencing "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." United States v. Simpson, 228 F.3d 1294, 1300-01 (11th Cir.2000) (quotation marks and citations omitted); United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.1996). A plain error affecting substantial rights does not, without more, satisfy the plain-error test, for otherwise the fourth prong and the discretion afforded by the fourth prong would be illusory. We conclude that the fourth prong is established here and that an exercise of our discretion is warranted in this particular case.12
34
The district court in this case indicated an express desire to impose a sentence lesser than the low end of the Guidelines range of 130 months' imprisonment, and the Supreme Court in Booker plainly indicated that the district court now has the discretion to do so, provided the resulting sentence is reasonable in light of the § 3553(a) factors. Under these circumstances, defendant Shelton has carried his burden to establish the fourth prong and has shown that the plain error that affected his substantial rights also seriously affected the fairness, integrity or public reputation of the judicial proceedings in his particular case. Accordingly, we vacate Shelton's sentence and remand for resentencing consistent with Booker.
35
VACATED AND REMANDED.
Notes:
1
Shelton's co-defendant, Jermaine Hunter, also was indicted on the above-listed counts, except count 12. Further, Hunter was indicted individually on several counts that we do not discuss here
2
The government gave Shelton written notice listing his three prior drug convictions and explaining the increased penaltySee 21 U.S.C. § 851.
3
The district court also sentenced Shelton to 8 years' supervised release for count 4 and 5 years' supervised release for count 9, to run concurrently
4
Other circuits post-Booker also have recognized that enhancements for prior convictions are for the judge, not the jury, to determine. See, e.g., United States v. Barnett, 398 F.3d 516, at 525 (6th Cir.2005) ("[T]here is no language in Booker suggesting that the Supreme Court, as part of its remedial scheme adopted in that case, intended to alter the exception to Apprendi allowing district courts to consider the fact and nature of prior convictions, without submitting those issues to the jury."); United States v. Vieth, 397 F.3d 615, at 620 (8th Cir.2005) ("As to the enhancement for a prior conviction, the Supreme Court has consistently said that the fact of a prior conviction is for the court to determine, not the jury.").
5
We emphasize, however, that Shelton timely raised hisBooker issues on direct appeal, which distinguishes his case from those in which the defendant defaulted, waived, or abandoned at the appellate stage the Apprendi, Blakely, or Booker issues. See United States v. Levy, 379 F.3d 1241, 1242 (11th Cir.2004) (declining to consider issue raised for the first time in petition for rehearing), reh'g en banc denied, 391 F.3d 1327 (11th Cir.2004); United States v. Ardley, 242 F.3d 989, 990 (11th Cir.2001) (stating that "we apply our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned" (citation omitted)).
6
We note that this conclusion is consistent with those of at least two other circuits that have considered this issueSee United States v. Barnett, 398 F.3d at 526 (6th Cir.2005) ("[W]e hold that it was plain error for Barnett to be sentenced under a mandatory Guidelines regime that has now become advisory."); United States v. Labastida-Segura, 396 F.3d 1140, at 1142, 2005 WL 273315, at *2 (10th Cir.2005) (concluding it was error to sentence the defendant under a mandatory Guidelines system).
7
We disagree with the Sixth Circuit's view inBarnett, 398 F.3d at 530-32, 2005 WL 357015, at *13-15 (Gwin, J., concurring), that § 3742(f)(1), which provides for and requires a remand upon an incorrect application of the Guidelines, would apply in this instance. 18 U.S.C. § 3742(f)(1). Rather, Booker error is subject to both harmless-error and plain-error review and for that reason does not always require a remand, and often will not. Booker, 125 S.Ct. at 769 (Cases on direct review should be reviewed using "ordinary prudential doctrines" and applying the "`plain-error' test" and not every appeal will "lead to a new sentencing hearing."). Thus, Shelton is required to establish all four prongs of the plain-error test.
8
We also disagree with the Sixth Circuit's conclusion of presumed prejudice in a similar caseSee Barnett, 398 F.3d at 527-29, 2005 WL 357015, at *10-12. The Sixth Circuit adopted the presumed-prejudice approach because it found that "it would be exceedingly difficult for a defendant, such as Barnett, to show that his sentence would have been different if the district court had sentenced him under the advisory, rather than the mandatory, Guidelines framework." Id. at 528. As discussed at length in Rodriguez, clear precedent of the Supreme Court and this Court establishes that a defendant has the burden to show actual prejudice in plain-error review. Rodriguez, 398 F.3d at 1298-1301, 2005 WL 272952, at *7-10. While we agree with the Sixth Circuit's observation that it will be difficult for a defendant to establish the third prong in Booker-error cases, that is no reason to dispense with it as that Court has done. See Barnett, 398 F.3d at 536 (Boggs, C.J., dissenting) ("It is well settled that the defendant must show prejudice before a reviewing court may reverse.... Indeed, if the Supreme Court believes that we should presume prejudice when it would be difficult for the defendant to establish it, it is hard to explain why the Court has passed up so many opportunities to articulate such a doctrine." (citation omitted)). Besides, some defendants, including Shelton, can satisfy the third prong.
9
AfterBooker, the Federal Sentencing Guidelines remain an essential consideration in the imposition of federal sentences, albeit along with the factors in § 3553(a). A sentencing court under Booker still must consider the Guidelines, and, such consideration necessarily requires the sentencing court to calculate the Guidelines sentencing range in the same manner as before Booker. Indeed, the factors the Sentencing Commission was required to use in developing the Guidelines are a virtual mirror image of the factors sentencing courts are required to consider under Booker and § 3553(a). The change wrought by Booker is the excising of the mandatory nature of the Guidelines.
10
We emphasize that the district court was, and still is, bound by the statutory minimums. For example, Shelton's sentence can be no less than 120 months' (10 years') imprisonment for the drug charge in count 4. The district court sentenced Shelton to 130 months' imprisonment, which is 10 months higher than the statutory minimum on count 4. The firearms sentence is not in issue in this case because it carries a mandatory, 5-year minimum, consecutive sentence to follow the drug sentence
11
Although the district court's comments convince us that on remand the district court will sentence below the range indicated by the Guidelines, we do not know exactly what sentence it will impose after consulting the § 3553(a) factors. Until we find out, we will not attempt to decide whether a particular sentence below the Guidelines range might be reasonable in this case. If there is an appeal of the actual post-remand sentence which raises that issue, we can decide it then
12
We also must mention the plain-error analysis inUnited States v. Curtis, 380 F.3d 1308 (11th Cir.2004). The Curtis case was before the Court on the defendant's motion to file a supplemental brief on appeal. After briefing and oral argument, Curtis's motion sought to raise, for the first time on appeal, a claim that his sentencing enhancements were unconstitutional under Blakely. The Curtis Court's published opinion denied the defendant's motion as untimely.
In a footnote, the Curtis Court made the alternative ruling that even if the Blakely issue had been raised adequately on appeal, we would have been limited to plain-error review and that the Blakely error in any event was not at all plain under the second prong of plain-error review. The Curtis Court did not address the third prong at all, but moved on to the fourth prong, stating:
With respect to the fourth prong, we discern no miscarriage of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings. Accordingly, as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error.
Id. at 1311 n. 2.
Shelton's case is distinguishable from Curtis because (1) Shelton has established the third prong of the plain-error test, that his sentence actually would have been different and shorter but for the district court's error, (2) our failure to notice the forfeited error would leave Shelton with a sentence that the district court would not have given, and (3) in any event, the Blakely error in the Sentencing Guidelines context contemplated by the Curtis panel was judicial versus jury fact-finding of sentencing enhancements and is entirely different from the error we now know to exist under Booker as to the Sentencing Guidelines. See Rodriguez, 398 F.3d at 1300, 2005 WL 272952, at *9 ("The constitutional error is the use of extra-verdict enhancements to reach a guidelines result that is binding on the sentencing judge; the error is the mandatory nature of the guidelines once the guideline range has been determined."). | 01-03-2023 | 04-27-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1918011/ | 272 So.2d 593 (1973)
Edward Franklin COATNEY, alias
v.
STATE.
7 Div. 186.
Court of Criminal Appeals of Alabama.
January 23, 1973.
*594 Hubert H. Wright, Gadsden, for appellant.
William J. Baxley, Atty. Gen. and Don C. Dickert, Asst. Atty. Gen., for the State.
RICHARD P. EMMET, Circuit Judge.
The defendant was indicted for the offense of forgery in the first degree, and upon his conviction received a sentence of five years imprisonment in the penitentiary.
I
The evidence shows the defendant presented a bank check to the manager of Picway Shoe Mart in the City of Gadsden on the 4th day of October, 1971, in payment for the purchase of two pairs of shoes and some socks.
The check was drawn on the joint account of Mr. or Mrs. Charles D. Walker. It was received into evidence as the trial's sole exhibit. As the maker it bears the signature, "Charles D. Walker."
The defendant received the purchased items and left the premises.
For reasons not logically apparent the defendant subsequently returned the merchandise. The check however was retained by the shoe store.
Within the next few days (there is dispute as to whether it was the next day or the day following) defendant was arrested and charged with forgery in the first degree.
The manager of the shoe store identified the defendant as the party making the purchase, presenting the check and later returning the merchandise.
Charles D. Walker upon an examination of the check (State's Exhibit No. 1) testified the signature was not his and that he had authorized no one to sign his name.
Ann Walker was identified from the witness stand as Mrs. Charles D. Walker and testified the signature in question was not her signature and she had authorized no one to sign her name.
All other testimony adduced was either immaterial or irrelevant.
The jury convicted.
*595 II
At the time of the filing of the Appellee's brief, no brief had been forthcoming from Appellant. Subsequently, Appellant did submit his brief.
Furthermore there is no motion for new trial found in the record.
As the points raised in these respective briefs are as separate as night and day and in the absence of any complained of errors enumerated in a motion for new trial and in the absence of a single evidentiary ruling adverse to Appellant, this Court is left to a general search for error.
In brief, Appellant raises a single issue which claims a federal constitutional infringement (Amendment V, U.S.Constitution) as a result of the following occurrence. Page 47 of the transcript reveals these proceedings:
"MR. MILLER: Judge, I would like to see you in chambers, for just a minute or two, with the District Attorney. It won't take but a minute or so.
"THE COURT: All right. You may be at ease for a few minutes, ladies and gentlemen.
"(Thereupon the Court, Counsel for the State and for the Defendant and the Defendant retired to the Court's chambers where the following occurred:)
"MR. MILLER: Judge, I want to say that I have advised my client, who has a bad record, that it is not advisable for him to take the stand. I have told him that it is very detrimental for anybody to take the stand who has a past record to be brought out. So I want to leave that decision strictly and solely up to my client, and let him put it in the record.
"MR. MILLER: Do you want to take the stand or not?
"THE DEFENDANT: Yes, I do intend to take the stand.
"THE COURT: That is your own decision.
"THE DEFENDANT: I know that, Judge.
"THE COURT: All right, let's go ahead.
"(Thereupon the Court and Counsel and the Defendant returned to the courtroom and the presence of the jury, and the proceedings were resumed.)"
The record further reveals that the defendant did not take the stand as a witness.
Complained of by Appellant is the inadequacy of the explanation of federal constitutional safeguards under Amendment V afforded one on trial. The argument is couched in language as to endeavor to make an application of some of the "Miranda-Escobedo-Boykin rights" essential and necessary in some form of judicial proceeding prior to a defendant taking the stand in his own behalf.
Significantly, no authority is cited in support of such contention.
The law might adopt such a ruling in the future, however questionable its wisdom, but the fact that in the instant case the defendant chose not to take the stand makes the question moot as far as this appeal is concerned. Courts are designed to weigh justiciable matters, not to decide abstract concerns.
The appellate courts will not search for constitutional objections on merely a general suggestion of unconstitutionality. State v. Dillard, 196 Ala. 539, 72 So. 56.
III
At the conclusion of a very excellent and exceedingly impartial oral charge which was exhaustive of every applicable rule of law and after the trial court asked for any exceptions to the oral charge, the following occurred.
*596 Defense counsel stated, "Judge, we have some written charges"; to which the court replied, "Yes, and you gave them to me so late, that I am not going to give them." Responding, defense counsel noted an exception. Upon this the case concluded.
It is true a trial court cannot fix any particular time during a trial at which written charges must be presented. Porter v. State, 234 Ala. 11, 174 So. 311.
The record contains no written charges.
The transcript of a record certified by a circuit clerk as true and correct for the purpose of appeal imparts absolute verity and is accepted by a reviewing court as the sole, conclusive and unimpeachable evidence of proceedings. Morris v. State, 268 Ala. 60, 104 So.2d 810. Such a certificate is appended to the record in this cause so there exists nothing which requires a ruling upon this exception.
Specifically, Edwards v. State, 287 Ala. 588, 253 So.2d 513; and Patty v. State, 35 Ala.App. 247, 45 So.2d 333, so hold.
Hence, without the mentioned written charges appearing in the record there is nothing for review before this Court. Kiker v. State, 233 Ala. 448, 172 So. 290; Gaddis v. State, 39 Ala.App. 68, 94 So.2d 228.
The oral charge is to correctly and understandably state the law pertaining to a case.
Written charges generally are for the purpose of complementing the oral charge.
IV
The foregoing opinion was prepared by Honorable RICHARD P. EMMET, Circuit Judge, temporarily on duty on the Court pursuant to Subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.
V
There being no error in the record, the judgment is due to be and is thereby
Affirmed.
All the Judges concur.
CATES, Presiding Judge (concurring especially).
I concur only because we do not know what was the import of the tendered written charges. In this posture we have error apparent on the record. (The oral charge must be taken down and it becomes a part of the record. Code 1940, T. 7 § 273, last sentence.). The request appears at the conclusion of the oral charge. An exception was reserved. See Vinson v. State, 10 Ala.App. 61, 64 So. 639; Gaddis v. State, 39 Ala.App. 68, 94 So.2d 228.
In Jackson v. State, 24 Ala.App. 601, 139 So. 576, a cavalier rejection and omission to endorse requested written instructions either as "given" or "refused" was held to be error. But the error was harmless because the charges apparently were otherwise covered or were not correct directions of law. Supreme Court Rule 45.
Here, we should have to resort to "speculation to guess" what the instant tendered charges said because they simply are not in the record before us.
Counsel on appeal bears the onus of getting a record up for the appellate court. Orum v. State, 286 Ala. 679, 245 So.2d 831. After decision we do not issue certiorari to patch up gaps. Sashner v. State, 46 Ala. App. 407, 243 So.2d 390.
Since the record is significantly silent, to reverse we should be guilty of ignoratio elenchi.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918015/ | 272 So.2d 286 (1972)
Wayland Earl BRYANT and Ronald Elliott Williams
v.
STATE.
6 Div. 339.
Court of Criminal Appeals of Alabama.
November 21, 1972.
Rehearing Denied December 12, 1972.
*288 Drake, Knowles & Still, University, for appellants.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
TYSON, Judge.
The indictment against Wayland Earl Bryant charged him with the felonious assault with a shotgun on David Wayne Orange, a deputy sheriff of Jefferson County, Alabama; and the indictment against Ronald Elliott Williams charged him with the felonious assault with a rifle on Royce Johnson, a deputy sheriff of Jefferson County, Alabama, each of said deputy sheriffs being in the performance of their lawful duties.
The two appellants were tried together by agreement between defense counsel, each of the appellants, and the District Attorney's office with separate verdicts being rendered by the Jury as to each appellant. Each appellant was found guilty of assaulting the respective officers as set forth in the indictments, and judgment fixed sentence at five years imprisonment in the penitentiary for each appellant.
The State of Alabama presented the testimony of four deputy sheriffs who told of going to a residence located at 222 Jefferson Boulevard, Tarrant City, Jefferson County, Alabama, the residence of one Mrs. Bernice Turner, at approximately 11:45 on the morning of September 15, *289 1970, to effect an eviction of these premises, prior notice having been served by the Sheriff's office. According to Deputy Sheriff Major David Wayne Orange, information had been received by Deputy Sheriff Sergeant C. C. Gillespie, Birmingham City Detective Sergeant Marcus Jones, and Federal Bureau of Investigation Agent Sizemore of the Birmingham, Alabama office that members of the Alabama Liberation Front or Black Panthers were planning an ambush at the premises in question. This information was communicated to the various Sheriff's deputies who were to participate by a meeting held at about 8:00 on the morning of September 15, 1970, at the office of Jefferson County Sheriff Melvin Bailey.
At trial the trial judge directed that the affidavits given to Sheriff Melvin Bailey by each officer participating in the investigation be turned over to defense counsel for use in cross-examination of these officers, and such affidavits were subsequently offered in evidence. Deputy Sheriff Major David Wayne Orange's affidavit reads as follows:
"MELVIN BAILEY
SHERIFF, JEFFERSON COUNTY
JEFFERSON COUNTY COURT HOUSE
BESSEMER DIVISION,
BESSEMER, ALABAMA, 35020
September 18, 1970
"Monday night, September 14, 1970, at about 9:00 P.M., I talked with Sergeant C. C. Gillespie who informed me that he had information that the Black Panther Party was planning to ambush two officers who were going to execute a court order of eviction at 222 Jefferson Boulevard, Tarrant City. I immediately called Sheriff Bailey and informed him of these plans by the Black Panther Party. It was decided that we would make plans for our action the following morning.
"Shortly thereafter, I received a call from Detective Sergeant Marcus Jones, who is with the Police Department with the City of Birmingham. He, in substance, gave me the same information that I had received a few minutes earlier from Sergeant Gillespie. The following morning it was decided that we would proceed with the court order, and plans were made to take enough men to insure the successful execution of this court order.
"During the morning of September 15, 1970, I received further information from Sergeant Jones that the Black Panther's had four or five men inside the house at 222 Jefferson Boulevard, Tarrant City, waiting for our two officers to appear. I, along with about 15 other officers, arrived at this address at about 11:50 A.M., September 15, 1970. We were armed with tear gas guns, shotguns, and rifles along with our regular side arms. At about 11:55 A.M., Deputy Monteith approached the front door of 222 Jefferson Boulevard, Tarrant City, and knocked on the door several times. He waited a few seconds and knocked several times again. There was no sound from within the house in answer to these knocks on the door. Deputy Monteith called out in a loud voice to the people inside the house stating who he was and what his business there was. No answer came from the house.
"I walked over to the sidewalk in front of the house and told Captain J. C. Williams that I was going to kick the door open. Captain Williams and I approached the house from the southwest corner, and I kicked the door twice. The second time the door swung into the house, and I immediately saw standing in the second room Wayland Bryant, who was armed with a shotgun. At this time I heard one of the officers to my left and behind me shout a warning to the other deputies, `Look out! He has a gun.' Almost in this same instant Captain *290 Williams and I ordered Wayland Bryant to drop the shotgun he was holding. In response to this command, Wayland Bryant swung his gun to bear upon Captain Williams and myself. At this same instant, the Sheriff's Department fired a tear gas shell into the house, and Captain Williams and I backed away from the door under the cover of firing from our officers. At this point, Captain Williams fell down in front of the door and was exposed to the house for five seconds or more. More tear gas was fired into the house; and after several shots had been fired, people appeared at the front door shouting they were coming out. We ordered these people to lay down on their stomachs with their hands outstretched and to crawl to the middle of the street. This order was obeyed, and four men and one woman crawled out into the middle of the street.
"Within a few seconds, officers wearing gas masks went into the house to see if anyone was still inside. There was no one inside the house at this time.
"The five people who came out of the house and who were arrested were Wayland Earl Bryant, black male, age 42, from whom I took a Black Panther button off the front of his shirt; Ronald Williams, black male, age 24, who was wounded in the left side of his jaw or neck; Harold Robertson, black male, age 27; Robert Jakes, black male, age 22, and Brenda Joyce Griffin, black female, age 19.
"An ambulance was called, and Ronald Williams and either Harold Robertson or Robert Jakes were sent to the hospital. The remaining three were put into patrol cars and sent to the Jefferson County Jail.
"/s/ David Orange
Major David Orange
Assistant to the Sheriff"
The affidavit of Deputy Sheriff James L. Monteith, which was also placed in evidence, reads as follows:
"9-17-70.
"Subject: Eviction of Bernice Turner, 222 Jefferson Blvd., Tarrant, Alabama.
"On Tuesday the 15th of September, 1970, at approximately 11:45 A.M., Deputy Fikes and myself arrived at 222 Jefferson Boulevard to carry out a Circuit Court order to evict Bernice Turner from these premises, we had had previous information that it was a trap set up for us. When we arrived I went to the right hand side of the front door and Deputy Fikes took a position to the left of the house. I knocked loudly and got no response, I knocked again and still no one came to the door, I could hear a radio playing inside and also someone moving about. Capt. Williams told me to knock again and identify myselfI knocked again and told them that this was the
Sheriff's Department and that I had an eviction writ. I knocked a fourth time and announced who I was. At this time Major Orange stepped beside me and kicked the front door open, he and Capt. Williams shouted that they, the occupants, have guns. Capt. Williams, Major Orange and myself retreated to cover of the patrol car parked on the street. Major Orange told the occupants to come out and when they refused, tear gas was order fired into the houseThen there was some shooting, shortly 4 black males and 1 black female came out of the house. Major Orange told them to lie down in the street next to the patrol cars.
"Capt. Williams and Lt. Rauch checked out the house and said it was clear. After the tear gas subsided I proceeded to evict the premises. At 12:15 P.M., Bernice Turner came on the scene and wanted to know what was happening. She was told that she was being evicted. When the furniture was taken from the house I took the men who were working for me and left.
"/s/ James L. Monteith
Deputy"
*291 Additionally, Deputy Royce Johnson testified that he was present on the date and place in question, as part of his duties, and observed Deputies Monteith and Fikes first go to the door and knock two or three times and announce in a loud voice as to who they were. When there was no answer, Major Orange and Captain Williams then knocked two or three times and again announced who they were, and upon failure to have anyone answer the door, Major Orange kicked the door in. He heard someone exclaim, "They have got guns," and he retreated to the street behind patrol cars. Some shots were exchanged, and he testified that he saw the appellant Ronald Williams at a window leaning out with a rifle in his hand, at which time he fired his tear gas gun into the window. He testified that Williams pointed the rifle at him (Johnson) before firing his tear gas gun. He further testified he heard Deputy Sheriff Zito yell, "There is someone at the window," before firing. Deputy Sheriff Johnson testified that he was not wounded or harmed, and shortly after firing the tear gas gun, two appellants and their companions crawled out of the premises and surrendered to the officers. At the close of the State's evidence the appellants moved to exclude same on the basis that the State had failed to prove an assault and had failed to make out a prima facie case. This was overruled by the trial judge. The thrust or gist of each appellant's testimony at trial was to the effect that they were attempting to assist Mrs. Bernice Turner by raising money in her behalf.
Mrs. Turner testified that she had been living at the premises of 222 Jefferson Boulevard, Tarrant City, Jefferson County, Alabama, for some ten, going on eleven, years prior to September 14, 1970; that she had received a first eviction notice, and that she had talked with Steve Meriweather and Wayland (Doc) Bryant on the afternoon in question pertaining to this. She testified that Steve Meriweather took her to see Attorney Arthur Shores, and they were endeavoring to get a three day postponement. She testified that she invited each of the appellants to come by her home that evening, which they did, and stayed there overnight with three other companions to discuss a plan to raise some $1400.00, which was needed to pay for the premises in question. Mrs. Turner testified that she worked as a domestic servant for a Mrs. Keith in the Tarrant City area of Birmingham. She testified that she left her home on the morning of September 15, 1970, after seeing her two children off to school, and that she had a twenty-two caliber rifle which she had kept there at her home. On cross-examination, Mrs. Turner admitted she had received a final notice from the Sheriff's office of Jefferson County, Alabama, to the effect, "If you are not out by 8:00 A.M., September 15, 1970, we will have to set you out."
Each of the appellants took the stand and admitted going to Mrs. Turner's home on the evening of September 14, 1970, at her invitation accompanied by Robert Jakes; that subsequently Brenda Griffin and Harold Robinson came over later in the evening and remained with them through the night and the following morning; that during the evening Mrs. Turner had given them some food, and that a boarder who lived there with her had also been present; that the following morning, Mrs. Turner saw the children off to school, and that she left along with her boarder. Each appellant stated that with their three companions, they went to a meeting to distribute a leaflet to "politicize the community," the black community in Tarrant City, in an effort to raise money to help Mrs. Turner. The appellants admitted taking an Italian make rifle to Mrs. Turner's home with ammunition, but denied that there had been any discussion as to an ambush of any police officers. They further testified that they had Brenda Griffin go by and pick up a shotgun which was brought to the premises in question. Each appellant testified that they had a stereo record player at the *292 premises, and they had returned there after distributing the leaflets on the morning in question. They testified that they were playing a record entitled "Black Gold" when they suddenly saw the door kicked open, and Bryant exclaimed, "You are breaking and entering." Bryant testified he had a telephone in his hand at this time, and at no time did he wave the shotgun, which was found on the floor of the house in question. Appellant Ronald Williams corroborated Bryant's testimony, and denied that he ever had the rifle in his hand or that he had pointed it out the window in the direction of Deputy Sheriff Johnson. Each of the appellants denied ever hearing anyone knock on the door or the officers announce their presence other than by kicking down the front door. Examination of the shotgun and rifle indicated that neither had been fired.
I
Prior to trial, appellants' counsel filed a motion requesting a "motion for a free transcript" of the three-day preliminary hearing held on October 20, 1970, at the request of defense counsel. At the preliminary hearing, each of the appellants were represented by other attorneys than those who represented them at trial and now on appeal. At this time a Mr. Jerry Minatra, a private free lance court reporter, had been present at the request of defense counsel, and did take down and transcribe the testimony at this proceeding.
Appellants urge us to reconsider this court's prior opinion in this particular case as to this particular issue which was brought here on petition for writ of mandamus prior to trial to require the trial judge to order such free transcript of the preliminary hearing. The opinion of this court on this petition for writ of mandamus is reported as Williams v. Jasper, et al., 47 Ala.App. 91, 250 So.2d 699, cert. denied with opinion, Williams v. Jasper, et al., 287 Ala. 237, 250 So.2d 701.
We note from the record on trial of this cause that trial originally commenced on May 24, 1971, and after examination of Deputy Sheriff James L. Monteith on both direct and cross, a mistrial was entered and the cause continued for trial. The actual trial of this case and resulting appeal commenced on August 30, 1971, before the Honorable E. C. Watson, Jr., Circuit Judge. We also note that at this trial, each of the four deputy sheriffs who were called by the State and who gave testimony, that their affidavits were turned over on direction of the trial judge to appellants' counsel for their use in cross-examination of the deputies, and such was done, even though such is not required under Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, under the opinions of the Supreme Court of Alabama and this Court. Sanders v. State, 278 Ala. 453, 179 So.2d 35; Smith v. State, 282 Ala. 268, 210 So.2d 826; Mabry v. State, 40 Ala. App. 129, 110 So.2d 250, cert. dismissed 268 Ala. 660, 110 So.2d 260. We are not required here to determine whether or not the appellants should be furnished a "record of sufficient completeness" of the preliminary hearing to defense counsel in preparing for trial inasmuch as our prior opinion, Williams v. Jasper, supra, and that of the Supreme Court of Alabama is determinative of this issue; moreover, as here noted, the appellants have made no showing as to why they failed to call Mr. Jerry Minatra, the court reporter present at the preliminary hearing, as pointed out in our prior opinion, for purposes of showing any discrepancies in the State's witnesses' testimony, or any reason for failing to raise this issue again at trial in chief in accordance with this Court's prior opinion, supra. Further, in light of the fact that appellants' counsel did have and use the testimony at the aborted trial on May 24, 1971, of Deputy Monteith and the affidavit of Deputy Monteith and each of the other three deputy sheriffs, we are of the opinion that the appellants have here failed to show that they "suffered prejudice," constituting *293 actual injury. Williams v. Bailey, 5 Cir., 463 F.2d 247; and Bryant v. Bailey, 5 Cir., 464 F.2d 560.
II
Prior to trial, appellants' counsel moved to quash the indictment against each appellant on a basis of the alleged systematic exclusion of black persons from the jury rolls of the grand and petit juries of Jefferson County, Alabama.
At trial, in support of this motion, the appellants offered the testimony of one Wilson Edward Still, Jr., an attorney who was in partnership with the other defense attorneys, who described the basis of a random sample of 1600 names which he took off the jury roll and forwarded in turn, after extensive examination of this sampling, to Mr. David Valinsky of New York City.
Mr. Valinsky testified that he was Chairman of the Statistics Department of the City University of New York and had prepared a number of statistical studies for both private industries and governmental bodies.
Professor Valinsky testified that he had given the basis of the 1600 sampling to Mr. Still, and had analyzed the results with the following findings based on a comparison of the jury rolls and voter lists of Jefferson County, Alabama. Professor Valinsky stated that there were approximately 238,000 persons of proper age residing in the Birmingham division who were eligible for jury service. Of this number, approximately 53,300 were on the jury roll at the present time. Based on his study of the 1600 name sampling which had been sent to him of persons on the jury roll, he found that by comparison with the voter list for Jefferson County, which showed that 26.5% of the voter lists of Jefferson County were persons of the black race, and that only 20.8% of these names were on the jury roll, or a discrepancy of 5.7%. Professor Valinsky further testified from his study that the white voter list showed that it contained approximately 79.2% white persons, and that of these approximately 73.5% were on the jury roll, with the same approximate discrepancy for white persons of approximately 5.7%.
The State countered this testimony through the testimony of Mr. Billy R. Whitley, Clerk of the Jefferson County Jury Board. Mr. Whitley stated that the last time the jury box was refilled was August, 1969, but they were currently in the process of updating this jury roll. Mr. Whitley testified that the Jury Commission sent people employed by them into the black community, in fact, that since the United States Court of Appeals' opinion in Billingsley v. Clayton, 5 Cir., 359 F.2d 13, some two persons had been employed who were members of the black race to canvass house to house seeking additional eligible persons to serve as jurors. Mr. Whitley further testified that State law only requires a minimum of 6% of the total population of the requisite age, 21 to 65, to be placed on the jury roll. He stated that there were considerably more than this on the Jefferson County Jury Roll, which contained approximately 53,000 persons out of a population of approximately 238,000 in the Birmingham division of Jefferson County. The State then offered the jury venire list for each week, commencing October 20, 1969, through June 14, 1971, showing the number of persons of the black race actually called in comparison with the total number called and the percentage of each which were black. These lists affirmatively show that the smallest percentage of black persons called was 16% (the week of October 12, 1970) to a high of 34% (the week of January 18, 1971), and 35.65% (the week of May 31, 1971). The law is clear that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his own race on the jury which tries him, nor on the jury roll from which grand and petit jurors are selected. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.
*294 As was stated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759:
"Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group."
Moreover, this Court in Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852, has specifically found that the Jury Commission of Jefferson County, Alabama, in its jury selection process, has not systematically excluded persons of the black race, nor is such jury roll tainted with systematic inclusion. The evidence here has wholly failed to establish that the jury roll produced a result which was "spectacularly was not a cross section of the community." Jackson v. Morrow, 5 Cir., 404 F.2d 903. The trial court, therefore, properly denied the appellants' motion to quash the jury venire on the ground of systematic exclusion of black persons. There has been no evidence given that different standards of qualification were applied by the Commissioners to the black community, or that the Jefferson County Jury Commission was influenced by racial considerations by making its selection of prospective jurors. White, et al. v. State, 48 Ala.App. 111, 262 So.2d 313.
III
Appellant also moved to quash the indictment, averring that the jury selection process for Jefferson County, Alabama, Title 62, Section 207-220, Code of Alabama 1940, Recompiled 1958, and Volume 14, Appendix, Section 714, Code, supra, did not grant to the appellants due process or equal protection of law. The appellants have wholly failed to give proof to support this allegation and motion, the gist of which is that the one for one strike method, which applies only to Jefferson County, Alabama, from a panel of 24 persons in noncapital cases, denied the appellants either due process or equal protection of law as applied to other persons similarly situated.
As stated in Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492, "`[I]t is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.'"
We note here that since the appellants were tried together, they in fact did receive the two peremptory strikes for each allowed to the State, nevertheless, the motion to quash, attacking the law governing this procedure in Jefferson County, Alabama, was properly overruled. Slaughter v. State, 47 Ala.App. 634, 259 So.2d 840, cert. denied 288 Ala. 751, 259 So.2d 845.
IV
Appellants' counsel, just prior to trial, made a motion for a mistrial and a change of venue due to the security precautions taken in and about the courthouse on the day of trial.
Testimony of attorneys as to their opinion of these precautions was offered by the appellants and by the State. Additionally, Sheriff Melvin Bailey, who was in charge of the security precautions at the courthouse was called to testify, and described what he determined to be the necessary security arrangements. Sheriff Bailey testified in essence that he had conferred with the United States Marshal's office in Birmingham and established at the Jefferson County Courthouse similar procedures as to those used at the trial of a school desegregation case at the Federal District Court in Birmingham the week before. Sheriff Bailey stated that he had locked all but one entrance to the courthouse, and that all persons who came through this doorway were registered. Moreover, on getting off the elevator at a particular floor, deputies would stop and photograph each person and have them walk through a sensing device for the purpose of detecting *295 metal before admitting them to a given courtroom. Further, such persons were registered at a desk on each floor, and if metal or any other substances were detected, such were removed. Sheriff Bailey further stated that four guns were taken off persons seeking to enter the courtroom of Judge Watson on this date.
It is our opinion that the searching of spectators, or other persons, such as was here done, does not violate the appellants' constitutional right to a public trial, nor does such show prejudicial or unfair treatment as to preclude a fair and orderly trial of the appellants. Smith v. State, 247 Ala. 354, 24 So.2d 546, and cases cited.
Moreover, following voir dire examination of the jury venire by the attorneys, the trial court made the following inquiry:
"THE COURT: Ladies and Gentlemen, you may on today have noticed deputies around about the courthouse. You may have seen these individuals as you came in this morning, or when you left at noon, or came back at noon, or any time. I will ask you if the presence of these individuals in or about the courthouse here would in any wise influence the verdict of any one of you, and prevent you from being able to give a fair, just and impartial verdict to each of the Defendants as well as the State of Alabama?
"(No response.)
"THE COURT: I will ask you if there has been any single event that has transpired in the courthouse today, or that you have heard about, or seen, that would in any way keep you from giving each of these Defendants and the State of Alabama, a fair, just and impartial trial of the matter at issue here today?
"(No response.)
"THE COURT: Has any one of your number been convicted of a felony or a crime involving moral turpitude?
"(No response.)
"THE COURT: Has any one of your number been indicted on the charge of a felony, or of any crime involving moral turpitude within the last past twelve months?
"(No response.)
"THE COURT: I will hold that the jury is qualified to serve."
Under the circumstances as herein outlined, we are of the opinion that the trial judge did not abuse his discretion in not allowing the appellants to examine each juror individually, but, rather, directed that the appellants examine the venire as a whole. McPhearson v. State, 271 Ala. 533, 125 So.2d 709, and cases cited.
As pointed out in Hale v. United States, 5 Cir., 435 F.2d 737, "potential jurors need not be totally ignorant of the facts of a case." Further, as here, from Hale:
". . . Appellant did not challenge a single juror for cause. On the basis of this record, appellant has failed to show that at the time of their empanelling the jurors were biased against him."
Appellants' motions were properly overruled.
V
Finally, appellants moved to quash the indictments against them because the penalty provided in Title 14, Section 374 (20), Code of Alabama 1940, Recompiled 1958, as amended 1967, provides greater punishment than that for certain other assaults which are by law misdemeanors.
We regard this contention to be wholly without merit as society's interest in the preservation of orderly process and procedure dictates that its representatives be accorded proper protection. The trial court properly overruled this motion filed by the appellants on this basis. Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492.
*296 VI
At the close of the State's evidence, the appellants moved to exclude same on the basis that the State failed to prove assault within the meaning of law, and, further, failed to prove a prima facie case.
An "assault" has been defined by our Supreme Court in Johnson v. State, 35 Ala. 363, as follows:
"An assault is an attempt, or offer, to do another person violence, without actually accomplishing it. A menace is not an assault; neither is a conditional offer of violence. There must be a present intention to strike. On the question, how far the intention must be carried into actual execution, before the assault becomes complete in law, the authorities do not agree. Holding a gun in a threatening position, without any attempt to use it, or intention to do so, unless first assaulted by adversary, is not an assault. Blackwell's Case, 9 Ala. 79. Drawing a pistol, without presenting or cocking it, is not an assault, as was decided in Lawson v. The State, 30 Ala. 14. The subject is considered in the following adjudged cases: The State v. Davis, 23 N.C. 125, 35 Am.Dec. 735; Morton v. Shopper, 3 Car. & Payne, 373; Stephens v. Myers, 4 Car. & Payne, 349; 1 Bish. Cr.Law, § 409, 2 Bish.Crim.Law, § 36."
In Flournoy v. State, 40 Ala.App. 629, 120 So.2d 121, the Court, per Price, P. J., defined assault in this manner:
"`An "assault" is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at any time, an intention to do it, coupled with a present ability to carry such intention into effect.' Taylor v. State, 27 Ala.App. 538, 175 So. 698, 699; Tarver v. State, 43 Ala. 354; Burton v. State, 8 Ala.App. 295, 62 So. 394; Yates v. State, 22 Ala.App. 105, 113 So. 87."
We conclude that the testimony of the officers clearly established a legal assault sufficient to allow the question to be presented to the trial jury, and that the appellants' motion was, therefore, properly overruled. Root v. State, 247 Ala. 514, 25 So.2d 182; and Brown v. State, 48 Ala. App. 456, 265 So.2d 898, and cases cited therein.
VII
The appellants claim error by the trial court in the admission into evidence of a copy of the leaflet which was found at the house on the date in question by the Sheriff's deputies. We need not here quote this entire document. The closing paragraph contained the following statement:
"We know that the fastest Pig (Police) Force is going to try and stop us from gaining Political Power for the Black Working Man, so we have developed their philsophy [Sic] of Power, and that is `Political Power Grows out of the Barrel of a Gun.'"
The determination of whether or not particular evidence is relevant rests largely in the sound discretion of the trial court. Roan v. Smith, 272 Ala. 538, 133 So.2d 224, and cases cited.
The rule pertaining to written statements allegedly made by the appellants or their companions just prior to the alleged assault here falls within the purview of the rule enunciated in Parsons v. State, 32 Ala. App. 266, 25 So.2d 44, as follows:
". . . In criminal cases inquiry can be made into the conduct and assertions of the defendant prior to an assault if they shed light on the motives and preparations for committing the offense. Burton v. State, 115 Ala. 1, 22 So. 585; King v. State, 19 Ala.App. 153, 96 So.2d 636; Cooley v. State, 7 Ala.App. 163, 62 So. 292; Bedsole v. State, 22 Ala.App. 274, 114 So. 786; Harden v. State, 211 Ala. 656, 101 So. 442."
Such literature bears on the intentions or motives of the appellants and was properly here admitted in evidence. Hall *297 v. State, 208 Ala. 199, 94 So. 59; Parsons v. State, supra.
VIII
We have carefully reviewed the requested charges, which were refused by the able trial judge, and determine that the evidence being in conflict, the affirmative charge as to each individual was properly refused. Charges 1, 6, 16, and 17 tend to emphasize only the appellants' version of the facts and were therefore invasive of the province of the jury; hence, such were properly refused.
The record in this cause consists of Four Volumes, containing some 761 pages. We have carefully reviewed this record, as we are required to do by Title 15, Section 389, Code of Alabama 1940, Recompiled 1958, and find same to be free from error. The judgment of the trial court is due to be and the same is hereby
Affirmed.
CATES, P. J., and ALMON and HARRIS, JJ., concur.
DeCARLO, J., recuses himself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918022/ | 135 N.W.2d 499 (1965)
Walter L. BONNIWELL, Respondent,
v.
SAINT PAUL UNION STOCKYARDS COMPANY, Appellant.
No. 39376.
Supreme Court of Minnesota.
May 21, 1965.
*500 Stringer, Donnelly & Sharood and Richard Rohleder, St. Paul, for appellant.
Hvass, Weisman & King, Minneapolis, for respondent.
FRANK T. GALLAGHER, C.
Defendant, St. Paul Union Stockyards Company, appeals from a judgment and from an order denying its alternative motion for judgment notwithstanding the verdict or a new trial.
In the trial court, the jury returned a verdict in favor of plaintiff, Walter L. Bonniwell, for damages incurred in a mishap which occurred on May 16, 1962, when he fell partway into a manhole at the St. Paul stockyards. The manhole was in an alley near a scale house at which Bonniwell had been working in his position as yardman for Central Livestock Association, one of the commission companies at the stockyards. Because of the location of the manhole, it was necessary that while performing his job Bonniwell pass very near or over it. After picking up weight tickets at the scale house, he was returning to Central's office when he stepped on the lid of this manhole and it tipped, allowing him to fall in. The outlet in question was placed where it was to allow access to a water valve. There is a hole in the cover which allows a specially designed tool to pass through so that the valve underneath can be operated without removing the cover. This tool (a T-bar) was seldom if ever used without removing the cover. The reason given for this is that the hole was not lined up with the rod which was connected to the valve below and it was impossible to use the T-bar without removing the cover. Consequently, any time the valve below the cover was turned, the cover had to be removed and replaced.
In this general vicinity there was a limited amount of washing down of the scales and other uses of water which caused a flow of water and debris into this manhole. For example, Mr. Victor Frutiger, an employee of defendant who had washed screens in the area shortly before plaintiff fell, testified:
"Q. Now, when you rinse down the windows and the screens where does the water run?
"A. It would be down the where that cover was laying there."
This accounts for the fact that there was a ½-inch-deep accumulation of compacted manure and other debris in the manhole rim where the cover was intended to fit.[1] Because *501 this rim was only slightly more than ½-inch deep, there was very little of the rim extending above this debris to hold the cover in place. Somehow the cover became dislodged from the rim which was meant to hold it and, when plaintiff stepped on it, it tipped under him and he fell into the hole. Another employee of defendant, John McQuiston, noticed that the cover had sometimes become jarred loose by cattle moving through the area. He had replaced the cover at least two times when it had been out of its proper position.
Two employees of commission companies, Rayme Bultinck and Ralph Keene, testified that they had had similar experiences with the same loose manhole cover before and after Bonniwell's accident but were fortunate enough to escape injury.
On the bottom side of the cover are two fasteners which could be used to fasten the manhole securely to the rim. One of these is a nonmovable metal piece which is intended to slide under a peg which is on the inside of the rim. The other is a movable locking device which may be turned to catch another peg inside the rim and secure the cover. Plaintiff claims that if these fasteners had been used as the manufacturer intended, the cover could not have tipped as it did when he stepped on it. It is defendant's counter to this argument that the 75 pounds which the cover weighs is more than sufficient to keep the cover in place under normal circumstances. Defendant claims that these fasteners are only placed on the bottom of the cover to be used to secure it when it is used in sewer mains or elsewhere where there might be pressure from below.
In any event, the cover was certainly removed and replaced at least once on the day of the accident. Mr. Frutiger had found it necessary to remove it to turn on the water to wash screens. He replaced the cover. No explanation is available which would make it clear what finally caused the dislodging of the cover from the rim, although there are many possibilities because of traffic in the area.
Defendant in this appeal raises only the issue of liability, asserting that there was insufficient evidence to support a verdict of negligence against it and relying on Fandel v. Parish of St. John the Evangelist, 225 Minn. 77, 29 N.W.2d 817, 174 A.L.R. 600. In that case we stated (225 Minn. 85, 29 N.W.2d 822):
"* * * If there was any negligence on the part of defendant, it was in having the hole open, but there is no evidence to show that it had anything to do with the removal of the cover or knew who did remove it."
We do not consider the Fandel case controlling here. In that case, a coalhole cover was actually removed by some unknown third person and there was no evidence that defendant had actual or constructive notice of the danger which was present. For that reason defendant was there found to have no liability. The present case involves no activity of a third person. The acts which we are here concerned with are exclusively acts or omissions of the defendant or its employees. For this reason there is no need to prove that defendant had notice either actual or constructive and the exception noted in Messner v. Red Owl Stores, Inc., 238 Minn. 411, 413, 57 N.W.2d 659, 661, is in point:
"* * * Unless the dangerous condition in the instant case resulted from acts of defendant's employes, defendant *502 would be negligent only if its employes failed to rectify the dangerous condition after they knew, or in the exercise of reasonable care should have known, that the condition existed." (Italics supplied.)
In the Fandel case no evidence could be given as to what caused the cover to be missing. Consequently, that case was submitted on the theory of res ipsa loquitur. This court held that res ipsa was not properly applicable because the instrumentality causing the injury was not in the exclusive control of the defendant. No one in the present case claims that res ipsa does or should apply. Plaintiff has here produced direct evidence which shows how the manure and other debris could have been washed into the rim which holds the manhole cover. The fact that the cover was equipped with a locking device which was not in use but which, if it had been used, could have prevented this accident also raises a fact question for the jury which was not present in the Fandel case. While it is clear that the locking device was intended to be used in situations where pressure could build up under the cover, it seems that this was not the only possible use for this lock. It could reasonably have been used in just such a situation as we have in this case to attain greater stability of the cover since it had been placed in an area where cattle and men would normally walk on it.
Defendant also cites Bergum v. Palmborg, 240 Minn. 122, 60 N.W.2d 71, as authority for its argument that it did not have sufficient knowledge of the defect to cause liability to attach. In that case we stated (240 Minn. 126, 60 N.W.2d 73):
"* * * In the event a person lawfully using the sidewalk is injured by reason of the defective condition of such a trap door, the burden rests upon him to establish by a fair preponderance of the evidence that the trap door, at the time of the accident, was in a defective condition and that the defects therein were known to the owner or occupant of the adjacent property prior to the accident. Fandel v. Parish of St. John the Evangelist, 225 Minn. 77, 29 N.W.2d 817, 174 A.L.R. 600. Such knowledge may be shown by evidence that the owner or occupant created the defects, that they had been directly called to his attention, or that from the length of time they had existed, his knowledge thereof might be presumed. [Citations omitted.] Where there is no evidence to establish this, no liability attaches."
In applying this holding to the present case, it becomes apparent that there is no question concerning whether defendant had sufficient knowledge to cause liability to attach, since much of the evidence produced showed that defendant or its employees created the dangerous condition which later caused the injury to plaintiff.
The general rule concerning business invitees and the duty of reasonable care owed them by the possessor of the premises has been established and often repeated by this court. A possessor of premises used by business visitors, while not an insurer of their safety, is bound to exercise reasonable care to construct and to maintain his premises in a reasonably safe condition for their use. The duty is continuing in nature; it does not end with an original safe construction or installation but continues as long as the premises are devoted to such use. Reasonable inspection during such use is a duty incident to the maintenance of the premises. See, Anderson v. Winkle, 213 Minn. 77, 5 N.W.2d 355; McGenty v. John A. Stevenson & Co., 218 Minn. 311, 15 N.W. 2d 874; Schrader v. Kriesel, 232 Minn. 238, 45 N.W.2d 395; Mayzlik v. Lansing Elev. Co., 241 Minn. 468, 63 N.W.2d 380; Strong v. Shefveland, 249 Minn. 59, 81 N.W.2d 247; Mattson v. St. Luke's Hospital, 252 Minn. 230, 89 N.W.2d 743, 71 A.L.R.2d 422. See, also, Restatement, Torts, § 343.
In our opinion the facts of this case place it well within the rule laid down *503 in the above cases. The jury could have found here that defendant was negligent in not instructing its employees that the cover be securely locked in place, as it could have been with the fasteners provided. Defendant could also have been found to be negligent in failing to make reasonable inspection and to keep clean the rim into which the cover was intended to fit. There is no question that a jury could reasonably have found either of these failures on the part of defendant caused plaintiff's injury.
We conclude that there was a fact question for the jury and sufficient evidence to sustain a finding of causative negligence against defendant.
Affirmed.
NOTES
[1] Mr. Louis Wolfe, then an employee of defendant, who was called as a maintenance man to see what could be done about the cover after plaintiff's accident, testified:
"Q. * * * while you were there the manhole cover was taken off, is that correct?
"A. It was taken off.
"Q. And did you inspect the rim as shown in plaintiff's exhibit C-1 here and that also is in plaintiff's exhibit L?
"A. Yes, I did.
"Q. Did you find anything in the rim?
"A. I found a small amount of foreign matter on the lip of the rim.
"Q. What was this foreign matter?
"A. Well, it would be a combination of well, manure, dust.
"Q. How deep was it?
"A. I would say approximately about a half inch." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918023/ | 272 So.2d 827 (1973)
Evelyn Mignonette WILLIAMS and Naomi Bell, Appellants,
v.
Henry John WILLIAMS, Jr., Appellee.
No. Q-123.
District Court of Appeal of Florida, First District.
January 16, 1973.
Rehearing Denied February 23, 1973.
William B. Holland, Winter Haven, for appellants.
John E. Norris and Bruce W. Robinson, of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellee.
WIGGINTON, Judge.
Appellants have appealed a post-judgment order rendered by the trial court which modified a former order requiring appellee-father to pay periodic child support for the minor children born of this marriage.
Appellant, Evelyn Mignonette Williams, and appellee, Henry John Williams, Jr., were divorced by judgment of the Circuit Court of Lafayette County rendered on June 30, 1961, by the terms and provisions of which custody of their two minor children was awarded to appellant and appellee was ordered to pay child support in the sum of $100.00 monthly. In January, 1968, a modification order was rendered increasing the child support required to be paid by appellee to the sum of $150.00 monthly. In January, 1971, appellant-mother was seriously injured in an automobile accident and was confined to the hospital. Because of her incapacity, an amendatory order was entered upon the petition of appellee by which he was awarded temporary legal custody of the children, and they were placed in the home of a Mr. and Mrs. Jack Towler who were granted direct supervision and *828 control of the children while living with them.
Subsequently in September, 1971, appellant-mother, together with appellant Naomi Bell, maternal grandmother of the minor children, filed a petition in the circuit court seeking modification of the prior custody order and praying that custody of the two children be awarded to the grandmother, Naomi Bell. This petition was countered with a like petition filed by appellee praying that the prior custody order be modified by granting complete and unrestricted custody of the children to him. It was on the issue of child custody only that the case came on for hearing and trial before the court. After extensive testimony was taken, the trial court rendered the order appealed herein by which it was found and adjudged that the best interests of the children would be served by granting their custody to the maternal grandmother, Naomi Bell, even though appellee was found not to be an unfit person but on the contrary to be an intelligent, sensitive, and fit person to have the custody of his daughters. After adjudicating the only issue raised by the pleadings, the trial court went further by adjudging that defendant-father should not be required to make support payments for the benefit of his children for the reason that his employment outside the territorial limits of the United States for the majority of the year deprives him of his right to visitation, and the attitudes of the children in not being desirous to be with him for the remainder of the time frustrates his right to visitation.
Appellants challenge that part of the post-judgment order appealed herein which modifies the prior order of the court and vacates that provision requiring appellee to pay the sum of $150.00 monthly for the maintenance and support of his children. Appellants contend that the matter of child support was not an issue raised by the pleadings nor tried by the parties at the hearing before the court and, therefore, was improperly included as an issue to be disposed of in the judgment rendered. With this contention we are impelled to agree.
In the case of Cortina v. Cortina[1] a divorce decree was awarded the husband, but the custody of their minor child was awarded to the wife with directions that the husband pay the sum of $10.00 a week as support for the child. Subsequent to the rendition of the decree, the husband filed a contempt proceeding against his former wife alleging that she had refused to allow him the reasonable visitation privileges awarded by the final decree of divorce. After hearing evidence on the petition for contempt, the trial court rendered an order amending the final decree in which he found that the father's right to visit his child had been denied through the fault of the daughter and therefore revoked and set aside that part of the original decree which required the husband to pay child support for the benefit of his daughter. In reversing the modification order, the Supreme Court said:
"There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue of modification is presented to him in appropriate proceedings and each party is given an opportunity to be heard on such issue... .
"... It is fundamental that a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand; and where, as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal... ."
So it is in the case sub judice the sole issue presented to the trial court on the petitions for modification filed by the appellants and appellee herein was one of custody of the children. No motion to modify the prior support orders was made by appellee nor *829 did he ask to be relieved of making support payments for his children on the ground that his right to visit them had been wrongfully frustrated. It was for these latter reasons, however, that the trial court set aside its former order requiring support payments for the children without such being an issue presented to him for decision. This he is not authorized to do under the established law of this state.[2]
Appellee has cross-assigned as error that part of the order appealed herein which awards custody of the two minor children to appellant-grandmother. As heretofore stated, this award was made upon the finding and conclusion by the trial court that such was in the best interests of the children. The testimony taken at the trial on which said order is based has not been brought to this court as part of the record on appeal. Without such record we are wholly unable to determine whether the chancellor's findings are based upon competent evidence or that his conclusions constitute an abuse of discretion or accord with the essential requirements of law.
At the hearing before this court counsel for the respective parties candidly informed the court that a number of events have transpired since the rendition of the order appealed herein which have an important bearing on the issues decided by the trial court and embodied in its most recent custody and child support order. It now appears that the mother of the minor children involved herein has died subsequent to the custodial award of her children to appellant, Naomi Bell. The fact that Naomi Bell lived in close proximity to the hospital where the mother was a patient, thereby affording visits between the children and their mother, was one of the factors considered by the court in making the custody award it did. Since the rendition of the order here considered, it appears that Naomi Bell has placed the two minor children in the home of their aunt and uncle and they are therefore no longer residing with the person to whom their custody was awarded. It is self-evident also that the mother to whom appellee was ordered to make child support payments is now deceased, and there is no one who is authorized to demand and accept such payments for the benefit of the children. Because of the situation in which this case now appears to have devolved, we hold that the portion of the order appealed herein which cancels and sets aside the previous order requiring appellee to pay child support payments for the minors involved herein is reversed. This cause is remanded to the trial court with directions that a hearing be held and further testimony taken regarding the custody of the minor children and the obligations of appellee to make periodic payments for their support and maintenance.
Reversed and remanded.
RAWLS, Acting C.J., and JOHNSON, J., concur.
NOTES
[1] Cortina v. Cortina (Fla. 1957) 98 So.2d 334, 336, 337.
[2] Cortina v. Cortina, supra note 1; Mendel v. Mendel (Fla.App. 1972) 257 So.2d 293, 296; Rine v. Rine (Fla.App. 1970) 240 So.2d 655, 656. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918026/ | 272 So.2d 279 (1972)
Clinton TOLEN
v.
STATE.
5 Div. 98.
Court of Criminal Appeals of Alabama.
November 14, 1972.
Rehearing Denied December 12, 1972.
Maye & Melton, Opelika, for appellant.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.
*280 W. J. HARALSON, Supernumerary Circuit Judge.
The appellant was charged with murder in the second degree, convicted of manslaughter in the first degree, and sentenced to ten years imprisonment. From this judgment he appeals.
From the evidence it appears that in Opelika on the evening of November 5, 1970, a card game was in progress at the home of the deceased, Sarah Ingram. Engaged in the game and otherwise in attendance as visitors were twelve or more persons. Clinton Tolen and Charlie Lee Mason along with the deceased, Sarah Ingram, and several others were engaged in the card game sitting around a table when a dispute arose between Tolen and Mason over a bet. Mason took some money from the table which was claimed by Tolen and after a short argument each produced a pistol and started firing at the other. It appears that Tolen fired the first shot. At about this time Sarah Ingram intervened between the two in an apparent attempt to keep down trouble and was shot in the left side of her head receiving a wound from which she died. It further appears that her left side was the side near Tolen rather than Mason. It further appears that the gun used by Tolen was a .32 caliber pistol and that the wound was inflicted by a bullet fired from a gun of that caliber. There was much evidence offered by the State and the defendant in which the details of the affray were thoroughly examined but the above brief statement will serve as a basis for some of the rulings of the court claimed to be erroneous by the appellant. The appellant reserved several exceptions to the oral charge of the court.
The exceptions, in the language of the appellant's attorney as reserved by him are:
"1. The use of a deadly weapon raises a presumption of malice.
"2. The intent does not necessarily mean to take life in the second degree.
"3. The attempt to deliberately and premeditatedly kill one person whereby a third person is killed means that the defendant is guilty of murder.
"4. The inadvertent shooting of one while shooting at another person makes the defendant guilty of the same degree of homicide as if he killed the person he intended to shoot."
The exceptions, although not in the exact language used by the court, substantially set out the statements in the oral charge to which the appellant intended to except.
Exception 1. The actual words of the court referred to in the first exception were, "the intentional and unjustifiable use of a deadly weapon in a deadly manner raises a presumption of malice, and the presumption prevails unless the circumstances incident to the killing rebut the presumption; overcome that presumption." This was a correct statement of the law. Warren v. State, 34 Ala.App. 447, 41 So.2d 201.
Exception 2. The conviction was for manslaughter in the first degree and not murder. Thus, there is no error in the language of the court in the oral charge as this exception has become abstract in that it did not deal with the degree of homicide of which the appellant was convicted.
Exceptions 3 and 4. These exceptions deal with the same principle and may be considered together. As stated above, Exception 3 is directed to the offense of murder and in addition to the killing of a third party rather than the person sought to be killed. It is therefore abstract under the verdict reached by the jury. Exception 4 sets out a principle which was explained to the jury more than *281 once by the court in its oral charge. In Harris v. State, 46 Ala.App. 189, 239 So.2d 331, this court stated:
"If a person, shooting at another, kills a third person, his guilt is the same as if he had killed the person for whom the shot was intended. Gettings v. State, 32 Ala.App. 644, 29 So.2d 677."
In our opinion no error was committed in the oral charge in any of the exceptions set out above.
The court refused requested written charges Nos. 1 and 2 for the defendant. Charge No. 1 was affirmative in nature and was properly refused. Charge No. 2 was properly refused. The court in its order overruling the motion for a new trial filed by appellant cites the cases of Lanier v. State, 43 Ala.App. 38, 179 So.2d 167; Collier v. State, 69 Ala. 247; and Smith v. State, 243 Ala. 254, 11 So.2d 471, 472, as authorities for the refusal of this charge. Under the aforementioned authorities there was no error in the refusal of said Charge No. 2.
The appellant further argues for error in the court's ruling refusing to allow appellant to explain why he had the gun on the occasion of the killing and what his purpose was in bringing the gun there. A defendant may not say why he took the gun to the scene of the homicide and why and for what purpose he shot. Smith v. State, 145 Ala. 17, 40 So. 957. The Law of Evidence in Alabama, J. Russell McElroy, Vol. 1, Page 252, § 102, 07(1). These cases are in line with the general rule that the undisclosed intention of a witness may not be testified to by him. There are exceptions to the rule but they are not applicable here.
The foregoing opinion was prepared by Honorable W. J. HARALSON, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended. His opinion is hereby adopted as that of the Court.
We have responded to the argument of the appellant in brief and have examined the record carefully in a search for error as required by the statute. Finding no error of a reversible nature, the judgment in this cause is due to be and is
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918031/ | 272 So.2d 141 (1972)
James A. SEBESTA, As Supervisor of Elections of Hillsborough County, Florida, Appellant,
v.
Michael J. MIKLAS et al., Appellees.
Calvin CARTER and John Thomas Touchton, Appellants,
v.
Michael J. MIKLAS et al., Appellees.
Nos. 42872, 42835.
Supreme Court of Florida.
October 18, 1972.
*143 John R. Lawson, Jr., of Holland & Knight, Tampa, for Calvin W. Carter and John Thomas Touchton, and Warren M. Cason, County Atty., and David W. Thorpe, Asst. County Atty., for James A. Sebesta, appellants.
Joseph C. Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, Paul B. Johnson of Gregory, Cours, Paniello & Johnson, Tampa, for appellees.
James M. McEwen, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellees-intervenors George W. Fee, and others; Paul S. Buchman, Plant City, for appellees-intervenors Henry S. Moody, and others.
Robert W. Morrison, Ft. Lauderdale, of Miller & McKendree, for George H. Sheldon, as amicus curiae.
McCAIN, Justice.
This case comes here on direct appeal from a judgment of the Circuit Court of Hillsborough County declaring Chapter 72-555, Laws of Florida, invalid and permanently restraining and enjoining the Supervisor of Elections of Hillsborough County from providing a referendum ballot pursuant thereto. Because the final judgment passed directly upon the validity of a state statute, we have jurisdiction under Fla. Const., Article V, § 4(2), F.S.A.
The facts are not disputed. Chapter 72-555, a special act of the Legislature, creates a single unified government for Hillsborough County and provides a county home rule charter effective upon adoption of the Act by a majority of the electors of Hillsborough County. The referendum is scheduled to be held simultaneously with the forthcoming general election on November 7, 1972.
The Charter provides that the legislative power of the county shall be vested in a nine-member county council serving four year terms, one member to be elected from each of the nine districts into which the county is apportioned by the Charter. Those residents of a district desiring a seat on the council must initially submit to a non-partisan "primary" election within their district. The two candidates receiving the highest number of votes from the residents of the district are considered nominated by the voters, and are then placed on an at-large ballot voted on in a general election by the entire electorate of the county. This system is designed to make the council members responsive both to their home districts and to the county as a whole.
Section 19.07 of the Act apportions the county into nine initial council districts composed of groupings of existing city and county voter precincts. Existing precincts are used to permit all the voters in a given precinct to use the same voting machine. Using the 1970 federal census figures, the County Planning Commission has determined that a majority or five, of the nine council members to be elected under the apportionment scheme will be elected by no less than 53% of the residents of the County. District populations deviate from population equality by the following percentage figures, with plus designating overrepresentation and minus designating underrepresentation:
District #1 plus 3.4%
District #2 plus 2.3%
District #3 plus 7.6%
District #4 plus 3.5%
District #5 minus 1.7%
District #6 plus 7.7%
District #7 minus 12.8%
District #8 minus 2.7%
District #9 minus 7.4%
*144 Thus, using 1970 federal census statistics, the present plan produces a total deviation from complete population equality of 20.5%.
Additionally, Section 19.07 of the Charter contains a curious legislative defect: it omits entirely Precinct 3 (Davis Islands) from the precinct groupings contained therein. More will be said concerning this deficiency later. Suffice it to say at this juncture that the omission appears to have been inadvertent and clerical; Precinct 3 was evidently intended for inclusion in proposed District #2.[1]
Upon adoption of Chapter 72-555 by the Legislature, appellee Miklas and others, all electors of Hillsborough County (with Miklas residing in Precinct 3), brought suit in the Circuit Court against defendant Sebesta, as Supervisor of Elections, seeking: (1) a declaration that the Act failed to comply with the "one man, one vote" standard of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); and (2) to enjoin defendant Sebesta from providing a referendum ballot pursuant to the Act. Petitions to intervene in the proceedings filed by members of the Council of the City of Temple Terrace and by appellant Carter and others were granted by the trial court.
Trial without jury was held on August 29 and 30, 1972. On September 6, 1972, final judgment determining Chapter 72-555 to be unconstitutional and void was entered by the trial court. In pertinent part, the trial court held:
"The Court finds that Chapter 72-555, Laws of Florida 1972 is unconstitutional and void. Said Act clearly violates the requirements of the Constitutions of Florida and the United States that one man's vote in a district be worth as much as another. The variation in population from the less populous district to the most populous is too great. In addition, the variation in population from the less populous and most populous districts to the average or ideal size district is too great. There was no showing of circumstances or considerations sufficient to justify the variation which exists in the population of the council districts. Although the council members are to be elected in a county-wide election, nevertheless each candidate must first be nominated by the voters from his district and only the two candidates receiving the greatest and next greatest number of votes in their district are eligible to run countywide. Therefore, the voters of one district have no voice concerning who will be nominated from each of the other districts. The omission of Precinct 3 from the Act renders the Act fatally defective. Although there was a clerical error such error was made by someone not connected with the Legislature. Precinct 3 was not included in any of the nine council districts when the Act was considered by the Legislature. Therefore, this Court would be legislating by placing the omitted Precinct in the Act and designating the district in which it should be placed."
The separate appeals here of defendant Sebesta and intervenor Carter have been consolidated for all appellate purposes.
We concern ourselves first with the omission of Precinct 3 from the District groupings in Section 19.07 of the Act. It is readily apparent from the purpose and overall intention of the Legislature to "provide a Charter creating a single local government for Hillsborough County consolidating all existing municipalities ..." that the omission of Davis Islands from the Act was unintentional. The Act by its terms applies to the entire County. Since Davis Islands is part of the County, we can safely conclude that it was intended to be included in the consolidation scheme. Were this not so, the Act would have provided *145 a specific exception applicable solely to Precinct 3.
Thus, it is necessary to consider the propriety of correcting the scrivener's error by placing Davis Islands in one of the nine proposed districts. It is an established maxim of statutory construction that courts have the judicial obligation to sustain legislative enactments when possible. Armstrong v. City of Edgewater, 157 So.2d 422 (Fla. 1963); Overman v. State Board of Control, 62 So.2d 696 (Fla. 1953). On the other hand, this Court has been extremely reluctant in the past to reword statutes enacted by the Legislature, and has in general limited such corrections to cases where the legislative intent was clear from a reading of the statute itself, or where the statute was absurd on its face without the addition of the word or phrase. Armstrong v. City of Edgewater, supra; Haworth v. Chapman, 113 Fla. 591, 152 So. 663 (1933); and In re Sherman's Estate, 146 Fla. 643, 1 So.2d 727 (1941). Admittedly, were we to follow this line of precedent strictly, emendation of the Charter would be impermissible in this instance.
Rules of statutory construction, however, should never be applied without regard to their underlying rationale. In situations requiring rewording of statutes, the overriding concern of this Court has been effectuation of the manifest intention of the Legislature. The strictures placed on the procedure have been designed to avoid judicial speculation as to the intent of the Legislature where such intent was unclear or ambiguous. Thus, it would seem that if the legislative intent with regard to a word or phrase omitted from a statute is readily ascertainable, whether or not such intent appears from the content of the statute itself, then this Court may supply such omitted word or phrase. In reaching this conclusion we do not abandon our previous cautious approach to statutory emendation; rather, we reaffirm it and emphasize that it will continue to be the exceptional case in which this Court will undertake to correct scrivener's defects in enacted statutes.
In the case sub judice, the legislative intent with regard to Davis Islands is readily ascertainable although such intent does not appear on the face of the Charter. The mass of testimony and exhibits introduced below by both sides discloses that Precinct 3 was intended from the start to be incorporated in proposed District #2. It was never considered for inclusion elsewhere. All the district maps in the legislative file allot Precinct 3 to District #2; summaries of the legislation prepared for use by the Legislature place Davis Islands in District #2; and the population figures prepared for legislative use all allocate the residents of Precinct 3 to District #2. In short, Precinct 3 was at all times intended to become a part of District #2, but was inadvertently omitted from that District in the draft of the Charter adopted by the Legislature. Under these circumstances, it is not an indulgence in judicial "speculation" or "legislation" to allocate the omitted precinct to its proper district. Accordingly, Precinct 3 (Davis Islands) is hereby inserted in the precinct grouping for proposed District #2 specified in Section 19.07 of Chapter 72-555, Laws of Florida.
The second, and more serious challenge to the Charter is the assertion that the disparity in district populations is too great to comply with the "one man, one vote" requirement of Reynolds v. Sims, supra, and subsequent cases.
In Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), the U.S. Supreme Court held the standards of Reynolds applicable to local as well as state elections. The Court said in part:
"When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from *146 districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process.
......
"... not infrequently, the delegation of power to local units is contained in constitutional provisions for local home rule which are immune from legislative interference. In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens. We therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties."
We do not think, as appellants contend, that the recent case of Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971) represents a departure from the Avery rationale. In that case the U.S. Supreme Court upheld an overall deviation of 11.9% from strict population equality in a reapportionment scheme for Rockland County, New York. The Court concluded that the deviation was acceptable because of the peculiar relationship of the five towns which constituted the county and the unusual history of legislative cooperation and interdependence between the county and towns. In short, Justice Marshall, speaking for the majority, was of the view that the deviation of 11.9% was justified by legitimate county considerations.
Rational state and local policy considerations have long been a recognized exception to the requirement of strict population equality. Indeed, this view, coupled with a warning, was first articulated in Reynolds v. Sims itself:
"So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes ..."
And in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), the Supreme Court overturned a proposed reapportionment of the Florida Legislature incorporating a deviation from strict population equality of 25% for the Senate (with a 1.30 to 1 ratio between the largest and smallest districts) and 33% for the House (with a 1.41 to 1 population ratio) because of the State's failure to justify the variation in terms of acceptable state policy:
"We reverse for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts with respect to both the senate and house of representatives. Reynolds v. Sims, supra, recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy."
In our view, a 20.5% overall variation in district populations is far from de minimis. It is a substantial deviation which can only be sustained on the basis of legitimate and rational county interests. The *147 justification urged by appellants asserts the importance of district boundaries which coincide with existing precinct boundaries, so that all voters in a given precinct may use the same voting machine. However, appellant Sebesta testified below that since passage of Chapter 72-555, at least 10 of the existing precinct lines have been changed to permit precincts to coincide with the boundaries of reapportioned congressional and state legislative districts. Therefore, despite the painstaking work of the Hillsborough County Planning Commission, substantial numbers of electors will find themselves voting in one precinct for state and federal purposes and another for County Council elections. In light of this circumstance, the current apportionment plan, in spite of the claims of its proponents, offers the voters of Hillsborough County little or no advantage in terms of convenience on election day as a compensation for the 20.5% variation in district populations.
Additionally, there is extensive testimony in the record that more precise alternative plans could be formulated using federal census tract information rather than precinct lines. Mr. Preston Howard, a land planner for the State of Florida, himself formulated such a plan (in approximately 4 "man-hours") incorporating a total deviation from the largest to the smallest district of 8.7%, considerably more de minimis than the variation of 20.5% under the challenged plan. Mr. Howard's plan also has the advantage of preserving the present boundaries of the City of Tampa. Given approximately four "man-weeks" in which to work, Mr. Howard testified that he could achieve an apportionment scheme for the County which would include a deviation from the average size district of less than 1%.
Accordingly, we conclude that the 20.5% population deviation incorporated in the proposed plan remains largely unexplained and unjustified by the proponents of the present scheme. Therefore, it is not in compliance with and cannot be sustained under Reynolds v. Sims, supra, and Avery v. Midland County, Texas, supra.
Having considered the apportionment scheme and determined it to be deficient, we turn now to the proper disposition of the cause. As appellants note, the apportionment plan comprehends only a small portion of the Charter which, in its entirety, creates a complete county government comprizing legislative, quasi-judicial and administrative functions. On the other hand, because County Council elections are the sine qua non without which the Charter cannot be effectively implemented, severability is impossible. We conclude, therefore, that the November 7, 1972 referendum should be allowed to proceed to permit the electorate of Hillsborough County to express its views on consolidation and home rule. If the referendum fails of passage, the question of apportionment will be rendered moot and no further action need be taken. But if the Charter is adopted by the voters, the four month interim period before County Council elections are scheduled to take place[2] is adequate time for the Circuit Court of Hillsborough County to fashion an apportionment scheme which will meet the requirements of Reynolds and Avery, supra. Accordingly, the Circuit Court of Hillsborough County, acting through Judge Spoto, the trial judge below, is hereby ordered, contingent upon passage of the Charter referendum on November 7, 1972, to apportion Hillsborough County, including Davis Islands, into nine districts of substantially equal population from which members of the County Council shall be elected. The Circuit Court shall permit all interested parties to the pending litigation to be heard and shall enter a decree effecting such apportionment on or *148 before December 22, 1972. Upon entry of such decree, the Circuit Court shall instanter transmit the record in the cause back to this Court for review. The parties to this cause shall have to and including December 28, 1972 to file briefs in opposition to and in support of the plan formulated by the Circuit Court, with copies furnished to opposing counsel.
The judgment of the Circuit Court of Hillsborough County is reversed and the cause temporarily relinquished to that Court for the further proceedings described above. Because of the short span of time within which the trial judge must hold hearings and fashion the required apportionment scheme, this order is made effective immediately, and a petition for rehearing will not be allowed.
It is so ordered.
ROBERTS, C.J., and CARLTON, ADKINS and BOYD, JJ., concur.
POPPER, Circuit Judge, dissents with opinion.
DEKLE, J., dissents and concurs with POPPER, Circuit Judge, with opinion.
POPPER, Circuit Judge (dissenting):
The question before the Court is but a simple one the determination of the constitutionality of Ch. 72-555, Laws of Florida. The Chancellor below determined the act to be unconstitutional and rightly so. To create legal amputation of the intended bill for the voters to pass upon or reject has no legal precedence. All precedents cited in the majority view are acts by the courts applying to existing legislative bodies to reapportion according to the guidelines set forth in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.
In the instant case it is the creation of a new governmental body by this Act which the majority would prospectively reapportion. To act in haste is not part of the judicial process. For surely to give the citizens of Hillsborough County but a piecemeal matter to vote upon was not the intent of the framers of Ch. 72-555. Time is not of such an essence that would cause the courts to enter the legislative thicket and break down the fence that separates the judicial from the legislative, when properly a new and constitutionally conforming Act may be presented to the voters at a later date.
There is no question that it is the right of the people to determine by their vote whether or not Hillsborough County should or should not have metropolitan government and this right should not be taken away, but this right should be given to the people through normal process without the invasion of the courts.
Surely the present government may exist until proper action is taken without the necessity of the courts dictating. All other matters are superfluous at this time and constitute an invasion of the legislative field and certainly not a proper act of the Court.
As to Precinct 3's inclusion in District 2, I will not discuss the matter, for this matter is incidental to the issue at this time as to the constitutionality of the overall act.
It is for the aforementioned reasons that I dissent from the majority.
DEKLE, Justice (dissenting):
I concur in Judge Popper's incisive views and dissent upon the further ground that superimposing an at-large vote upon district elections is novel and in my view is unconstitutional as violative of the "1-man, 1-vote" mandate of Reynolds v. Sims, supra.
NOTES
[1] The percentage population deviation for District #2, supra, assumes inclusion of Precinct 3 in that district. The deviation from optimum population would be approximately 8.3% were Precinct 3 omitted.
[2] 14.06. "Regular Election Dates. The regular elections for officers of this Government shall be one election in two parts, a first election and a second election, which shall be held on the first and third Tuesdays respectively of March in 1973 and every four years thereafter; ..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918051/ | 135 N.W.2d 892 (1965)
Gerald ATKINSON and Archibald Atkinson, Respondents,
v.
Max MOCK and William Mock, Appellants.
No. 39606-7.
Supreme Court of Minnesota.
June 18, 1965.
*893 Quinlivan, Quinlivan & Williams, St. Cloud, O. C. Adamson, II, Minneapolis, for appellants.
Hughes, Hughes & Hughes, St. Cloud, John Knapp, Albany, for respondents.
KNUTSON, Chief Justice.
This is a consolidated appeal from judgments entered pursuant to verdicts of the jury in favor of plaintiffs and from orders denying motions for a new trial.
The action arises out of a rear-end collision between a car driven by Gerald Atkinson, referred to hereinafter as plaintiff, in which his brother Archibald Atkinson was riding as a passenger, and an automobile owned by Max Mock and driven by William Mock, referred to hereinafter as defendant. The accident occurred during the early hours of December 2, 1961, on old Highway No. 52 near Albany, Minnesota. At the time of the accident the weather was extremely foggy, visibility being limited to a couple of car lengths according to the testimony of all witnesses. The roads were very slippery.
Immediately prior to the accident defendant was driving west on the highway at about 25 miles per hour. According to his testimony and that of the other occupants of his car, they had decided to turn at an intersection and enter new Highway No. 52, which lies a short distance to the left and parallels the old highway. It is defendant's contention that as he slowed down to make the turn into this intersection he was traveling about 5 to 10 miles per hour and had his left turn signal flashing. A passenger in his car, Leander Pierskalla, suddenly saw plaintiff's headlights behind them and shouted a warning. Defendant stated that plaintiff was "coming fast" and was only about 30 feet behind them when they first saw him, due to the heavy fog. He said that he then shifted into second gear and attempted to accelerate straight ahead in order to avoid the accident but plaintiff collided with the rear of his car a few feet west of the intersection. There seems to be no question but that the cars were on the right side of the center line at the time of the collision. Defendant's car ended up in the opposite lane about 75 feet west of the point of impact and plaintiff's car ended up about 15 to 20 feet west in the right lane.
Plaintiff testified that he had been traveling about 25 to 30 miles per hour prior to the accident. He first saw defendant's car through the fog when it was two or three car lengths ahead of him. He said that he noticed taillights but no turn light, and it appeared to him as if defendant's car was backing up, as the accident happened so fast after he first observed the car.
Much of the testimony in the record deals with the conduct of the parties prior to the accident. This evidence was admitted over defendant's objection and may be briefly summarized. During the early part of the evening, plaintiff's brother, Ed Atkinson, his wife, and another couple, Glenn and Betty Wilwerding, had attended a dance in the Pelican Lake Ballroom at St. Anna, Minnesota. When the dance ended, at 1 o'clock, the Wilwerdings were walking across the parking lot near the dance hall to their car. *894 At this time, defendant, with his two passengers, drove into the lot, and Wilwerding said that he was forced to jump out of the way of the car. He heard someone yell "chicken," so he said "watch it." Defendant and his passengers testified that they were driving only about 10 miles per hour in the lot and stopped 10 to 20 feet short of Wilwerding. In any event, the possibility of a fight between the parties was mentioned, and defendant followed the Ed Atkinson car as it drove west on old Highway No. 52. He harassed the car by pulling alongside it at about 30 to 35 miles per hour in spite of the icy condition of the roads and the treacherous driving. Defendant says that he was only trying to pass but was not able to do so.
When they were west of Albany, defendant's car ran into the ditch, but he was able to keep moving and drive out of the ditch on his own power. The distance from the point of the accident to the place where he had run into the ditch was estimated to be two-tenths of a mile by Glenn Wilwerding, but the deputy sheriff who investigated the case testified that he had measured it to be six-tenths of a mile. After reentering the highway, defendant says he gave up the chase and began to look for the intersection to turn back, and it was shortly thereafter that plaintiff ran into the rear of his car.
It developed after the trial that a member of the jury, Mrs. Marcella Hallermann, was a first cousin once removed of plaintiff. She was interrogated and insisted that she did not know that she was related to plaintiff until after the case was finished. The trial judge so found. This matter will be discussed hereinafter.
Two questions are presented here: (1) Was it error to admit evidence of the conduct of defendant prior to the accident? (2) Does the relationship of Mrs. Hallermann to plaintiff per se require a new trial?
1. The admissibility of conduct prior to the happening of an accident presents largely a question of relevancy. The subject is so exhaustively annotated in Annotation, 46 A.L.R.2d 9, that it would be useless to try to discuss or reconcile the many cases on the subject to be found there. Such conduct is usually admissible if it is not too remote in point of time and space and is of such a nature that an inference may reasonably be drawn that it continued until the point of the accident or is of such a nature as to explain or characterize the conduct of a party as shown by the evidence. Many of the cases deal with speed. Evidence of prior driving may be relevant to establish speed at the time of the accident. Quinn v. Zimmer, 184 Minn. 589, 239 N.W. 902; Spencer v. Johnson, 203 Minn. 402, 281 N.W. 879; Johnson v. Farrell, 210 Minn. 351, 298 N.W. 256.
Similarly, other conduct may have probative value in determining or explaining conduct of a party which may have been the cause of an accident. See, Annotation, 46 A.L.R.2d 73.
It is primarily for the trial court to determine whether such evidence has probative value and, unless it is so remote in point of time or space as to be of no probative value and is so prejudicial that in all probability it did influence the outcome of the case, we will normally not reverse.
The crucial fact issue here is whether defendant had passed the intersection where he intended to turn and was backing up to it or if, as he said, he proceeded forward when he observed plaintiff's car bearing down upon him. Evidence of his past conduct and manner of driving had some probative value in helping the jury to determine the issue. The jury could reasonably infer that his past recklessness and manner of driving may have caused him to be less attentive than he otherwise would have been and to pass the intersection he was looking for in the fog, and then to begin to back up so that he could make the turn. Under these circumstances, the trial court's *895 evaluation of the relevancy of this evidence must stand.[1]
2. It is now conceded that one of the jurors was a first cousin once removed of plaintiff. As such, she was subject to challenge for implied bias under Minn.St. 631.31, which reads in part as follows:
"A challenge for implied bias may be taken for all or any of the following causes, and for no other:
"(1) The consanguinity or affinity, within the ninth degree, to the person alleged to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant, or to any one of the attorneys either for the prosecution or for the defense."
Defendant's counsel admits that he failed to ask the juror on voir dire examination whether she was related to any of the parties. He did ask all of the jurors if they were acquainted with the parties. After the trial, when the court's attention was called to the fact that Mrs. Hallermann was related to plaintiff, he personally examined both her and a member of the panel, Mrs. Bridget Pogatchnik, who said that she had discussed the relationship with Mrs. Hallermann prior to submission of the case to the jury. The court substantially followed the course we recommended in Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W. 2d 301, and as a result of this examination came to the conclusion that Mrs. Hallermann in fact did not know that she was related to plaintiff until after the trial was over. In a memo, the trial court said:
"The Motion on the ground of misconduct of the juror is denied for the reason that the Court is fully satisfied that the juror, Mrs. Marcella Hallerman, did not in fact know of her distant relationship to plaintiffs until after the deliberations and verdict. The Court bases its determination on the unquestioned honesty of Mrs. Hallerman. She was a frank, candid and obviously honest witness. It further bases its determination on the lack of candor and the general demeanor of Mrs. Bridget Pogatchnik upon whose testimony the Motion rests. Furthermore, Mrs. Pogatchnik's testimony relating to her conversation with Mrs. Hallerman, in which Mrs. Pogatchnik says that she informed Mrs. Hallerman of, and that Mrs. Hallerman understood the relationship, contained a sufficient number of inconsistencies, statements of interest, and questionable statements of fact as to render it unreliable."
Many of the cases relied upon by defendant involve statutes under which a related juror is absolutely disqualified. See, for instance, Johnston v. State, 239 Ind. 77, 155 N.E.2d 129. That is not true under our statute. Relationship here of a juror to one of the parties does not absolutely disqualify but is only grounds for a challenge. Where a juror answers truthfully the questions put to her on voir dire examination and counsel fails to inquire as to the existence of a fact that would furnish a basis for a challenge, it lies within the discretion of the trial court to deny a new trial upon discovering the existence of such fact after the trial, at least in the absence of a showing of prejudice. In State v. Durnam, 73 Minn. 150, 161, 75 N.W. 1127, 1129, we said:
"* * * [I]f not discovered until after verdict, the cause of challenge will not per se constitute ground for a new trial. In such case only the discretion of the court can be appealed to, which will consider the nature of the objection to the juror, what diligence the party exercised to ascertain the fact in due *896 time, and the other circumstances of the case."
See, also, State v. Polk, 263 Minn. 209, 116 N.W.2d 540.
Where the juror was ignorant of the existence of the relationship until after the verdict was rendered, it is difficult to see that the relationship could have caused prejudice to any party to the action. Inasmuch as a cause for challenge for implied bias under our statute is not per se grounds for a new trial, the decision of the trial court on this issue must stand. In Kuske v. Jevne, 178 Minn. 296, 226 N.W. 938, shortly after the commencement of the trial it became known that one of the jurors was a brother-in-law of defendant's counsel. Plaintiff's counsel then moved for a mistrial, which the court denied. In upholding the action of the trial court, we said (178 Minn. 299, 226 N.W. 939):
"* * * This relationship was a statutory ground of challenge for implied bias; and failure to inquire in reference thereto to learn the facts constitutes a waiver of the right to challenge. * * * It is always better that the jury be selected with such candor and fairness that the public as well as the parties may confidently feel that what is right for one side is fair for the other side."
The same is more true here where the relationship was unknown to the juror until after the decision of the court.
We find no reversible error.
Affirmed.
NOTES
[1] Generally, on the admissibility of prior conduct, see, also, 8 Am.Jur.2d Automobiles and Highway Traffic, §§ 950 to 952; 9C Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.) § 6176; 15-16 Huddy, Cyclopedia of Automobile Law (9 ed.) § 203. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918060/ | 135 N.W.2d 697 (1965)
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, and Milton Murray, trustee, Appellants,
v.
UNIVERSITY OF MINNESOTA EMPLOYEES' UNION LOCAL 450, BSEIU, and David Y. Morris, et al., Respondents.
No. 39312.
Supreme Court of Minnesota.
May 14, 1965.
*698 Robins, Davis & Lyons, and George Latimer, St. Paul, for appellants.
Peterson, Bell & Converse, St. Paul, for respondents.
OTIS, Justice.
This is an action brought by plaintiff union, the International, to require defendant, the Local, to give recognition and effect to the appointment of a trustee over the Local's affairs. The issues concern the validity of the Local's disaffiliation and the right to its assets. The trial court ruled in favor of the Local on both questions.
It appears without dispute that the International gave the Local its charter in 1958 and subsequently furnished it financial support in a sum exceeding $10,500. Dissatisfaction between the Local and the International came to a head in 1962 when the Local claimed that the International wrongfully withheld a death gratuity to which the widow of a deceased member was entitled, failed adequately to assist in organizing building employees at the University of Minnesota, and refused to reimburse it for discharging another local's obligations. Under the terms of the International's constitution, a monthly per capita assessment of 70¢ a member was due from the Local. Payment for the months of May and June 1962 became delinquent, as a result of which the International notified the Local by a letter dated July 31, 1962, that pursuant to Article XII of the constitution the Local was suspended, adding the following admonition:
"You are further advised that failure to pay up all indebtedness to the International Union within one month after the date of this letter will cause the charter of your Local Union to be revoked.
"I trust that you will take such steps as are necessary to put your Local Union in good standing and avoid revocation of the charter."
On August 31, 1962, the Local paid its arrearage for May but thereafter no additional assessments were forwarded to the International.
In anticipation of a meeting to be held on November 7, 1962, notice was posted in the customary manner on bulletin boards at the University of Minnesota directing the members' attention to the following:
"A vote will be taken up at this meeting concerning our disaffiliation with Building Service Employees' International Union."
Although a decision to disaffiliate was thereupon adopted, the president thereafter directed that there be another vote at the next membership meeting and gave notice to that effect in a letter which contained, among other things, the following statement:
"A voice vote was taken at the regular membership meeting on November 7, 1962, to accept the suspension and disaffiliate from Building Service Employees' International Union.
*699 "Insofar as there was a light turnout of members at the November 7th membership meeting, the members present voted to include a resolution to allow the members to cast a secret ballot on the disaffiliation with Building Service Employees' International Union on the ballot of the election of officers to be held on December 5, 1962."
About a week prior to the December 5 meeting, an additional notice of the proposed vote on disaffiliation was sent to the membership, and at that election the following resolution was adopted by a vote of 59 to 5:
"That Local 450 accepts the suspension as imposed by the International from the Building Service Employes' International Union, AFL-CIO and that the officers and all other representatives be directed to take all necessary steps to carry out the mandate of this Resolution, including whatever steps are necessary to protect and preserve the monies and properties of the members."
On December 7, 1962, the president of the Local wrote the president of the International stating that the Local had severed its affiliation. It formally surrendered its charter on March 15, 1963. The International responded by declining to accept disaffiliation and by appointing a trustee to take over the Local's affairs.
1. In support of its contention that the Local's disaffiliation was ineffective, the International asserts, first, that the vote taken by the Local was on the question of "suspension" and not "disaffiliation"; and second, that the International had proof there were still seven dissenting members, which, under the terms of the International constitution, prevented disaffiliation.
While it is true that the resolution itself referred to an acceptance of the "suspension" rather than "disaffiliation," notices which preceded the two elections expressly referred to the Local's contemplated action as one involving disaffiliation as well. There is no evidence that anyone was actually misled by use of the word "suspension," and we are of the opinion that read together the notices made the purpose of the election clear. There being no specific provision in the International constitution for the procedure to be followed in disaffiliating, we hold that the steps taken were adequate for that purpose.
2. Only 64 votes were counted at the December 5 election out of a total membership of approximately four hundred. The plaintiff union has submitted a statement from 28 members expressing preference for a continued affiliation with the International. Under these circumstances, it asserts the constitution prohibits disaffiliation. We do not agree. The membership had two opportunities to vote on that issue and will not now be heard to complain if they did not avail themselves of the right to express their views at the time and place designated for that purpose.[1] We have in addition considered and find without merit the International's contention that the election was ineffective because of inadequate membership lists and the Local's inability to produce a constitution and bylaws governing its affairs.
3. Article XXII of the International constitution has the following provision:
"* * * In the event of secession, dissolution or disaffiliation, all properties, funds and assets, both real and personal, of such Local Union or Joint Council shall become the property of the International Union."
It is the position of the Local that this article is unenforceable because the International has been guilty of breaching a duty which constituted an implied condition *700 of the contract created by acceptance of the International's constitution. The particular violations about which the Local complains involve the failure of the International to provide organizers and to pay the death benefit referred to above. The constitution expressly provides, however, that the president shall appoint organizers "as he deems necessary," and the death gratuity is to be paid "only when the International Union, in its discretion, desires to make the payment." Under these circumstances, we find no breach of the kind which would justify the Local's ignoring the provisions of Article XXII, and therefore hold that it governs the rights of the parties to these proceedings.
There is authority in other jurisdictions based on broad equitable principles permitting a local to retain its property notwithstanding a provision similar to that contained in Article XXII.[2] In this state we have consistently recognized the constitution of an international as being the contract which governs its relationship with locals. Liggett v. Koivunen, 227 Minn. 114, 120, 34 N.W.2d 345, 349.[3] We condoned the local's retention of its own assets on disaffiliation in Local 1140 v. United Electrical, R. & M. Workers, 232 Minn. 217, 45 N.W.2d 408, 23 A.L.R.2d 1197, and held that the parent union's affiliation with the CIO was such a fundamental condition in inducing the local to accept its charter that the severance of ties between the international and the CIO relieved the local of its obligations under the international's constitution. This is not such a case, however, and we therefore hold that under well-settled principles it was error for the trial court to permit the Local to retain title to its assets. The matter is therefore reversed and remanded with directions that the trial court retain jurisdiction, secure an accounting of the property owned by the Local on the date of disaffiliation, require the Local to produce whatever assets were owned by it on that date, and supervise the transfer of such assets to the International.
Reversed with directions.
NOTES
[1] Crawford v. Newman, 13 Misc.2d 198, 201, 175 N.Y.S.2d 903, 906.
[2] Hayes v. Relyea, 43 Misc.2d 295, 251 N.Y.S.2d 180, affirmed 21 A.D.2d 926, 252 N.Y.S.2d 423. But see, Harker v. McKissock, 7 N.J. 323, 81 A.2d 480; Bradley v. O'Hare, 11 A.D.2d 15, 202 N.Y.S.2d 141; Walter Kidde & Co. Inc. v. United Electrical, R. & M. Workers, 7 N.J. 528, 82 A.2d 184; Edwards v. Leopoldi, 20 N.J.Super. 43, 89 A.2d 264; Grand Lodge, etc. v. Girard Lodge No. 100, 384 Pa. 248, 120 A.2d 523; Pennsylvania State Camp v. Washington Camp No. 135, 385 Pa. 492, 123 A.2d 701; Annotation, 23 A.L.R.2d 1209.
[3] Rose, Relationship of the Local Union to the International Organization, 38 Va. L.Rev. 843, 851. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918066/ | 1 Mich. App. 212 (1965)
135 N.W.2d 592
WILTSIE
v.
STANDARD ACCIDENT INSURANCE COMPANY.
Docket No. 121.
Michigan Court of Appeals.
Decided June 21, 1965.
Griffin, Seely, Boyer & Gilleo (Robert C. Boyer, of counsel), for plaintiff.
Butzel, Eaman, Long, Gust & Kennedy (A. Hilliard Williams and Alfred W. Massnick, of counsel), for defendant.
LESINSKI, C.J.
Standard Accident Insurance Company, a Michigan insurance company, merged with Reliance Insurance Company, a Pennsylvania corporation duly authorized and qualified to do business in Michigan, which merger became effective midnight December 31, 1963. The merger was effected pursuant to the provisions of the Michigan insurance code of 1956. PA 1956, No 218 (CLS 1961, § 500.7604 et seq., [Stat Ann 1963 Cum Supp § 24.17604 et seq.]).
Plaintiff Mary Wiltsie, a stockholder of Standard Accident Insurance Company, voted against the merger. Claiming appraisal rights as a dissenting *214 stockholder under the Michigan general corporation act, PA 1931, No 327, as amended (CL 1948, § 450.54 et seq., as amended [Stat Ann 1963 Rev § 21.54 et seq.]), plaintiff filed her complaint for appointment of appraisers pursuant thereto. At the time the merger was approved plaintiff owned 300 shares of Standard Accident Insurance Company stock and Reliance Insurance Company owned substantially all of the remaining shares outstanding.
Defendant Standard Accident Insurance Company answered and moved for judgment dismissing the complaint, claiming plaintiff as a dissenting stockholder did not have any appraisal rights under the Michigan insurance code or otherwise. Circuit court denied defendant's motion.
The specific question before this Court is whether a dissenting stockholder of an insurance company has appraisal rights under the Michigan general corporation act when two insurance companies merge in Michigan under the provisions of the Michigan insurance code of 1956.
The parties agree that there is no specific provision for stockholder appraisal rights in the Michigan insurance code nor any particular reference to appraisal rights in the Michigan insurance code as set forth in the Michigan general corporation act. Plaintiff argues that the Michigan insurance code incorporates by reference the appraisal rights of a dissenting stockholder under the Michigan general corporation act. Defendant asserts that the Michigan general corporation act is not available to dissenting stockholders of insurance companies.
After a review and study of these acts, this Court has not been persuaded that the intent of the legislature was to compel one to look to the Michigan general corporation act for provisions applicable to matters intentionally or inadvertently omitted in the *215 Michigan insurance code. The Michigan insurance code as enacted purports to be a complete act covering insurance companies. Thorrez & Maes Manfg. Co. v. American Central Ins. Co. (ED Mich, 1939) 32 F Supp 110; appeal dismissed 119 F2d 423.
The Michigan general corporation act places insurance companies on the relatively brief list of corporations to which the act shall be wholly inapplicable. CL 1948, § 450.3, as amended by PA 1962, No 169 (Stat Ann 1963 Rev § 21.3).
The argument is advanced that the Michigan insurance code provides that all companies formed under the insurance laws of the State shall be deemed bodies corporate and "subject to all of the provisions of law in relation to corporations as far as they are applicable" CLS 1961, § 500.5204 (Stat Ann 1957 Rev § 24.15204), and that therefore the provisions of the Michigan general corporation act are applicable. This section, in our opinion, identifies insurance companies established under its provisions as legal entities responsible before the law as are other legally organized corporations. To permit corporate entities coming into being under this specific statute to look to other statutes for what might be lacking in their own existence is to defeat the purpose of the Michigan insurance code which controls exclusively the particular facets and problems of companies organized in accord with its special provisions unless otherwise specifically provided.
The trial court relied on In re St. Johns Building & Loan Association (1948), 321 Mich 715, in reaching its decision. We find that the trial court erred in doing so; the St. Johns Case is not analogous to the facts now before this Court. The St. Johns Case determined the applicability of the Michigan general corporation act to associations that were not at that *216 time specifically excluded from its scope as is the insurance company in the case now before us.[*]
We hold that the Michigan insurance code of 1956 does not incorporate by reference the appraisal rights accorded dissenting stockholders by the Michigan general corporation act.
Reversed, costs to appellant.
J.H. GILLIS and T.G. KAVANAGH, JJ., concurred.
NOTES
[*] Michigan general corporation act was amended in the legislative session immediately following decision in St. Johns Case. PA 1949, No 229 (CLS 1961, § 450.3 [Stat Ann 1961 Rev § 21.3]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573955/ | 224 S.W.3d 206 (2007)
Danny Lee MIXON, Appellant,
v.
The STATE of Texas.
No. PD-0018-06.
Court of Criminal Appeals of Texas.
May 23, 2007.
Allen C. Isbell, Houston, for Appellant.
Peyton Z. Peebles, III, Houston, Matthew Paul, State's Atty., Austin, for State.
OPINION
HOLCOMB, J., delivered the opinion for a unanimous Court.
In this case, we are asked to determine whether, under Texas Rule of Evidence 503, an attorney-client privilege is established when a person consults with a lawyer with a view to obtaining professional legal services from him, even if the lawyer declines to represent that person at the end of the consultation. We hold that it does. A question remains, however, whether appellant in the present case might still not be entitled to the privilege because of the Rule 503(d) exception denying the privilege to a person seeking the services of a lawyer in furtherance of a crime. We therefore vacate the judgment of the court of appeals and remand the case to that court to address this question.
*207 Background
On May 6, 2003, at about 10:30 p.m., appellant Danny Lee Mixon went to a trailer house, in Harris County, where Connie Gomez and Dwayne Ramdhanny lived. The couple was finishing a meal, and both of them opened the door when appellant knocked. Gomez saw appellant put on a glove, pull out a handgun, and point it at Ramdhanny. She jumped in front of Ramdhanny just as appellant fired, and the bullet went through Gomez's hand, hitting Ramdhanny in the face. Ramdhanny retreated into the adjacent bedroom, but appellant followed and shot him several times more as Ramdhanny lay on the floor. Appellant then turned to Gomez, who ran into a bathroom, closing the door behind her. Appellant fired his remaining bullets at the bathroom door, and then left the trailer house. Ramdhanny died as a result of his injuries, but Gomez survived.
The record shows the following facts pertinent to the issue before us. Appellant worked at a store called Northshire Video. Peter Heckler was the attorney of record for this store. According to Heckler's testimony, he was also generally responsible for the store, although he neither managed nor supervised the store directly. At about midnight, on May 6, 2003, Heckler received a telephone call from a store clerk who told him that the police had come looking for appellant at the store. Three hours later, appellant himself called Heckler, but Heckler refused to talk to him at that time because it was so late at night. The two men agreed to meet, and did meet, later that morning when they discussed the case at length.
Heckler's testimony at trial indicates that both he and appellant were in agreement that he would represent appellant until Heckler realized that his own gun might have been used in the offense, and he declined to represent appellant for that reason. Heckler also testified that appellant did not want the police to acquire either the handgun or the store videotape from the night of the murder. However, he failed to clarify in this testimony whether it was he or appellant who suggested actually getting rid of the gun and the videotape. The record shows only that, after his conversation with appellant, Heckler did pick up the gun from the store, but that it was two days later that he turned it over to the police. The videotape was never found.
During the guilt phase of the trial, both the State and the defense counsel asked the court specifically to determine whether the attorney-client privilege prohibited Heckler from testifying about appellant's discussion of the case with him. The trial court, therefore, held a hearing outside the presence of the jury, to address this question. Heckler was sworn in as a witness, and the trial court sought to determine exactly what he intended to testify to before the jury. The defense counsel objected on the ground that the divulging of any part of Heckler's conversation with appellant was a violation of the attorney-client privilege. The trial court stated that the defense counsel's "objection [was] well taken," but explained that it needed to know exactly what Heckler's testimony would be, in order to determine how much of that testimony the court would allow in front of the jury which would be making the actual "decisions in this case." After listening to Heckler's testimony and interrogating him at length, the trial court ruled that it would allow only that part of Heckler's testimony indicating that appellant had asked him to get rid of the gun. However, the record shows that Heckler's testimony on direct examination went beyond the court's ruling. The trial court had to intervene, send the jury out, and admonish *208 both the State and the witness to focus the testimony on the limited question of whether appellant had asked Heckler to get rid of the gun. In spite of the court's efforts to confine the witness's testimony to this critical point, Heckler failed to unequivocally state, either before or even outside the presence of the jury, that appellant had asked him to get rid of the gun. The trial court did not pursue the matter any further. The jury found appellant guilty of murder and sentenced him to life imprisonment.
On direct appeal, appellant raised two issues, only one of which is relevant to our review: that the trial court erred in allowing Heckler to testify that appellant did not want the weapon or the videotape to be turned over to the police, thereby violating the attorney-client privilege rule. The State made two main arguments in response. First, it asserted that the attorney-client privilege is not available to appellant because the evidence did not establish a contractual attorney-client relationship between him and Heckler. Second, it argued that even if an attorney-client relationship existed, Rule 503(d) barred the application of the attorney-client privilege to the present case, because appellant was trying to persuade Heckler to commit a "crime and fraud." The court of appeals did not address the State's second argument. Rather, focusing on the first argument alone and concluding that "Heckler's testimony [did] not support a finding that an attorney-client relationship existed," the court held that the trial court did not abuse its discretion in admitting the testimony. Mixon v. State, 179 S.W.3d 233, 236 (Tex.App.-Houston [14th Dist.] 2005).
We granted review to consider two issues: (1) whether the court of appeals erred in construing Rule 503 when it held that an attorney-client privilege does not exist unless the lawyer agrees to render professional services for a client; and (2) whether Rule 503 contemplates that an attorney-client privilege is established when a person consults with a lawyer with a view to obtaining professional legal services from him, even if the lawyer ultimately declines to represent that person.
Discussion
Appellant argues that the court of appeals has interpreted Rule 503 too narrowly. He quotes the rule's explicit language, asserting that a "client" is a person who "consults a lawyer with a view to obtaining professional legal services from that lawyer," as well as a person who enters into an actual contractual relationship with a lawyer who agrees to render professional services for that person. Thus, appellant contends, when a person consults a lawyer with a view to employing him professionally, any information acquired by the lawyer in the interviews or looking toward such employment is privileged and cannot be disclosed, even though the person does not actually employ the lawyer. We agree.
Rule 503, Lawyer-Client Privilege, states in relevant part:
(a) Definitions. As used in this rule:
(1) A "client" is a person . . . who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
(b) Rules of Privilege.
(1) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(A) between the client . . . and the client's lawyer. . . .
*209 (2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or lawyer's representative by reason of the attorney-client relationship.
(Emphasis added.)
The use of the words "with a view to obtaining professional legal services" in the definition of "client," at the beginning of the rule, clearly indicates that the protection of the attorney-client privilege is available equally to those persons who had hired the lawyer as well as those still seeking to do so. Moreover, there is nothing in Rule 503(b)(2), the "Special rule of privilege in criminal cases" quoted above, to indicate a modification of that definition of "client."
The State argues that appellant should not be allowed to benefit from the attorney-client privilege because no attorney-client relationship was established between Heckler and appellant, and that such a relationship needs to be established before the attorney-client privilege is allowed. In making this argument, the State appears to be viewing the use of the phrase "attorney-client relationship" in Rule 503(b)(2) as a special requirement in criminal cases, restricting the availability of the privilege only to the cases where the lawyer had already agreed to represent the client. But there is nothing in the rule itself to support this interpretation. Moreover, if that phrase were in fact meant to be such a special requirement in criminal cases, it would have been defined in Rule 503(a), the section on definitions at the very least to indicate when such relationship began and ended, so that the courts could determine the period in which the privilege applied. In addition, it is important to note that the phrase "attorney-client relationship" does not appear anywhere in the rule except in 503(b)(2), the "Special rule of privilege in criminal cases." Most notably, it does not even appear in Rule 503(b)(1), outlining the general rule of privilege. Thus, if we were to follow the State's interpretation viewing the phrase as a special restriction on the availability of the privilege in criminal cases we would have to conclude that the rule was intended to provide lesser protection to persons accused of criminal offenses than those seeking a lawyer's help in non-criminal matters. But if anything, the use of the words "any other fact" in Rule 503(b)(2), the "Special rule of privilege in criminal cases," indicates the intent to provide greater, not lesser, protection to the criminally accused.
Our research shows widespread support for our interpretation of Rule 503,[1] but *210 nothing to support the State's argument that a person can benefit from the attorney-client privilege only after a lawyer has agreed to represent the client. The State relies almost exclusively on Strong v. State, 773 S.W.2d 543 (Tex.Crim.App. 1989). However, Strong is distinguishable from the case at bar. In Strong, both Danny Lee Strong and his girlfriend had been charged with murder. The trial court appointed two attorneys for each defendant. Thus, Strong knew from the very beginning which of the attorneys were supposed to represent him and which were supposed to represent his girlfriend; and there was no reason for him to expect his girlfriend's attorneys to be concerned about his particular interests, let alone owe him any duty of confidentiality. Nevertheless, Strong wrote a letter to one of these attorneys, trying to persuade him to use a version of the events on the night of the murder that would have been most favorable to both the defendants. See id. at 546. That attorney never responded to or otherwise acknowledged the receipt of the letter. Unbeknownst to Strong, the girlfriend had agreed to testify for the State. Being an "accomplice witness," however, "her testimony [was deemed to be] untrustworthy" and required corroboration. Id. at 547. As this Court noted, "the corroborating evidence need only tend to connect the defendant with the offense committed." Id. The girlfriend's attorneys turned over Strong's letter to the State; and this letter, though not incriminating in itself, thus served to provide the corroboration necessary for the testimony of the prosecution's key witness in Strong's case.
Strong asserted the attorney-client privilege to prevent the State from using the letter. It is true, as the State in the present case points out, that the Strong court did observe that the attorney-client privilege is not a constitutional principle but merely an exclusionary rule of evidence that has been limited both by statutory exception and strict construction. Strong, 773 S.W.2d at 547-48. However, we relied primarily on the specific facts of that case, not on case law or statutory construction, to support our conclusion that there was no attorney-client relationship between the girlfriend's attorney and Strong. As we stated:
[I]n light of the record showing the appointment of two attorneys to represent each defendant on February 14, 1986, coupled with evidence that Baldwin never communicated with [Strong] at any stage of his prosecution, it is clear that Baldwin was never [Strong's] attorney. Accordingly, the trial court was correct in finding that he was not.
Id. at 549 (Emphasis added).
Since the attorney never communicated with Strong, there was no way for Strong to know whether the attorney had received or read the letter, until the State produced *211 it as evidence. In short, it was a one-time, one-sided communication that clearly showed that Strong was not seeking the attorney's professional services. In contrast, in the present case, the State acknowledges that appellant's sole purpose in contacting Heckler was to persuade Heckler to represent him, if he were arrested and tried for Ramdhanny's murder. More importantly, the record shows that Heckler himself intended to represent appellant and that his only reason for inviting appellant to a meeting in the morning was to determine just how he might be able to do so. Finally, both parties agree that the two men did meet, in person, discussing the case at length and exploring the details of just how Heckler could help appellant. Thus, the facts of this case are distinguishable from Strong, and so is the applicable legal analysis.
The State argues that sound public policy requires that an attorney-client relationship exist before an attorney-client privilege can be recognized; otherwise, a defendant could call ten different lawyers, leave messages on their answering service, and then expect an attorney-client privilege to attach to each of these messages. We disagree. The very fact that the hypothetical message is left on an answering machine, and is thus likely to be overheard by third parties, might serve to exclude the communication from the privilege.[2] Furthermore, the State's hypothetical is comparable to the Strong case, inasmuch as both involve a one-sided communication to a lawyer with whom the defendant had no prior relationship and no way of knowing if the lawyer even received his message. Hence, the defendant in the State's hypothetical is as unlikely to succeed as Strong was in invoking the attorney-client privilege.
Contrary to the State's assertions, our research indicates that allowing the privilege only after a contractual attorney-client relationship had already been established is not only contrary to the wording of the evidentiary rule, but it would also be unsound public policy.[3] Such a policy would have a chilling effect on defendants' willingness to be candid with the lawyers whose services they seek to obtain. See footnote 3, supra. Moreover, such a lack of candor on the potential client's part *212 would not be in the lawyer's best interest either, because the lawyer would then have to decide whether to represent a person before that person could feel free to give him or her all the information necessary to make that decision. Thus, public policy as well as normal rules of statutory construction dictate our holding today: that once Heckler started to elicit from appellant such incriminating information that a person would feel free to share only with his lawyer, he was bound by the same duties of confidentiality that a lawyer owes a client that he has agreed to represent, even though Heckler eventually decided not to represent appellant.
Conclusion
We hold that the attorney-client privilege applies in cases where the record shows that the defendant consulted a lawyer with a view to obtaining legal services from him, even though the lawyer ultimately declined to represent the client. The State also argued before the court of appeals, however, that the Rule 503(d) crime-fraud exception to the attorney-client privilege applied, even if the privilege would have been otherwise applicable to this appellant. We therefore vacate the judgment of the court of appeals and remand the case to that court to address this remaining question.
NOTES
[1] See, e.g., K. Brown (ed.), 1 McCormick on Evidence § 88 at 396 (6th ed. 2006) ("Communications in the course of preliminary discussion with a view to employing the lawyer are privileged though the employment is in the upshot not accepted."); S. Goode et al., 1 Texas Practice Series: Guide to the Texas Rules of Evidence § 503.4 at 415-16 ("Rule 503(a)(1) provides that even if the person or entity does not actually become a client of the attorney, the privilege attaches to communications made while consulting the lawyer with a view toward obtaining legal services. This accords with long-standing Texas law."); P. Rice, 1 Attorney-Client Privilege in the United States § 2:2 at 10-12 (2d ed.1999) (rule provides "absolute" protection "regardless of whether litigation is pending, the attorney has been formally retained, or fees have been paid.").
See also TEX. DISCIPLINARY R. PROF'L CONDUCT preamble ¶ 12:
Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so . . . But there are some duties, such as that of confidentiality, that may attach before a client-lawyer relationship has been established.
(Emphasis added.) It is true that the use of the word "shall" would have been much stronger than that of the permissive "may" in the above passage. However, a plain reading of the Texas Disciplinary Rule of Professional Conduct 1.05, Confidentiality of Information, suggests the possible reason for this permissiveness. Both the Texas Disciplinary Rule 1.05 and the Texas Rule of Evidence 503, which the Disciplinary Rule emulates, prohibit the use of the attorney-client privilege to protect a client seeking a lawyer's assistance to commit a crime or fraud. There is no other exception to the privilege in either the Rules of Evidence or the Disciplinary Rules. Hence, the word "may," rather than "shall," is no doubt used because of this one possible exception to the availability of the privilege. Barring this exception, both the Evidence and the Disciplinary Rules impose a duty on the lawyer to preserve the confidentiality of his client's information, whether or not he or she has yet agreed to render legal services.
[2] See, e.g., Rule 503(b)(1)(A-E) (applying the rule only to communications between the client and the lawyer and/or their representatives).
[3] See, e.g., P. Rice, 1 Attorney-Client Privilege in the United States § 2:3 at 14-15:
The purpose of the privilege in the United States has always been to encourage people to seek legal advice freely and to communicate candidly with the attorney during those consultations. The rationale is that, by protecting client communications designed to obtain legal advice or assistance, the client will be more candid and will disclose all relevant information to his attorney, even potentially damaging and embarrassing facts. Complete client disclosure helps to ensure quality legal advice and assistance and makes it possible for the client to better understand his obligations and responsibilities under the law. This, in turn, will increase the law's effectiveness.
(accompanying citations omitted). See also TEX. DISCIPLINARY R. PROF'L CONDUCT 1.5 & cmt:
Comment: Confidentiality Generally
1. Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed or sought to employ the lawyer. Free discussion should prevail between lawyer and client in order for the lawyer to be fully informed and for the client to obtain the full benefit of the legal system. The ethical obligation of the lawyer to protect the confidential information of the client not only facilitates the proper representation of the client but also encourages potential clients to seek early legal assistance.
(Emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573960/ | 224 S.W.3d 456 (2007)
ALLSTATE INSURANCE COMPANY, Appellant
v.
Cathy EDMINSTER, Appellee.
No. 05-05-01492-CV.
Court of Appeals of Texas, Dallas.
January 26, 2007.
Jacquelyn Chandler, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, for Appellant.
Stephen W. Shoultz, Law Offices of Stephen W. Shoultz, Dallas, for Appellee.
Before Justices MORRIS, LANG, and LANG-MIERS.
OPINION
Opinion by Justice LANG-MIERS.
Cathy Edminster sued her automobile insurer, Allstate Insurance Company, to recover what she contended was its pro rata share of the attorney's fees incurred for the collection of Allstate's subrogation interest in a claim against a third party. Both parties filed motions for summary judgment. The trial court granted Edminster's motion and denied Allstate's motion. Because we conclude a material fact issue exists, we reverse and remand for further proceedings.
BACKGROUND
On January 2, 2003, Edminster and her two children were injured when another driver rear-ended her automobile as she sat at a traffic light. The other driver's insurance company was represented by Custard Insurance Agency, Inc. (CIA). Edminster retained an attorney to pursue her claim against the other driver and entered into a contingency fee contract with her attorney. In October 2003, Allstate paid Edminster $3,760 in medical benefits under the provisions of her automobile insurance policy. Edminster subsequently settled the claim against the other *457 driver for $12,075. CIA issued two checks on behalf of its insured: one for $8,315 and one for $3,760, the amount of Allstate's subrogation claim.
In February 2004, Edminster's attorney asked Allstate to reduce its subrogation lien by $1,286.85, or one-third of its subrogation claim, as Allstate's pro rata share of attorney's fees. Allstate refused, and Edminster filed this declaratory judgment action.[1] The parties filed competing motions for summary judgment. The trial court rendered judgment in favor of Edminster and against Allstate in the amount of $1,207.50 on her declaratory judgment action and also awarded her attorney's fees.[2]
STANDARD OF REVIEW
The standard of review in summary judgment is well-established. TEX.R. CIV. P. 166(c); W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we review both sides' summary judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).
DISCUSSION
In its second issue, Allstate contends the trial court erred by granting Edminster's motion for summary judgment, which asserted Allstate was equitably obligated to pay a portion of Edminster's attorney's fees under the common fund doctrine.
The common fund doctrine is an equitable doctrine that is designed to prevent unjust enrichment. See Knebel v. Capital Nat'l Bank in Austin, 518 S.W.2d 795, 799 (Tex.1974). It is founded on the principle that "one who preserves or protects a common fund works for others as well as for himself, and the others so benefited should bear their just share of the expenses, including a reasonable attorney's fee; and that the most equitable way of securing such contribution is to make such expenses a charge on the fund so protected or recovered." Id. (quoting Brand v. Denson, 81 S.W.2d 111, 112 (Tex.Civ.App. 1935, writ dism'd)).
Allstate argues it presented summary judgment evidence that conclusively established, or at least raised a fact issue about whether, it took steps to protect its own subrogation claim and does not owe Edminster any attorney's fees. See Valle v. State Farm Mut. Auto. Ins. Co., 5 S.W.3d 745, 746 (Tex.App.-San Antonio 1999, pet. denied). On the other hand, Edminster argues that if it were not for her efforts, there would be no fund from which Allstate could seek to recover its subrogation claim, and that Allstate did nothing to contribute to or assist with the recovery against the third party.
She argues Texas Farmers Insurance Co. v. Seals, 948 S.W.2d 532 (Tex.App.-Fort Worth 1997, no writ), is controlling. However, Seals is distinguishable from the facts in this case. In that case, our sister court stated that the insurer "took no action to assist Seals with her efforts to recover this fund or to resolve its subrogation interest directly with [the insurer]." Seals, 948 S.W.2d at 534 (emphasis added). In contrast, the summary judgment evidence in this case showed Allstate did take *458 some action to resolve its subrogation claim directly with CIA.
On July 24, 2003, Allstate notified CIA of its pending subrogation claim. The letter stated, in relevant part:
Allstate Indemnity Company places you on notice that it asserts its subrogation lien against your insured, RONNIE MAYS[,]INC, for payments Allstate Indemnity Company has already paid or will be called upon to pay its insured, CATHY EDMINSTER, under it[s] medical payments coverage.
Allstate Indemnity Company places you on formal notice of its subrogation claim and demands reimbursement from you and your tortfeasor, insured.
* * *
Since Allstate Indemnity Company intends to pursue and protect its own right, title and interest to its said subrogation lien, we therefore request that a separate draft be sent representing the amount of this Company's subrogation interests only and that this Company be named as the sole payee, as subrogee of the insured, on such draft when issued.
Allstate Indemnity Company has not authorized, hired, or retained its insured's attorney and expressly disavows any authority, apparent o[r] otherwise, for its insured's attorney to negotiate for any amount owed Allstate Indemnity Company on its medical payment subrogation lien. Our insured and his or her attorney has been expressly advised of our position in this matter.
On that same day, Allstate notified appellee's attorney that Allstate would independently pursue its own subrogation rights and asked the attorney not to undertake representation of Allstate in any way on its subrogation claim:
Please be advised Allstate Insurance Company is independently pursuing its subrogation rights arising out of payments made to or on behalf of your client(s) under our Medical Payments coverage. Please do not represent us concerning the recovery of these payments as we have already notified the other insurance carrier of our subrogation rights and interests.
Therefore, please do not engage in any negotiations whatsoever on our behalf nor recover or receive any monies on behalf of Allstate Insurance Company.
Additionally, on November 11, 2003, Allstate forwarded Edminster's medical bills to CIA to support its subrogation claim and asked CIA to send the payment of $3760 directly to Allstate. All of these actions were taken by Allstate prior to the date Edminster sent her demand for damages to CIA.[3]
In summary, Allstate notified CIA of its subrogation claim, stated it was pursuing the subrogation claim independently of any claim by Edminster, asked CIA to issue a separate check in the amount of the subrogation claim with Allstate as the sole payee, notified Edminster's attorney not to take any action to collect Allstate's subrogation claim, and submitted Edminster's medical bills to CIA to support its subrogation claim.
Based on this summary judgment evidence, we conclude Allstate raised a material fact issue about whether the common fund doctrine applies to this case. We further conclude the trial court erred by granting Edminster's motion for summary judgment.
*459 We sustain appellant's second issue. As a result, we do not need to reach appellant's remaining issues.
CONCLUSION
We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
NOTES
[1] Edminster also alleged violations of the duty of good faith and fair dealing and of the insurance code.
[2] The court based its judgment on Edminster's "common fund" claim. Edminster nonsuited the remaining claims.
[3] Edminster's attorney had previously advised CIA that he represented her. His demand letter is dated November 21, 2003. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645142/ | 994 So.2d 304 (2008)
CISNEROS
v.
STATE.
No. SC08-1237.
Supreme Court of Florida.
October 7, 2008.
Decision without published opinion. Mand.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918091/ | 135 N.W.2d 1 (1965)
178 Neb. 709
OMAHA PUBLIC POWER DISTRICT, a Public Corporation, Appellant,
v.
The TRAVELERS INDEMNITY COMPANY, a Foreign Corporation, Appellee.
No. 35813.
Supreme Court of Nebraska.
May 7, 1965.
*2 Haney, Walsh & Wall, Omaha, Clausen, Hirsh, Miller & Gorman, Chicago, Ill., for appellant.
Cassem, Tierney, Adams & Henatsch, Charles F. Gotch, Omaha, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, and McCOWN, JJ.
BOSLAUGH, Justice.
This is an action upon a boiler and machinery insurance policy issued by The Travelers Indemnity Company, the defendant, to the Omaha Public Power District, the plaintiff. The jury returned a verdict for the defendant. The plaintiff's motion for judgment notwithstanding the verdict or for a new trial was overruled and it has appealed.
On July 4, 1959, a transformer owned by the plaintiff was damaged as the result of an accidental internal electrical disturbance. The cost of repairing the damage to the transformer amounted to $146,964.85. During the time that the transformer was out of service, the plaintiff temporarily installed two smaller transformers so that the generating unit ordinarily connected to the damaged transformer could be used for the production of electricity. The expense of the temporary installation amounted to $19,779.86. The defendant paid one-half of these amounts to the plaintiff and asserted that the plaintiff's fire insurance carriers were liable for the remaining one-half because the loss was a "joint loss" within the meaning of the applicable policies.
The action was brought to recover the remaining one-half of the loss from the defendant. Although the action was brought in the name of the plaintiff, the record shows that the fire insurance carriers had paid one-half of the loss to the plaintiff and had taken loan receipts pursuant to an agreement that this action would be brought at their expense to determine the extent of the defendant's liability under its policy.
The defendant's policy also provided coverage for loss of capacity and extra expense. The claim under this coverage amounted to $49,468.62 and was paid in full to the plaintiff. There is no issue concerning it in this litigation.
All of the plaintiff's fire insurance policies which were in force at the time of the accident contained extended coverage endorsements which insured the plaintiff against loss by explosion. The endorsements provided: "The coverage of loss by explosion under this endorsement shall include direct loss by any artificial electrical disturbance immediately preceding and causing such explosion * * *." They further provided: "The following are not explosions within the intent or meaning of these provisions: * * * (b) electrical arcing, * * *." The controlling issue in this case is whether the damage to the *3 plaintiff's transformer was caused by an explosion within the meaning of the extended coverage endorsement of the fire insurance policies.
The plaintiff's transformer which was damaged on July 4, 1959, is a General Electric 133,000 KVA power transformer. It is approximately 8 feet wide, 17 feet long, and 12 feet high and contains three large coils which are submerged in insulating oil when the transformer is in operation. The space between the surface of the oil and the top of the transformer is filled with nitrogen gas under pressure. The transformer is designed to operate normally with a nitrogen gas pressure of between 1½ to 7½ pounds per square inch. The transformer is equipped with a pressure relief device which is designed to relieve the gas pressure in the transformer whenever it exceeds 15 pounds per square inch.
The examination and inspection of the transformer which was made after its failure disclosed that an electrical arc or "flashover" had occurred within the transformer. The arc traveled approximately 3 feet from coil B to coil C, created a very high temperature in the oil, and transformed some of the oil into gas and carbon. The resulting increase in gas pressure which occurred within a fraction of a second damaged the internal parts of the transformer and caused the pressure relief device to operate.
The pressure relief device is a curved pipe or elbow fastened to the top of the transformer. The end of the pipe is sealed with a "herkolite" diaphragm and is equipped with a hinged door which covers the diaphragm. The diaphragm is designed so that it will rupture when the gas pressure inside the transformer exceeds 15 pounds per square inch. The door covering the diaphragm is fastened with a bolt or screw that is designed to break when gas pressure against the door exceeds 15 pounds per square inch. The door is equipped with a spring so that it will close after the excessive gas pressure within the transformer has been relieved.
When the pressure relief device functioned on July 4, 1959, the diaphragm was ruptured, the bolt was broken, and one of the hinges attached to the door was broken. Oil from the transformer was thrown horizontally against the wall of a building approximately 15 feet away.
Inside the transformer in the area where the arcing occurred there was evidence of scorching, and the insulation of the windings of the coils was damaged. A phase barrier and some of the oil diffusors were displaced, several fiber bolts were broken, and two of the high voltage bushings were displaced. The oil in the transformer was badly carbonized and carbon particles were distributed throughout the transformer. It was necessary to return the transformer to the factory in Massachusetts for repair.
There is no controversy between the parties in this case as to the facts. The evidence, although in part circumstantial and in part expert testimony, is undisputed. The controversy in this case concerns the legal effect or consequences of what happened at the time of the transformer failure.
The decision in this case turns upon the construction and interpretation of the fire policies. The construction of a written contract is ordinarily a question of law. Mecham v. Colby, 156 Neb. 386, 56 N.W.2d 299. As we view the record, it is a question of law as to whether any part of the plaintiff's loss was within the coverage of its fire policies.
The fire policies insured against loss by explosion. In construing an insurance contract, the words used therein should be considered as used in their ordinary *4 and popular sense. Wilson v. Capital Fire Ins. Co., 136 Neb. 435, 286 N.W. 331. We think that the term "explosion" as used in the policies involved in this case means a violent bursting or expansion following the production of pressure or a sudden release of pressure. Baltimore Gas & Electric Co. v. United States Fidelity & Guaranty Co., 4 Cir., 269 F.2d 138. See, also, 15A Words and Phrases, Explosion (Perm.Ed.), p. 479; 29A Am.Jur., Insurance, s. 1296, p. 421; Annotation, 28 A.L.R. 2d 995.
The evidence in this case shows a violent bursting following the production of pressure as the result of an electrical arc occurring within the insulating oil in the transformer. Although an electrical arc alone is not an explosion, an explosion caused by an electrical arc is within the extended coverage of the fire policies, and their coverage extends to the damage resulting from the arc if it immediately precedes and causes the explosion. Baltimore Gas & Electric Co. v. United States Fidelity & Guaranty Co., supra. The damage to the transformer was a "joint loss" within the meaning of the applicable policies, and the defendant's liability as to that item of the loss did not exceed one-half of the cost of repairing the damage.
The loss of capacity and extra expense coverage endorsement of the defendant's policy contained a provision that the defendant would pay any extra expense incurred by the assured at the written direction of the defendant to reduce or avert any loss of capacity. The defendant gave written authorization for the temporary installation of the smaller transformers and it paid one-half of this expense.
The defendant contends that the extra expense incurred by the plaintiff was a "joint loss" and that four of the fire companies are liable for one-half of this expense. Four of the fire insurance policies issued to the plaintiff contain an endorsement which provides coverage for loss resulting from business interruption. The endorsement provides that the policy shall also cover such expenses as are necessarily incurred for the purpose of reducing any loss under the policy not exceeding the amount by which the loss under the policy is thereby reduced. If the expense of the temporary installation of the smaller transformers reduced the loss under the business interruption coverage provided by the fire companies, then this expense was a "joint loss" and the defendant's liability as to that item of the loss does not exceed one-half of the expense.
The business interruption coverage provided by the fire policies was limited to the actual loss sustained by the plaintiff "not exceeding the reduction in gross earnings less charges and expenses which do not necessarily continue during the interruption of business." The plaintiff contends that the evidence does not show the amount of any reduction in gross earnings sustained by the plaintiff as a result of the transformer failure and does not show that the temporary installation of the smaller transformer resulted in a reduction of a loss under the business interruption coverage. The plaintiff argues that in the absence of such evidence the defendant should be held liable for the full amount.
By this argument the plaintiff attempts to assert a defense that could properly be made only by the fire companies against the plaintiff. In effect, the plaintiff is asking the defendant to prove the items that the plaintiff was required to establish in its proofs of loss to the fire carriers. The fire companies concerned have paid the plaintiff one-half of the expense of the temporary installation of the smaller transformers. There is nothing in the record which indicates that there has ever been any controversy between any of the parties concerned as to whether the plaintiff *5 sustained a reduction in gross earnings as a result of the transformer failure or whether the temporary installation of the smaller transformers was effective to avoid a reduction in gross earnings.
As we interpret the record, the plaintiff's contention in the trial court was that the defendant was liable for the entire loss because the accident was not an "explosion" within the meaning of the extended coverage of the fire policies; that the defendant was estopped from asserting that the loss was a joint loss; and that the plaintiff had failed to notify the fire companies of the loss as required by their policies. The loan receipts recite that the plaintiff had made demand upon the fire companies. The plaintiff cannot now attempt to raise an issue against the defendant upon the theory that it did not sustain a loss and that there was no basis for the claim which it asserted against the fire carriers under the business interruption coverage.
The plaintiff's contention in regard to estoppel is based upon the theory that the defendant's conduct prevented it from giving notice of the loss to the fire companies within the time required by their policies. The record shows that the fire companies did receive notice within the time required and that there has been no prejudice to the plaintiff as a result of the defendant's conduct. There is no merit to the plaintiff's contentions that the fire companies were not timely notified of the loss or that the defendant was estopped from asserting that the loss was a joint loss.
It is unnecessary to consider the other assignments of error relating to alleged errors in the admission of evidence and the instructions to the jury.
The judgment of the district court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918098/ | 135 N.W.2d 749 (1965)
COUNTY OF BELTRAMI, Appellant,
v.
James C. MARSHALL, Commissioner of Highways of Minnesota, and Val Bjornson, Treasurer of State of Minnesota, Respondents.
No. 39537.
Supreme Court of Minnesota.
April 30, 1965.
Rehearing Denied May 28, 1965.
*750 Douglas W. Cann, County Atty., Alfred C. Schmidt, Asst. County Atty., Bemidji, for appellant.
Robert W. Mattson, Atty. Gen., Perry Voldness, Deputy Atty. Gen., John R. Murphy, Sp. Asst. Atty. Gen., St. Paul, for respondents.
NELSON, Justice.
The action involved on this appeal was brought by Beltrami County to obtain a declaratory judgment construing Minn.St. 161.47, subd. 5; 488.10, subd. 6(e); and 488.13, subd. 6(b). The parties stipulated to the facts by and through their respective *751 counsel, the stipulation to stand in place of and be substituted for pleadings both for the purpose of submitting the issues involved to the district court and for the purpose of inserting the same into the record for the purpose of appeal to the supreme court. Said stipulation may here be briefly summarized as follows:
Pursuant to Minn.St. c. 488, the Municipal Court Act, the municipal court of the city of Bemidji has, in cases involving arrests by highway patrol officers in Beltrami County for traffic and motor vehicle law violations, deducted from the total of fines and forfeited bail money received by the court costs and fees payable to the city. The balance has been remitted to the treasurer of Beltrami County who has remitted 5/8 of the amount received to the state treasurer. From January 1960 to May 1962 the county received $13,409.06 from the municipal court and remitted $8,380.71 to the state treasurer. However, the defendants, the commissioner of highways and the state treasurer, contend that in addition the county should absorb all of the costs and fees taxed and incurred in, and deducted by, the municipal court, and that the state should not bear any part thereof. To enforce this position, the defendants, in remitting county-state highway aid to Beltrami County in July 1962, deducted $3,107.46, which was 5/8 of the total of costs and fees and which sum the municipal court had deducted before remittance to the county treasurer. The defendants contend that the state cannot pay its proportionate share of the costs of prosecution because the legislature has not appropriated any money for payment thereof.
The county contends that it cannot pay its proportionate share of said costs of prosecution because the county has not appropriated any money for payment thereof. It takes the position that it is not necessary for either the county or the state to appropriate money for the payment of fees and court costs in the prosecution of arrests pursuant to traffic and motor vehicle law violations by reason of the fact that all such fees and court costs are deducted by the municipal court of the city of Bemidji prior to the time said sums of money are forwarded to the county for distribution to the county and the state on a 3/8 to 5/8 basis pursuant to § 161.47, subd. 5. The county further contends that if it is required to pay the total amount of the costs and fees in prosecution of said cases in the municipal court the 3/8 which it receives may not be sufficient to cover the cost of prosecutions as charged by the municipal court.
The question is whether the county is obligated to pay the total amount of fees and costs incurred by the municipal court of the city of Bemidji in prosecuting violations of the traffic and motor vehicle law of this state notwithstanding the fact that said county receives only 3/8 of the receipts from fines and forfeited bail money and whether or not the state can offset against county-state aid highway payments to the county its share of the costs of said prosecutions. This is an issue for judicial determination involving the rights of the parties to this action and is properly an action for declaratory judgment under the laws of the state.
It will be observed from the facts stipulated to herein that the county and the state in effect shared the costs of prosecution since the fees and costs were deducted from sums collected before the net amount was paid over to the county treasurer. This brought objections to this procedure by the defendants, asserting that the city was commanded by § 161.47, subd. 5, to remit all fines and forfeited bail money from traffic and motor vehicle law violations to the county, the county to satisfy the costs incurred by the city of Bemidji out of its 3/8 share.
The trial court rendered a declaratory judgment on the pleadings in favor of the defendants from which the plaintiff appeals to this court.
*752 The state asserts that § 161.47, subd. 5, is controlling. It reads in part as follows:
"All fines and forfeited bail money, from traffic and motor vehicle law violations, collected from persons apprehended or arrested by such employees, shall be paid by the justice of the peace, or such other person or officer collecting such fines, forfeited bail money or installments thereof, within 15 days after the last day of the month in which such moneys were collected, to the county treasurer of the county where the violation occurred. Three-eighths of such receipts shall be credited to the general revenue fund of the county. The other five-eighths of such receipts shall be transmitted by that officer to the state treasurer and shall be credited to a separate account."
This statute makes no provision for deduction by the municipality of costs prior to the time for transmitting collected fines and forfeited bail money to the county treasurer. If § 161.47, subd. 5, is to be considered exclusively, then we are bound to conclude that the municipality must bear the entire financial burden incurred in prosecuting highway complaints on behalf of the state.
Following the enactment of § 161.47, subd. 5, the legislature enacted Minn.St. c. 488, the Municipal Court Act. Two provisions of c. 488 must be referred to in analyzing the facts herein. We will first consider § 488.13, subd. 6(b), which reads as follows:
"In the event the municipal court takes jurisdiction of a prosecution for the violation of a statute or ordinance by the state or a governmental subdivision other than the city, village, or borough in which the court is situated, all fines, penalties, and forfeitures collected shall be paid over to the treasurer of the governmental subdivision which submitted a case for prosecution under ordinance violation and to the county treasurer in all other cases except where a different disposition is provided by law, in which case, payment shall be made to the public official entitled thereto. The following fees shall be taxed to the county or to the state or governmental subdivision which would be entitled to payment of the fines, forfeiture or penalties in any case, and shall be paid to the clerk of the court for disposing of the matter:
"(1) In all cases where the defendant is brought into court and pleads guilty and is sentenced, or the matter is otherwise disposed of without trial. . . $5
"(2) In arraignments where the defendant waives a preliminary examination. . . $10
"(3) In all other cases where the defendant stands trial or has a preliminary examination by the court. . . $15."
1. Under § 488.13, subd. 6(b), where the municipal court of Bemidji takes jurisdiction of highway violations and their prosecution on behalf of the state, all fines, penalties, and forfeitures collected shall be paid to the county treasurer because the portion of the statute requiring that they "be paid over to the treasurer of the governmental subdivision which submitted a case for prosecution under ordinance violation" is not applicable since it was not a governmental subdivision submitting the case for prosecution but rather the state itself.[1] The provisions of subd. 6(b) present a somewhat insurmountable problem by providing for the taxing of fees to the county or state or governmental subdivision which would be entitled to payment of the fines, penalties, or forfeitures since that provision remains ineffectual as applied to the state because the legislature has not appropriated the necessary money for payment by the *753 state of the fees.[2] A legislative appropriation is always a prerequisite to state liability. Minn.Const. art. 9, § 9; Minn.St. 6.23; and State ex rel. Chase v. Preus, 147 Minn. 125, 127, 179 N.W. 725, 726, wherein this court said:
"* * * The mere creation of the liability on the part of the state, or promise of the state to pay, if the statute may thus be construed, is of no force, in the absence of an appropriation of funds from which the liability may be discharged."
The only other available argument for charging the costs against the state's 5/8 interest is that an appropriation by the state is unnecessary since the costs can be offset against the state's share of monies collected. Section 488.13, subd. 6(b), states that the costs will be taxed to the state, not set off against the states share. If the latter was intended the legislature would have so provided. Thus as matters stand at present, the state may not be taxed and therefore its 5/8 interest is not amenable to a statutory offset.
The second provision of c. 488 which must be referred to is § 488.10, subd. 6(e), which in so far as pertinent, reads as follows:
"The clerk shall pay such fees and mileage to witnesses as may be ordered by the judge in any action or proceeding involving a charged violation of a criminal law or municipal ordinance. The clerk shall obtain receipts therefor as vouchers for the sums paid and shall deduct these payments from the amounts otherwise due the officers to whom the clerk is required to pay fees, costs, and fines." (Italics supplied.)
In construing § 488.10, subd. 6(e), the attorney general in Opinion Attorney General, No. 306b-3, July 9, 1964, concluded that jurors' and witnesses' fees paid could not be deducted from that portion of the fees collected which was due to the state. The attorney general's conclusion appears to rest on Minn.St. 645.27, which reads:
"The state is not bound by the passage of a law unless named therein, or unless the words of the act are so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature."
The county makes no reference to this attorney general's opinion or to § 645.27. It simply argues that if the legislature had intended that only the county should be charged with the expenses of prosecution it would have said so. We are inclined to conclude, on the overall statutory pattern, that the attorney general reached the correct conclusion.
Were we to construe § 488.10, subd. 6(e), as the county suggests, the county and the state would actually be sharing the costs of the prosecutions by the municipality. No reason for such payments by the state to the county has been advanced by plaintiff's counsel, nor is authority therefor to be found in the statutes. If the legislature should desire to cast the entire financial burden of prosecuting for violation of the traffic and motor vehicle laws upon the municipality or the county it would be free to do so since the power of the legislature to require such a governmental agency to perform, at its own expense, duties of state concern is manifest. State ex rel. City of Waseca v. Babcock, 151 Minn. 321, 186 N.W. 688; State ex rel. Chase v. Preus, supra; and 5 Dunnell, Dig. (3 ed.) § 2242.
Appellant argues with some merit as follows:
"The respondents stipulated, and the court found, that the county treasurer acts as agent for the state for transmission of funds under § 161.47, Subd. 5. If this is the case, then the quarrel *754 of the state should be with the municipal court, not with the county or its treasurer. If the state is entitled to further funds, as it claims, it is the [municipal] court, not the county, which has wrongfully retained them, and the court, not the county, which should be required to pay them. The treasurer of the county has done what the statute requires: he has paid five-eighths of his receipts from the municipal court to the state."
The municipality of Bemidji is not a party to this action. Since, however, its function in this matter is of a mechanical nature its absence as a party is not of great import. We assume that the municipality will abide by the construction which this court places on the statutes in question and that it would act accordingly. For that reason it would serve no useful purpose to remand so as to make the city a party and we will refrain from doing so.
The county contends that § 161.47, subd. 5, should not be so simply applied and argues that in view of the language of § 488.13, subd. 6(b), the fees therein made payable to the municipal court should be deducted, that is, at least 5/8 of said fees should be deducted from the state's 5/8 of the fine money. While this deduction or any partial deduction is nowhere spelled out in any of the statutes involved, it is clear that the county can only justify this contention in pursuit of the goal which it contends is one of fairness and justice to the governmental entities involved and that it ought to be presumed that the legislature so intended.
The defendants contend that the issue must be resolved by the application of well-known rules of law rather than by attempting to spell out a conjectural concept of fairness; that the rules of law applicable are that the state can pay no money without an appropriation, and that the practical construction of a statute must be given effect.
2. Since the state can pay no money without an appropriation it seems clear that to allow the fees due the municipal court to come out of the state's 5/8 of the fine money is the same as requiring the state to pay the fees. This cannot be done for the simple reason that the legislature has made no appropriation for that purpose. In State ex rel. Chase v. Preus, 147 Minn. 125, 179 N.W. 725, 726, this court said, "A statute creating a liability on the part of the state is not in itself, standing alone, an appropriation act."
It would not serve as an answer to the county's contentions for this court to say that because § 488.13, subd. 6(b), refers to the state's liability to pay similar fees or any portion thereof incurred in prosecuting traffic and motor vehicle violations here involved it ought presently in fairness to be harmonized with § 161.47, subd. 5. This court has heretofore answered that argument in State ex rel. Chase v. Preus, supra. If the conclusion reached by the court below was impelled through an omission on the part of the legislature to make necessary appropriations, the fact that the legislature has not corrected the situation, if it is incumbent upon it to do so, does not justify this court in overruling the trial court and in effect legislating so as to harmonize the sections of the statutes. As was said by the defendants in concluding their brief:
"The issue is the proper disposition of patrol fines. Whatever this Court decides will be reported to the legislature. Minn.Stat. 482.09(9). * * * if the legislature then favors a different disposition of the fines, it can so provide."
Judgment affirmed.
*755 ON PETITION FOR REHEARING
PER CURIAM.
We construe Minn.St. 488.13, subd. 6(b), and 161.47, subd. 5, to mean that upon receipt by the city of Bemidji of fines, penalties, and forfeitures the city shall divide such moneys in 3/8 and 5/8 shares. From the 3/8 shares the city will deduct costs as provided in § 488.13, subd. 6(b) and expenses as indicated in § 488.10, subd. 6(e). Within 15 days after the last day of the month in which such moneys were collected the city of Bemidji will pay to the County of Beltrami the full 5/8 share and that which remains from the 3/8 share. The county will then remit the full 5/8 share to the state treasurer as provided in § 161.47, subd. 5. If the city's statutory expenses and costs exceed the 3/8 share, then such expense must be born by the county. Under this construction the state receives 5/8 of the total moneys collected and the county must satisfy all expenses and costs; hopefully, such expenses and costs will not exceed 3/8 of the total moneys collected by the city, but if they do, it is the county's responsibility.
Petition for rehearing denied.
NOTES
[1] See, 13A Dunnell, Dig. (3 ed.) § 6517.
[2] The attorney general reached this same conclusion in Opinion Attorney General, No. 306b-4, March 16, 1960. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/668054/ | 21 F.3d 1120
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Judith A. CARTER and Jim W. Carter, Plaintiffs-Appellees,v.DEAN WITTER REYNOLDS, INC.; Dean Witter Financial ServicesGroup, Inc.; Zond Systems, Inc.; Zond WindsystemsManagement Corporation V; Zond Construction CorporationIII; Zond Construction Corporation IV; and The Zond Group,Defendants-Appellees, andCALIFORNIA UNION INSURANCE CO., Movant-Appellant.
No. 93-6061.
United States Court of Appeals, Tenth Circuit.
March 22, 1994.
ORDER AND JUDGMENT1
1
Before MOORE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ROGERS, Senior District Judge.2
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
3
The parties are well acquainted with the facts of this case, and it is not necessary to repeat them here. After considering all the issues raised, we conclude it is unnecessary to delay disposition of this case because its outcome is certain under any circumstances. Accordingly, the motion to stay the appeal is denied, and the judgment of the district court affirmed.
4
The essential reason for affirmance lies in the fact appellant was without standing in the district court to request disclosure of the depositions unless its motion for permissive intervention was granted. A denial of permissive intervention is reviewed for abuse of discretion. Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 89 (10th Cir.1993); Kiamichi R. Co. v. National Mediation Bd., 986 F.2d 1341, 1345 (10th Cir.1993). We define "abuse of discretion" as "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.1991). Appellant has shown us no reason, nor have we found one, to hold the denial of permission to intervene met that standard.
5
Moreover, appellant's contention that the district court's ruling in this case is subject to de novo review is simply wrong. In United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.1990) (quoting Shump v. Balka, 574 F.2d 1341, 1345 (10th Cir.1978)), cert. denied, 498 U.S. 1073 (1991), we stated we would not disturb a ruling on a similar motion for permissive intervention "except upon a showing of clear abuse.' "
6
Because we conclude the trial court did not abuse its discretion in denying the motion to intervene, the remaining issues are moot. The judgment of the district court is AFFIRMED.
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470
2
Honorable Richard D. Rogers, Senior District Judge for the United States District Court for the District of Kansas, sitting by designation | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2585025/ | 187 P.3d 751 (2008)
STATE
v.
MAYFIELD.
IN RE MAYFIELD.
No. 80798-1.
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/1918005/ | 376 Mich. 21 (1965)
135 N.W.2d 384
KOGAN
v.
STONE.
Calendar No. 35, Docket No. 50,375.
Supreme Court of Michigan.
Decided June 7, 1965.
Rehearing denied October 4, 1965.
William A. Yolles, for plaintiff.
Max E. Klayman, for defendants.
ADAMS, J. (for reversal and remand).
The question presented by this appeal is whether there is a *25 right to contribution from members of a class who by statute are required to support a relative.
Plaintiff alleges her mother, Dora Goldstein, is an indigent widow; that, of her six children, plaintiff and the defendants have sufficient financial ability to contribute to her support; and that since 1959 she alone has supported her mother because defendants have refused to do so. Plaintiff seeks to recover two-thirds of the money paid. Defendants moved to dismiss for failure to state a cause of action and because plaintiff was a volunteer. The motion was denied. On motion for rehearing, defendants alleged that the other children of Mrs. Goldstein were necessary parties and that there was an agreement exonerating defendants. The circuit judge granted the motion to dismiss, holding that the matter was statutory under CLS 1961, § 401.2 (Stat Ann 1960 Rev § 16.122) and that any action must be brought in probate court.
The obligation to support is created by the above statute, there being no legal obligation at common law to support an indigent parent. Schwanz v. Wujek, 163 Mich 492. The statute provides:
"The husband, wife, father, mother and children of any poor person, being of sufficient ability, shall jointly or severally relieve, maintain and support the poor person."
Defendants say that the statutory scheme of chapter 1 of the poor law (PA 1925, No 146, as amended [CL 1948 and CLS 1961, § 401.1 et seq. (Stat Ann 1960 Rev § 16.121 et seq.)]) provides an exclusive procedure through the probate courts. Under the law, enforcement of liability is left to proceedings to be instituted by specified local agencies or a dependent parent; the probate court is authorized to proceed by summary hearing; it can direct two or more relatives of different degrees to contribute to *26 the support of an indigent; it can fix the time for payment and vary its orders for payment as circumstances may require; and may enforce its orders by contempt proceedings.
This statutory scheme, defendants argue, is a clear indication of the intent of the legislature to provide a single and exclusive method of enforcement.
The argument overlooks CL 1948, § 401.17 (Stat Ann 1960 Rev § 16.137), which provides that, on conviction for failure to support, the person so convicted shall be sentenced to not less than three months nor more than one year in the county jail at hard labor. CL 1948, § 401.18 (Stat Ann 1960 Rev § 16.138), provides for suspension of sentence in the event $1,000 bond is posted to insure performance.
While there are no decisions of this Court directly in point, two cases contain related problems. In Clinton v. Laning, 61 Mich 355, an action was brought by a father to recover expenses incurred to support a grown-up son who became grossly drunk at defendant's tavern and, as a result, froze his feet and a hand. In holding that the father had a cause of action, the Court discussed an earlier version of the present statute. It was contended, as in this case, that the father was a volunteer, because the statute did not place him under a legal duty of support until the indigent relative was forced to employ the aid of the probate court. The Court said (pp 359, 360):
"But we think the law does not require a father to attempt to turn over his son to the custody of the superintendents of the poor before he can be regarded as under a duty of maintenance. * * *
"We think that the voluntary assumption of this duty may fairly be regarded as performing a legal obligation."
*27 The appellees claim support from Schwanz v. Wujek, supra. That decision contains a statement that the statute does not give rise to legal liability until proceedings are begun under the poor law. The case involved suit by a surgeon for services and hospitalization rendered to the defendant's indigent father.[*] The Court seemed more impressed with the possible existence of an express contract than with founding the action on the statute. It was, perhaps, because of this that no reason was given for the conclusion (p 495):
"It is clear the liability does not attach until the statutory proceedings have been had."
This ruling is inconsistent with both Clinton and more recent pronouncements of this Court. See Judis v. Borg-Warner Corp., 339 Mich 313, 326; MacDonald v. Quimby, 350 Mich 21, 29.
The statute clearly creates a joint and several duty which under plaintiff's pleaded case fell equally upon plaintiff and defendants. The primary object of the law is to create an obligation upon relatives for support of an indigent. Subordinate to that object, in the event of failure to obey the law, the legislature provided two procedures for enforcement one through probate court, the other by criminal prosecution. Neither is exclusive. In the vast majority of cases neither will be utilized since in most instances the law will be obeyed and support forthcoming on a voluntary basis.
Plaintiff's dilemma is that, if she obeys the law, probate proceedings cannot be invoked by her. They come into play only "upon the failure of any relative to relieve and maintain." CLS 1961, § 401.3 (Stat Ann 1960 Rev § 16.123). If she disobeys the law, *28 she is subject to its criminal provision. CL 1948, § 401.17 (Stat Ann 1960 Rev § 16.137).
Under such circumstances plaintiff should not go remediless nor should defendants be permitted to escape their obligations. The familiar principle of contribution is applicable here.
"The doctrine of contribution rests upon the maxim, Equality is equity (see sections 405-412). Although contribution is based upon general considerations of justice, and not upon any notion of an implied promise, a jurisdiction at law has become well settled which is sufficient in all ordinary cases of suretyship or joint liability." 4 Pomeroy's Equity Jurisprudence (5th ed), § 1418, p 1072.
Michigan's conception of the principle was expressed in Lorimer v. Julius Knack Coal Co., 246 Mich 214, 217:
"It has often been stated by the courts that contribution is founded on principles of equity and natural justice. The doctrine rests on the principle that when parties stand in aequali jure, the law requires equality, which is equity, and one of the parties will not be obliged to bear more than his just share of a common burden or obligation to the advantage of his co-obligors. 13 CJ p 821. It is applied in those cases where one or more of several parties equally obligated have done more than their share in performing a common obligation."
See, also, Comstock v. Potter, 191 Mich 629, 637, 638.
Another question raised both in this case and in Clinton, supra, is the determination of damages. In Clinton, the Court recognized that determination of the amount of maintenance by a jury was perhaps more complicated than determination by a probate court, but found the difficulty was not insuperable and that a jury would be competent to make the determination. As for the amount to be recovered, the *29 Court stated that the law imposes such an amount as would be (p 360):
"necessary for the humane and comfortable support of a needy person, and no more. All beyond this, which affection may prompt, and which it is likely to furnish, must be regarded as a free-will offering, and not a legal duty."
Upon remand, if the remaining children of Dora Goldstein are necessary parties, they can readily be joined under the provisions of GCR 1963, 204 or GCR 1963, 205.1. Whether plaintiff in fact acted as a volunteer to the extent of foregoing her right to contribution and whether there was an agreement exonerating the defendants are issues to be determined upon trial.
We do not regard this proceeding as in any way affecting the jurisdiction of the probate court under PA 1925, No 146, as amended (CL 1948 and CLS 1961, § 401.1 et seq. [Stat Ann 1960 Rev § 16.121 et seq.]). The probate court proceeding is primarily prospective, for the purpose of making provision for an indigent's future maintenance. This action is to recover a proper share from those jointly and severally responsible for the past performance of a duty the statute imposes.
The judgment should be reversed and remanded. Costs to appellant.
T.M. KAVANAGH, C.J., and BLACK and SOURIS, JJ., concurred with ADAMS, J.
KELLY, J. (for affirmance).
Plaintiff's failure to proceed as provided by statute did not transfer jurisdiction of the subject matter from the probate to the circuit court.
Our decision in this appeal depends upon construction of the poor law, PA 1925, No 146, as amended, *30 and a summary thereof as it applies to this appeal follows:
CLS 1961, § 401.2 (Stat Ann 1960 Rev § 16.122), provides that the children "of sufficient ability, shall jointly or severally relieve, maintain and support" their mother "in such manner as shall be approved by the county department of social welfare." (Emphasis supplied.)
CLS 1961, § 401.3 (Stat Ann 1960 Rev § 16.123), was enacted by the legislature to provide for enforcement of liability of relatives and provided that if the children refused or failed to support their mother in the manner approved by the county department of social welfare, then "it shall be the duty" of said department to apply to the probate court of the county where the mother resides "for an order to compel such relief." (Emphasis supplied.)
CLS 1961, § 401.4 (Stat Ann 1960 Rev § 16.124) calls for the probate court to "proceed in a summary way to hear the proofs and allegations of the parties," and to then order the sons and daughters "of sufficient ability" to pay "the sum which will be sufficient for the support of such poor person."
There follows legislative directives[1]in re "proportionate liability"; "duration of order" and "change in terms"; and "costs; enforcement of orders."
At common law an adult child is under no legal obligation to support an indigent parent. Appellant does not dispute this fact and in her declaration, recognizing that the statute prevails, states:
"4. That since July 1, 1959, and prior thereto, Dora Goldstein has been unable to support, maintain, and care for herself and, at all such times, has been an indigent person.
"5. That it has accordingly been the joint and several responsibility of the parties hereto to support, *31 maintain, and care for said Dora Goldstein, their mother, under the laws of the State of Michigan including, among others, CLS 1961, § 401.2 (Stat Ann 1960 Rev § 16.122), but notwithstanding this obligation, the defendants have wholly refused and neglected to do so."
If plaintiff and defendants' mother was an indigent person on July 1, 1959, there was a moral responsibility upon her children to support, maintain and care for her, but that moral responsibility did not change into a moral and legal responsibility until proceedings in accordance with the sections of the statute referred to above had been instituted, and this fact is made definitely clear in our decision in Pinel v. Rapid Railway System, 184 Mich 169, wherein we said (p 171):
"A son is always under moral obligation to assist his indigent mother, but he is under no legal obligation to do so until proceedings under the statute have resulted in an order compelling him to do so."
Also, in our decision in Schwanz v. Wujek, 163 Mich 492, where we said (p 494):
"Undoubtedly there rested upon the son the moral obligation to care for his father so far as was consistent with his own means and station in life, but this was not a legal duty except as it became so by virtue of statutory enactment."
Appellant cites CL 1948, § 401.17 (Stat Ann 1960 Rev § 16.137), which provides for a jail term for those who refuse to support their parents, and Clinton v. Laning, 61 Mich 355, where a father sought reimbursement for expenses incurred in caring for his son from those responsible for the drunkenness that resulted in exposure and freezing of the son's feet and a hand. Neither this section of the statute *32 nor the cited case relieves plaintiff from proceeding under the statute.[2]
Appellant asks this Court to send this case back to the circuit court for trial by jury, stating "a jury could determine the amount of support to be paid by the various adult children with at least equal competence of a probate judge," and that by so doing "this Court has a unique opportunity to harmonize the law of the State with the moral law."
The law is not ambiguous. It clearly provides that in those unfortunate situations where it is necessary to invoke the aid of a court to decide how many of the children are able to financially support, and to what extent they should support, their mother, the determination should not be made by a jury on the circuit court level, but on the probate court level where, after careful investigation and report by the county department of social welfare, the probate judge "shall proceed in a summary way to hear the proofs and allegations of the parties," and then render decision.
The trial court did not err in holding that the circuit court did not have jurisdiction.
If proceedings are hereafter instituted resulting in a probate court order, the probate judge may, taking into consideration the fact that appellant has assumed her moral obligation to support her mother since the latter became an indigent, credit appellant, in regard to future contributions, with whatever proportionate share of past contributions, is deemed appropriate.
Affirmed. Costs to appellees.
DETHMERS, SMITH, and O'HARA, JJ., concurred with KELLY, J.
NOTES
[*] The weight of authority holds that family responsibility statutes, such as the one here involved, support an action by third persons. See Annotation, 116 ALR, p 1281.
[1] CLS 1961, §§ 401.6, 401.7 and CL 1948, § 401.8 (Stat Ann 1960 Rev §§ 16.126-16.128).
[2] CLS 1961, §§ 401.2-401.4 (Stat Ann 1960 Rev §§ 16.122-16.124). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918036/ | 135 N.W.2d 746 (1965)
Irene M. JOLLY, widow of Warren Jolly, deceased employe, Respondent,
v.
JESCO, INC., et al., Relators,
Adolfson & Peterson, Inc., et al., Respondents.
No. 39685.
Supreme Court of Minnesota.
June 11, 1965.
*747 Robb, Robb & Van Eps, Minneapolis, for relators.
Harold E. Farnes, Minneapolis, for widow.
John M. Prins, St. Paul, for Adolfson & Peterson and others.
ROGOSHESKE, Justice.
Certiorari to review an award of compensation by the Industrial Commission for the death of an employee resulting from an altercation between decedent and a fellow employee in which the decedent was the instigator and aggressor.
Warren Jolly, a bricklayer, was employed by Jesco, Inc., from June 18, 1962, to August 21, 1962, when he died at age 46 on the job site immediately following an assault upon David Mikkelson, a fellow employee. On April 24, 1961, prior to employment with Jesco, Inc., decedent had suffered a myocardial infarction while performing an unusually arduous assignment in the course of his employment with Adolfson & Peterson, Inc. A referee for the commission, after a hearing in November 1961, found this heart attack to be compensable, and decedent was awarded and paid compensation and hospital and medical benefits by Anchor Casualty Company, the insurer of Adolfson & Peterson, Inc. In November 1961, he returned to part-time work with various employers, and gradually as his strength improved he resumed full-time work as a bricklayer about April 1962, although he continued to experience chest pains, discomfort, and tiredness. On June 18, 1962, he became employed by Jesco, Inc. The testimony shows that after he resumed full-time work, he performed competently with no apparent physical disability, keeping up with his fellow bricklayers, climbing scaffolds, and making no complaints about his physical condition while working.
On the day of his death, August 21, 1962, he began work at 8 a. m. He and a fellow bricklayer, David Mikkelson, whom he had known only briefly, were laying a soap tile wall. They were working from a scaffold 50 feet long and 4 feet wide, suspended 4 or 5 feet above the ground. After about an hour's work, the row of tile each was laying approached and it became necessary to "tie in the two rows." Decedent asked Mikkelson to shift his tile, presumably to make a proper fit. After repeated efforts by Mikkelson to comply, decedent became angry and Mikkelson told him, "Do it yourself." At this, decedent advanced menacingly toward Mikkelson, who tried to back away, and struck him three times with his fists, cutting Mikkelson's lip and drawing blood from his nose and mouth. Mikkelson, aware of the danger of scuffling on the scaffold and desiring that decedent "come back to his senses," said, "If you want a fight, let's get down and fight." Decedent got down, put up his fists, and motioned threateningly to Mikkelson, who reluctantly descended. As Mikkelson walked to the place where decedent was standing and before Mikkelson could say anything, decedent struck him again and charged at him. Blows were exchanged, the men grappled and wrestled for 2 or 3 minutes, then they fell to the ground and were separated by other workers. Decedent got up, walked 4 or 5 feet, gasped, and collapsed. He died on the scene shortly thereafter.
Three doctors testified, decedent's personal physician and two others called by the employers-insurers. All expressed the opinion that the immediate precipitating cause of death was the emotion and exertion occasioned by the assault. Decedent's personal physician and the medical expert called by relators gave opinions that the residual scar damage to the heart resulting from the infarction of April 1961 was a contributing cause of death. Relator's expert conceded on cross-examination, however, *748 that it would be "most improbable he would have died at that time had it not been for the fight and the emotion and strain that went with it." In the opinion of the expert called by Adolfson & Peterson and its insurer who, like decedent's physician, had examined decedent during his lifetime, the infarction did not contribute to the cause of death. In his opinion, the sole cause was an acute fibrillation of the heart resulting from an insufficient blood supply from vessels outside of the scar tissue following a greater demand by the heart for nourishment produced by the emotion and exertion of the fight.
The two issues presented are whether death arose out of and in the course of decedent's employment and whether the commission's conclusion that the prior heart attack was not a contributing cause of death is manifestly contrary to the evidence.
1. The first issue is clearly controlled by Petro v. Martin Baking Co., 239 Minn. 307, 58 N.W.2d 731; 38 Minn.L.Rev. 83. In that case we held, three justices dissenting, that an employee's death from a heart attack resulting from his work-induced altercation was compensable notwithstanding the fact that the employee was the aggressor. The reasons and authorities supporting a denial of recovery to an aggressor and those underlying our conclusions were exhaustively examined. Since our Workmen's Compensation Act does not expressly grant this defense to an employer, we adopted the view that the death arose "out of and in the course of employment" within the meaning of Minn. St. 176.021, subd. 1, without regard to aggression. We said (239 Minn. 311, 58 N.W. 2d 735):
"* * * When the accumulated pressures of work-induced or work-aggravated strains and frictions finally erupt into an affray which results in injury to one of the participants, it is artificial to say that an injury to the one who struck the first blow did not arise out of the employment but an injury to the recipient of that blow did arise out of the employment."
It may be noted that two of the three dissenting opinions were essentially predicated upon the ground that the altercation occurred 2 days after the accusation of dishonesty provoking it, and that such cooling-off period characterized it as a "personal grudge" assault rather than work-related. Here, although the decedent was the instigator and continuous aggressor, the assault was clearly rooted in the work and not a personal affair. Moreover, the nature and spontaneity of the assault makes the arguments for allowing benefits in this case stronger than in Petro. We are not inclined to depart from our prior decision as relators urge. To do so would inject the concept of fault into legislation designed to eliminate common-law defenses and to shift the burden of work injuries to the cost of industrial production. It would also give rise to a host of perplexing issues including that of determining who was the aggressor.[1] Furthermore, since Petro and Cunning v. City of Hopkins, 258 Minn. 306, 103 N.W.2d 876, where the problem was again extensively reviewed and the intention of the statutory provision under review examined, the legislature has not seen fit to provide that aggression, unlawful conduct, or willful intention to injure another be a defense to recovery of benefits. No persuasive reasons are advanced why the defense of aggression should be imposed by judicial decision, and we decline to do so.
2. To determine the cause of death it was necessary to resolve the conflict between differing opinions of qualified medical experts. Both the referee and the commission decided contrary to relators' position. A careful review of the record makes *749 it clear that the conclusion reached is amply supported by the evidence and should be sustained.
Petitioner is allowed $250 as attorney's fees on this appeal.
Affirmed.
NOTES
[1] 38 Minn.L.Rev. 83; Horovitz, Assaults and Horseplay Under Workmen's Compensation Laws, 41 Ill.L.Rev. 311. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918040/ | 375 Mich. 667 (1965)
135 N.W.2d 346
BROOKS
v.
FIELDS.
Calendar Nos. 2, 3, Docket Nos. 50,552, 50,553.
Supreme Court of Michigan.
Decided June 7, 1965.
Rehearing denied July 13, 1965.
*669 James Turnage and Leitson, Dean, Dean & Abram (Robert Abram, of counsel), for plaintiffs.
Burroughs, Buck, Stalker & Chapman (Douglas I. Buck, of counsel), for defendant Fields.
Gault, Davison & Bowers (Mathew Davison, Jr., of counsel), for defendant McDill.
SOURIS, J.
Defendants asked the trial court to grant summary judgment in their favor, alleging as the sole basis for such grant the provisions of section 1 of part 2 and section 15 of part 3 of the workmen's compensation act, CLS 1961, §§ 412.1, 413.15 (Stat Ann 1960 Rev §§ 17.151, 17.189). Section 1 pertinently provides:
"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."
Section 15 pertinently provides:
"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies".
The trial judge in his decision granting summary judgment stated that since plaintiff Dolores Brooks had alleged in her complaint all of the facts necessary to bring into play the presumption of section 1 she could not on trial be permitted to rebut that presumption, and if the presumption were unrebutted *670 her suit could not succeed. We need not consider this reasoning process in its entirety simply because the trial judge's basic premise was wrong.
The fact is that the complaint of Dolores Brooks did not allege all facts necessary to give rise to section 1's presumption. For example, nothing appears in the complaint, or in any of the nonconclusionary pleadings before the trial court, to indicate when or whether Mrs. Brooks' working hours had begun or ended. Without such information, it is impossible to say that the presumption has arisen, since it arises only within a "reasonable time" before or after working hours. Thus the judgment of the trial judge, based as it was upon a major misconception of the record, cannot be permitted to stand.
Furthermore, even if Mrs. Brooks were in the course of her employment by virtue of section 1's presumption, she would not be barred from suit by section 15 unless the defendants also were in the course of their employment by the same employer. Aside from pleading such conclusion as an affirmative defense, denied by plaintiffs, there was nothing before the trial court, not even an affidavit, from which such a finding could be made even if it were then appropriately the function of the judge to make such findings. Under such circumstances, summary judgment as provided for by GCR 1963, 117, should not have been entered. See Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney), 375 Mich 628, 640, also decided this day.
Reversed and remanded. Costs to plaintiffs.
T.M. KAVANAGH, C.J., and SMITH and ADAMS, JJ., concurred with SOURIS, J.
KELLY, J. (dissenting).
Plaintiffs appeal from the trial court's order granting defendants' motion for summary judgment as set forth in their "statement *671 of facts," under the subheading "the accident facts," as follows:
"These are the cases of Dolores and Ernest Brooks which are consolidated for appeal. Plaintiff Dolores Brooks was injured in an automobile collision which occurred on January 13, 1961, at about 3:10 p.m., in a private parking lot maintained by the Ternstedt Division, General Motors Corporation, when an automobile owned and operated by defendant John McDill collided with an automobile owned and operated by defendant Oscar Fields, while Dolores Brooks was in said John McDill's vehicle as a passenger. Plaintiff Ernest Brooks brings his action for medical expenses and loss of his wife, Dolores Brooks' services and consortium. Dolores Brooks, John McDill and Oscar Fields were all employed by the Ternstedt Division, General Motors Corporation, and were all employed in the same plant. Ernest Brooks was not employed by the Ternstedt Division. The collision between the two vehicles happened at the conclusion of the working day." (Emphasis ours.)
Both defendants filed affirmative defenses alleging that plaintiff Dolores Brooks and both defendants, together with their mutual employer, were at the time of the accident subject to the provisions of the workmen's compensation act and that the exclusive remedy for recovery on account of injuries and damages sustained "is that provided by said workmen's compensation act."
Plaintiffs answered defendants' affirmative defenses denying the allegations and stating "that as a matter of fact your Dolores Brooks was not acting within the scope of her employment."
Defendants moved the court to enter summary judgment for the reason that: "Plaintiff's action is barred by the provisions of CLS 1961, §§ 412.1, 413.15 (Stat Ann 1960 Rev §§ 17.151, 17.189)."
*672 The pertinent part of CLS 1961, § 412.1 (Stat Ann 1960 Rev § 17.151) is the amendment by PA 1954, No 175, that:
"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."
CLS 1961, § 413.15 (Stat Ann 1960 Rev § 17.189), provides in part as follows:
"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section."
In granting defendants' motion, the trial court, after holding that the language of the act as amended[*] applies not only to one "`while at the place where his work is to be performed or while actually performing it, but to one "going to or from his work while on the premises,"'" asks "where," as in the instant case, "plaintiff alleges by way of complaint all facts necessary to sustain the validity of the presumption, can it now be claimed that the same plaintiff will rebut said presumption on trial to show that the facts are otherwise?"
The court properly relied upon Freiborg v. Chrysler Corporation, 350 Mich 104, 107, and correctly construed CLS 1961, § 412.1 that the workmen's compensation act applies not only to injuries received *673 "`while at the place where his work is to be performed or while actually performing it, but to one "going to or from his work while on the premises,"'" as is disclosed by the syllabus in that case:
"Injury to plaintiff employee on parking lot provided by employer for the employees, inflicted upon plaintiff by a fellow employee while plaintiff was en route from his car to place where work was to be performed a short while before working hours, held, to have arisen out of and in the course of his employment and compensable."
Appellant Dolores Brooks majors the point that she has never applied for or received compensation, and states that the question now presented to this Court has never been ruled upon in Michigan.
There is no election of remedies under the workmen's compensation act. See CLS 1961, § 413.15 (Stat Ann 1960 Rev § 17.189).
In Sargeant v. Kennedy, 352 Mich 494, we held that the statute (CLS 1961, § 413.15 [Stat Ann 1960 Rev § 17.189]) bars all actions against a fellow employee when plaintiff's injuries arise out of and in the course of his employment, without regard as to whether or not there has been a prior action for compensation.
The importance of this immunity provision for fellow employees is commented upon in 2 Larson's Workmen's Compensation Law, § 72.20, pp 173, 174, as follows:
"It is perfectly possible, within the bounds of compensation theory, to make out a case justifying this legislative extension of immunity to the coemployee. The reason for the employer's immunity is the quid pro quo by which the employer gives up his normal defenses and assumes automatic liability, while the employee gives up his right to common-law verdicts. This reasoning can be extended to the tortfeasor coemployee; he too is involved in this *674 compromise of rights. Perhaps one of the things he is entitled to expect in return for what he has given up is freedom from common-law suits based on industrial accidents in which he is at fault. The sense of moral indignation expressed by some courts at the thought of relieving the coemployee of the normal consequences of his wrongdoing will bear some closer examination. It must never be forgotten that the coemployee, by engaging in industrial work over a period of years, is subjected to a greatly increased risk not only of being himself injured, but also of himself negligently causing injury. In other words, by becoming employed in industry, particularly in hazardous industry, the worker enormously multiplies the probability of not only injury to himself but liability on himself. And, if whenever his own negligence caused injury he might be liable to pay thousands of dollars in damages, the beneficent effects of workmen's compensation might be offset by the potential liabilities which confront the worker, particularly in activities where the risk of injury is great.
"It must be observed, however, that the immunity attaches to the coemploye only when the coemployee is acting in the course of his employment. This is consistent with the justification for the immunity just described, since the coemployee's employment status does not increase the risk of his causing nonindustrial injuries to his fellow-workers. The same rule applies under the broader statutes exempting from suit all persons subject to or bound by the compensation acts. An employee under the act who injures some other employee also under the act is liable to common-law suit if at the time of causing injury he was deviating from the course of his employment."
The court did not err in finding that plaintiff Dolores Brooks' exclusive remedy for recovery was that provided by the workmen's compensation act.
Ernest Brooks is barred from bringing a common-law action against his wife's coemployees. See Moran v. Nafi Corporation, 370 Mich 536.
*675 The judgment should be affirmed. Costs to appellees.
DETHMERS and O'HARA, JJ., concurred with KELLY, J.
BLACK, J., did not sit.
NOTES
[*] CLS 1961, § 412.1 (Stat Ann 1960 Rev § 17.151). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573881/ | 17 So. 3d 1232 (2009)
PEARSON
v.
STATE.
No. 2D09-340.
District Court of Appeal of Florida, Second District.
July 1, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918102/ | 135 N.W.2d 77 (1965)
STATE of Iowa, Appellee,
v.
Joseph Samuel GRIFFIN, Jr., Appellant.
No. 51568.
Supreme Court of Iowa.
May 4, 1965.
Mason, Schroeder & Allison, Mason City, for appellant.
*78 Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Phillip N. Norland, Worth County Atty., for appellee.
THORNTON, Justice.
Defendant has been convicted of the crime of operating a motor vehicle while in an intoxicated condition, third offense, and sentenced accordingly. Section 321.281, Code of Iowa, 1962, I.C.A.
In presenting this appeal defendant's court appointed counsel has fully abstracted the record and advised us in oral argument he could find no grounds for appeal other than the one presented, which was not raised at the trial. As requested, and as directed by section 793.18, Code of Iowa, 1962, I.C.A., we have carefully examined the record and find no error. There is sufficient evidence to sustain the verdict and there is no error in the instructions, unless of course the matter presented is so considered.
I. The contention made for reversal is, the trial court erred in permitting the county attorney to read that part of the information which related to defendant's prior convictions for operating a motor vehicle while intoxicated at the outset of the trial, and in giving Instruction 1 stating the contents of the information which included the prior convictions. It is contended reading the information including the prior convictions at the commencement of the prosecution destroys the impartiality of the jury to such an extent defendant is denied due process under the federal constitution. And, that in such manner defendant's character and previous criminal record are placed in issue at the outset of the trial in violation of the rule that defendant's reputation may not be placed in issue until such time as it is raised by the defendant himself.
The practice followed by the trial court has been held proper in recidivist cases since the enactment of chapter 109, 27th General Assembly, in 1898 (now sections 747.1-747.4, inclusive, Code of Iowa, 1962, I.C.A.) and the enactment of chapter 72, section 24, by the 34th General Assembly in 1911 (now section 321.281, Code of Iowa, 1962, I.C.A.).
Section 747.1 requires prior convictions to be referred to in the information or indictment. Section 747.4 requires the jury on a plea of not guilty, to find and determine whether the defendant has been previously convicted as alleged. Section 780.5, Code of Iowa, 1962, I.C.A., requires the information be read to the jury as the first order of the trial. This practice has been uniformly followed in cases under section 321.281. We have uniformly held the prior convictions must be stated in the information and proved beyond a reasonable doubt before the more severe penalties may be imposed. State v. Eichler, 248 Iowa 1267, 1270, 83 N.W.2d 576; State v. Fisk, 248 Iowa 970, 83 N.W.2d 581; State v. Gardner, 245 Iowa 249, 61 N.W.2d 458; State v. Barlow, 242 Iowa 714, 46 N.W.2d 725; and Copenhaver v. Bennett, 254 Iowa 136, 116 N.W.2d 495, cert. den. 373 U.S. 242, 83 S. Ct. 1295, 10 L. Ed. 2d 410. The trial court should, as it did in this case, instruct the jury the evidence of prior convictions is not to be considered in determining the defendant's guilt of the primary crime. It is not proper to instruct on the prior convictions if proof thereof is insufficient. State v. Smith, 129 Iowa 709, 715, 106 N.W. 187. Likewise, where the defendant admits the prior convictions it is not proper or necessary to instruct thereon or include such prior convictions when reading the information or indictment to the jury at the commencement of the trial. It is improper to present an issue that is conceded.
II. Defendant asks us to reverse the conviction and adopt a procedure for practical purposes identical with the procedure provided in House File 565 now under consideration by the 61st General Assembly. The procedure proposed is simply that the *79 portion of the information or indictment referring to prior convictions not be read or otherwise be presented to the jury until they have reached a verdict on the primary offense. If the jury finds the defendant guilty of the primary offense, then the same or another jury at the discretion of the trial court is impaneled to determine the issue or issues arising on the prior convictions if the defendant does not plead guilty to such. Then sentence and judgment are entered as prescribed. See State v. Ferrone, 96 Conn. 160, 175, 113 A. 452, 457, where the Connecticut court adopted a procedure similar to that prescribed by statute in England.
A majority of the members of this court are of the opinion the proposed procedural change, while meritorious and representing the modern view on proper procedure in these cases, should not be made by us while the General Assembly is considering corrective legislation similar to that adopted by statute in a number of states. This view is based not only on the General Assembly's present consideration of the problem but because a question of denial of due process is not reached.
In the cases cited by defendant, only two hold the reading to the jury of that portion of the information relating to prior convictions destroyed the impartiality of the jury and denied the defendant due process of law. Lane v. Warden, Maryland Penitentiary, 320 F.2d 179, 187 (4th Cir.1963); and State v. Sayward, 63 Wash.2d 485, 387 P.2d 746, 751. The other cases cited by defendant all base the decision not on a denial of due process but because of the possible prejudice to the defendant in placing the prior convictions before them at the outset of the trial. The reason for decision in these cases is the rights of the defendant to a fair and impartial trial are better protected, both prejudice and sympathy are effectually eliminated. State v. Ferrone, 96 Conn. 160, 174, 113 A. 452, 457; State v. Johnson, 86 Idaho 51, 383 P.2d 326, 332 (that a number of cases hold there is no prejudice, see State v. Johnson, supra, at page 330 of 383 P.2d, e. g., People v. Lawrence, 390 Ill. 499, 61 N.E.2d 361); State v. Stewart, 110 Utah 203, 171 P.2d 383, 386; Heinze v. People, 127 Colo. 54, 253 P.2d 596, 599; and Harris v. State, 369 P.2d 187, 195 (Okl.Cr.1962).
In Oler v. State, Tex.Cr.App., 378 S.W.2d 857, the Court of Criminal Appeals of Texas refused to follow Lane v. Warden, Maryland Penitentiary, supra, and concluded a change in procedure should come from the legislature.
The Fifth Circuit Court of Appeals in Breen v. Beto, 341 F.2d 96 (5th Cir.1965), has refused to follow Lane v. Warden, Maryland Penitentiary, supra, in the denial of due process argument, saying of the Lane case, "[W]e are of the firm view that that case was not well decided and that the correct view of the law is otherwise."
So far we are not confronted with the situation as the Oklahoma court in Harris v. State, supra, page 192 of 369 P.2d, where the legislature rejected corrective legislation in this field. The court there assumed the failure of the legislature to act was due to a failure to grasp the principle therein rather than hostility to such procedure, and did prescribe procedure in conformity with State v. Ferrone, 96 Conn. 160, 113 A. 452.
Inasmuch as the General Assembly is presently in session and corrective legislation has been introduced, House File 565, and we are of the view there is no denial of due process of law, we will not at this time prescribe a procedural change. It follows the case must be affirmed.
III. Defendant was represented in the trial court by court appointed counsel. Pursuant to defendant's application for appointment of counsel to present his appeal to this court, we directed the trial court to appoint counsel. The trial court appointed present counsel for this purpose. Such is proper. Sections 775.4 and 775.5, Code of Iowa, 1962, I.C.A.; Waldon v. *80 District Court of Lee County, Iowa, 130 N.W.2d 728; Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892; and Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.
In cases such as this where court appointed counsel handling the appeal is other than court appointed trial counsel, the trial court on proper showing being made is directed to allow counsel fees for all of the appellate services as provided in section 775.5, Code of Iowa, 1962, I.C.A. Such fees are payable in the same manner as fees for court appointed trial counsel.
Affirmed.
All Justices concur, except HAYS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1543359/ | 67 B.R. 296 (1986)
In re Albert H. CALDWELL, Debtor.
Bankruptcy No. 3-85-01637.
United States Bankruptcy Court, E.D. Tennessee.
November 10, 1986.
*297 Wade M. Boswell, Knoxville, Tenn., for debtor.
Herbert S. Moncier, Knoxville, Tenn., for James E. Hardin, James C. Hardin and Ralph Majors.
MEMORANDUM
CLIVE W. BARE, Bankruptcy Judge.
Three creditors, James E. Hardin, James C. Hardin, and Ralph Majors ("creditors"), holding nondischargeable debts pursuant to an order of this court entered while the case was pending under chapter 7, object to confirmation of the debtor's modified chapter 13 plan ("plan"). As grounds therefore, creditors allege
(1) the plan has not been proposed in good faith; proposed payments are not meaningful and are not the debtor's best efforts;
(2) the value of the property to be distributed under the plan to unsecured creditors is less than the amount that would be paid on such claims if the estate of the debtor were liquidated under chapter 7 of the Bankruptcy Code;
(3) the plan fails to provide that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due will be applied to make payments under the plan;
(4) the plan proposes payments to the trustee for only thirty-six (36) months; and
(5) the plan makes no proposal for the disposition or use of the debtor's one-fourth interest in a residence occupied by his mother.
An extensive evidentiary hearing was held to consider confirmation of the debtor's plan on September 11, 1986.
I
A somewhat detailed history of this case is necessary to fully understand the debtor's plan and the creditors' objection thereto.
In 1979 the creditors instituted a civil action in the Tennessee state court against the debtor and three other persons for false arrest, false imprisonment, and malicious prosecution. The creditors alleged they had been the victims of a criminal escapade participated in by the debtor's son during the Christmas holidays in 1978; that the debtor, an Assistant Chief of Police with the City of Knoxville, took charge of the investigation, caused criminal warrants to be issued against them, and personally supervised their arrest. The criminal charges were later dismissed.
The resulting civil litigation against the debtor resulted in a jury verdict against the debtor and a co-defendant. The jury awarded creditors both compensatory and punitive damages. The judgment was entered on February 29, 1984.
Subsequently, the debtor appealed the civil judgment to the Tennessee Court of Appeals. The appellate court reduced the amount of punitive damages. The damage award against the debtor, as modified by the appellate court, is in the total amount of $40,000.00, representing $15,000.00 in compensatory and punitive damages awarded to James E. Hardin, $15,000.00 in compensatory and punitive damages awarded to James C. Hardin, and $10,000.00 compensatory and punitive damages awarded to Ralph Majors. In all other respects the jury verdict and judgment were affirmed in an opinion of the court of appeals entered on April 23, 1985. The debtor then applied for permission to appeal to the Tennessee Supreme Court; but on August 12, 1985, that court declined to grant permission.
On October 2, 1985, the debtor commenced a voluntary chapter 7 bankruptcy case. Only three unsecured creditors are listed in the debtor's schedules the three judgment creditors who now object to confirmation of the debtor's plan. Two secured *298 creditors are listed: the KPD Employees Federal Credit Union, $11,877.00; and Home Federal Savings and Loan, $1,578.00.
Thereafter, the creditors instituted an adversary proceeding (Adv.Proc. No. 3-85-1290) to determine the dischargeability of their judgment debt. Following a pretrial conference in the adversary proceeding, the creditors filed a motion for summary judgment. On April 17, 1986, this court entered a Memorandum and Judgment granting the creditors' motion for summary judgment, after finding that the civil judgment was nondischargeable pursuant to 11 U.S.C. § 523(a)(6).[1] No appeal was taken from that judgment. Prior to the entry of the April 17, 1986 summary judgment this court, on February 5, 1986, granted the debtor a discharge pursuant to § 727. The discharge was, however, entered subject to the future outcome of the creditors' adversary proceeding.
On June 9, 1986, the attorney who represented the debtor in the filing of the chapter 7 case and in all matters arising thereunder, including the debtor's defense of the nondischargeability issues raised in the adversary proceeding, filed a motion to withdraw as attorney for the debtor. That motion was granted and notice of appearance was thereafter filed by Richard Stair, Jr., who represented the debtor subsequent to June 9, 1986, in those matters presently at issue in the debtor's converted case.[2]
On June 9, 1986, the debtor filed a "Motion of Debtor to Convert Case to a Case Under Chapter 13 and For Revocation of Chapter 7 Discharge." On June 13, 1986, an Order for Relief was entered under chapter 13.[3] No ruling was made on that portion of the debtor's motion seeking to revoke the February 5, 1986, discharge granted under the provisions of § 727.
On June 19, 1986, the creditors filed a response opposing the debtor's conversion to a case under chapter 13 and request for revocation of the chapter 7 discharge. The creditors also moved for reconversion of the chapter 13 case to a case under chapter 7.
On June 20, 1986, the debtor filed an updated schedule of current income and expenses together with a chapter 13 plan. That plan proposed payment of $400.00 a month from his wages for thirty-six (36) months. The plan also provided that the debtor would pay his secured creditors outside the plan. The debtor proposed to fund the plan from his future earnings and with an additional sum of $6,300.00, in the possession of the chapter 7 trustee, collected from the liquidation of his IRA account. In his proposed plan the debtor listed a priority claim against the estate of $2,889.68, allegedly arising from the premature distribution of his IRA account.[4]
Subsequent to the September 11, 1986 hearing, the debtor filed a modified plan pursuant to § 1323 of the Bankruptcy Code whereby he proposes to pay to the trustee from his future earnings the sum of $550.00 each month for a period of 36 months.[5] The debtor further proposes to turn over to the trustee all tax refunds attributable to the debtor's earnings after conversion of the case to chapter 13. In addition the debtor proposes to pay to the trustee the additional sum of $6,300.00 *299 turned over to the chapter 7 trustee from the IRA account. The debtor proposes to pay the $132.00 monthly mortgage payment due Home Federal Savings and Loan on his jointly-owned marital residence outside the plan. He also proposes to pay outside the plan the sum of $150.00 per month to the KPD Federal Credit Union on two loans to his wife; these loans are partially secured by a jointly-owned 1985 Chevrolet automobile.
In summary, the only claims to be paid through the plan are the judgment debts in favor of Hardin, Hardin, and Majors, in the combined amount of $40,000.00 together with accrued interest through October 2, 1985, the date the debtor filed his voluntary petition under chapter 7; the priority claim of $2,627.18 to the Internal Revenue Service representing either the debtor's or the estate's anticipated liability attributable to the withdrawal of the IRA account; and expense of administration (trustee's compensation and expenses; attorney compensation).
II
As heretofore indicated, the debtor is an Assistant Chief of Police with the Knoxville Police Department having been employed by the City for more than twenty-six (26) years. His gross pay is $2,889.47 per month and his take-home pay is $2,177.92. He has no current source of income other than from his employment. The debtor is married and has no dependent children. He is 54 years old and testified that he has no intention to retire in the foreseeable future. His wife is not employed outside the home.
The assets the debtor owned or had an interest in at the time of the filing of his chapter 7 petition are itemized as follows:
Real Property
1. His survivorship interest in the marital residence at Route 2, Wooddale Road, Strawplains, Tennessee, owned as a tenant by the entirety with his wife. This property is encumbered by a mortgage in favor of Home Federal Savings & Loan with an unpaid balance of approximately $1,000.00. Testimony from the chapter 7 trustee was to the effect that an offer to purchase the debtor's survivorship interest had been solicited from the creditors and from the debtor with the trustee having received a written offer on behalf of the creditors through their attorney to purchase this survivorship interest for the sum of $500.00. As this is the only evidence of the value of the debtor's survivorship interest in this real estate, the court finds that the survivorship interest in fact has a value of $500.00.
2. A one-fourth (1/4) interest in a residence at 913 Ponder Road, Knoxville, Tennessee, which was purchased by the debtor's mother on May 18, 1978. In an amendment filed on June 9, 1986, and through his testimony at the hearing, the debtor asserts that this real estate is the exclusive property of his mother, because he was included as a grantee in the deed without his knowledge and his mother made the downpayment and has paid all monthly payments on the mortgage encumbering the property. Nonetheless, the debtor is the record owner of a one-fourth (1/4) interest. The debtor testified that in his opinion this real estate has a value of approximately $55,000.00 and that it is encumbered with a mortgage which had a pay off as of October 2, 1985, in the amount of approximately $12,900.00. The debtor further testified that in his opinion the value of his one-fourth (1/4) interest approximated $10,500.00. The creditors introduced a certified copy of the tax appraisal from the office of the Knox County Trustee which reflects the value of the property at $62,700.00. If this appraisal is accurate the value of the debtor's one-fourth (1/4) interest is approximately $12,500.00.
Personal Property
1. The debtor and his wife jointly own a 1985 Chevrolet automobile. This vehicle is encumbered with a lien in favor of the KPD Employees Federal Credit Union on obligations of the debtor's wife. The vehicle was purchased by the debtor and his wife as a family vehicle and is driven primarily *300 by Mrs. Caldwell both locally and to visit her mother in South Carolina and her other immediate family members in Nashville. No proof was introduced by either the debtor or the creditors as to the value of this motor vehicle apart from the debtor's schedules which reflect no equity in this vehicle.
2. Clothing valued at $200.00 all of which has been claimed and allowed exempt.
3. A shot gun valued at $100.00 which has been claimed and allowed as exempt.
4. A 1979 Chevrolet truck which is jointly-owned by the debtor and his wife with the debtor's interest valued at $1,000.00 having been claimed and allowed as exempt.
5. A fishing boat valued at $500.00 which has been claimed and allowed as exempt.
6. Hand tools valued at $150.00 which have been claimed and allowed as exempt.
7. Unpaid salary of $925.00 which has been claimed and allowed as exempt.
8. The sum of $6,880.18 in an IRA account with the KPD Employees Federal Credit Union of which $625.00 was claimed and allowed as exempt with the balance of $6,255.18 having been turned over to the chapter 7 trustee for the benefit of creditors.
From the evidence introduced at the hearing on this matter, recognizing the disparity in the value of the debtor's one-fourth (1/4) interest in the Ponder Road property, the court concludes that the maximum liquidation value of the debtor's estate is between $17,300.00 and $19,300.00. This conclusion reflects a summation of the value of the debtor's survivorship interest in the marital residence ($500.00); the value of the IRA account ($6,255.18); and the value of the debtor's interest in the Ponder Road real estate ($10,500.00 to $12,500.00).
III
Reconversion to Chapter 7; Revocation of Discharge
Creditors insist this case should be reconverted to a case under chapter 7. The debtor responds that 11 U.S.C.A. § 706(a) (West 1979) gives a debtor in a chapter 7 case the absolute right to convert to a case under chapter 13. Further, the debtor asks the court to revoke the discharge granted to him while the case was pending under chapter 7. The debtor also challenges the creditors' right to resist revocation of the discharge since the discharge did not affect their rights, their debts having been held to be nondischargeable.
Section 706 of the Bankruptcy Code provides in pertinent part as follows:
Conversion.
(a) The debtor may convert a case under this chapter to a case under Chapter 11 or 13 of this title at any time, if the case has not been converted under § 1112 or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. . . .
11 U.S.C.A. § 706(a) (West 1979).
The language of § 706(a) is unequivocal. A debtor has an absolute right to convert a chapter 7 liquidation case to a chapter 11 reorganization case or a chapter 13 individual adjustment of debt case. (See House Rep. No. 95-595, 95th Cong., 1st Sess. 380, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6336; Senate Rep. No. 95-989, 95th Cong., 2d Sess. 94, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5880.) Congress, in its drafting of the Bankruptcy Code of 1978, did not in any way condition a debtor's right to convert under § 706(a) by limiting the exercise of that right to a time preceding the grant of a debtor's discharge.
In support of their position that the order converting this case to chapter 13 should be revoked, or that the chapter 13 case be reconverted to chapter 7, the creditors contend that conversion to chapter 13 was not proper in that the motion to convert was filed only after the judgment was entered in the adversary proceeding determining their claim to be nondischargeable.
In Street v. Lawson, 55 B.R. 763 (9th Cir.BAP 1985), the debtor originally commenced *301 a case under chapter 7. After the bankruptcy judge entered judgment in favor of a creditor for $30,000.00 and determined the debt nondischargeable, the debtor converted the case to one under chapter 13. The creditor objected to the debtor's plan on the basis it had not been proposed in good faith. The bankruptcy court denied confirmation finding that proposing to discharge an otherwise nondischargeable debt through the use of chapter 13 was "manipulative of the Bankruptcy Code." The bankruptcy appellate panel, citing In re Jennings, 31 B.R. 378 (Bankr.S.D.Ohio, 1983), reversed.
In re Jennings addressed the right to convert to a chapter 13 proceeding where a debtor converted from chapter 7 to chapter 13 because of actions, including failure to schedule assets, that jeopardized his general discharge. The court stated:
The question of whether this Court has any discretion to prevent the debtor from converting his Chapter 7 case to one under Chapter 13 gives us greater pause. The language of § 706 clearly forbids any waiver of debtor's right to convert, and no limitation on that right can be read into that provision. As was noted in the House Report No. 95-595, 95th Cong., 1st Sess. 380 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6336: `The policy of the provision is that the debtor should always be given the opportunity to repay his debts.'
As is evident from § 1328, which provides for the discharge even of certain [chapter 7] nondischargeable debts, Congress intended that no limitations be imposed on debtors who wish to repay their debts, regardless of the circumstances under which those debts were incurred.
Jennings, 31 B.R. at 380.
The creditors' motion to revoke the order converting this case to one under chapter 13, or to reconvert the case to one under chapter 7, will be denied.
As pointed out by the debtor, the discharge granted to him while the case was pending under chapter 7 is "meaningless," his only unsecured debts having been held to be nondischargeable. The debtor also testified that he had incurred no postpetition debts; thus no subsequent creditors can be affected.
This court can see no harm to any creditor by granting the debtor's motion to revoke the discharge. It would have been far better for the debtor to have requested the court to delay the granting of his discharge until after the dischargeability question was determined. He did not do so, however, and the discharge was granted. Since for all legal purposes the discharge is meaningless, the debtor's motion to revoke will be granted.
IV
The court is required to confirm the debtor's plan if the plan complies with the six requirements enumerated in § 1325(a) of title 11 and if the debtor proposes payments over the life of the plan which meet the requirements of § 1325(b). Applicable provisions of § 1325(a) and (b) at issue in the matter are as follows:
Confirmation of plan.
(a) Except as provided in subsection (b), the court shall confirm a plan if
(1) the plan complies with the provisions of this chapter and with the other applicable provisions of this title;
. . . . .
(3) the plan has been proposed in good faith and not by any means forbidden by law;
(4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date;
. . . .
(b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
*302 (A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
(B) the plan provides that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
(2) For purposes of this subsection, `disposable income' means income which is received by the debtor and which is not reasonably necessary to be expended
(A) for the maintenance or support of the debtor or a dependent of the debtor; . . .
. . . .
11 U.S.C.A. § 1325(a) and (b) (West 1979 & Supp.1986).
Creditors insist that the debtor's plan cannot be confirmed because it does not meet the confirmation requirements set forth in § 1325(a)(1), (3) and (4) and, further, that the debtor's plan does not provide that all of his projected disposable income will be applied to make payments over the three-year life of the plan, as required by § 1325(b)(1)(B).
The creditors contend that the debtor's plan fails to comply with § 1325(a)(1) because the grant of the debtor's discharge, on February 5, 1986, under § 727 prohibits confirmation of a chapter 13 plan arising out of the same case. Since the court has heretofore granted the debtor's motion to revoke that discharge, the basis for this objection has been eliminated.
The creditors allege numerous matters in asserting that the debtor's plan is not filed in "good faith." Analyzing these matters, the debtor suggests that ten issues relate to the judgment of nondischargeability entered in favor of the creditors in Adv.Pro. No. 3-85-1290; two issues relate to valuation; one issue relates to the 1985 Chevrolet automobile owned by the debtor and his wife; one issue relates to a claimed exemption of $925.00 in unpaid salary; one issue relates to the debtor's proposal to make payments over a 36-month period rather than a five-year plan; one issue relates to the potential cash value of life insurance policies owned by the debtor; one issue relates to the debtor's proposal to pay secured creditors outside the plan; one issue relates to the claim filed on behalf of the Internal Revenue Service; and one issue relates to the creditors' assertion that the plan proposes to pay them an amount less than they would be paid if the debtor's estate were liquidated under chapter 7.
The court has carefully considered the creditors' objections and finds they do not support an objection to confirmation.
In Street v. Lawson, supra, the Bankruptcy Appellate Panel for the Ninth Circuit addressed the issue of good faith in a chapter 13 case converted from a chapter 7 after a sizeable debt had been determined to be nondischargeable under § 523. With respect to the good faith issue the appellate panel in Street observed:
In re Slade, 15 B.R. 910 (9th Cir.BAP 1981), specifically rejected the argument that proceeding with a Chapter 13 in order to discharge debts otherwise nondischargeable constitutes bad faith. Slade, [sic] affirmed the confirmation of a Chapter 13 plan which proposed payments of $135 per month for three years and resulted in less than five percent payout to unsecured creditors. A substantial portion of the debt owing in Slade was incurred from the embezzlement of funds by Slade while working as an employee of Bank of America.
[T]he fact that the code specifically allows the discharge of debts under Chapter 13 which are not dischargeable under Chapter 7 would preclude a finding of bad faith based merely upon the existence of such debt among the liabilities of an erstwhile Chapter 13 debtor.
. . . .
[T]he fact that a debtor's plan represents his best efforts is a significant indication of good faith on his part. Absent any showing of a willful attempt to misuse Chapter 13 in defraud *303 of creditors, best effort plans should normally satisfy the good faith requirements of 11 U.S.C. § 1325(a)(3).
. . . .
In both Slade and this case, debtors faced with otherwise nondischargeable debts are attempting to work out their debt by payments representing their reasonable best efforts over the statutory three year period.
Street 55 B.R. at 764-65 (quoting in part In re Slade, 15 B.R. at 912) (emphasis added).
In a similar case where the debtors converted to chapter 13 after a determination of nondischargeability, Bankruptcy Judge Hess noted:
[T]he mere fact that one of the purposes of the debtor in seeking relief under Chapter 13 is to discharge a debt which would not be dischargeable in a Chapter 7 case under § 523, does not render a plan one not filed in good faith. Obviously the more liberal provisions of § 1328(a) over those of § 523 were enacted for the benefit of debtors. It would be incongruous to hold that bad faith is demonstrated by utilizing the provisions of a statute enacted for the benefit of the debtor.
In re Whitehead, 61 B.R. 397, 399 (Bankr. D.Ore.1986).
The debtor's plan was not proposed in bad faith simply because it proposes to deal with the unsecured debts nondischargeable in chapter 7. In making this determination, the court has considered the debtor's prepetition conduct as well as the initial filing under chapter 7. As will be seen hereafter, the debtor's plan represents a good-faith effort to satisfy the creditors' claims.
The two issues relating to valuation involve the debtor's interest in the jointly-owned marital residence and the value of his one-fourth interest in the residence occupied by his mother. As heretofore stated, the value of the debtor's survivorship in the marital residence is $500.00. Although the debtor disclaims any interest in the residence occupied by his mother, he has provided for the value of a one-fourth interest in his proposed payments. In arriving at the amount creditors would receive in a chapter 7 liquidation, he has valued his interest in this property at $12,500.00, a reasonable valuation.
The trade-in of a 14-year old vehicle by the debtor some five months prior to bankruptcy for a 1985 Chevrolet is not related to the filing of the debtor's bankruptcy petition and proposed plan. Nor does the debtor's claim to his statutory exemptions involve any element of bad faith.
Creditors' complaint that the debtor's plan provides for payments over 36 months rather than five years is without merit. Section 1322(c) states that the plan may not provide for payments over a period longer than three years, unless the court, for cause, approves a longer period. Section 1325(b) states that, upon objections of the trustee or an unsecured creditor, the court may not approve the plan unless the plan provides that all of the debtor's projected disposable income for a three-year period will be applied to make payments under the plan.
The objections relating to the debtor's life insurance are totally insufficient to justify a finding of bad faith. No cash surrender value was established. Monthly payments for all insurance carried by the debtor and his wife total $92.26 per month, or less than five percent of his gross pay.
The "totality of the circumstances" surrounding this case has been exhaustively reviewed in determining whether the debtor's plan meets the general good faith standard of § 1325(a)(3). The factors that have been considered include, but are not limited to, the percentage of proposed repayment, the debtor's financial situation, the period of time payment will be made, the debtor's employment history and prospects, the nature and amount of unsecured claims, the circumstances under which the claims arose, the debtor's prepetition culpability, and the debtor's initial filing of a chapter 7 case instead of a chapter 13. After this review, and considering all militating factors, the court is satisfied that *304 there has not been an abuse of the provisions, purpose, or spirit of chapter 13. See 9 Collier On Bankruptcy, ¶ 9.20 at 318 (14th ed. 1978); Neufeld v. Freeman, 794 F.2d 149 (4th Cir.1986) (both prepetition conduct and prior bankruptcy filings by the debtor may be relevant to the good faith inquiry); Deans v. O'Donnell, 692 F.2d 968 (4th Cir.1982) (good faith does not per se require substantial payment; totality of circumstances must be considered). The good faith standard of § 1325(a)(3) has been met.
Creditors contend that the debtor proposes to pay them an amount less than they would receive if the debtor's estate were liquidated under chapter 7. Section 1325(a)(4). This is incorrect. In this case the debtor proposes to pay $19,800.00 from his salary over a three-year period. He also proposes that nearly $6,300.00 which the chapter 7 trustee received from liquidating the IRA account be used as additional funding for the plan. Thus at least $26,100.00 will be available. After payment of expense of administration and the $2,628.00 priority claim, approximately $20,000.00 will be available for distribution to creditors.[6] The court has previously determined that the liquidation value of the debtor's estate under chapter 7 is between $17,300.00 and $19,300.00. Thus, assuming the same payments for expense of administration and the priority tax claim in a chapter 7 case, creditors will receive under the plan not less than they would be paid if the debtor's estate were liquidated under chapter 7.
Creditors further contend that the debtor's plan does not provide that all of the debtor's projected disposable income to be received in the three-year period will be applied to make payments under the plan. The proof is to the contrary. "Disposable income" means income which is received by the debtor and which is not reasonably necessary to be expended for the maintenance and support of the debtor and his dependents. Section 1325(b)(2)(A). The court has carefully reviewed the debtor's proposed expenditures for the three-year period and finds them reasonable and necessary. See Second Amended Schedule of Current Income and Current Expenditures, filed August 29, 1986.
Other allegations by creditors that the plan does not meet the requirements of Sections 1325(a)(1), (3), and (4) also have been considered and rejected. The debtor's modified plan represents a good-faith effort by the debtor to satisfy the creditors' claims. The modified plan will be confirmed.
This Memorandum constitutes findings of fact and conclusions of law, Bankruptcy Rule 7052.
NOTES
[1]
A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt
. . . . .
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity. . . .
11 U.S.C.A. § 523(a)(6) (West 1979).
[2] Prior to his installation on October 1, 1986, Bankruptcy Judge Stair was authorized to withdraw and Wade Boswell was substituted as attorney for the debtor.
[3]
The debtor may convert a case under [chapter 7] to a case under chapter 11 or 13 of this title at any time.
11 U.S.C.A. § 706 (West 1979).
[4] Pursuant to Bankruptcy Rule 3004, on June 24, 1986, the debtor filed a claim in the name of the Internal Revenue Service in the amount of $2,627.18.
[5]
The debtor may modify the plan at any time before confirmation. . . .
11 U.S.C.A. § 1323(a) (West 1979).
[6] An application for attorney fees in the amount of $1,000.00 is presently pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1543367/ | 67 B.R. 633 (1986)
In re MADISON'S PARTNER GROUP, INC., Debtor.
Bankruptcy No. 3-86-449.
United States Bankruptcy Court, D. Minnesota, Third Division.
November 7, 1986.
Ronald Groth, Minneapolis, for debtor.
Michael Kallas, Minneapolis, for First Edition Equipment Partnership No. 1.
Patrick Scallen, St. Paul, for Last Nat. Corp.
ORDER
DENNIS D. O'BRIEN, Bankruptcy Judge.
This matter is before the Court on motion by First Edition Equipment Partnership No. 1 seeking various forms of relief regarding a certain premises sublease. Appearances were noted in the record. Hearing was held on October 24, 1986. Based on arguments and memoranda of counsel, the Court being fully advised in the matter now makes this Order pursuant to the Federal and Local Rules of Bankruptcy Procedure.
I.
On January 21, 1985, an entity known as First Edition Management Limited Partnership (FEMLP) subleased certain premises to the Debtor in connection with the operation of its bar and restaurant business.[1] On the same date, the Debtor entered into a sublease with an entity known as First Edition, Inc. (FEI) for certain equipment that the corporation had originally leased from the movant, First Edition Equipment Partnership No. 1 (FEEP).[2] The premises sublease between FEMLP and the Debtor required, among other things, that the Debtor keep current its payments due FEEP under the equipment sublease it executed with FEI on the same date, and that default on the equipment sublease would *634 constitute a default under the premises sublease. This provision is referred to in the premises sublease as a "cross default" provision.
The premises sublease was in default in a number of respects when the Debtor's Chapter 11 petition was filed on February 21, 1986. Thereafter, on April 17, 1986, the Debtor cured all defaults except payments due on the FEEP equipment sublease, and has, since that time, otherwise remained current on the Debtor's obligations under the premises sublease. The Debtor did not seek or obtain a Court Order approving assumption of the sublease, but notified the appropriate parties by certified mail, return receipt, of the assumption and payments made to cure the defaults.
FEEP seeks the following relief:
1. That the Debtor be deemed to have rejected the premises sublease and that it be directed to vacate and surrender possession of the premises to FEMLP pursuant to 11 U.S.C. § 365(d)(4);
2. That the Debtor be directed to immediately pay to FEEP the sum of $31,448.00, together with interest and costs provided in the equipment sublease pursuant to 11 U.S.C. § 365(d)(3);
3. In the alternative, that the Court fix a time within which the Debtor must seek Court approval to assume or reject the premises sublease and that, pending said assumption or rejection, the Debtor be required to surrender the premises to FEMLP, and that the Debtor be further directed to pay FEEP $47,172.00 in claimed arrearages due under the premises sublease.
II.
FEEP claims that the premises sublease was not effectively assumed on April 17, for two reasons:
1. No Court approval was obtained as required by 11 U.S.C. § 365(a); and more importantly,
2. The Debtor did not make all necessary payments to cure the existing defaults namely, payments due FEEP on the equipment sublease as required under the cross-default provisions of the premises sublease.
The Debtor counters that FEEP has no standing to seek a determination with respect to assumption or rejection of the premises sublease to which it was not a party. Furthermore, Debtor argues, Debtor properly assumed the premises sublease by clear and unequivocal act with notice to the appropriate parties. Regarding payment on the equipment sublease, the Debtor argues that the cross-default provision should not be considered under §§ 365(d)(3) and (4) with respect to the question of assumption or rejection of the premises sublease, especially under circumstances where the arrangement is subject to a good-faith challenge regarding its nature as a lease.[3]
FEEP has no standing to seek relief under § 365(d)(4) on behalf of FEMLP regarding the premises sublease. Although FEEP appears to be a third-party beneficiary of the cross-default provision, an order deeming the sublease rejected and ordering surrender of the premises would not be remedial to FEEP.[4] Such an order would not entitle FEEP to either possession of equipment or payment. FEMLP has no rights regarding the equipment and no obligation to pay for it.
Even if FEMLP was the movant, the request for relief would be denied under *635 the circumstances of the matter.[5] FEMLP is not a party to the equipment sublease, has no apparent interest in its performance, and stands to suffer no legal prejudice by its nonperformance.
A cross-default provision in a nonresidential real estate lease that obligates a lessee to perform a contract that the lessor is not a party to, should not be subject to cure on assumption of the lease under § 365 unless the lessor can show either: (1) special consideration furnished by the lessor in connection with the provision; or (2) prejudice to the lessor's lease bargain by its nonperformance. Nothing in § 365, affording priority treatment to the claims of certain nonresidential real estate lessors, suggests that Congress intended that the nonqualifying claims of others should receive the same priority treatment simply because they might be beneficiaries under cross-default clauses in nonresidential real estate leases.[6]
Accordingly, unless FEMLP could show special consideration furnished by it in connection with the cross-default provision, or prejudice to its lease bargain by nonperformance, the relief could not be appropriately granted even if FEMLP was the moving party. Otherwise, such relief would administer to the direct and sole benefit of a nonqualifying claimant under §§ 365(d)(3) and (4).
Based on the foregoing, IT IS HEREBY ORDERED: the motion of First Edition Equipment Partnership No. 1 for an order deeming the sublease between First Edition Management Partnership and the Debtor to be rejected and for other relief, is denied in its entirety.
NOTES
[1] FEMLP was original lessee of the premises on a lease with an entity known as Last National Corporation.
[2] The interests of FEEP and the Debtor, as successor-in-interest from FEI, are presently the subject of a pending adversary proceeding brought by the Debtor for declaratory judgment that the purported lease is, in fact, an installment sales contract with FEEP having only an unperfected security interest in the equipment.
[3] If the Debtor is successful in its adversary proceeding, the claim of FEEP as it relates to the equipment sublease will be nothing more than an unsecured claim. The Debtor argues that to recognize the cross-default provision in its premises sublease with FEMLP would, in effect, elevate treatment of the FEEP unsecured claim to the most favorably treated status afforded true nonresidential real estate lease claimants during pendency of a Chapter 11 case.
[4] Of course, performance of the obligation under the cross-default provision as a condition of assumption of the premises sublease, would be remedial to FEEP. However, as discussed later, it would be inappropriate to require that performance as a condition for its assumption.
[5] The premises sublease was timely assumed by unequivocal act and will not be deemed rejected on the basis of failure to obtain Court approval.
[6] In this case, FEEP is at best a lessor of personal property and its claim is not entitled to treatment afforded by either §§ 365(d)(3) or (4). If FEEP is an unsecured creditor, § 365 has no independent application to its claim at all. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1495063/ | 391 F. Supp. 763 (1975)
In re EASTERN AIRLINES, INC. FLIGHT ATTENDANT WEIGHT PROGRAM LITIGATION.
No. 195.
Judicial Panel on Multidistrict Litigation.
March 3, 1975.
Before ALFRED P. MURRAH, Chairman, and JOHN MINOR WISDOM[*], EDWARD WEINFELD[*], EDWIN A. ROBSON, WILLIAM H. BECKER[*], JOSEPH S. LORD, III[*], and STANLEY A. WEIGEL, Judges of the Panel.
OPINION AND ORDER
PER CURIAM.
This litigation consists of two actions, one in the District of Massachusetts and the other in the Eastern District of Virginia, challenging certain weight standards promulgated by Eastern Airlines for its flight attendants. Plaintiffs in *764 the two actions purport to represent a nationwide class of all female flight attendants employed by Eastern since July of 1965. They allege that Eastern's weight requirements, which vary according to height and sex, constitute unlawful discrimination under Title VII of the Civil Rights Act of 1964 because the ranges and maximum allowable weights for female flight attendants are more stringent than those for male attendants.
The Massachusetts plaintiffs move for transfer of the Virginia action to the District of Massachusetts pursuant to 28 U.S.C.A. § 1407.[1] Defendant Eastern favors the requested transfer. Plaintiffs in the Virginia action, however, oppose transfer and, in the alternative, suggest the Eastern District of Virginia as the transferee forum. We find that these actions involve common questions of fact and that transfer of the Massachusetts action to the Eastern District of Virginia for coordinated or consolidated pretrial proceedings with the action pending there will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.
The Virginia plaintiffs argue, in opposition to transfer, that the only commonality between the Virginia and Massachusetts actions arises from the challenges to Eastern's weight program as written and that this aspect of the two actions involves solely common questions of law, as opposed to the requisite common questions of fact.
We agree that where the commonality between or among actions rests solely on questions of law, transfer under Section 1407 would be inappropriate. See In re Air Fare Litigation, 322 F. Supp. 1013, 1015 (Jud.Pan.Mult.Lit. 1971). We are not persuaded, however, that the determination of the legality of Eastern's weight program, as written, involves questions of law alone. Eastern's defense to this portion of plaintiffs' claims is that its weight requirements are reasonably necessary to the normal operation of its business and therefore constitute bona fide occupational qualifications. We believe that discovery concerning this defense will raise many factual issues common to both actions.
In addition, plaintiffs in both actions are, in differing degrees, challenging the alleged discriminatory application of Eastern's weight standards at various Eastern bases. Although there has been much confusion and disagreement among the parties as to the particular scope of those challenges in each action, we are persuaded that, as the pleadings are presently framed, common questions of fact are plainly involved on this issue. Indeed, the very disagreement amongst the parties highlights the need for coordinated or consolidated pretrial proceedings.
Thus, the presence of common factual questions necessitates transfer under Section 1407 in order to prevent duplication of discovery and eliminate the possibility of inconsistent pretrial rulings. Moreover, the need to insure uniform disposition of the competing requests for class designations presents a compelling reason for supervision of these actions in a single district. See In re Equity Funding Corporation of America Securities Litigation, 375 F. Supp. 1378, 1386 (Jud.Pan.Mult.Lit. 1974).
Either the District of Massachusetts or the Eastern District of Virginia could be described as an appropriate transferee forum for this litigation. On balance, however, we favor the Eastern District of Virginia because that district has a significantly lighter civil action docket than the District of Massachusetts *765 and, therefore, is in the best position to expeditiously process this particular litigation. See Annual Report of the Director of the Administrative Office of the United States Courts (1974), Table 18.
It is therefore ordered that the action on the attached Schedule A pending in the District of Massachusetts be, and the same hereby is, transferred to the Eastern District of Virginia and, with the consent of that court, assigned to the Honorable Robert R. Merhige, Jr. for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407 with the action pending in that district and listed on Schedule A.
SCHEDULE A
District of Massachusetts
Kathleen M. Hawkes, et al. v. Civil Action
Eastern Airlines, Inc. No. 74-1857-M
Eastern District of Virginia
Sandra Jarrell Ashworth, et al. Civil Action
v. Eastern Airlines, Inc. No. 74-353 (RRM)
NOTES
[*] Although Judges Wisdom, Weinfeld, Becker and Lord were unable to attend the Panel hearing, they have, with the consent of all parties, participated in this decision.
[1] Movants originally excepted from their motion to transfer certain aspects of the Virginia action. Following objection to that procedure by both the Virginia plaintiffs and defendant Eastern, movants amended their motion and now seek transfer of the Virginia action in its entirety. Our resolution of the question of transfer focuses on the motion as amended. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573912/ | 408 S.W.2d 78 (1966)
Elbert F. SPENCER, Respondent,
v.
VILLAGE OF DeKALB, Missouri, a Municipal Corporation, Appellant.
No. 51948.
Supreme Court of Missouri, Division No. 2.
November 14, 1966.
*79 R. A. Brown, St. Joseph, Brown, Douglas & Brown, St. Joseph, of counsel, for respondent.
Clem W. Fairchild, Herbert M. Kohn, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.
DONNELLY, Judge.
This is a suit under the Declaratory Judgments Act, §§ 527.010 to 527.140 RSMo 1959, V.A.M.S. Plaintiff Spencer, in his petition, alleges that he is a resident, property owner, and taxpayer in the Village of DeKalb, Missouri. Defendant is the Village of DeKalb.
In 1962, the Village of DeKalb suffered a disastrous fire which could not be controlled because the Village did not have a water system. After the fire, two men, Lamb and Audsley, contacted the Village officials about a water system. Feasibility studies were entered into and, as a result, a proposal was made to obtain water from the Missouri River Bottoms west of DeKalb and to serve DeKalb and various other communities and users in the area. The estimated cost of the system was $505,000. In due time an election was held in the Village of DeKalb, pursuant to ordinance, and a revenue bond issue was carried. Revenue bonds in a total amount of $505,000 were sold. A check for $505,000 was delivered to the Village officials and was deposited in a Kansas City bank. Construction of the water system began. At the time of trial, the project was seventy percent completed and approximately $425,000 had been expended.
The trial court entered judgment for plaintiff and made the following order: "IT IS THEREFORE considered, adjudged and declared by the Court that the ordinance of the Board of Trustees of the Village of DeKalb authorizing the election held April 2, 1963, in the Village of DeKalb was and is illegal, null and void and of no force and effect; that the issuance and sale of the bonds was and is illegal, null and void and of no force and effect; that the contract between the Village of DeKalb and the engineers for the drawing of plans and specifications was and is illegal, null and void and of no force and effect; and that the contract with the Mohawk Construction Company was and is illegal, null and void and of no force and effect.
"It is by the Court ordered that the Village of DeKalb be and is hereby enjoined and restrained from proceeding with the construction and erection of the water works system for which said bonds were voted; from paying any sums to the Mohawk Construction Company or the engineers employed to prepare plans and specifications, and from paying any sums whatsoever on the bonds."
We do not reach the merits for we are of the opinion that the case must be reversed and remanded for new trial on all issues, because under the evidence plaintiff *80 is not shown to have a legally protectible interest sufficient to allow him to maintain this suit.
In State ex rel. Chilcutt v. Thatch, 359 Mo. 122, at 129 and 130, 221 S.W.2d 172, at 176, this Court en Banc stated: "No justiciable controversy exists and no justiciable question is presented unless an actual controversy exists between persons whose interests are adverse in fact. Plaintiff must have a legally protectible interest at stake and the question presented must be appropriate and ready for judicial decision. Borchard, Declaratory Judgments, p. 40; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411; Odom v. Langston, 355 Mo. 115, 195 S.W.2d 466. Plaintiff's petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from a decree which is merely advisory as to the state of the law upon purely hypothetical facts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Anderson, Declaratory Judgments, p. 27, 16 Am. Juris., Sec. 46. Actions are merely advisory when there is an insufficient interest in either plaintiff or defendant to justify judicial determination, i. e., where the judgment sought would not constitute a specific relief to one party or the other. They are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decree would be a pronouncement of only academic interest. Plaintiff must have a legal interest in the relief he seeks. The question is justiciable only where the judgment will declare a fixed legal right and accomplish a useful purpose. Plaintiff must present a state of facts from which he has present legal rights against those he names as defendants with respect to which he may be entitled to some consequential relief immediate or prospective. If it appears plaintiff can have no relief against defendant, defendant should not be forced into litigation which can have no possible final result in favor of plaintiff. 1 C.J.S. Actions § 18, page 1031. See cases collected in 23 Words and Phrases, Perm. Ed., page 473, and in 2 West's Missouri Digest, Action,
Plaintiff testified on direct examination as follows:
"Q Do you own real estate in DeKalb? A I do.
"Q How long have you owned it?
"A Bought it in 1958.
"Q Do you own personal property in DeKalb ?
"A Well, what is in my home, yes.
"Q Do you pay taxes? A I do.
"Q To the Village of DeKalb? A Yes.
"Q How long have you paid them ?
"A Well, ever since I have been there.
"Q Do you vote in the village elections of DeKalb as a resident of DeKalb? A I do.
"Q How long have you done that?
"A Since `58 when I moved there."
Plaintiff testified on cross-examination as follows:
"Q Can you at this time state in any way in which you have been aggrieved by this bond issue and the subsequent events ?
"A No; not the bond issue certainly.
"Q You are effected [sic] in no way at all at this point, are you? A I have stated no."
Plaintiff devotes nearly four pages of his brief to attempts to evidence a legally protectible interest. The weakness of his position is that there is no evidence in the record to support his assertions. "The declaratory judgment act is not designed to adjudicate hypothetical or speculative situations which may never come to pass." MFA Mutual Ins. Co. v. Hill, Mo.Sup., 320 S.W.2d 559, 564. In view of the fact *81 that the revenue bonds in evidence provide that neither they nor the interest thereon shall be paid in whole or in part out of funds raised by taxation, the fact that plaintiff is a taxpayer is not sufficient of itself to show plaintiff could have been adversely affected by the actions of the Village of DeKalb. On the evidence adduced, plaintiff has shown no interest sufficient to maintain this suit. However, we have reviewed the record and have concluded that the case should be remanded for such additional action in this regard as plaintiff may care to take. It is possible that facts not disclosed in the record may be made to appear on the new trial. Finnegan v. Missouri Pacific R. Co., 244 Mo. 608, 149 S.W. 612. Examples of cases where taxpayers were allowed to sue are Woodmansee v. Kansas City, 346 Mo. 919, 144 S.W.2d 137, and Grossman v. Public Water Supply Dist. No. 1 of Clay County, 339 Mo. 344, 96 S.W.2d 701. In those cases, the taxpayers could have been adversely affected by the actions of the governmental entity involved. Also, see Annotation, 174 A.L.R. 549.
Another question must be considered. Defendant asserts that the trial court erred in granting relief to plaintiff because the bondholders were not made parties to the suit. This assertion was not made in the trial court. However, the case must be remanded for new trial for reasons set forth above and we need not consider whether defendant waived this defect of parties by failure to raise it in the trial court. (See Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Ray v. Nethery, Mo. Sup., 255 S.W.2d 817; and cases cited in 71 A.L.R.2d 723.)
Section 527.110, RSMo 1959, V.A.M.S., reads in part as follows: "When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings."
The bondholders have an "interest which would be affected by the declaration." We suggest they be made parties upon re-trial of the case. It may be that the Mohawk Construction Company and the engineers employed to prepare plans and specifications have interests "which would be affected by the declaration." We are unable to determine this question on the record in this case.
The judgment is reversed and the cause remanded for proceedings consistent with this opinion.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573935/ | 224 S.W.3d 369 (2006)
QUALITY INFUSION CARE, INC., Appellant,
v.
HEALTH CARE SERVICE CORPORATION d/b/a Blue Cross and Blue Shield of Texas, a Division of Health Care Service Corporation, and Southwest Texas HMO, Inc. d/b/a HMO Blue Texas, Appellees.
No. 01-05-00753-CV.
Court of Appeals of Texas, Houston (1st Dist.).
October 19, 2006.
*372 Peter Schneider and William Truman Jones Jr., Grady, Schneider & Newman, L.L.P., Houston, TX, for Appellant.
Howard R. King, Hill, Finkel & King, L.L.P., Houston, TX, for Appellees.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
OPINION
JANE BLAND, Justice.
In this contract dispute, the trial court rendered judgment in favor of appellees, Health Care Service Corporation d/b/a Blue Cross and Blue Shield of Texas ("BCBSTX") and Southwest Texas HMO, Inc. d/b/a HMO Blue Texas ("HMO Blue"), after a bench trial. Quality Infusion Care, Inc. ("QIC") appeals, contending that the trial court misconstrued both the meaning of the contractual term "provider" and the payment provisions of the contract, and therefore erred in concluding that it rather than appelleesbreached the contract. QIC further contends the trial court erred in awarding appellees their attorney's fees. In addition, QIC asserts the trial court erred in granting a no-evidence summary judgment for appellees on its claims for fraud, fraudulent inducement, negligent misrepresentation, and tortious interference with existing and prospective business relations. We modify the trial court's judgment and affirm.
BACKGROUND
QIC provides infusion therapy services, such as chemotherapy, to patients who are seriously ill. In March 2002, QIC contracted with BCBSTX to provide home infusion therapy services to patients who are subscribers of various health insurance plans administered by BCBSTX and its affiliates, including HMO Blue. The contract, which became effective June 1, 2002, requires QIC to obtain precertification from BCBSTX before providing infusion therapy services to a particular subscriber. Following treatment, QIC must submit its claims for payment at the rates specified in an exhibit attached to the contract (the "Exhibit A rates").
In May 2002, one month before the contract became effective, and again in July 2002, appellees advised QIC in writing that *373 they did not recognize QIC as a "network" provider. As a result, appellees refused, in many instances, to precertify QIC's provision of infusion therapy services to subscribers whose health care coverage does not include "out-of-network" benefits. Though it failed to obtain precertification, QIC nonetheless administered treatment to several of these subscribers and subsequently submitted claims to appellees for payment. Following appellees' refusal to pay, QIC brought suit, alleging fraud, fraudulent inducement, constructive fraud, negligent misrepresentation, tortious interference with existing and prospective business relations, breach of contract, and promissory estoppel.
In the meantime, as the result of an audit, appellees learned that they had overpaid several claims submitted by QIC. In accordance with a contractual provision requiring QIC to reimburse appellees for any overpayments, appellees tendered their reimbursement claim to QIC. Following QIC's refusal to pay, appellees counterclaimed for breach of contract.
After granting appellees' no-evidence summary judgment motion on QIC's claims for fraud, fraudulent inducement, constructive fraud, negligent misrepresentation, and tortious interference with existing and prospective business relations, the trial court held a bench trial on QIC's remaining claims for breach of contract and promissory estoppel. The parties submitted the case on an agreed stipulation of facts and stipulated exhibits. In pertinent part, the stipulation of facts provides as follows:
2. The only contract that is a subject of this cause became effective on June 1, 2002 and its termination was effective on June 6, 2003. . . . There are two slightly different versions of the contract attached to the Agreed Exhibit List as Exhibit 1 and Exhibit 1A. If the dispute between these two versions of the Contract should prove material to the Court's decision, the evidence the Court can use to resolve that dispute is [found in certain exhibits].
3. . . . QIC provided home infusion pharmaceuticals and home infusion therapy services under the Contract to patients who were covered under medical insurance plans administered by BCBSTX and HMO Blue.
4. The patients whose claims that are the subject of QIC's only remaining cause of action for breach of the contract and the counterclaim of BCBSTX and HMO Blue are identified in the documents attached as Exhibits 2 and 3 to the Agreed Exhibit List. . . . The parties agree the Patient names, dates of service, codes, Exhibit A rates, billed charges, amounts paid, payment dates, and patient share figures in Exhibits 2 and 3 are true and correct.
5. Various hospitals such as Texas Childrens' Hospital, doctors, and medical clinics referred the Patients to QIC with prescriptions for infusion pharmaceuticals and infusion therapy. QIC did make calls to obtain precertification from BCBSTX and HMO Blue to administer pharmaceuticals and infusion therapy to the Patients. In some instances BCBSTX and HMO Blue gave QIC precertification, and in some instances they refused to give precertification.
6. HMO Blue maintains a network of providers who provide services to HMO Blue patients. For HMO Blue patients who had no out-of network benefits, HMO Blue would usually not precertify services by providers that HMO Blue did not recognize as a provider within its network if there was a provider in the network that provided the same services. There were several home infusion therapy providers in HMO Blue's *374 "Houston network." Although the Contract refers to QIC as a "Provider," HMO Blue did not recognize QIC as one of its "network" providers. In fact, QIC was advised in writing that it was not a "network" provider for the HMO Blue "Houston network" in May 2002 and again in July 2002.
7. BCBSTX also maintains a managed care "network" of providers in Houston for subscribers of its PPO plans. In some of these PPO plans, the subscribers have no out-of network benefits. For those BCBSTX PPO patients who had no out-of-network benefits, BCBSTX would usually not precertify services by providers that BCBSTX did not recognize as a provider within its Houston PPO network, if there was a provider in the network that provided the same services. There were several home infusion therapy providers in BCBSTX's "Houston PPO network". Although the Contract refers to QIC as a "Provider", BCBSTX did not recognize QIC as one of its "network" providers. In fact, QIC was advised in writing that it was not a "network" provider for the BCBSTX "Houston PPO network" in May 2002 and again in July 2002.
8. HMO Blue did not give QIC precertification for its services that it provided to the following HMO Blue members: [patients are listed], because HMO Blue's records showed that none of these HMO Blue members had "out-of network" benefits on the respective dates of service. . . . BCBSTX did not give QIC precertification for its services that it provided to the following BCBSTX PPO members: [patients are listed], because BCBSTX's records showed that neither of these BCBSTX PPO members had "out-of-network" benefits on the respective dates of service. . . .
9. For the claims QIC submitted that are reflected on [the agreed exhibits], . . . QIC administered the pharmaceuticals it billed for and provided the infusion therapy services it billed for, and those pharmaceuticals and services were administered as prescribed by the Patients' referring doctor and were medically necessary. QIC billed BCBSTX and/or HMO Blue its standard retail rates for its infusion pharmaceuticals and infusion therapy services provided to the Patients. QIC's standard retail price for infusion pharmaceuticals was three times the Average Wholesale Price ("AWP").
10. Of the amounts billed on [a particular patient], BCBSTX paid the . . . standard retail price QIC billed for its services [on several occasions].
. . . .
12. QIC received notice from BCBSTX about the results of a Concentra Audit that showed overpayments on prior claims submitted by QIC to BCBSTX.
After hearing argument, the trial court rendered judgment that QIC take nothing on its claims, that BCBSTX recover damages in the amount of $26,044.68 plus interest, that HMO Blue recover damages in the amount of $16,201.66 plus interest, and that appellees recover their reasonable attorney's fees. In a separate instrument, the trial court entered findings of fact and conclusions of law. In pertinent part, the trial court found as follows:
1. On June 1, 2002, [QIC] entered into a contract with [BCBSTX]. This contract involved providing home infusion therapy services to patients who were subscribers of BCBSTX and/or its affiliates, including [HMO Blue]. This contract was terminated effective June 6, 2003.
*375 2. BCBSTX and HMO Blue maintain networks of providers who provide services to patients who are subscribers or members of their managed care products in Houston, Texas. For those patients who had no "out-of network benefits", BCBSTX and HMO Blue would usually not precertify services by providers that BCBSTX and HMO Blue did not recognize as a provider within their respective managed care networks, if there was a provider in their respective managed care networks that provided the same services. There were several home infusion therapy providers in BCBSTX and HMO Blue's managed care "Houston networks." Although the Contract refers to QIC as a "Provider," BCBSTX and HMO Blue did not recognize QIC as one of their managed care "network" providers. In fact, QIC was advised in writing by BCBSTX that it was not a managed care "network" provider for the BCBSTX and HMO Blue "Houston networks" in May 2002 and again in July 2002.
3. QIC never signed the agreements required for BCBSTX and HMO Blue managed care "Houston networks". QIC never agreed to accept the discounted rates "network providers" in these managed care networks accept for the services they provide to patients who are members or subscribers of these managed care networks.
4. Under its contract, QIC could only provide "Covered Services" to subscribers of the Defendants. QIC's services were "Covered Services" only if the patient's health care coverage provided a benefit for the home infusion therapy services provided by QIC. If a patient was a member or subscriber of the HMO Blue "Houston Network" or the BCBSTX PPO "Houston Network", and the patient's coverage provided no "out-of network" benefits, any services QIC provided to that patient were not "Covered Services".
5. QIC was also required under the contract to obtain precertification of its services from BCBSTX and/or HMO Blue as a condition precedent to payment under its contract. HMO Blue did not give QIC precertification for its services that it provided to the following HMO Blue members: [patients are listed], because HMO Blue's records showed that none of these HMO Blue members had "out-of network" benefits on the respective dates of service. . . . BCBSTX did not give QIC precertification for its services that it provided to the following BCBSTX PPO members: [patients are listed], because BCBSTX's records showed that neither of these BCBSTX PPO members had "out-of-network" benefits on the respective dates of service. . . .
6. With the exception of some overpayments, BCBSTX paid the claims QIC submitted for [patients are listed] at the rates specified in Exhibit A of QIC's contract. The overpayments made by BCBSTX to QIC on these claims total $5497.69.
7. BCBSTX overpaid most of the claims QIC submitted for [a particular patient] after QIC submitted "corrected claims" that changed the number of units/days of a drug, Neupogen, from 10 to 30. [The patient]'s physician had ordered that she receive 300 mcg of Neupogen for 10 days at a time. As a result of this error, BCBSTX overpaid QIC $20,546.99 on the "corrected" claims. . . .
. . . .
9. . . . BCBSTX . . . notified QIC of overpayments it had previously made that were identified in the Concentra audit.
*376 10. BCBSTX did not pay any of the claims QIC submitted for [patients are listed], because QIC did not obtain and could not have obtained precertification of the services it provided to these patients who had no "out-of network" benefits.
11. HMO Blue did not pay any of the claims QIC submitted for [patients are listed], because QIC did not obtain and could not have obtained precertification of the services it provided to these patients who had no "out-of-network" benefits.
12. With the exception of two claims, HMO Blue did not pay any of the claims QIC submitted for [a particular patient], because QIC did not obtain and could not have obtained percertification of the services it provided to [the patient], since he also had no "out-of network" benefits. HMO Blue erroneously paid two of the claims submitted by QIC more than one year after the contract terminated when QIC filed a complaint. The overpayments on these two claims total $14,650.60.
13. With the exception of one claim it overpaid, HMO Blue paid the claims QIC submitted for [a particular patient] at the rates specified in Exhibit A of QIC's contract. The overpayment HMO Blue made on one claim QIC submitted for [the patient] was $1551.06.
In pertinent part, the trial court concluded as follows:
2. QIC's contract with BCBSTX dated June 1, 2002 did not give QIC any rights as a "network provider" in either the managed care "Houston networks" of either BCBSTX or HMO Blue.
3. Under its contract with BCBSTX, QIC was only entitled to be paid for "Covered Services" it provided to subscribers and members of BCBSTX and HMO Blue. If a particular patient's coverage with BCBSTX and/or HMO Blue provided no benefits for "out-of-network" benefits, any services QIC provided to such a patient were not "Covered Services" and QIC was entitled to no payment for the services it provided to such a patient.
4. Under its contract with BCBSTX, QIC was also required to obtain precertification of its services as a condition precedent to payment. If QIC could not obtain precertification of its services, because the patient had no "out-of network" benefits, QIC was not entitled to be paid for the services it rendered to such a patient.
5. QIC was not entitled to be paid by HMO Blue for the services it rendered to [patients are listed]; because these patients had no "out-of-network" benefits, QIC was not a "network provider" in HMO Blue's managed care "Houston network", these services were not "Covered Services" under the contract, and QIC did not obtain precertification from HMO Blue for the services it provided to these patients.
6. QIC was not entitled to be paid by BCBSTX for the services it rendered to [patients are listed]; because these patients had no "out-of-network" benefits, QIC was not a "network provider" in BCBSTX's managed care "Houston network", these services were not "Covered Services" under the contract, and QIC did not obtain precertification from BCBSTX for the services it provided to these patients.
7. The rates specified in Exhibit A of QIC's contract with BCBSTX applied to all claims QIC submitted for "Covered Services" to either BCBSTX or HMO Blue. Although its contract with BCBSTX required QIC to bill for its services at its retail rates, Articles 2 and 6 of the contract clearly identify Exhibit *377 A attached to the contract as the reimbursement mechanism for QIC's services under the contract. It is also clear under Article 6 that neither BCBSTX nor HMO Blue nor the patients who received "Covered Services" from QIC were liable for payment of a sum based on charges made in excess of the rates specified in Exhibit A of the contract.
8. Exhibit A of the contract specifies rates for particular infusion therapy services provided by QIC. Exhibit A also states that QIC shall be reimbursed for drugs its [sic] provides at the AWP for the drug. QIC was not entitled to be paid for the "Covered Services" it provided under the contract at any rates in excess of those specified in Exhibit A of the contract, and QIC was not entitled to be reimbursed for the drugs its [sic] provided at any rate more than the AWP of the particular drug.
9. With the exception of some overpayments, BCBSTX correctly paid QIC for the "Covered Services" it provided to [patients are listed].
. . . .
11. BCBSTX overpaid the claims QIC submitted for [a particular patient], because it paid these claims at rates in excess of the rates specified by Exhibit A of the contract. The amount of these overpayments was $20,546.99. BCBSTX also made overpayments totaling $5497.69 on the claims QIC submitted for [patients are listed]. BCBSTX is entitled to recover all of these overpayments, totaling $26,044.68[,] from QIC under Article 6D of the contract.
12. With the exception of one overpayment, HMO Blue . . . correctly paid QIC for the "Covered Services" it provided to [a particular patient] at the rates specified in Exhibit A of the contract. The single overpayment . . . was in the amount of $1551.06, and HMO Blue is entitled to recover it from QIC under Article 6D of the contract.
13. HMO Blue also paid two claims QIC submitted on [a particular patient] in error. [He] did not have "out-of-network" benefits and the services QIC provided to him were not "Covered Services" under the contract. The erroneous payments HMO Blue made on these two claims total $14,650.60, and HMO Blue is entitled to recover these overpayments from QIC under Article 6D of the contract.
14. Neither BCBSTX nor HMO [Blue] breached QIC's contract with BCBSTX. Accordingly, QIC takes nothing on all its claims seeking affirmative relief in this cause.
15. BCBSTX is entitled to recover the sum of $26,044.68 from QIC for the overpayments it made to QIC under the contract, and HMO Blue is entitled to recover the sum of $16,201.66 from QIC for the overpayments it made to QIC under the contract.
On appeal, QIC contends that no evidence supports the trial court's conclusion that the contract does not give QIC any rights as a "network provider" in appellees' Houston managed care networks, or, alternatively, that this conclusion is against the great weight and preponderance of the evidence. Hence, QIC maintains, the trial court also erred in concluding that QIC is not entitled to payment for the infusion therapy services it provided to subscribers who do not have out-of-network benefits. With respect to the services it provided to those subscribers who have out-of-network benefits, QIC contends the trial court erred in concluding that appellees properly paid QIC at the rates specified in Exhibit A to the contract, rather than at QIC's standard retail rates. QIC further contends there is no evidence, or insufficient evidence, to support the trial court's conclusion *378 that QIC breached the contract by failing to reimburse appellees for the overpayments they made to QIC. In addition, QIC asserts that the trial court erred in awarding appellees their attorney's fees under Civil Practice and Remedies Code section 38.002 because there is no evidence that appellees presented their claim to QIC under subsection (2) of the statute. See TEX. CIV. PRAC. & REM.CODE ANN. § 38.002(2) (Vernon 1997). Finally, QIC contends the trial court erred in granting a no-evidence summary judgment for appellees on its claims for fraud, fraudulent inducement, negligent misrepresentation, and tortious interference with existing and prospective business relations, because it presented more than a scintilla of evidence to support every element of each of these claims.
ANALYSIS
Bench Trial
Standard of Review
In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury's verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, there is a complete reporter's record. Id. When there is a reporter's record, the trial court's findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).
The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.
In reviewing a factual sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In a bench trial, the trial court, as fact-finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied).
We review de novo a trial court's conclusions of law, and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court's conclusions of law for lack of factual sufficiency, but we review the legal conclusions drawn from the facts to determine their correctness. *379 BMC Software Belgium, 83 S.W.3d at 794.
QIC's Breach of Contract Claim
QIC challenges nearly all of the trial court's findings of fact and conclusions of law on the ground that they "cannot support the trial court's judgment that QIC take nothing on its breach of contract claim."[1] As all of QIC's arguments relate to whether the trial court properly interpreted various provisions of the contract, we turn now to an examination of the contractual language at issue.
1. The Contractual Term "Provider"
The contract states as follows:
Home Infusion Therapy Provider Contract
This Contract is between Blue Cross and Blue Shield of Texas, . . . hereinafter called BCBSTX, and Quality Infusion Care, a Home Infusion Therapy Provider located in [H]arris County, Texas, hereinafter called the Provider.
QIC asserts that "a plain reading of the Contract shows that the term `Provider', as used in the Contract, can only mean `in-network provider'." Appellees maintain that the parties did not intend for the term "Provider" to mean "in-network provider," as evidenced by two letters appellees sent to QIC advising it that it is not a network provider.
In construing a written contract, our primary concern is to ascertain the true intent of the parties as expressed in the instrument. Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). We examine the entire writing in an effort to harmonize and give effect to all of its provisions so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous, and we construe the contract as a matter of law. Id. On the other hand, a contract is ambiguous if its meaning is uncertain and doubtful, or if it is susceptible to more than one reasonable interpretation. Nat'l Union, 907 S.W.2d at 520; Coker, 650 S.W.2d at 393. Whether a contract is ambiguous is a question of law. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex.2000). If a contract is determined to be ambiguous, then a court may consider extraneous evidence to ascertain the true meaning of the instrument. Nat'l Union, 907 S.W.2d at 520.
An ambiguity in a contract may be either "patent" or "latent." Id. A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter. Id. When a contract contains an ambiguity, either patent or latent, the interpretation of the instrument becomes a fact issue. Coker, 650 S.W.2d at 394. The trier of fact must resolve the ambiguity by determining the true intent of the parties. Id. at 394-95.
This case involves the meaning of the contractual term "Provider." QIC urges that "Provider" means "in-network provider"; appellees maintain that "Provider" means simply "provider"not "network provider." When the contracting parties set forth their own definitions of *380 the terms they employ, we are not at liberty to disregard those definitions and substitute other meanings. Healthcare Cable Sys., Inc. v. Good Shepherd Hosp., Inc., 180 S.W.3d 787, 791 (Tex.App.-Tyler 2005, no pet.). Here, however, the parties did not define the term "Provider." Nor do any of the contractual provisions shed light on the meaning of the term.[2] The contract employs the term "Provider" throughout and simply does not contemplate a distinction between "provider" and "network provider."
Thus, after carefully reviewing the contract, we conclude that the term "Provider" is latently ambiguous. Though the term does not appear ambiguous on its face, "[a]pplying the [`Provider'] language to the context of the claim[s] here . . . produce[s] an uncertain or ambiguous result," because the term is "fairly susceptible of more than one construction." Nat'l Union, 907 S.W.2d at 521; Healthcare Cable, 180 S.W.3d at 792. "Provider" could mean "in-network provider," as QIC contends, or it could mean simply "provider," without bestowing on QIC the additional status of "network provider," as appellees contend. Based on the language employed, neither QIC's interpretation of the contract nor that of appellees is any less reasonable. Healthcare Cable, 180 S.W.3d at 792.
Given this latent ambiguity in the contract, the question of the proper construction of the term became one for the trier of facthere, the trial court. Coker, 650 S.W.2d at 394-95. To determine the meaning of the term "Provider," the trial court looked to several items of extrinsic evidence. See Nat'l Union, 907 S.W.2d at 520 (noting that, upon determination that contract is ambiguous, court may consider extrinsic evidence to determine true meaning of contract).
First, the court observed that "QIC was advised in writing by BCBSTX that it was not a managed care `network' provider for the BCBSTX and HMO Blue `Houston networks' in May 2002 and again in July 2002." The contract became effective June 1, 2002. The stipulated exhibits show that, in May 2002, and again in July 2002, appellees sent letters to QIC advising it that it is not a network provider. Thus, QIC was on notice one month before the contract became effective (and again one month after it became effective) that appellees did not consider QIC to be a network provider. In fact, QIC stipulated that, "[a]lthough the Contract refers to QIC as a `Provider,' HMO Blue [and BCBSTX] did not recognize QIC as one of [their] `network' providers."
The trial court also observed that "QIC never signed the agreements required by BCBSTX and HMO Blue [for their] managed care `Houston networks[,]'" and "never agreed to accept the discounted rates `network providers' in these managed care networks accept for the services they provide to patients who are members or subscribers of these managed care networks." The stipulated exhibits demonstrate that appellees require network providers to sign a contract different from the one that QIC signed. QIC's contract includes Exhibit A, which sets forth a "fee schedule" for QIC's services. A column *381 entitled "Traditional Allowed" lists the rates appellees will use in compensating QIC for its services. In contrast, the "network contract"a document QIC did not signhas a different fee schedule entirely. Specifically, appellees compensate their network providers in accordance with the lower rates set forth in a column entitled "Managed Care Allowed." The stipulated exhibits reveal that, in 1999, QIC declined to become a network provider. As the July 2002 letter to QIC states, "In August 1999, we did offer a [network] contract to your company, but the previous owner declined it. They felt the rates were too low and they saw not [sic] benefit to contracting with us for that product. The proposed [network] agreements were never returned." This evidence is sufficient to support the trial court's conclusion that the parties did not intend for the term "Provider" to mean "in-network provider."
QIC urges that appellees are "estopped from contending that QIC is not an `in-network provider' because they have specifically recognized QIC as an `in-network provider' by paying QIC's claims submitted for patient's [sic] that BCBSTX and HMO Blue claim had no `out-of-network' benefits." Though QIC correctly states that appellees paid some of the claims QIC submitted for subscribers who do not have out-of-network benefits, appellees did not consistently do so. To the contrary, appellees rejected numerous claims for subscribers who do not have out-of-network benefits.[3] Moreover, the contract expressly contemplates that appellees might pay claims in error on occasion, as evidenced by Article 6D: "In the event of any overpayment, duplicate payment, or other payment in excess of that to which the Provider is entitled, the Provider agrees to make repayment to BCBSTX within thirty (30) days of notification by BCBSTX of such overpayment, duplicate payment or other excess payment."
The Texas Supreme Court rejected a similar estoppel argument in Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 733-34 (Tex.1981). In that case, appellants argued that Sun Oil Company's conduct in sharing proceeds from working interest gas with appellants for over forty years "create[d] an estoppel against Sun to assert, at this late date, a construction different from the mutual construction of the parties." Id. The supreme court rejected this argument, holding that estoppel "does not create a contract right that does not otherwise exist." Id. at 734. We likewise conclude that appellees' occasional payment of claims for subscribers with no out-of-network benefits does not entitle QIC to assert a right under the contract to be paid as an in-network provider. Accordingly, we reject QIC's estoppel argument, particularly because the contract contemplates that such payments may occur due to error.[4]
In sum, we conclude, as a matter of law, that the contractual term "Provider" is latently ambiguous. As such, the trial *382 court properly considered extrinsic evidence relating to the parties' intent in employing the term in their contract. Moreover, the evidence is sufficient to support the trial court's factual determination that "Provider" does not mean "network provider." Hence, we conclude that the contract does not make QIC an in-network provider, and we hold that the trial court's findings of fact and conclusions of law incorporating this interpretation of the contract are supported by substantial evidence.
2. Contractual Precertification
QIC contends appellees breached the contract by refusing to precertify QIC's proposed treatments for several patients.[5] Our conclusion that QIC is not a network provider is dispositive of this issue.
Article 4 of the contract provides as follows:
ARTICLE 4 Precertification for Treatment
A. Precertification is the process by which the medical necessity of Covered Services is approved or denied in advance.
B. The Provider shall precertify Covered Services listed on the attached Exhibit(s) for each Subscriber as a condition precedent to payment of a claim. The Provider shall submit to BCBSTX a treatment plan for each Subscriber seeking Covered Services.
C. While precertification is not an assurance or guarantee of payment, it does mean that BCBSTX will not deny a claim on the basis of medical necessity.
The contract defines "Covered Services" and "Subscriber" as follows:
ARTICLE 1 Definitions
A. Covered Services means those home infusion therapy services for which benefits are available under a Subscriber's health care coverage.
B. Subscriber means any person entitled to receive Covered Services under health care coverage provided or administered by (1) BCBSTX, (2) a Blue Cross and/or Blue Shield Plan of another state, (3) an affiliate of HCSC [Health Care Service Corporation] or (4) a subsidiary of a Blue Cross and/or Blue Shield Plan of another state. The phrase "provided or administered" includes an insurance arrangement, an administrative services agreement, or an arrangement whereby an employer or welfare benefit plan or any third party payor contracts with BCBSTX to utilize providers that have contracted with BCBSTX. The term "affiliate" includes, but is not limited to, any entity in which HCSC has an ownership interest.
QIC maintains that, because appellees stipulated all of the services QIC provided to the patients at issue were medically necessary, appellees breached the contract by wrongfully refusing to precertify treatments for particular patients. QIC correctly asserts that precertification involves a consideration of "medical necessity"; however, as QIC acknowledges in its brief, precertification applies only to "Covered Services."
The contract defines "Covered Services" as "those home infusion therapy services for which benefits are available under a Subscriber's health care coverage." Thus, by the plain terms of the contract, if a particular subscriber's health care coverage does not include out-of-network benefits, *383 then a service provided by an out-of-network provider, no matter how medically necessary that service may be, does not qualify as a "Covered Service," and therefore is not eligible for precertification. Given our determination that QIC is not a network provider, appellees properly refused to precertify QIC's proposed treatments for subscribers who do not have out-of-network coverage. QIC admits as much by premising its arguments regarding precertification on the presumption that it is an in-network provider. We have determined that it is not. Accordingly, we reject QIC's argument that appellees breached the contract by refusing to precertify infusion therapy services for patients who do not have out-of-network coverage.[6]
3. Contractual Payment Provisions
Though several of the claims at issue in this case involve patients who do not have out-of-network coverage, other claims involve patients with out-of-network coverage. Thus, we turn to QIC's contention that appellees breached the contract by failing to compensate QIC at its "standard retail rates" for the services it provided to those patients with out-of-network coverage.
The payment provisions of the contract provide as follows:
ARTICLE 2 Schedule of Reimbursement
A. The reimbursement mechanism which will be used as the basis for payment of Covered Services by BCBSTX to the Provider is a part of the Contract and will be as described in the Exhibit(s) attached to this Contract.
ARTICLE 5 Billing
A. As soon as possible after providing Covered Services to a Subscriber holding health care coverage, the Provider shall furnish to BCBSTX a claim for services furnished such Subscriber. . . .
ARTICLE 6 Payment of Benefits
A. BCBSTX will, following receipt of itemized statements in complete and accurate form, pay to the Provider the amount of its obligation under the Subscriber's health care coverage. When submitting charges under the Contract, the Provider shall bill BCBSTX its standard retail price (i.e., the highest price the Provider bills any other carrier) for the service(s) rendered. The Provider will base the Subscriber's share of the cost on the Provider's standard retail price or the BCBSTX allowable amount as set forth in the Exhibit(s), whichever is less.
B. Neither BCBSTX nor the Subscriber shall be liable for payment of (1) any sum based upon charges made at rates in excess of those stipulated in the attached Exhibit(s) or (2) initial services or continued services for which the Provider did not obtain precertification/recertification.
The "attached Exhibit" to which the contract refers is Exhibit A, a "List of IV Services with Attached Fee Schedule." As already discussed, the "Attached Fee Schedule" is a chart setting forth the "Traditional Allowed" amount for the various infusion therapy services QIC provides. Exhibit A specifies that "[e]ach drug dispensed in conjunction with a therapy listed on the attached fee schedule will be reimbursed at AWP [average wholesale price]." Exhibit A also reiterates that,
*384 [w]hen submitting charges under this Exhibit A, the Provider will bill HMO Blue Texas its standard retail price (i.e., the highest price the Provider bills any other carrier) for the service(s) rendered. The Provider will base the Subscriber's share of the cost on the Provider's standard retail price or the BCBSTX allowable amount as set forth in this Exhibit, whichever is less.[7]
QIC contends that Article 6A and Exhibit A "specifically allow QIC to bill and be paid its standard retail price," and the trial court erred in concluding otherwise.[8] We disagree. Rather, we conclude, as a matter of law, that the payment provisions of the contract are unambiguous and that the trial court's interpretation of them is correct.
The trial court concluded as follows:
7. The rates specified in Exhibit A of QIC's contract with BCBSTX applied to all claims QIC submitted for "Covered Services" to either BCBSTX or HMO Blue. Although its contract with BCBSTX required QIC to bill for its services at its retail rates, Articles 2 and 6 of the contract clearly identify Exhibit A attached to the contract as the reimbursement mechanism for QIC's services under the contract. It is also clear under Article 6 that neither BCBSTX nor HMO Blue nor the patients who received "Covered Services" from QIC were liable for payment of a sum based on charges made in excess of the rates specified in Exhibit A of the contract.
8. Exhibit A of the contract specifies rates for particular infusion therapy services provided by QIC. Exhibit A also states that QIC shall be reimbursed for drugs its [sic] provides at the AWP for the drug. QIC was not entitled to be paid for the "Covered Services" it provided under the contract at any rates in *385 excess of those specified in Exhibit A of the contract, and QIC was not entitled to be reimbursed for the drugs its [sic] provided at any rate more than the AWP of the particular drug.
The trial court's interpretation of the payment provisions of the contract is correct as a matter of law. That is, although Article 6A and Exhibit A state that QIC "shall bill BCBSTX its standard retail price," the contract does not require appellees to pay QIC its standard retail price. (Emphasis added). To the contrary, Article 2A states that the "reimbursement mechanism which will be used as the basis for payment of Covered Services by BCBSTX to [QIC] is . . . described in . . . Exhibit [A]." (Emphasis added). Moreover, Article 6B expressly caps appellees' liability: "BCBSTX . . . shall [not] be liable for payment of . . . any sum based upon charges made at rates in excess of those stipulated in . . . Exhibit[ A]." Exhibit A further states that "[e]ach drug dispensed in conjunction with a[n infusion] therapy [service] will be reimbursed at AWP [average wholesale price]," not QIC's retail price. These contractual provisions plainly govern reimbursementthough QIC bills appellees according to its standard retail price, appellees are not obligated to pay QIC anything more than the rates set forth in Exhibit A.[9] We therefore reject QIC's contention that it is entitled to be reimbursed at its standard retail rates.
* * *
The contract requires appellees to compensate QIC for the "Covered Services" it provides to appellees' subscribers using the rates specified in Exhibit A. Given our determination that the contract does not make QIC an in-network provider, we conclude that appellees are not obligated to reimburse QIC for the services it provided to subscribers who do not have out-of-network benefits, as these services do not constitute "Covered Services" under the contract. Moreover, we conclude that appellees properly reimbursed QIC at the Exhibit A rates for the "Covered Services" it provided to those subscribers with out-of-network coverage. Accordingly, we affirm the trial court's judgment that QIC take nothing on its breach of contract claim.
Appellees' Breach of Contract Counterclaim
QIC contends the trial court erred in concluding that it breached the contract by failing to return to appellees certain overpayments that they had made to QIC under the contract. QIC bases its argument, in large part, on its contention that the contract makes it an in-network provider, and that it is entitled to be reimbursed at its standard retail rates. As we have already determined that the contract does not make QIC an in-network provider, and does not entitle QIC to be paid its standard retail rates, we reject this portion of QIC's argument.
QIC alternatively contends "there is no evidence that BCBSTX and/or HMO Blue ever notified QIC of such overpayments as required by Article 6D of the Contract." Article 6D states as follows: "In the event *386 of any overpayment, duplicate payment, or other payment in excess of that to which the Provider is entitled, the Provider agrees to make repayment to BCBSTX within thirty (30) days of notification by BCBSTX of such overpayment, duplicate payment or other excess payment." QIC stipulated, however, that it "received notice from BCBSTX about the results of a Concentra Audit that showed overpayments on prior claims submitted by QIC to BCBSTX." In light of its stipulation that it received notice of the overpayments, we reject QIC's argument that there is no evidence of notice.
The overpayments at issue relate to certain claims for which appellees either (1) made payments to QIC even though the subscribers at issue do not have out-of-network benefits or (2) paid QIC using its standard retail rates rather than the Exhibit A rates.[10] Given our conclusion that appellees are not contractually obligated to compensate QIC for the services it provided to subscribers who do not have out-of-network benefits, and are required only to pay QIC at the Exhibit A rates for the services it provided to subscribers with out-of-network benefits, we hold that QIC breached Article 6D of the contract by failing "to make repayment to BCBSTX within thirty (30) days of notification by BCBSTX of such overpayment[s]." Accordingly, we conclude that the trial court properly found in favor of appellees on their breach of contract counterclaim.
The parties stipulated as to the Exhibit A rates, the amounts QIC billed, and the amounts appellees paid for each of the claims at issue. Appellees point out, however, that the stipulated exhibit contains an error regarding the overpayment amounts for three subscribers.[11] Rather than stating that the overpayments for these three subscribers total $5497.69, the exhibit should list the total as $2655.88. With this modification, we affirm the trial court's judgment as it relates to appellees' counterclaim. See TEX.R.APP. P. 43.2(b) (stating that appellate court may modify trial court's judgment and affirm it as modified).
Attorney's Fees
QIC contends the trial court erred in awarding appellees their attorney's fees under Civil Practice and Remedies Code section 38.002 because "there is no evidence that [appellees'] claims for attorney's fees were presented to QIC as required by [subsection (2) of the statute]." QIC concedes that appellees' counsel averred in his affidavit that he tendered appellees' counterclaim to QIC's counsel in September 2003, but urges that "[counsel]'s affidavit provides no other information or evidence relating to this purported presentment, and therefore does not meet the presentment requirements of § 38.002."
As a general rule, each party bears the cost of its own attorney, absent a contractual or statutory provision to the contrary. Panizo v. Young Men's Christian Ass'n of the Greater Houston Area, 938 S.W.2d 163, 168 (Tex.App.-Houston [1st Dist.] 1996, no writ). Section 38.001(8) of the Civil Practice and Remedies Code provides that a party may recover reasonable attorney's fees if its claim is for "an oral or written contract." TEX. CIV. PRAC. & REM.CODE ANN. § 38.001(8) (Vernon 1997). To recover attorney's fees under *387 the statute, the claimant must comply with the following requirements:
(1) the claimant must be represented by an attorney;
(2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and
(3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.
Id. § 38.002(1)-(3). Presentment of a claim under section 38.002(2) is required to allow the entity against whom it is asserted an opportunity to pay it before incurring an obligation for attorney's fees. Panizo, 938 S.W.2d at 168. The act of filing suit does not, by itself, constitute presentment. Id.
No particular form of presentment is requiredit may be written or oral. Id. "[A]ll that is necessary is that a party show that its assertion of a debt or claim and a request for compliance was made to the opposing party, and the opposing party refused to pay the claim." Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (citing Panizo, 938 S.W.2d at 168). Moreover, we construe the statute liberally to promote its underlying purposes. TEX. CIV. PRAC. & REM.CODE ANN. § 38.005 (Vernon 1997).
Here, appellees' counsel averred in his affidavit that he "tendered [his] clients['] counterclaim to Quality Infusion Care, Inc.'s attorney in September 2003."[12] This is sufficient evidence of presentment under section 38.002(2). See Panizo, 938 S.W.2d at 168-69 (holding "testimony of Panizo's attorney [that he had presented Panizo's claim several times in writing to appellee's attorney] established that Panizo presented her contract claim"); Birdwell v. Texins Credit Union, 843 S.W.2d 246, 251 (Tex.App.-Texarkana 1992, no writ) (determining that affidavit of appellant's attorney satisfied presentment requirement of section 38.002 because it "allege[d] that after attempts to collect failed, a demand letter was sent and not responded to, and then this suit was prepared and filed"); see also Harrison v. Gemdrill Int'l, Inc., 981 S.W.2d 714, 719 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (holding appellant's trial testimony that, when he informed appellee of his resignation, he told appellee he wanted to "collect his pay `without fail,'" constituted sufficient evidence of presentment).[13] We therefore affirm the trial court's judgment awarding appellees their reasonable attorney's fees.
No-Evidence Summary Judgment
Standard of Review
We review the trial court's ruling on a summary judgment motion de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We view the evidence in a light most favorable to the non-movant, making all reasonable inferences and resolving all doubts in the non-movant's favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. *388 1999). Because the summary judgment order does not specify the ground or grounds on which the trial court relied for its ruling, we affirm the summary judgment if any of the summary judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex.2000).
Here, appellees sought a no-evidence summary judgment. In a no-evidence summary judgment, the movant represents that no evidence exists as to one or more essential elements of the non-movant's claims, upon which the non-movant would have the burden of proof at trial. TEX.R. CIV. P. 166a(i); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). On review, we ascertain whether the non-movant produced more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists if the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on each of the challenged elements. TEX.R. CIV. P. 166a(i).
Tort Claims
Prior to the bench trial, appellees sought a no-evidence summary judgment on QIC's claims for fraud, fraudulent inducement, constructive fraud, negligent misrepresentation, and tortious interference with existing and prospective business relations. QIC responded by presenting the following evidence: (1) an affidavit from its president, James Rutherford; (2) a copy of the contract with a transmittal letter; (3) claim forms for several subscribers; (4) the July 2002 letter advising QIC that it is not a network provider; (5) other pieces of correspondence; (6) a payment spreadsheet; (7) a copy of a BCBSTX webpage listing QIC as a "provider"; and (8) letters from appellees to two subscribers advising them that the request for QIC to provide services was not authorized because the same service could be provided by an in-network provider. The trial court granted summary judgment in favor of appellees.
QIC contends the trial court erred in granting summary judgment for appellees on its fraud, fraudulent inducement, negligent misrepresentation, and tortious interference with existing and prospective business relations claims because it presented more than a scintilla of evidence to support each element of every claim.[14] All of QIC's tort claims are predicated on its assumption that the contract makes it a network provider. For instance, with respect to its fraud claims, QIC asserts that "the language in Articles 1 and 14, and the repetitive use of the term `Provider[,]' is . . . a direct representation to QIC that it is an `in-network provider.'" Similarly, QIC asserts that its negligent misrepresentation claim "is based upon the same representations, which form the basis of QIC's fraud claim. . . . The representations made in the Contract were . . . that the *389 Contract made QIC an `in-network provider.'" With respect to its tortious interference claims, QIC maintains that appellees willfully and intentionally interfered with its existing and prospective business relationships by sending letters to its patients and referral sources advising them that QIC is not an in-network provider.[15]
The Texas Supreme Court has recently determined, however, that we may consider the trier of fact's later findings in a breach of contract case in determining the propriety of the trial court's earlier grant of summary judgment on related bad-faith and extra-contractual claims. Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 920 (Tex.2005). Progressive involved an insurance coverage dispute. Id. The appellant, Boyd, was involved in an automobile accident and submitted a claim to his insurance carrier, Progressive, for uninsured motorist benefits. Id. Progressive denied the claim and Boyd sued, alleging breach of contract, DTPA and Insurance Code violations concerning the alleged bad-faith denial of his claim, and conversion. Id.
The trial court granted summary judgment on all of Boyd's extra-contractual claims, which had been severed from the breach of contract claim. Id. Three months later, the breach of contract claim was tried to a jury. Id. After the jury found that Boyd had not been involved in an accident with an uninsured vehicle, the trial court entered a take-nothing judgment in favor of Progressive. Id.
On appeal, our court affirmed the breach of contract judgment, but reversed the summary judgment on the extra-contractual claims, noting that summary judgment cannot be affirmed on grounds not raised in the trial court, and the jury's breach of contract finding was not before the trial court at the time it granted the summary judgment. Id. at 921. We therefore held that there was a fact issue on Boyd's common-law bad-faith claim. Id.
The Texas Supreme Court reversed, concluding that "the jury's findings may be considered on appeal." Id. It noted that Boyd's pleadings made clear that all of his claims were predicated on his insurance policy and the accident being covered under the insurance policy. Id. at 920. Thus, the court concluded, "even if the trial court erred by granting summary judgment as to the bad-faith and extra-contractual claims, the error was harmless because the jury finding in the breach of contract case negated coverage of the occurrence by Progressive's insurance policy." Id. In reaching its conclusion, the court noted that "a trial court is not required to vacate a summary judgment and then reinstate it to accomplish the same end." Id. at 921.
Like the supreme court, we conclude that, because all of QIC's tort claims are predicated on its assumption that the contract makes it a network provider, and because the trial court later concluded after a bench trial that the contract does not make QIC a network provider, we may consider the trial court's subsequent finding in determining the propriety of the summary judgment on the tort claims. Hence, "even if the trial court erred by granting summary judgment as to the [tort] claims, the error [i]s harmless because the [trial court's] finding in the breach of contract case negated [QIC's assertion that it is a network provider, which formed the predicate for QIC's tort *390 claims]."[16]Id. at 920. As the supreme court noted, "a trial court is not required to vacate a summary judgment and then reinstate it to accomplish the same end." Id. at 921. We therefore affirm the no-evidence summary judgment.
CONCLUSION
We conclude that the trial court properly held that QIC take nothing on its breach of contract claim because the contract does not make QIC a network provider and does not entitle QIC to be reimbursed at its standard retail rates. We further conclude that QIC has not shown that the trial court erred in granting summary judgment for appellees on QIC's tort claims. With respect to appellees' counterclaim for breach of contract, we conclude that the trial court correctly determined that QIC breached the contract by failing to return certain overpayments to appellees. Moreover, the trial court properly awarded appellees their attorney's fees. Appellees confess, however, that the final judgment contains an error in calculation regarding the total amount of the overpayments. We therefore modify the judgment of the trial court to reflect that the overpayments total $23,202.87, and affirm the judgment as modified.
NOTES
[1] Specifically, QIC challenges Findings of Fact Nos. 3, 4, and 6-14 and Conclusions of Law Nos. 2-17.
[2] QIC asserts that Article 14 of the contract, which states that "[t]he Provider may refer to its status as a Provider contracting with BCBSTX in advertising or descriptions of its services[,]" lends support to its interpretation that it is an in-network provider. We disagree. Article 14 merely states that QIC may, in advertising its services, refer to itself as a "Provider"the provision does not say that QIC may refer to itself as an "in-network provider." As such, Article 14 is of no aid in discerning the meaning of the term "Provider."
[3] See Finding of Fact No. 5.
[4] QIC also asserts that we should construe the contract against appellees, since they drafted the contract. "The principle of construing a contract against its drafter . . . is to be used only as a last resort[,]" however. GTE Mobilnet of S. Tex. Ltd. P'ship v. Telecell Cellular, Inc., 955 S.W.2d 286, 291 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); see also Forest Oil Corp. v. Strata Energy, Inc., 929 F.2d 1039, 1043 (5th Cir.1991) ("[A] contract generally is construed against its drafter only as a last resorti.e., after the application of ordinary rules of construction leave a reasonable doubt as to its interpretation."). Here we need not resort to construing the contractual language against appellees because the extrinsic evidence discussed above makes clear that the parties did not intend for "Provider" to mean "in-network provider."
[5] The patients at issue are listed in Finding of Fact No. 5.
[6] QIC stipulated that appellees' records show that all of the patients for whom appellees refused to precertify treatment do not have out-of-network benefits.
[7] The parties stipulated that "[t]here are two slightly different versions of the contract," Agreed Exhibits 1 and 1A. Agreed Exhibit 1, which is the only contract QIC contends it signed, contains only one Exhibit A, the language of which is quoted above (i.e., the exhibit refers to HMO Blue throughout). Appellees, on the other hand, contend that they signed Agreed Exhibit 1A, which contains two Exhibit Asone of which refers to HMO Blue and one of which refers to BCBSTX. In all other respects, the two contracts are identical.
QIC asserts that, because the Exhibit A that is attached to Agreed Exhibit 1 only references HMO Blue, and not BCBSTX, "any limitations contained in the Exhibit A[] do not apply to BCBSTX, and cannot limit the amounts recoverable by QIC for treatments rendered to BCBSTX insureds." The trial court did not decide which version of the contract controls. Assuming without deciding that Agreed Exhibit 1 (QIC's version) controls, we nonetheless reject QIC's argument. Although the Exhibit A that is attached to Agreed Exhibit 1 references only HMO Blue, the attached fee schedule is entitled "Blue Cross Blue Shield of Texas Home Infusion Therapy Fee Schedule." Moreover, Article 2A of the contract that comprises Agreed Exhibit 1 expressly provides that "[t]he reimbursement mechanism which will be used as the basis for payment of Covered Services by BCBSTX to the Provider is a part of the Contract and will be as described in the Exhibit(s) attached to this Contract." (Emphasis added). Article 6B adds that "BCBSTX . . . shall [not] be liable for payment of . . . any sum based upon charges made at rates in excess of those stipulated in the attached Exhibit(s)." (Emphasis added). The only exhibit that is attached to Agreed Exhibit 1 is Exhibit A. Accordingly, the limitations set forth in Exhibit A apply to BCBSTX, even though the exhibit primarily references HMO Blue. Any other interpretation would render the language of Articles 2A and 6B meaningless. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) ("[C]ourts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.") (emphasis in original).
[8] Specifically, QIC challenges Conclusions of Law Nos. 7 and 8.
[9] QIC's standard retail price becomes relevant in determining the subscriber's share of the cost of infusion therapy services. That is, under Article 6A, QIC "will base the Subscriber's share of the cost on [its] standard retail price or the BCBSTX allowable amount as set forth in . . . Exhibit [A], whichever is less." Thus, in the event QIC's standard retail price is lower than the Exhibit A rate for a particular service provided to any given patient, that patient's share of the cost will be calculated using QIC's standard retail price instead of the Exhibit A amount.
[10] The overpayments involve claims that QIC submitted for the patients identified in Findings of Fact Nos. 6, 7, 12, and 13 and Conclusions of Law Nos. 11-13.
[11] The error relates to claims QIC submitted for the patients identified in Finding of Fact No. 6 and Conclusion of Law No. 11.
[12] Appellees did not file their counterclaim until July 2004.
[13] QIC also complains that "[t]here is no evidence [appellees] presented to QIC an amount that [they] would have accepted to resolve their claims." A claimant, however, "is not required to make a demand of the exact amount it is entitled to recover." West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 269 (Tex.App.-Austin 2002, no pet.) (rejecting appellant's argument that, because appellees never asked for exact amount that was allegedly due, presentment was not satisfied).
[14] QIC does not challenge the summary judgment concerning its constructive fraud claim and therefore has waived any error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998); Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex.1987).
[15] QIC attached only two letters to its summary judgment responseboth of which are letters that appellees sent to two of their subscribers, not hospitals or clinics or doctors in which appellees advise the subscribers that the request for QIC to provide services was not authorized because the same service could be provided by an in-network provider.
[16] During the bench trial, counsel for QIC reminded the trial court that "[t]here were initially other claims by Summary Judgment Motions, if the Court will remember, ruling against all of our tort claims and leaving in the contract claims. And the Court [ha]s stated that it sees this case as a contract case. We do, too." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3016979/ | ___________
No. 95-3053
___________
Linda Cummings, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
C.O. 1 Robert Alderman, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: May 31, 1996
Filed: June 6, 1996
___________
Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Missouri inmate Linda Cummings appeals the adverse grant of summary
judgment by the District Court1 in her 42 U.S.C. § 1983 action against Renz
Correctional Officer, Robert Alderman. After de novo review of the record
and the parties' briefs, we conclude the District Court's grant of summary
judgment was correct. Accordingly, we affirm. See 8th Cir. R. 47B.
We deny appellant's motion for reconsideration of our prior order
denying her motion to consolidate.
1
The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri, adopting the report and
recommendation of the Honorable William A. Knox, United States
Magistrate Judge for the Western District of Missouri.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1573899/ | 17 So. 3d 1240 (2009)
JEFFERSON
v.
STATE.
No. 5D09-2273.
District Court of Appeal of Florida, Fifth District.
September 1, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573901/ | 743 N.W.2d 178 (2007)
STATE of Iowa, Appellee,
v.
James Donald LANE, Appellant.
No. 06-0024.
Supreme Court of Iowa.
December 28, 2007.
*180 Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Brent D. Heeren, County Attorney, and Richard Vander Mey, Assistant County Attorney, for appellee.
STREIT, Justice.
We are asked to determine whether James Lane threatened to commit terrorism while in police custody. We find Lane could not have been guilty of the threat of terrorism when he made menacing statements to the sheriff while in custody because there was no reasonable possibility he would imminently act on those threats. It was error to deny Lane's motion for judgment of acquittal for the threat-of-terrorism charge. However, there was sufficient evidence to submit the charge of intimidation with a dangerous weapon to the jury because an imminent threat is not required to be guilty of intimidation. Moreover, we find defense counsel's failure to request a specific jury instruction was not prejudicial. We therefore affirm Lane's conviction with respect to the intimidation count and reverse his conviction for the threat of terrorism.
I. Facts and Prior Proceedings.
On March 19, 2005, Lane's brother told the Tama County Sheriff's Department Lane was at their mother's home in violation of a protective order. Officers verified there was a valid protective order requiring Lane to stay away from his mother Dorothy Lane.
Sheriff Dennis Kucera called Dorothy's residence to see whether Lane was there. Lane answered the telephone. The sheriff and several deputies proceeded to Dorothy's home in Traer. Sheriff Kucera knocked on the back door. Lane answered the door. He was told he was under arrest for violating the protective order. While being handcuffed, Lane made the following statement: "Sheriff Kucera, you can take this how you want. That Atlanta shooting is not going to be the only thing that's going to happen. I am going to come down, get a court schedule, and I'm going to take care of all you *181 mother fuckers." Lane was referring to a courthouse shooting which occurred eight days earlier in Atlanta, Georgia. There, a man on trial for rape, overpowered his guard and then killed a judge, a court reporter, and a deputy sheriff before fleeing. Sheriff Kucera replied, "You don't even want to go there." Lane continued, "You guys are all going to be sorry when I get a court schedule."
Lane was placed in a deputy's car and transported to the sheriff's office in Toledo. During the drive, Lane continued making comments. Lane said he should have killed his ex-wife in the 1970s because he would have only had to serve twelve-and-a-half years in prison. He also spoke of his distrust of the judicial system and the government.
While Lane was in the booking room of the jail, he said "You guys are going to be sorry. You know, I will get a court schedule and be down there." He did not make any further reference to the Atlanta shooting. Other than "running his mouth," Lane was obedient at all times.
Based on the statements Lane made to the officers, Lane was charged with (1) intimidation with a dangerous weapon with the intent to injure or provoke fear or anger in another, a class C felony and (2) threat of terrorism, a class D felony. A jury found Lane guilty of the lesser included offense of intimidation with a dangerous weapon and guilty as charged of the threat of terrorism.
On appeal, Lane claims there was insufficient evidence to convict him on either count. He also alleges his trial counsel was ineffective by failing to request a certain jury instruction.
II. Scope of Review.
We review sufficiency-of-evidence challenges for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The trial court's findings of guilt are binding on appeal if supported by substantial evidence. Iowa R.App. P. 6.14(6)(a). The evidence is substantial if a rational fact finder could find the defendant guilty beyond a reasonable doubt. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). "`We view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the' evidence in the record." Id. (quoting State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997)).
For ineffective-assistance-of-counsel claims, we review the totality of the circumstances relating to counsel's conduct de novo. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
III. Merits.
A. Threat of Terrorism. Iowa Code section 708A.5 (2005) states "[a] person who threatens to commit terrorism or threatens to cause terrorism to be committed and who causes a reasonable expectation or fear of the imminent commission of such an act of terrorism commits a class `D' felony."
"Terrorism" means an act intended to intimidate or coerce a civilian population, or to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government, by shooting, throwing, launching, discharging, or otherwise using a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people.
Iowa Code § 708A.1(3).
Lane argues the State did not present sufficient evidence to prove a reasonable *182 expectation Lane would imminently act on his threats. We agree.
The legislature did not define the word "imminent" as used in section 708A.5. As a result, "`we may refer to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage' to determine its meaning." State v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006) (quoting State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996)). In Shanahan, we recognized the following definitions of "imminent" for purposes of our self defense/defense-of-others statute: "`ready to take place,' `near at hand,' `hanging threateningly over one's head,' and `menacingly near.'" Id. (quoting Webster's Third New Int'l Dictionary 1130 (2002)). Lane's threats do not satisfy any of these definitions.
Lane was in custody when he made the statements to the officers. Because he had been arrested for violating a protective order, he was not subject to release until after appearing in court. Iowa Code § 236.11. As a practical matter, Lane would have been held in jail until at least the next morning. Consequently, there was no reasonable likelihood Lane would imminently act on his threats.
The State contends "[t]he mere fact [Lane] was taken into custody immediately after he made the threats in this case does not rule out the possibility that he could escape and make good on the threats, or could possibly enlist the aid of a confederate to act upon his threats." While nearly anything is possible, the statute requires a "reasonable expectation or fear of the imminent commission of such an act of terrorism." Id. § 708A.5 (emphasis added). It was highly unlikely Lane would escape custody. Moreover, there is no evidence in the record to suggest Lane was capable of enlisting the assistance of another person while in custody.[1]
The State complains "law enforcement officers should not have to wait until a defendant, who has previously threatened them, comes after them with a gun before they can make an arrest." This statement ignores the fact a person making threatening statements to police officers may be charged with intimidation regardless of whether the person threatened imminent harm. Moreover, the State seems to suggest imminence for purposes of section 708A.5, threat of terrorism, should be based on the quality or seriousness of the threat rather than the temporal aspect of the threat. Certainly, our statute does not require a person to threaten the immediate commission of an act of terrorism. Nevertheless, it does require a reasonable expectation the act is impending or about to occur. Lane's threats could not have been carried out until the next day at the earliest. If we held that was sufficient for a threat of terrorism, we would be left with the odd result of imminence meaning one thing for self defense and another thing for terrorism. For these reasons, we find the district court erred in denying Lane's motion for judgment of acquittal on the terrorism count.
B. Intimidation with a Dangerous Weapon. Lane also claims there was insufficient evidence to convict him of intimidation with a dangerous weapon.[2] Under Iowa Code section 708.6,
*183 A person commits a class "D" felony when the person shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.
(Emphasis added.)
Lane claims the State failed to produce evidence to support a reasonable expectation the threats would be acted upon. We find Lane failed to preserve this error for appeal. While Lane's counsel moved for a judgment of acquittal on both counts, he focused on the lack of an imminent threat for purposes of the terrorism charge and neglected to provide any grounds to support an acquittal on the intimidation charge. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding motion for judgment of acquittal does not preserve error where there was no reference to specific grounds).
Lane alternatively argues his trial counsel's failure to preserve error deprived him of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The test for determining whether a defendant received effective assistance of counsel is "whether under the entire record and totality of the circumstances counsel's performance was within the range of normal competency." Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). The defendant must prove (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. To establish prejudice, the defendant must demonstrate the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
We generally prefer resolving ineffective-assistance-of-counsel claims on post conviction relief in order to give trial counsel an opportunity to explain the reasons, if any, for his acts or omissions. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986). We will, however, address such a claim on direct appeal if the record is sufficient to do so. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990).
In the present case, we see no reason to delay ruling on this issue. Trial counsel's explanation is not necessary because counsel did not fail to perform an essential duty. Even if counsel had articulated grounds for the motion for judgment of acquittal on the terrorism charge, the district court would not have granted the motion because the State presented sufficient evidence for a jury to decide Lane's statements created a "reasonable expectation that the threat will be carried out." Iowa Code § 708.6. See United States v. Floyd, 458 F.3d 844, 849 (8th Cir.2006) ("The district court does not decide that a particular communication is a threat as a matter of law, but whether there is sufficient evidence for a jury to decide that a reasonable recipient would interpret it as a threat.").
We have previously said "[t]hreats need not be explicit; they may be made by innuendo or suggestion." Crone, 545 N.W.2d at 271 (citing State v. McGinnis, 243 N.W.2d 583, 589 (Iowa 1976)). With respect to the motion for a judgment of acquittal, the issue before the district court was whether there was sufficient evidence for a reasonable jury to find "a reasonable person of ordinary intelligence would interpret *184 [Lane's] statement as a threat . . . in light of the surrounding circumstances." State v. Milner, 571 N.W.2d 7, 10 (Iowa 1997).
Lane referred to the Atlanta courthouse shooting only eight days after it occurred. He said "[t]hat Atlanta shooting is not going to be the only thing that's going to happen. . . . I'm going to take care of all you mother fuckers." Although he never specifically said he was going to shoot people, given the circumstances, it could reasonably be inferred that is what Lane meant. See Floyd, 458 F.3d at 849 (holding recent newspaper article about a judge's family being murdered sent to a lawyer and two judges with the words "Be Aware Be Fair" written at the top was sufficient evidence for a jury to find the defendants guilty of mailing threatening communications). Moreover, Lane was very angry when he made the statements to the police. He admitted yelling and cursing at the officers because he wanted to make sure they heard him. The officers testified they did not think he was joking. Instead, they took his threats very seriously. The district court properly submitted the intimidation charge to the jury. Thus, Lane's attorney was not ineffective for failing to articulate grounds for an acquittal on this charge.
C. Jury Instructions. Lastly, Lane alleges his trial counsel was ineffective for failing to request an objective standard instruction for the "reasonable expectation" component of both counts. He contends the jury should have been instructed the State had the burden to prove a reasonable person would expect the threat to be carried out based on the existing facts and circumstances. We find it unnecessary to reserve this issue for post-conviction relief. Since there was no prejudice, we need not determine whether Lane's trial counsel failed to perform an essential duty. See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997) (noting the court may dispose of an ineffective-assistance-of-counsel claim if the defendant fails to meet either the breach of duty or prejudice prong).
The jury was instructed the State must prove for intimidation with a deadly weapon that
1. On or about March 19, 2005, in Tama County, Iowa, the Defendant threatened to shoot a dangerous weapon at, into, or in a building occupied by another person.
[AND]
2. The Defendant made the threat under circumstances raising a reasonable expectation that the threat would be carried out.
(Emphasis added.) As we have already alluded, the jury had to determine whether a reasonable person would have expected Lane to act on his threats as opposed to whether the officers themselves felt threatened. This instruction does not state the jury should apply an objective or reasonable-person standard. See State v. Jackson, 305 N.W.2d 420, 424 (Iowa 1981) (approving an instruction explaining reasonable expectation "means whether, under the existing facts and circumstances, a reasonable person would expect that the threat would be carried out"). However, for an ineffective-assistance-of-counsel claim, the defendant must demonstrate the "reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The evidence overwhelmingly proved a reasonable person hearing Lane's statements would have expected him to act on his threats. He referenced a recent courthouse shooting while yelling and cursing at the deputies. He told them more than once they were *185 going to be "sorry" when he got a court schedule. He expressed regret for not killing his ex-wife. Considering the circumstances of Lane's statements, there is no reasonable probability the results would have been different.
IV. Conclusion.
There was insufficient evidence to submit the threat-of-terrorism charge to the jury. It was error to deny Lane's motion for judgment of acquittal on that count. With respect to the intimidation charge, there was ample evidence of intimidation to support the jury's finding of guilt. A new trial for the intimidation count is not necessary because Lane was not prejudiced by trial counsel's failure to request an objective-standard jury instruction.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
NOTES
[1] After Lane arrived at the sheriff's office, he declined the opportunity to make a telephone call.
[2] Section 708.6 was formerly entitled "Terrorism." See Iowa Code § 708.6 (2001). In 2002, the legislature changed the title to "Intimidation with a dangerous weapon" and created chapter 708A, which now pertains to "Terrorism." See 2002 Iowa Acts ch. 1075. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573944/ | 707 F.Supp. 520 (1988)
James BARTON, et al., Plaintiffs,
v.
J. Chandler PETERSON, et al., Defendants.
Civ. A. No. 1:87-CV-1871-JOF.
United States District Court, N.D. Georgia.
October 20, 1988.
*521 Roy Harold Meeks, Jr., Peterson, Young, Self & Asselin, Penelope Williams Rumsey, Austin Lee Ramsey, Atlanta, Ga., for plaintiffs.
John L. Taylor, Jr., Vincent, Chorey, Taylor & Feil, Thomas J. Gallo, Harkleroad & Hermance, Atlanta, Ga., Frances M. Toole, Bush, Ross, Gardner, Warren & Rudy, Tampa, Fla., for defendants.
ORDER
FORRESTER, District Judge.
This action is before the court on numerous motions by the parties. Plaintiffs have filed a motion to disqualify the defendants' attorneys and a related motion for sanctions. Defendants have filed a motion to transfer this case to Judge Shoob in this court. Plaintiffs have filed a motion for extension of time of the discovery period, to which all defendants have consented. The last motion before the court is plaintiffs' attorney's motion to withdraw.
Plaintiffs' motion to disqualify defendants' attorneys was filed January 11, 1988. An order was entered on March 24, 1988 staying the motion to disqualify the defendants' attorneys pending a discovery and briefing schedule set out in the order. On March 25, plaintiffs moved for sanctions for the motion to disqualify. In defendants' response to plaintiffs' supplemental brief in support of their motion to disqualify filed March 8, 1988, defense counsel requested that this court allow defendants' firm, Harkleroad & Hermance, to withdraw. In this court's review of the record, it appears that no order was ever entered allowing Harkleroad & Hermance to withdraw as attorneys. On May 27, 1988, John L. Taylor, Jr. and Vincent, Chorey, Taylor & Feil entered an appearance as attorneys for the defendants, stating that they are substituting themselves in place of Harkleroad & Hermance who have withdrawn.
It appears to the court that all the parties are conducting themselves as if Harkleroad & Hermance have withdrawn from the case. Plaintiffs' motion for disqualification is therefore DENIED as moot.
Plaintiffs have brought a motion for sanctions based on their motion to disqualify. The basis of this motion is that defense counsel unjustifiably refused to withdraw voluntarily and plaintiffs' counsel was forced to file a motion to disqualify. Plaintiffs seek their costs in preparing and prosecuting the motion to disqualify.
This lawsuit was filed in August of 1987. The plaintiffs were investors in a limited partnership named Capital: Maple Leaf Estates, Ltd. They allege that the defendants, all associated with defendant Peterson, were responsible for misappropriating funds from Capital: Maple Leaf and for securities violations. Harkleroad & Hermance, then Harkleroad & Hardy, represented the Peterson defendants at the time of the transactions involved in this suit. When problems arose with the Maple Leaf partnership, Harkleroad & Hermance formed Capital Sunbelt Investors Protection Corporation (CSIPC), owned by some, but not all, Maple Leaf investors. Frank Chamberlain, a plaintiff here, was its president. The purpose of CSIPC was to recover money invested by the Maple Leaf investors. John D. Burkey and S.T. Patrick assigned stock and other assets to a Peterson company, Phoenix Strategy. Burkey and Patrick filed bankruptcy and sought to set aside the assignments. The stock had been transferred from the Peterson company, Phoenix Strategy, to CSIPC. In an adversary proceeding as part of the bankruptcy case seeking to recover the assets, Burkey and Patrick named Phoenix Strategy, CSIPC, Chamberlain and other Maple Leaf investors as defendants. Harkleroad & Hermance was retained by Phoenix Strategy to represent CSIPC, Chamberlain as its president, and the individual investors. Plaintiffs base their motion for disqualification and this motion for sanctions on this prior representation.
Prior representation alone is not automatically grounds for disqualification. *522 In order to disqualify on these grounds, the party seeking disqualification must prove it once had an attorney client relationship with the opposing lawyer and that the subject matter of the two transactions is substantially related. Cox v. American Cast Iron Pipe Co., 847 F.2d 725 (11th Cir.1988); Cossette v. Country Style Donuts, Inc., 647 F.2d 526 (5th Cir.1981).
Plaintiff has presented a transcript of a bankruptcy hearing in the adversary case in which Thomas Gallo, a member of Harkleroad & Hermance, stated that he represented certain companies and individuals. Among those individuals were ten plaintiffs in this action, Barton, Chamberlain, W.E. and G.C. Connolly, Cornish, Jun, Kirkconnell, Fillastre, Odell, and Blank. Plaintiff's Exhibit B, pp. 7-12. The plaintiffs have not included the entire transcript from the bankruptcy hearing, or any pleadings from that action. From a reading of the portion of the transcript presented, the bulk of the argument and testimony concerned the transfer of stock to Peterson Strategy and then to CSIPC. The court stated that the key question before the court was whether the stock was part of the bankrupts' estate and whether the transfer was fraudulent or preferential. Plaintiff's Exhibit B, p. 56. According to defense counsel, the claims against the individual investors were summarily dismissed by the bankruptcy court because they did not hold the bankrupts' property. Response of Defendants J. Chandler Peterson and Phoenix Financial Corporation to Plaintiffs Motion for Sanctions, at 3.
Plaintiffs have also presented a deposition taken of Frank Chamberlain as president of Capital Sunbelt Investors Protection Corporation on July 10, 1986 in connection with the same bankruptcy case. Plaintiff's Exhibit A. In the deposition, Mr. Gallo represented CSIPC and Mr. Chamberlain as its president. The deposition testimony includes Chamberlain's recollections on the formation of CSIPC, his relationship to the Peterson companies, the delivery of the stock certificates, and any meetings with Burkey or Patrick. A portion of the deposition includes Chamberlain's discussion of his beliefs and information on the misappropriation and mismanagement that forms the basis of this suit. Plaintiff's Exhibit A, pp. 62-67. There are also certain places where Chamberlain says he relied on counsel for advice on the execution of the organizational documents of CSIPC. Exhibit A, p. 73. Gallo also asserted attorney client privilege at one point as to communications between the corporation and counsel. Exhibit A, p. 11.
The bankruptcy transcript reveals that the issue in that case was limited to the validity of the transfer of the stock under the bankruptcy laws. It did not directly deal with the misappropriation and mismanagement that forms the basis of the present action. Furthermore, Harkleroad & Hermance voluntarily withdrew before substantial discovery on the disqualification issue was conducted, as contemplated in this court's March 24 scheduling order. The little evidence before the court from the bankruptcy proceeding and the lack of other evidence on the relationship between the bankruptcy proceeding and the present action makes it difficult at this juncture to determine whether the motion to disqualify would have been granted on that ground.
However, Harkleroad & Hermance based their voluntary withdrawal on the fact that they had represented Ms. Budnik, a plaintiff here, when she repurchased Maple Leaf interests from her clients when the financial problems arose. This repurchase is the basis of her claim in this action. The withdrawal was requested on March 8, 1988, after the firm had reviewed their files in conjunction with the motion to disqualify. Therefore, it appears that a substantial relationship did exist between the two actions in regard to this plaintiff, and presumably the motion to disqualify would have been granted on this ground.
Plaintiffs bring this motion for sanctions primarily under Rule 11. Rule 11 provides that the signature of an attorney or party on a pleading, motion, or other paper is a certificate that the pleading or motion is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, *523 or reversal of existing law, and that it is not interposed for any improper purpose. A violation of the rule must be sanctioned, which may include costs and attorney's fees.
Rule 11 does not apply to the present motion for sanctions against the defendants. The basis of the motion is that the plaintiffs were required to file their motion for disqualification originally, and not that the defendants presented any pleading or motion to this court without a basis in fact and law in violation of Rule 11. Therefore, sanctions against the defendants cannot be premised on Rule 11.
There are two other potential sources of authority for this court to impose sanctions upon defendants. 28 U.S.C. § 1927 provides that an attorney who "so multiplies the proceedings in any case unreasonably and vexatiously" may be required to personally pay costs and attorney's fees.[1]
This court cannot say that on the above facts, the defendants multiplied the proceedings so unreasonably and vexatiously that they should be personally liable for any expenses of attorney's fees. See, Knorr Brake Corporation v. Harbil, Inc., 738 F.2d 223 (7th Cir.1984) (in order to come under the parameters of 28 U.S.C. § 1927 "counsel must have engaged in serious and studied disregard of the orderly process of justice" and the attorney must intentionally file or prosecute a claim that lacks plausible legal or factual basis, but malice need not be shown).
The other alternate source of power to impose sanctions for this situation is through the inherent power of the court to regulate attorney misconduct. The Supreme Court addressed the inherent power of the court in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). In that case the Court noted that "because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion." Id. at 764, 100 S.Ct. at 2463. "[I]n narrowly defined circumstances federal courts have inherent power to assess attorney's fees against counsel." Id. at 765, 100 S.Ct. at 2463. While noting that the general rule in federal courts is that a litigant cannot recover his counsel fees, the Court noted that the rule does not apply when an opposing party has acted in bad faith. Id. at 765-66, 100 S.Ct. at 2463-64. The Court quoted from Alyeska Pipeline Company v. Wilderness Society, 421 U.S. 240, 257, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141 (1975), where the Court recognized that attorney's fees can be assessed against a party for willful disobedience of a court order or when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Noting that the "power of a court over members of its bar is at least as great as authority over litigants," Roadway Express, 447 U.S. at 766, 100 S.Ct. at 2464, the Court held that a court may assess attorney fees against counsel who willfully abused the judicial process. Id.
The Eleventh Circuit applies this principle that "in narrowly defined circumstances, federal courts have inherent power to assess attorney's fees against counsel." Amey, Inc. v. Gulf Abstract and Title, Inc., 758 F.2d 1486, 1507 (11th Cir.1985). In that case, the Eleventh Circuit described a bad faith litigation exception as described in Roadway Express. The Eleventh Circuit in Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911 (11th Cir.1982), held that under Roadway Express, the court's inherent authority to assess attorney's fees against counsel is coextensive with its inherent authority to assess fees against a party. Fees can be assessed when the attorney has conducted litigation in bad faith, vexatiously, wantonly or for oppressive reasons. Id. See also, Gordon v. Heimann, 715 F.2d 531 (11th Cir.1983).
*524 Therefore, if this court finds bad faith on the part of defendants, it can assess attorney's fees or sanctions against either the party or counsel. The Eleventh Circuit has stated that "an action is brought in bad faith when the claim is entirely without color and has been asserted wantonly, for the purposes of harassment or delay, or for other improper purposes." Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581 (11th Cir.1986).
In review of the facts as stated above, this court finds that defense counsel's refusal to withdraw voluntarily was not grounded in bad faith. It appears that defense counsel knew of the prior representation of some of the plaintiffs, but prior representation alone is not automatically grounds for disqualification absent a showing that the subject matter is substantially related, or that the attorney received privileged communications. Cossette, 647 F.2d at 526. It appears from the record that there was a good faith dispute as to whether the representation of the plaintiffs in the bankruptcy proceeding was substantially related to the present action, or whether any privileged communications had been revealed. In fact, the dispute was concrete enough that this court ordered that discovery proceed as to three plaintiffs to discover their relationship with defense counsel. It also appears to this court that defense counsel withdrew shortly after it discovered that plaintiff Budnik had been substantially represented by defense counsel in the re-purchase of the limited partnership interest and would not consent to continued representation. Therefore, this court cannot find that defense counsel acted in bad faith when they refused to withdraw as counsel for defendants. Plaintiffs' motions for sanctions must consequently be DENIED.
Defendants have moved to transfer this case to Judge Shoob. When the present case was filed in August 1987, Judge Shoob had pending a similar case involving nearly all the same defendants and the same investments and issues of fact. Defendants assert that judicial economy and efficiency would be served by transferring the case to Judge Shoob. Plaintiffs oppose the motion to transfer as being untimely. Moreover, plaintiffs point out that several motions have been heard by this court. An order in Judge Shoob's case, Weprin v. Peterson, et al., Civil Action No. 85-4670, was signed August 18, directing the clerk to enter judgment in that case. Defendants assert that at least one major issue is still pending in that case.
Defendants' motion to transfer is DENIED. As the Weprin case is nearly over in Judge Shoob's court, judicial economy is not a controlling factor in this consideration.
Plaintiffs have filed a motion to extend the discovery period to October 24, 1988. All defendants have consented. Therefore, plaintiffs' motion is GRANTED. As little or no discovery on the merits of the case has proceeded pending the resolution of the above motions, discovery will extend up to and include November 30, 1988.
The final motion before the court at this time is plaintiffs' attorney's motion to withdraw as counsel for plaintiffs. Counsel has complied with Local Rule 110-5. Therefore, plaintiffs' attorney's motion to withdraw is GRANTED.
Conclusion
In sum, plaintiffs' motion to disqualify defendants' attorney is DENIED as moot and plaintiffs' motion for sanctions is DENIED. Defendants' motion to transfer is DENIED. Plaintiffs' motion to extend the discovery period is GRANTED, and plaintiffs' attorney's motion to withdraw is GRANTED.[2]
SO ORDERED.
NOTES
[1] Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
28 U.S.C. § 1927.
[2] The court has received defense counsel's August 22, 1988 letter requesting a conference on the issues discussed in this order. If either party still desires a conference, they should notify the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573952/ | 224 S.W.3d 277 (2005)
Jesse F. CLAY, III, Appellant,
v.
Michael A. MERCADO, Individually and d/b/a Ocean Gallery, Inc., Appellee.
No. 08-03-00490-CV.
Court of Appeals of Texas, El Paso.
July 14, 2005.
*279 Corey Haugland, James, Goldman & Haugland, P.C., El Paso, for Appellant.
Charles E. McDonald, Charles E. McDonald & Associates, Santa Tererea, NM, for Appellee.
Before BARAJAS, McCLURE, and CHEW, JJ.
OPINION
DAVID WELLINGTON CHEW, Justice.
In this deceptive trade practices case, Appellant Jesse F. Clay, III sued Appellee Michael A. Mercado, Individually and d/b/a Ocean Gallery, Inc., for damages related to the sale of an aquarium system. In a bench trial, the trial court rendered a take-nothing judgment in favor of Mr. Mercado. On appeal, Mr. Clay challenges the legal and factual sufficiency of the evidence to support the trial court's findings that: (1) Mr. Mercado made no material misrepresentation to Mr. Clay which induced him to purchase the aquarium; and (2) Mr. Clay failed to mitigate his damages. We affirm.
In February 2000, Mr. Clay purchased an aquarium system from Mr. Mercado's business, Ocean Gallery, Inc., after a period of negotiations back and forth about the proposed system. By letter, Mr. Mercado provided an amended proposal for the custom aquarium free-standing unit which included, among other things, the following: (1) "one all glass aquarium unit approx. 96 1/2 L × 24 1/2 W × 24 H (240 gallons);" (2) "custom smoked backdrop;" (3) "protein skimmer necessary for saltwater set ups;" (4) "fully automation of lighting system;" (5) "an assortment of stunning exotic saltwater fish. (between 15 to 20);" (6) "a stunning white marble Faux finish of your choice;" and (7) "complete set up and installation." In the proposal, Mr. Mercado stated, "we guarantee that you will have a[sic] most beautiful free standing unit around." Mr. Mercado also made the following statements: (1)"[w]e are [a] good standing member of the Southwest Interior Decorating Network, as well as the B.B.B.;" and (2) the company was offering Mr. Clay the aquarium system "in a full turnkey fashion, for $4,700.00 with guaranteed results."
According to Mr. Clay's testimony, the aquarium unit was installed in his home sometime after February 2000 and before June 2000. A photograph of the unit shows that it was installed on a tile floor. Mr. Clay stated that he and Mr. Mercado mutually agreed to install the aquarium in that location. Mr. Clay testified that he was instructed to fill the tank slowly and then allow the tank to cycle for a minimum of three to four months before putting fish in the tank. He did not put any fish in the tank until December 2000 and those fish died. Mr. Clay spent $315 to replace the initial fish.
*280 In November 2001, Mr. Clay was at home watching television when he heard a crack or pop. He then heard a trickle or leak, and then all of a sudden the entire side of the aquarium tank blew out. The tank began spilling 220 gallons of saltwater, fish, and coral unto the floor. The fish in the tank died. The carpet was soaked and at trial, Mr. Clay testified that the bid to replace the carpet and repair the floor was $2,752.06. After the tank blew out, Mr. Clay called Mr. Mercado and told him that the tank had failed. Mr. Mercado told him not to worry and that he would take care of it. Mr. Clay stated that Mr. Mercado took the aquarium back and returned the refurbished unit in January or February 2002. When the unit was redelivered, Mr. Clay asked that it be left on his covered back porch where it has remained. Even though it was reportedly fixed, Mr. Clay has not put water into it since it was returned to him. Mr. Clay explained that he wanted to make sure it did not leak and was concerned about the plastic reinforcement on the sides of the tank. Mr. Clay tried to discuss the matter with Mr. Mercado on numerous times, but after a while he gave up on getting an answer from him. Mr. Clay has never been able to get the aquarium functioning again.
It was only after his problems with the tank that Mr. Clay determined the aquarium system he had received was different from the system he thought he had purchased pursuant to Mr. Mercado's proposal. Mr. Clay testified that he wanted a glass aquarium and had thought he was purchasing a glass aquarium, as stated in the proposal, but the aquarium he received was made of plastic acrylic. Mr. Clay stated that he first became aware that the aquarium was acrylic, not glass, when it broke in his home. The proposal also stated it would be a 240-gallon aquarium, but Mr. Clay later discovered that it was actually a 220-gallon aquarium. Mr. Clay also complained that he did not receive a custom smoke backdrop, a protein skimmer, a fully automated lighting system with the aquarium, or a stunning white marble faux finish. Although the proposal included an assortment of stunning exotic saltwater fish, Mr. Clay testified that the first batch of fish died within ten days and the second batch died within a week. Further, the proposal stated that the aquarium system would be delivered in a full "turnkey" fashion with guaranteed results, which Mr. Clay understood to mean that the tank would be up and functioning, completely set up, and the fish would be alive. After filing his lawsuit, Mr. Clay also discovered that Ocean Gallery was not a corporation in Texas, but rather is an assumed named for Mr. Mercado. Mr. Clay stated that the representation that the business was a corporation was important to him because "I wouldn't have to worry about it if I had problems. They would take care of it."
At trial, Mr. Mercado's testimony differed considerably from Mr. Clay's account of events. Mr. Mercado testified that he has been operating Ocean Gallery for about eight years and conceded that through a misunderstanding he thought he could use the business name Ocean Gallery, Incorporated. Mr. Mercado explained that in his proposal the exact quantity of water the aquarium could hold was not guaranteed, but rather was an approximation. According to Mr. Mercado, the aquarium system sold to Mr. Clay included a custom smoke backdrop, a protein skimmer, and a fully automated lighting system. Mr. Mercado agreed that the white marble faux finish was not done on the unit, but this change had been at the request of Mrs. Clay who had instructed him to paint it to match the interior walls of the house instead.
*281 Mr. Mercado agreed that the proposal stated that the aquarium would be "all glass," but he stated this was a typographical error. According to Mr. Mercado, he told Mr. Clay that he was going to give him an acrylic aquarium. Mr. Mercado stated that his company does not build glass aquariums and has never built glass aquariums. He also stated that Mr. Clay understood he was getting a custom aquarium made out of acrylic and saw that it was an acrylic aquarium when he went to Mr. Mercado's aquarium manufacturing facility on Lockheed to inspect the aquarium prior to installation. According to Mr. Mercado, he extensively discussed the benefits of acrylic versus glass with Mr. Clay.
According to Mr. Mercado, he installed the aquarium in March 2000. At the time of delivery, Mrs. Clay was practicing Feng Shui and wanted to place the aquarium in a certain location on a tile floor. Mr. Mercado told them that it would leak because the floor was uneven. They both appeared to understand his concern, but they wanted him to install it there anyway. Mr. Mercado explained that if the floor is not level, pressure points will develop. Mr. Mercado does not normally place aquariums on tile floor because tile is not level. Mr. Mercado checked the tile floor in Mr. Clay's home and found that it was not level. However, because the Clays were so persistent, he installed the aquarium at that location even though he knew it would leak.
In Mr. Mercado's opinion, he delivered the aquarium in "turnkey" fashion, that is a complete set up and installation. After turning over the aquarium, the client must begin to service it. Mr. Mercado explained that all clients are instructed that the tank water needs to be cycled. For a saltwater system, the salt is cycled out in order to balance out the salinity level. Within two or three days, the starter fish are then introduced to establish beneficial bacteria (ammonia and nitrate). Mr. Mercado stated that he explains to his clients that the starter fish are going to die in the cycling process. Mr. Mercado also stated that it takes four to six weeks for the tank to cycle and that after it cycles and nitrate level balances, the desired fish are introduced.
After the leak developed in the aquarium, Mr. Mercado refurbished the unit and, per Mr. Clay's instructions, left it on the back porch. Mr. Clay told Mr. Mercado not to worry about the carpet and he did not complain about receiving an acrylic aquarium instead of a glass aquarium. The last time Mr. Clay and Mr. Mercado spoke, Mr. Clay had not done anything with the aquarium and wanted Mr. Mercado to install the aquarium as a fresh water system instead and for free. Mr. Mercado also testified that his representation that he was a good standing member of the Southwestern Interior Decorating Network and the B.B.B. was a correct statement in the 2000 letter proposal.
Basilio Villegas, an employee of Ocean Gallery, testified that he built Mr. Clay's aquarium. Mr. Villegas has twenty years experience doing acrylic work and fabricating aquariums. He stated that the aquarium was returned in order to be refurbished. He had never had one fail before and remembered this aquarium because it was the only one that has ever been returned. Mr. Villegas recalled that when the aquarium was returned, it was bowed out in the middle and in the bottom. Mr. Villegas has never manufactured a glass aquarium, but believed acrylic is stronger than glass. Although Mr. Villegas had never before had to refurbish an aquarium, the aquarium was retested after refurbishment and he was satisfied with the product when it left the shop again.
*282 In Mr. Clay's testimony, he agreed that his wife had attended a Feng Shui class around the time that the aquarium was installed, but denied that her interest in Feng Shui was the deciding factor in placing the aquarium on the tile floor. According to Mr. Clay, Mr. Mercado never advised him not to place the aquarium on the tile floor because the floor was uneven. Mr. Mercado also never told him that the aquarium would have an acrylic tank even though the proposal stated it would be made of glass. Mr. Clay acknowledged that he visited the facility where the tank was manufactured, but at that time the tank was covered in paper and he thought the tank was made out of glass.
Following the bench trial, the trial court entered a take-nothing judgment in favor of Mr. Mercado. Upon request, written findings of fact and conclusions of law were prepared and filed. Pertinent to this appeal, the trial court found:
Ocean Gallery Inc. is not an existing entity. Instead it was filed as an assumed name in 1995;
. . .
Ocean Gallery was a member of the Better Business Bureau of El Paso at the time of this transaction;
While the purchase/proposal order indicated "glass" aquarium, the uncontroverted expert testimony indicated that acrylic is 10 times stronger than glass, 12 times the better insulator and 5 times clearer;
In addition, Plaintiff visited the plant where said aquarium was being built;
March 2000, Defendant delivered to Plaintiff an acrylic, 230 gallon plus, free standing custom aquarium;
Prior to installation, Defendant informed Plaintiff that an aquarium should not be installed on a tile floor.
November, 2001, a leak developed;
Plaintiff was home when the leak began, therefore water damage was minimal;
January, 2002, the aquarium was refurbished by Defendant, and Defendant was instructed by Plaintiff to leave the aquarium outside in the back porch, exposed to the elements;
June 18, 2002, Plaintiff began calling Defendant requesting Defendant to set up the tank again.
In its conclusions of law, the court determined:
There was no material misrepresentation made by Defendant to Plaintiff which induced Plaintiff to purchase the aquarium.
Plaintiff failed to mitigate his damages.
Plaintiff shall take nothing from his lawsuit.
STANDARDS OF REVIEW
In a bench trial, factual and legal sufficiency challenges to the trial court's findings of fact are reviewable under the same standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 62 (Tex.App.-El Paso 2000, no pet.). However, the findings are not conclusive when a complete reporter's record appears in the appellate record. Gibson v. Bostick Roofing and Sheet Metal Co., 148 S.W.3d 482, 489 (Tex.App.-El Paso 2004, no pet.). We review a trial court's conclusions of law de novo. See Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d 320, 322 (Tex.App.-El Paso 1995, writ denied).
In reviewing a legal sufficiency challenge where the complaining party on appeal did not bear the burden of proof at trial, we analyze the issue as a "no-evidence" challenge. Croucher v. Croucher, *283 660 S.W.2d 55, 58 (Tex.1983). In our review, we consider the evidence in a light that tends to support the jury's finding and disregard all evidence and inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002). If there is more than a scintilla of evidence to support the finding, the legal insufficiency challenge fails. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). We will sustain a no-evidence challenge when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003).
When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which it had the burden of proof, i.e., challenging the trial court's finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Elias, 33 S.W.3d at 59. A party attempting to overcome an adverse fact-finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690; Elias, 33 S.W.3d at 59. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Elias, 33 S.W.3d at 59. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Elias, 33 S.W.3d at 59. Only if the contrary position is conclusively established will the point of error be sustained. Elias, 33 S.W.3d at 59.
In reviewing an issue asserting that a finding is factually insufficient or against the great weight and preponderance of the evidence, we consider all the evidence, both the evidence tending to prove the existence of a vital fact, as well as the evidence tending to disprove its existence. Heritage Resources, Inc. v. Hill, 104 S.W.3d 612, 620 (Tex.App.-El Paso 2003, no pet.). We will set aside the judgment only if the supporting evidence is so weak or the finding so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
MISREPRESENTATION CLAIMS UNDER DTPA
In his first issue, Mr. Clay challenges the trial court's adverse finding on his DTPA claim. Specifically, Mr. Clay contends that the evidence was legally and factually insufficient to support the trial court's finding that Mr. Mercado made no material misrepresentation to Mr. Clay which induced him to purchase the aquarium.[1]
The Deceptive Trade Practices Act ("DTPA") prohibits"[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce. . . ." Tex. *284 Bus. & Com.Code Ann. § 17.46(a)(Vernon Supp.2004-05). To recover under the DTPA, the plaintiff must show that: (1) he is a consumer; (2) the defendant engaged in a false, misleading, or deceptive act; and (3) the act constituted a producing cause of the plaintiff's damages. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995); see also Tex. Bus. & Com.Code Ann. § 17.50(a). To establish the producing cause element, the plaintiff must show that the defendant's action was a substantial factor in bringing out the plaintiff's injury, without which the injury would not have occurred. Doe, 907 S.W.2d at 478.
Mr. Clay asserted that Mr. Mercado violated the following provisions in the laundry list of specifically prohibited acts contained in Section 17.46(b):
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
. . .
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
. . .
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
. . .
(25) using the term `corporation,' `incorporated,' or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction.
See Tex.Bus. & Com.Code Ann. § 17.46(b)(5), (7), (12) & (25).
On appeal, Mr. Clay contends that contrary to the trial court's finding, Mr. Mercado made material misrepresentations concerning: (1) the material and size of the aquarium; (2) the turnkey status and guaranteed results of the aquarium system; and (3) the corporate status of Ocean Gallery, Inc. Mr. Clay asserts that these deceptive acts were a producing cause of his damages.
Viewing the trial court's adverse finding in the appropriate light, we conclude there was evidence at trial that supports the finding. Mr. Mercado testified that the amended proposal stated all-glass aquarium, but Mr. Clay knew that he would be receiving an acrylic aquarium. Mr. Clay visited the manufacturing facility where only acrylic aquariums were being manufactured. With regard to the size of the aquarium, we observe that the amended proposal states that the size was only an approximation. Further, Mr. Mercado testified to the same. While Mr. Clay testified that he understood "turnkey" to mean complete installation and with live fish, Mr. Mercado testified that he instructs all of his clients about the dynamics of an aquatic ecosystem and the necessary death of the starter fish in the process. According to Mr. Mercado, he delivered the aquarium in a "turnkey" fashion, which does not include service and maintenance. Mr. Clay agreed that he and his wife were delighted with the aquarium when it was delivered.
At trial, Mr. Mercado admitted that he had misrepresented the corporate statute of Ocean Gallery, Inc., however, the evidence showed that this misrepresentation *285 was not material and was in no way the cause in fact of Mr. Clay's damages.[2]See Doe, 907 S.W.2d at 481. Based on testimony from Mr. Mercado and Mr. Villegas, the evidence shows that a leak developed in November 2001 (over a year and a half after delivery and installation) because it was installed on a tile floor upon Mr. Clay's insistence.
Because there is some evidence in the record to support the trial court's finding that no material misrepresentations were made to Mr. Clay, the legal sufficiency challenge fails. In addition, after reviewing Mr. Clay's factually insufficient evidence complaint, we conclude that the supporting evidence is not too weak nor is the finding against the great preponderance of the evidence as to be clearly wrong and manifestly unjust. Issue One is overruled. Given our disposition of Mr. Clay's first issue, we need not consider his second issue, that is, the sufficiency challenge to the finding on Mr. Mercado's affirmative defense of mitigation of damages.
We affirm the trial court's judgment.
NOTES
[1] Arguably, the trial court's statement was a finding of fact, rather than a conclusion of law and was mislabeled as such. The trial court's designation of a "finding of fact" or "conclusion of law," however, is not controlling, and we may treat a conclusion of law as a finding of fact when appropriate. Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n. 1 (Tex.1979).
[2] We note that Mr. Clay testified that Mr. Mercado's representation was important to him, but he never indicated that he relied on this particular representation. Furthermore, there was no evidence that this representation had anything to do with the failure of the tank. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573962/ | 224 S.W.3d 61 (2007)
José ángel Valdez GARZA and Nidia Leal, Appellants,
v.
VALLEY CREST LANDSCAPE MAINTENANCE, INC., Rafael Garcia Moya, Javier Gonzalez and Brad Mason, Respondents.
No. ED 88431.
Missouri Court of Appeals, Eastern District, Division Four.
March 6, 2007.
Motion for Rehearing and/or Transfer Denied May 1, 2007.
Application for Transfer Denied June 26, 2007.
*62 Geoffrey S. Meyerkord, Richard B. Hein, St. Louis, MO, for Appellant.
Edward S. Meyer, Robert J. Evola, St. Louis, MO, for Respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 2007.
ROY L. RICHTER, Presiding Judge.
José Ángel Valdez Garza and Nidia Leal (collectively, "Appellants") appeal from the dismissal of their lawsuit for lack of subject matter jurisdiction and the corresponding judgment entered in favor of Valley Crest Landscape Maintenance, Inc., Rafael Garcia Moya, Javier González and Brad Mason (collectively, "Respondents"). We affirm.
I. BACKGROUND
Appellant José Ángel Valdez Garza ("Garza") was employed by Respondent Valley Crest Landscape Maintenance, Inc. ("Valley Crest") as a landscaper. Appellant Nidia Leal ("Leal") is Garza's wife. On March 15, 2005, Garza was instructed to report to a home to provide landscaping services. Brad Mason ("Mason"), a supervisor, directed which trees were to be trimmed. Garza's crew leader, Respondent Rafael Garcia Moya ("Moya"), instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree and held the ladder. Moya also rigged a rope to the limb which was to be cut. Respondent Javier González ("González") held the rope which Moya had rigged while Garza climbed the ladder. *63 While Garza was on the ladder, the limb knocked him from the ladder. He fell to the ground and suffered a permanent spinal cord injury. Garza filed a worker's compensation claim and has received over $1,000,000.00 on that claim.
Appellants filed a five count petition in the Circuit Court of St. Louis County, against Respondents. Counts I, II, III, and IV were negligence claims and Count V was for Appellant Leal's derivative loss of consortium claim. Respondents filed a Motion to Dismiss Based on Lack of Subject Matter Jurisdiction claiming that worker's compensation was the sole remedy available to Appellants. The trial court entered an Order granting Respondents' Motion as to Appellants' Count I against Respondent Valley Crest for negligence, and denying the remainder as to Appellants' Counts II, III, and IV against the individual Respondents, Mason, Moya and González respectively, for negligence and likewise denying the same as to the loss of consortium claim. Respondents filed a Motion to Reconsider dismissal of Counts II, III, IV, and V. The motion was granted, and the remaining claims were dismissed. This appeal follows.
II. DISCUSSION
In their first point, Appellants allege error in the dismissal of Counts II, III, and IV in that the petition alleged facts sufficient to show more than mere failure to provide a safe work environment. We disagree.
Whether subject matter of an action falls within the exclusive jurisdiction of the Labor and Industrial Relations Commission is a question of fact, resolution of which is left to the sound discretion of the trial court. Burns v. Employer Health Services, Inc., 976 S.W.2d 639, 641 (Mo.App. W.D.1998). In reviewing the grant of a motion to dismiss a petition, the facts alleged are construed favorably to the plaintiff, and then it is determined whether the petition invokes principles of substantive law upon which relief can be granted. Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 926 (Mo.App. W.D.1995). Moreover, an injured employee must charge his fellow worker with "something more" beyond the breach of general supervision and safety. Workman v. Vader, 854 S.W.2d 560, 562 (Mo.App. S.D.1993), State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App. E.D.1982) (en banc). The default position is that co-employees enjoy the same protection as the employer, absent a showing of "something more." A review of the facts constituting "something more" is determined on a case-by-case basis and includes "any affirmative act, taken while the supervisor is acting outside the scope of the employer's duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee." Collier v. Moore, 21 S.W.3d 858, 861 (Mo.App. E.D. 2000). Several of the cases cited by Appellants Craft v. Scaman, 715 S.W.2d 531 (Mo.App. E.D.1986), Hedglin v. Stahl Specialty Co., 903, S.W.2d 922 (Mo.App.W.D. 1995), Logsdon v. Killinger, 69 S.W.3d 529 (Mo.App. S.D.2002), Pavia v. Childs, 951 S.W.2d 700 (Mo.App. S.D.1997), Tauchert v. Boatmen's National Bank of St. Louis, 849 S.W.2d 573 (Mo. banc 1993) have been superseded. State ex rel. Taylor v. Wallace, 73 S.W.3d 620 (Mo. banc 2002), holds that mere allegations of negligence are "not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers' Compensation Law's exclusive remedy provisions." Id. at 621-622.
In this case, Appellants alleged that Moya placed and held the ladder from which Garza fell; that Moya failed to securely *64 hold the ladder; that Moya failed to properly and carefully rig the rope to the branch being cut; that González failed to place the rope over a higher branch than that which Garza was cutting which would have created a support on which González could have held the fallen branch; that González failed to use reasonable care in the holding of the rope which was attached to the branch Garza was cutting; that González failed to properly and carefully rig the rope which was tied to the branch in such a way as to prevent said branch from falling and knocking Garza from the ladder. These allegations may constitute negligence. But, they do not meet the requirement of Taylor, of purposeful, affirmatively dangerous conduct. The trial court did not abuse its discretion in dismissing Counts II, III, and IV of the petition. Point denied.
In their second point, Appellants contend Sections 287.110 and 287.120 RSMo. (effective August 28, 2005) do not release Respondent Valley Crest from liability or exclude all other rights and remedies available to Appellants. We disagree.
Appellants' second point is one of statutory construction. Statutory construction is a question of law, not judicial discretion. No deference is due to a trial court's judgment where resolution of the controversy is a question of law. Lincoln Industrial, Inc. v. Director of Revenue, 51 S.W.3d 462 (Mo. banc 2001); Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353 (Mo. banc 1995); Control Technology and Solutions v. Malden R-1 School District, 181 S.W.3d 80 (Mo.App. E.D.2005). In statutory construction, courts must give effect to the statute as written and cannot add provisions which do not appear either explicitly or by implication. Pollock v. Wetterau Food Distribution Group, 11 S.W.3d 754 (Mo.App. E.D.1999).
As introduced, SB1 of the 2005 legislative session did not contain any change to Section 287.110. The House Committee Substitute amended Section 287.110, to read:
287.110. 1. This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law and those addressed in subsection 11 of section 287.120. (the italicized language was added)
Section 287.120 was amended to add a previously non-existent subsection 11, which read:
11. An employee shall forfeit compensation for any injury or occupational disease under the provisions of this chapter, including compensation from the second injury fund created under section 287.220, and this state shall have no jurisdiction over any workers' compensation claim of an employee, when the employee:
(1) Accepts workers' compensation benefits under the laws of another state for the injury or occupational disease;
(2) Files a claim or application for a hearing in another state requesting workers' compensation benefits for the injury or occupational disease; or
(3) Indicates an intent to receive benefits for the injury or occupational disease under another state's workers' compensation law.
The Truly Agreed to and Finally Passed version contained yet another modification to Section 287.110, and read:
287.110.1. This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law and those addressed in section *65 287.120.[1]
Note that there is no Subsection 11 in the final version. Since Section 287.120 contains the entire worker compensation law, we must determine if the Legislature intended that the 2005 amendment to Section 287.110 should except Section 287.120 from Chapter 287. We find this was not the case.
In a Special Session, the Legislature once again re-visited Section 287.110 and changed the language of 287.110.1. back to the language used in 2004, leaving us with:
287.110.1. This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law.
As such, we deny Appellants' second point.
In their final point, Appellants claim the trial court plainly erred in granting the Motion to Reconsider and dismissing Appellants petition because (a) the Missouri Rules of Civil Procedure do not contemplate a Motion to Reconsider and (b) there was no rational basis for the court to reverse its original order of March 20, 2006. We disagree.
Appellants' final point alleges the Missouri Supreme Court Rules make no provision for a "Motion to Reconsider." The sole case cited by Appellants is clearly distinguishable, as it pertains to a case where the trial court lost jurisdiction upon entry of a final order. Here, the trial court's actions were interlocutory in nature. Therefore, the trial court still maintained jurisdiction and was free to entertain motions pertaining to the issues before it. Having reviewed this point, we deny it.
III. CONCLUSION
The judgment is affirmed.
KATHIANNE KNAUP CRANE and SHERRI B. SULLIVAN, JJ., Concur.
NOTES
[1] Section 287.120 encompasses the workers compensation law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2746881/ | Filed 10/30/14 P. v. Servin CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C075889
Plaintiff and Respondent, (Super. Ct. No. CM039904)
v.
MATTHEW EVERETT SERVIN,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we shall affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
1
Defendant Matthew Everett Servin pleaded guilty to one count of second degree
robbery (Pen. Code, § 211) and admitted being armed with a firearm in the course of the
offense (id., § 12022, subd. (a)(1)). He was sentenced to state prison for four years—the
middle term of three years plus one year for the firearm enhancement. The court awarded
defendant presentence custody credit of 127 days—111 actual days served plus 16 days
for conduct credit. (Id., § 2933.1.) The court also imposed various fines and fees as set
forth in detail in the abstract of judgment.
The parties stipulated that a factual basis for the plea could be found in the
probation officer’s report. On November 1, 2013, Alisha N. and Andrea T. were sharing
a room at a Holiday Inn in Chico when defendant and two companions entered the room,
held the two women at gunpoint, stole personal property from each woman and then left.
The women immediately reported the robbery and Chico police officers responded to the
Holiday Inn. The women gave the officers physical descriptions from which the officers
were able to locate and detain defendant and his companions a short distance from the
inn. Both women identified defendant and his companions as the men who had robbed
them.
Appointed counsel filed an opening brief that sets forth the facts of the case and
asks this court to review the record to determine whether there are any arguable issues on
appeal. (Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right to
file a supplemental brief within 30 days of the date of filing of the opening brief. More
than 30 days have elapsed and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
2
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
ROBIE , Acting P. J.
MURRAY , J.
3 | 01-03-2023 | 10-31-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/8304527/ | PORTRUM, J.
One, L. R. Mullis, listed bis house for sale with Poss Bros., a firm of real estate agents, at the price of $5200. The agents called upon the plaintiff-in-error. and tried to sell him the property at the list price but be declined to buy at this price. He offered the-sum of $5000 for the property, and the agents called upon the seller who agreed to accept the reduced price provided the agents would reduce their commission to the sum of $185. The listing contract was modified accordingly; and a contract was executed by the purchaser to buy the property at the price of $5000.
*520The agents procured a guaranty of title, and the drafting of a deed, at an expense of $15.50, and attempted to deliver it to the purchaser who declined to accept it, assigning as a reason that his wife had become dissatisfied with the purchase.
The agent then sued the defaulting purchaser for the loss of the commission and expense incurred by reason of his failure to perform his contract of purchase.
The defendant demurred on the ground there was no privity of contract between him and the agents; the demurrer was overruled and the case went to trial before a jury. At the conclusion of the evidence, the defendant moved for a directed verdict and the motion was overruled, when the jury returned a verdict in favor of the plaintiff for $200.50, the commission and expenses. From the judgment on the verdict, the defendant appealed.
The material question presented in this court is the right of the agents to recover from the contracting buyer their commissions due them under their contract with the seller. Under this contract when the agents procured a purchaser who bound himself in writing to buy the property at the stipulated price, and this offer was accepted, then the agents had performed their contract with the seller, had earned their commission, and were entitled to collect from the seller, notwithstanding the purchaser breached his contract by refusing to carry out the sale. Parker v. Walker, 86 Tenn., 566, 8 S. W., 391.
The agents have not • pursued, their claim against the seller, but have asserted a right to recover from the contracting buyer for the breach of his contract with the seller. 'Now have they a cause of action against both the seller and the buyer to recover the commissions contracted by the seller? We think not. There was no privity of contract between the buyer and the agents. Without question the seller has a cause of action against the buyer for the buyer’s breach of contract (if he desires to prosecute it, and has not lost it by his own fault) and he can enforce specific performance or sue for damages. Suppose the agents recover their commission from the purchaser and the seller later seeks and obtains a specific performance. The buyer would then pay the commissions in addition to the purchase price. Here the agents have a good cause of action against the seller, because they have fully performed their contract, but the agents assert an independent cause of action against the buyer because of his breach of his contract. When the seller is liable for the commissions and solvent, what damages have the agents suffered because of the breach by the hujier? We are of the opinion there was no privity of contract between the agents and the buyer and the agents have no cause of action arising out of the breach of the buyer’s written contract. Gibson Land Auction Co. v. Britton, 182 N. C., 677; Messrs-Johnson Realty Co. v. Newman, 210 Ala., 340; *521Kinscherf v. Bittes, 173 N. Y. S., 547; Hill v. Alexander, 195 S. W. (Tex.), 957.
Counsel for the agents insist they do not seek to recover for the breach of the written contract of purchase executed by the buyer but that there arose an implied contract between themselves and the buyer for services they rendered him; we will let counsel state their proposition:
“It is our contention that when the defendant Turnure told Poss Brothers that he would not pay fifty-two hundred fifty dollars, but would pay five thousand dollars if they could get Mullís to accept it. that he made an implied contract with these real estate brokers to render services for him.”
In support of this proposition, counsel cite the following cases as in point, namely: Atkinson v. Pack, 114 N. C., 5971; Eells Bros. v. Parson, 132 Iowa, 443; Livermore v. Crane, 26 Wash., 529; Bishop v. Everal, 17 Wash., 209, 49 Pac., 237; Cavender v. Waddingham, 2 Mo. App., 551.
Before attempting to distinguish the instant case from those last cited, we will analyze this proposition. When the agents first approached the buyer they represented the seller and sought to make a sale for $5250. The prospect was not interested at this sum but offered $5000; then the realty brokers became the agents of the prospect for the purpose of inducing the seller to reduce the price. And it is insisted the law will recognize this dual capacity and raise an implied contract between the prospect and the agent. Now, it is not to the interest of the seller that his agents consent to a reduction of the price, nor is it to, the interest of the agents whose commissions are based upon the price. But contrary to their principal’s interest and their own, they impliedly made contracts to serve the opposing party. Clearly, under such circumstances, the agents attempt to serve two masters.
The theory of the case is that the agents are entitled to recover for the breach of this so-called implied contract, and not for the breach of the written contract signed by the defaulting purchaser. And that their damages should be measured by the commission contracted for with the seller. If it were possible for the agents to represent both the seller and the buyer they should be paid a fair compensation for services they rendered each, by each. In this ease they reduced the price by the sum of $250, and this measured the benefit of their services to the buyer, but the agents insist on a recovery for services rendered the seller and have recovered $20.0.50 from the buyer. Were we to adopt the theory of an implied contract-, this sum seems high for the service rendered under the implied agency.
*522Will the fact that the buyer has breached his contract with the seller, and entailed a hardship upon the brokers, warrant the court in raising an implied contract for their relief? If we do should we not recognize this principle in all future cases? It seems to us that we should be consistent and where like relationships arise decíate and enforce like remedies.
Suppose a broker has property listed for sale at one hundred thousand dollars, he finds a purchaser willing to pay seventy-five thousand dollars and the agent then, as the agent in law of the purchaser, called upon the seller and gets him to accept the offer and the trade is consummated — if the law raises an implied contract between the broker and purchaser, then the broker would be entitled to collect compensation under the expressed and also the implied contracts.
When the agent has an expressed contract with the seller for full compensation, the law will not raise an implied contract in a third person, to pay for the same service. The cases cited by the defendant-in-error do not announce a different rule. The principle in all are the same, and without attempting to review each we will content ourselves by stating' the principle announced as we understand it. Where a prospective purchaser enlists the services of a real estate broker to procure a contract of sale in order that he may purchase the land at' a specified price, with the broker’s commissions to be paid by the seller, and the broker performs the agreement by procuring the contract to sell at a designated price but the prospective buyer refused to carry out his agreement to take the land, then the broker may recover his loss, which is measured by his commission, from the buyer. The brokers in the first instance became the agents of the buyer, under an agreement to procure for him a contract for the sale of the land wanted. When the agents performed their duties by procuring the contract, their fee or compensation was earned. Had the brokers attempted to sell this land to another after procuring the contract for their principal, they would have breached their trust. The principal could not say the agents were not entitled to their compensation after the performance of their agreement just because the principal wanted to abandon the undertaking. There is nothing wrong in the seller contracting with the buyer to pay his (the seller’s) brokerage commissions; and a buyer may employ a broker to make a purchase for him with the agreement the seller will pay the commissions. The payment of the commission is only an incident to the employment. One may enter into an agreement to render services for another and look to a third person for his compensation but the party to the contract cannot lay obstacles in the way of the collection from the third party nor defeat the payment.
*523The line of eases relied upon by the defendant in error are inapplicable to the facts of this case. The theory advanced by defendant-in-error seems to be an afterthought, for the declaration makes no reference to an implied contract nor does it state facts from which it could be inferred the plaintiffs rendered the defendant any peculiar services.
The demurrer should have been sustained; there is no evidence in this record to support a cause of action against the defendant.
The motion to direct a verdict is here sustained and the suit dismissed, at the cost of the plaintiffs.
Snodgrass and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1573924/ | 408 S.W.2d 1 (1966)
STATE of Missouri, Respondent,
v.
Leo GEE, Appellant.
No. 51621.
Supreme Court of Missouri, Division No. 2.
October 10, 1966.
Motion for Rehearing or to Transfer Denied November 14, 1966.
Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondent.
No attorney for appellant.
Motion for Rehearing or to Transfer to Court En Banc Denied November 14, 1966.
DONNELLY, Judge.
Defendant, Leo Gee, entered a plea of guilty to the charges of burglary in the *2 second degree and stealing in the Circuit Court of New Madrid County, Missouri on November 24, 1964, and was sentenced to imprisonment for a term of five years for burglary and a term of five years for stealing, the sentences to run consecutively. Sections 560.070, 560.156, and 560.110 (references to statutes are to RSMo 1959 and V.A.M.S., and reference to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.).
On June 19, 1965, defendant filed in the Circuit Court of New Madrid County his motion to vacate or correct sentence under Rule 27.26. The Circuit Court of New Madrid County considered the motion on June 22, 1965, and overruled it without an evidentiary hearing. Defendant perfected an appeal to this Court.
Defendant asserts in his motion: (1) that he was held without bail for over twenty hours (in violation of Rule 21.11 and § 544.260, Rule 21.12 and § 544.040, and Rule 21.14 and § 544.170); (2) that he was deprived of the right to preliminary examination in the Magistrate Court of New Madrid County on the charge of stealing (in violation of Rule 23.02 and § 544.250); (3) that he was denied the assistance of counsel (in violation of Rule 29.01); and (4) that he was deluded and induced to enter a plea of guilty (in violation of Rule 25.04).
The record shows that the complaint filed in the Magistrate Court of New Madrid County charged defendant with burglary in the second degree with intent to steal (§ 560.070) but did not charge defendant with stealing (§ 560.156). State v. Dooly, 64 Mo. 146. The information filed in the Circuit Court of New Madrid County charged defendant with burglary in the second degree and stealing. The record also shows that defendant was arraigned in the Circuit Court of New Madrid County and, without counsel, entered a plea of guilty to the charges of burglary and stealing. Defendant was not given a preliminary hearing on the charge of stealing. In fact, he was not charged with stealing until the filing of the information in the circuit court.
Application of general rules of law would cause us to hold that the fact, even if true, that defendant was held without bail for over twenty hours, cannot now be the basis for a collateral attack upon the judgment. State v. Keeble, Mo.Sup., 399 S.W.2d 118, 122; State v. King, Mo.Sup., 380 S.W.2d 370, 377. Further, the general rule would be that when defendant entered a plea of guilty, without making objection to the fact that he had not been charged with the offense of stealing in the magistrate court and had been given no preliminary hearing on the charge of stealing, he waived those requirements. State v. Richardson, Mo.Sup., 347 S.W.2d 165, 169; Tucker v. Kaiser, Mo.Sup., 176 S.W.2d 622; State v. Keeble, supra; State v. Shaw, Mo.Sup., 357 S.W.2d 894, 896 [3].
However, before these rules of law may be applied, it must first be ascertained whether the plea of guilty, which makes such rules operable, was properly accepted and entered. Defendant in his motion asserts that he was deluded and induced to enter a plea of guilty.
Rule 25.04 reads in part as follows: "The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge."
In State v. Williams, Mo.Sup., 361 S.W. 2d 772, at 775, this Court stated: "We have said: `The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea. The *3 law favors a trial on its merits.' State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; see also State v. Hare, 331 Mo. 707, 56 S.W.2d 141; State v. Harris, 336 Mo. 737, 81 S.W.2d 319; State v. Hovis, 353 Mo. 602, 183 S.W.2d 147; State v. Blatherwick, 238 Mo. App. 1005, 191 S.W.2d 1021. A leading Missouri case is State v. Stephens, 71 Mo. 535, 536, in which it is said: `Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like.' Thereafter in State v. Dale, 282 Mo. 663, 669, 222 S.W. 763, 764, this Court said: `It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled, or under a misapprehension, at the time he entered his plea of guilty?'"
Intertwined with the question of the validity of the plea of guilty is the question whether defendant should have been given counsel on arraignment.
In Hamilton v. State of Alabama, 368 U.S. 52, at 55, 82 S.Ct. 157, at 159, 7 L.Ed.2d 114 the United States Supreme Court stated: "Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently." In Von Moltke v. Gillies, 332 U.S. 708 at 723 and 724, 68 S.Ct. 316, at 323, 92 L.Ed. 309, the United States Supreme Court stated: "We have said: `The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accusedwhose life or liberty is at stakeis without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered."
Rule 29.01(a) reads as follows: "In every criminal prosecution in any court of this State, the accused shall have the right to appear and defend the same in person and by counsel. If any person charged with the commission of a felony appears upon arraignment without counsel, it shall be the duty of the court to advise him of his right to counsel, and of the willingness of the court to appoint counsel to represent him if he is unable to employ counsel. If the defendant so requests, and if it appears from a showing of indigency that he is unable to employ counsel, it shall be the duty of the court to appoint counsel to represent him. If, after being informed as to his rights, the defendant indicates his desire to proceed without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel unless it appears to the court that, because of the gravity of the offense charged and other circumstances affecting the defendant, the failure to appoint counsel may result in injustice to the defendant. Counsel so appointed shall be allowed a reasonable time in which to prepare the defense."
The proceedings at the time of arraignment, plea and sentence are not a part of the transcript in this Court and we assume they were not transcribed and made a part *4 of the files and record of the case. See Rule 29.01(b).
In State v. Moreland, Mo.Sup., 351 S.W.2d 33, at 35, this Court stated: "Motions filed pursuant to Supreme Court Rule 27.26 may be summarily disposed of by the circuit court when `the motion and the files and records of the case' show that the petitioner is entitled to no relief, or when the only issue presented is one of law. State v. Jarrett, Mo.Sup., 317 S.W.2d 368; State v. Kitchin, Mo.Sup., 300 S.W.2d 420. However, the converse is also true, and when the files and records of the case do not conclusively refute the grounds for relief set forth in the motion, and the allegations of fact in the motion, if true, would authorize some requested relief provided for by the Rule, `the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' Supreme Court Rule 27.26."
The trial court denied defendant's motion without an evidentiary hearing. The motion, files and records of the case, as they appear in the transcript filed in this Court, do not conclusively show defendant is entitled to no relief. The accuracy or inaccuracy of defendant's contentions are of material import in determining (1) whether defendant's plea of guilty was "made voluntarily with understanding of the nature of the charge," and (2) whether defendant "intelligently waived his right to have counsel" or failed to show indigency. Therefore, we hold that the order denying, without a hearing on its merits, the motion to vacate or correct sentence should be and is set aside and that the motion be heard on its merits. State v. Herron, Mo.Sup., 376 S.W.2d 192.
This cause is reversed and remanded for further proceedings consistent with the views herein expressed.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573937/ | 408 S.W.2d 98 (1966)
Woodrow TINNON, Plaintiff-Appellant,
v.
Sam TANKSLEY, Defendant-Appellant.
Dale Alcorn and Delmar Alcorn, d/b/a Alcorn Bros. Real Estate, Defendants-Respondents.
No. 51553.
Supreme Court of Missouri, Division No. 1.
November 14, 1966.
*100 Roderic R. Ashby, Charleston, for plaintiff-appellant.
Dwight Crader, Sikeston, for defendant-appellant.
HOUSER, Commissioner.
The named purchaser in a written contract for the sale of 80 acres of land, Woodrow Tinnon, filed a suit in two counts against the sellers named in the contract, Sam Tanksley, and Dale and Delmar Alcorn, d/b/a Alcorn Bros. Real Estate. Court I sought specific performance of the contract. Count II sought to recover down payments of $4,000 and damages for breach of contract in the sum of $2,000. Defendants filed a general denial and a counterclaim for recovery of possession of the land, for $5,000 for unlawfully withholding possession of the land (Tinnon was a tenant on the land at the time he signed the contract to buy it) and for $2,400 for rents and profits. The court found that the contract was rescinded and denied specific performance; that plaintiff was entitled to the return of his $4,000 and that defendants were entitled to rents and profits in the sum of $1,600, and rendered judgment accordingly. Plaintiff Woodrow Tinnon and defendant Sam Tanksley both appealed.
Title to real estate is involved within the meaning of Art. V, § 3, Constitution of Missouri, V.A.M.S.; Price v. Ridler, Mo.Sup., 373 S.W.2d 59[1].
We review the entire record and reach our own conclusions as to the facts, determining the weight and value to be *101 given the evidence, deferring to the findings of the trial court, however, when proper. Anderson v. Abernathy, Mo.Sup., 339 S.W.2d 817 [1].
Leland O'Reilly owned a 200-acre farm in Mississippi County. The farm was rented to Woodrow Tinnon. On August 19, 1963 O'Reilly and Sam Tanksley entered into a real estate contract for the sale of the 2C0 acres. January 10, 1964 was fixed as the closing date. On September 16, 1963 Tanksley made a written contract with Woodrow Tinnon for the sale of 80 acres out of the 200-acre tract for $34,000, $2,000 down and $2,000 upon the purchaser receiving a commitment to make a loan, "the balance in cash upon the closing of this transaction, which shall be on or before January 10, 1964." The contract was to be considered null and void and the money deposited returned to the buyer in the event the buyer should be unable to obtain the loan within 60 days after the date of the contract. Time was agreed to be of the essence. If seller kept his part of the bargain by furnishing good and sufficient title and the buyer failed to comply with the terms of the agreement within 10 days thereafter the money deposited was to be forfeited as liquidated damages, and the contract was to be thereafter inoperative, at the option of seller. (Although the real estate agents Alcorn who negotiated the deal were designated in the contract as cosellers with Tanksley, their only interest was in the commission.)
Tinnon paid $2,000 when the contract was executed. He received a loan commitment from an insurance company on November 7, 1963. On November 12, 1963 Tinnon made a second $2,000 payment. O'Reilly gave Tinnon written notice to vacate the 80 acres, effective December 31, 1963, but Tinnon did not vacate and was still in possession at time of trial in December, 1964. Tinnon did not on or before January 10, 1964 offer to pay the balance of the purchase price. He was unable to close the deal on time because he could not obtain the signature of his wife on the loan papers. She had filed suit for divorce on February 23, 1963 and was unwilling to sign the papers. Tanksley did not at any time declare the contract void and the $4,000 forfeited when on January 10, 1964 Tinnon failed to pay the balance due on the contract. There was no communication between the parties themselves. On January 20, 1964 the attorneys employed by the insurance company to examine the title wrote to Tinnon, informing him that they had received a check from the insurance company and that "this can be closed at your convenience"; that they were authorized to hold the check "only for a time specified." Tinnon did not answer the letter or communicate with the attorneys or the sellers. Tinnon did not at any time communicate to the sellers that he was ready to close; did not tender the money and demand a deed, and did not instruct his attorney to close the deal at any time for the reason that his attorney assured him that he had talked to Tanksley and Alcorn and he thought "everything was okay," i. e., that the sellers would not do anything "to hurt Woodrow" and would "hold the 80 until Woodrow got his divorce over with." From November, 1963 until March 21, 1964 the attorneys for Tinnon and his wife were negotiating with respect to a settlement of the property rights of the parties. The sellers did not insist upon a specific date beyond which they would no longer wait. Instead, by acts and conduct, they countenanced the delay for a period of several weeks after January 10, 1964.
On January 1, 1964 a principal and interest payment became due by O'Reilly to an insurance company. O'Reilly intended to pay this debt out of the proceeds of the sale of the 200 acres to Tanksley. He made several inquiries of the Alcorns, asking when the deal between O'Reilly and Tanksley was to be closed, stating that he needed his money. Dale Alcorn and Tanksley were "fussing," "wanting Woodrow to hurry up and get this divorce over with so they could close the deal" between Tanksley and Tinnon. *102 They said that O'Reilly was pushing them and that they "needed to get the thing out of the way." Tinnon's attorney could not give them a definite date on which Tinnon would close the contract. It depended upon the granting of the divorce, which was indefinite as to time because the parties were still negotiating with respect to the property. Tinnon's attorney did not request of the sellers that they give a commitment postponing the closing to a specific date and no such commitment was ever made. "Off and on" during January, February and March, 1964 Tinnon's attorney would talk to Tanksley about the status of the divorce suit. Tanksley would ask "when are you going to get that divorce? We need to get this thing over with," and Tinnon's attorney would reply that they were trying to get a property settlement worked out "so that Woodrow could go ahead."
The time came when the checks sent by the insurance company for the Tinnon loan had to be returned to the company. Tanksley had paid down $5,000 earnest money on his contract with O'Reilly. Finally, under obligation to fulfill that contract and to protect his earnest money from forfeit, Tanksley on March 5, 1964 consummated his contract with O'Reilly, took a deed to the property, and on the same day made a deed of trust to Prudential Insurance Company covering the 80 acres and other lands as security for a loan the proceeds of which he applied on his debt to O'Reilly. Tanksley's attorney had previously told Tinnon's attorney that Tanksley was going to close the purchase of the 200 acres in his name and close the loan. "The general idea" was for Tanksley to close that deal in his name, "and the 80 would be held for Woodrow" until Woodrow "got his divorce over with." On March 12, 1964 Tanksley entered into a contract for the sale of the 80-acre tract to Dearmont Oliver and wife, without notice to Tinnon or his attorney and without giving Tinnon any opportunity to pay the balance due under his contract with Tanksley. The Tinnons settled their controversy over property rights on March 21, 1964 and were divorced on March 25, 1964. Tinnon, having learned of the sale of the 80 acres to the Olivers, filed this suit on May 6, 1964. Notice of lis pendens was filed on November 14, 1964. On November 17, 1964 Tanksley deeded the 80 acres to Dearmont Oliver and wife. The Olivers were not joined as parties in this action.
On his appeal Tinnon makes the point that the court erred in not granting specific performance, but if specific performance cannot be granted claims that he is entitled to a refund of the $4,000 he paid on the purchase price, plus interest.
There was no error in denying specific performance. Tinnon pleaded that defendants entered into a contract to convey the land to another and proved that after suit was filed but before trial defendants executed a warranty deed conveying the title to Dearmont Oliver and wife. This placed it out of the power of defendants to perform their contract with Tinnon. The Olivers were not made parties to this action. Specific performance could not be granted. McKown v. Driver, 54 Wash.2d 46, 337 P.2d 1068[1]. "The specific performance of a contract for the purchase of real estate may be decreed only where it is possible for the defendant to convey the land. If he has no title, or has parted with the title after the execution of the contract, the court will not grant a vain judgment." Saperstein v. Mechanics' & Farmers' Savings Bank, 228 N.Y. 257, 126 N.E. 708. This same problem was before this Court one hundred years ago in Brueggeman v. Jurgensen, 24 Mo. 87. What was said then is applicable here and now: "If we regard the suit as one to enforce the specific performance of a contract to convey lands, the petition is so framed that such relief can not be granted. It appears from the record that the title to the lot which the plaintiffs would have conveyed to them, is not in the defendant. He has passed it away for a valuable consideration, and his vendee is not made a party to the suit. Whether that *103 vendee is a bona fide purchaser, it is not necessary to inquire, as he is not before this court. It would be a vain thing, and the plaintiffs would not be at all advanced, to make a decree vesting the title of the defendant in them, when it appeared that all the title the defendant ever had has been conveyed to another." 24 Mo. 1. c. 88, 89.
The fact that a lis pendens was filed on November 14, 1964 does not change the situation. The notice of suit under § 527.260 is constructive notice to purchasers "only from the time of filing the notice. It would not be constructive notice to a purchaser who acquired his right before the notice was filed." Abington v. O'Dell, Mo. Sup., 197 S.W. 339, 340. In Abington the party in question bought the land in 1905, paid $20 down and gave notes for $15 each, payable monthly, receiving a title bond at the time of purchase. The suit in question was filed in 1906, proceeded to judgment in 1908 and the purchaser received his deed in 1909. The notice of lis pendens was filed after he contracted for the land and before he finished his payments. The court held that the lis pendens did not affect him because "[h]e had a contract which gave him a right to the property". Abington v. O'Dell is cited among others from various jurisdictions in 93 A.L.R. 404 in support of the statement that the purchaser is in no wise affected with notice of a suit where there is an executory contract for the purchase of land entered into prior to the bringing of a suit involving the title, without making the purchaser a party thereto. The Dearmont Olivers are not purchasers pendente lite as was the purchaser in Adrian v. Republic Finance Corporation, Mo. Sup., 286 S.W. 95 [8]. As the owners of a prior executory contract for the purchase of the land they were not affected by the lis pendens filed eight months after the date their contract was executed. The fact that they received their deed after the suit was filed makes no difference under these facts. 34 Am.Jur. Lis Pendens § 12, p. 371; 54 C.J.S. Lis Pendens § 44a. Although there are some decisions to the contrary "It is well settled that the filing of a lis pendens is constructive notice only as against persons acquiring title or an interest in the property in litigation after the suit has commenced. A person whose interest existed at the commencement of the suit will not be bound by the proceedings unless he be made a party to the suit." Four-G Corporation v. Ruta, 56 N.J.Super. 52, 151 A.2d 546, 551.
The right of Tinnon to recover the $4,000 must be considered in connection with Tanksley's first contention on his appeal: that he (Tanksley) is entitled to judgment on Count II of the petition because the earnest money was forfeited by Tinnon's failure to pay the balance of the purchase price on or before January 10, 1964.
The Tanksley-Tinnon contract contained this provision:
"It is understood and agreed that time is the essence of this agreement and if the seller has kept seller's part of this agreement by furnishing good and sufficient title as herein provided, and the buyer fails to comply with the requirements of this agreement within ten (10) days thereafter, then the money deposited as aforesaid shall be forfeited by the buyer, as liquidated damages, and this agreement may or may not be thereafter operative, at the option of the seller."
Because of his wife's refusal to sign the loan papers Tinnon was unable to obtain the money on the loan commitment, with which to pay the balance due and close the Tanksley-Tinnon contract on January 10, 1964.
Ordinarily, as the authorities cited by Tanksley clearly indicate, a purchaser who without legal cause defaults in the making of payments under a contract of purchase, where time is of the essence, is not entitled to recover installments made on the purchase price. The general rule is without application, however, where the time requirements have been waived. "The vendor may waive the effect of the purchaser's *104 default and may estop himself to assert a forfeiture of the purchase money. * * * If the vendor waives the provision of the contract making time of the essence, he cannot forfeit the money paid, at least until he gives the purchaser reasonable notice of his intent to forfeit such payments." 92 C.J.S. Vendor & Purchaser § 554e.
With full knowledge of Tinnon's default in failing to pay the balance of the purchase price on or before January 10, 1964, the sellers treated the contract as still in force long after the latter date. They acquiesced in the delay. From time to time during January, February and March, 1964 they gave Tinnon's attorney express and implied assurances that they would protect Tinnon's interest and postpone the closing until the divorce was granted. There was a waiver by the sellers of Tinnon's default in not paying the balance of the purchase price by January 10, 1964.
No notice of sellers' intention to declare a forfeitureno notice to Tinnon to perform the contract on or before a certain day in the futurewas given. In the absence of any such notice the sellers cannot enforce a right of forfeiture. McGrew v. Smith, 136 Mo.App. 343, 116 S.W. 1117, 1118; Chan v. Title Ins. & Trust Co., 39 Cal.2d 253, 246 P.2d 632 [4]; Howard v. Jackson, 213 Or. 447, 324 P.2d 757 [13, 14].
No forfeiture having occurred; the purchaser's default in failing to pay the balance by January 10, 1964 having been waived; the provision that time was of the essence having been waived and the sellers having repudiated the contract by selling the property to another, the purchaser was entitled to the return of the money he deposited on the purchase price.
Next Tanksley claims that he is entitled to judgment on his counterclaim for (1) recovery of the possession of the 80 acres; (2) damages for unlawfully withholding possession, and (3) rents and profits for the years 1964-1966, both inclusive.
Possession: At the time the contract was made between O'Reilly and Tanksley (on August 9, 1963) the possession was rightfully in Tinnon as tenant of O'Reilly. O'Reilly gave Tinnon notice to quit, effective December 31, 1963. Tinnon did not vacate pursuant to the notice but held possession through 1964 and was still in possession as late as May 26, 1965. Ordinarily the purchaser is not entitled to possession until he has obtained his deed, 92 C.J.S. Vendor & Purchaser § 284, p. 154, but the contract of sale may confer a right of possession prior to that time. The O'Reilly-Tanksley contract provided that "Possession of the various fields shall be delivered to the Purchaser upon harvesting of the fall crops." When the fall crops were harvested was not shown, but assuming that they were harvested by December 31, 1963, the day on which Tinnon was obliged by the notice to vacate, Tanksley had the right to possession of the fields beginning January 1, 1964. The Tanksley-Oliver contract provided that "Possession of said premises [the 80 acres] shall be delivered to Buyer upon the execution of this agreement * * *." The agreement was executed on March 12, 1964. Tanksley was entitled to possession from January 1, 1964 to March 12, 1964, when his right to possession was contracted away. Accordingly, Tanksley had no right to possession at the time of trial and has none now.
Damages: Tanksley's claim for damages is based upon unlawful withholding of the possession of the land. He claims that Tinnon's illegal possession has prevented him from delivering possession to his grantees, the Olivers, and has subjected him to a claim for damages for failure to deliver possession. The Olivers as purchasers conceivably may maintain a claim for damages against Tanksley for delay in delivering possession, from the date they were entitled to possession (March 12, 1964). Benton v. Alcazar Hotel Co., 354 Mo. 1222, 194 S.W.2d 20 [5]. There is no evidence, however, that they have done so or that Tanksley has sustained any actual damage *105 in this connection, and therefore an award of damages on this possibility at this time would be speculative and premature. The present decision is not to be construed as a bar to any future action between Tanksley and Tinnon if and when Tanksley shall have sustained actual damage by reason of claims made by the Olivers, based upon the unlawful withholding of possession from them.
Rents and profits: Rent is an incident to the reversion and passes with it unless the lessor severs the rent from the reversion by expressly reserving it. Equitable Life Ins. Co. v. Bowman, 225 Mo.App. 855, 32 S.W.2d 126; White v. Irvine, 324 Mo. 342, 22 S.W.2d 778; 92 C.J.S. Vendor & Purchaser § 288 a. The O'Reilly-Tanksley contract provided that the rental should go to the sellers "prorated to date of delivery of the deed and to the buyer thereafter." The Deed from the O'Reillys to Tanksley was dated March 5, 1964 and recorded March 10, 1964. There is no evidence of date of delivery but assuming delivery on the day it was executed Tanksley's right to rent commenced on March 5, 1964. The Tanksley-Oliver contract, dated seven days later, March 12, 1964, contains no reservation of rent and no express agreement as to rent, in which case ordinarily the grantees' right to rent would commence as of the date of the conveyance to them (November 17, 1964). This contract, however, provided that possession be delivered to the grantees Oliver upon the execution of the agreement, and that the Olivers should pay interest on the note and deed of trust on the premises held by the Prudential Insurance Company from the date of the agreement (March 12, 1964). Under these facts Tanksley was not entitled to the rent after March 12, 1964, on the principle that one party should not have both the property and the purchase money or the proceeds thereof without accountability for either. Tanksley, having the right to the use of the property from March 12 to November 17, 1964, and being relieved of the payment of interest from March 12, is not entitled to the rents and profits during the interim. 92 C.J.S. Vendor & Purchaser § 288 d. Tanksley's right to rents and profits, therefore, commenced March 5, 1964 and ended March 12, 1964. The evidence showed that the reasonable value of rents and profits was $25 to $30 per month. Although it approaches a de minimus situation, Tanksley's right to rent is restricted to a recovery of $7.50.
Tinnon is not entitled to interest on the $4,000. Although Tanksley was in the wrong Tinnon was also at fault in not living up to his agreement to close the transaction on time. In this equitable action, in which the allowance or disallowance of interest is discretionary, we will not allow interest under these circumstances.
Accordingly, the judgment of the circuit court on Count I, denying specific performance, is affirmed. The judgment on Count II, for plaintiff and against defendant Tanksley, for $4,000 is affirmed. The judgment on the counterclaim for defendant Tanksley and against plaintiff is affirmed on the merits, but the amount of the award thereon is reduced from $1,600 to $7.50. The cause is remanded with instructions to set aside the original judgment of April 18, 1965 and enter a new judgment as of that date in conformance with the views expressed in this opinion.
WELBORN and HIGGINS, CC., concur.
PER CURIAM:
The foregoing opinion by HOUSER, 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/1573967/ | 408 S.W.2d 113 (1966)
Herman R. VALLEJO, Jr.
v.
The STATE of Texas, Appellee.
No. 39794.
Court of Criminal Appeals of Texas.
November 9, 1966.
Robert O. Smith, Paul T. Holt, Austin, for appellant.
Doren R. Eskew, City Atty., Don R. Butler, Asst. City Atty., Austin, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
DICE, Commissioner.
The offense is speeding; the punishment, a fine of $101.
Appellant's conviction resulted from a trial de novo on March 17, 1966, in The County Court at Law No. 1 of Travis County, after an appeal from a conviction upon complaint in the Corporation Court of the City of Austin.
Only one ground of error is presented by appellant on appealwhich is the contention that the complaint upon which he stands *114 convicted is void because it does not meet the requirements of Art. 1, Sec. 10 of the Constitution of this State, Vernon's Ann.St., and of the Fifth Amendment to the Constitution of the United States.
The complaint signed and sworn to by the affiant, which was filed in the Corporation Court, reads in part, as follows:
"IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
"I, THE UNDERSIGNED AFFIANT, DO SOLEMNLY SWEAR THAT I HAVE GOOD REASON TO BELIEVE AND DO BELIEVE THAT ONE HERMAN R VALLEJO JR
ON OR ABOUT THE 31 DAY OF MAR, 1965, AND BEFORE THE MAKING AND FILING OF THIS COMPLAINT, WITHIN THE INCORPORATED LIMITS OF THE CITY OF AUSTIN, IN TRAVIS COUNTY, TEXAS,
did drive and operate a motor vehicle upon a public street therein situated at a speed which was greater than was then reasonable and prudent under the circumstances then existing, to-wit, at a speed of 45 miles per hour, at which time and place the lawful maximum prima facie reasonable and prudent speed indicated by an official sign then and there posted was 30 miles per hour;
AGAINST THE PEACE AND DIGNITY OF THE STATE."
It is first contended by appellant that the complaint does not meet the basic essential requirements of an "accusation," as contemplated by Art. 1, Sec. 10, of our State Constitution because it does not accuse him of committing an offense.
In this connection, appellant argues that in the complaint the affiant merely says that he believes and has good reason to believe that appellant drove his motor vehicle too fast and makes no direct or positive averment that an offense was committed.
While the term "charge" is not used in the complaint, the statement of the affiant that he believed and had good reason to believe that appellant did drive his motor vehicle upon a public highway at a speed greater than was reasonable and prudent under the circumstancesto wit: 45 miles per hour at a place where the lawful maximum prima facie reasonable and prudent speed posted was 30 miles per hourwas tantamount to a charge and accusation that an offense was committed.
Appellant, from reading the complaint, could ascertain with reasonable certainty with what he was being charged so as to properly prepare a defense. It is the rule that a complaint must state facts sufficient to show the commission of an offense charged but the same particularity is not required as is necessary in an indictment or information. See: 16 Tex.Jur.2d 297-298, Sec. 146.
In Art. 45.27 of the 1965 Code it is provided that a defendant shall not be discharged by reason of an informality in a complaint filed against him in a justice court. The same rule would certainly apply to a complaint filed in corporation court.
Walton v. State, 162 Tex. Crim. 262, 284 S.W.2d 373, and Ex parte Greenwood, 165 Tex. Crim. 349, 307 S.W.2d 586, cited by appellant, are not controlling, because in the Walton case the question was whether certain paragraphs in an information had been presented by the prosecuting attorney as required by law, and in Ex parte, Greenwood, the question was whether a sworn complaint, alone, without an information would support a conviction in corporation court.
Art. 5, Sec. 12, of the Constitution of this State provides in part: "All prosecutions shall be carried on in the name and by authority of the State of Texas," and shall *115 conclude: "`Against the peace and dignity of the State.'"
Art. 45.01 of the 1965 Code of Criminal Procedure provides that the proceedings in the corporation court shall be commenced by complaint which shall begin: "`In the name and by authority of the State of Texas'", and shall conclude: "`Against the peace and dignity of the State'".
The complaint in question complies with these requirements.
It is next insisted that the complaint does not meet the requirements of "due process" under the Fifth Amendment to the Constitution of the United States and also does not meet the requirements of the Fourth Amendment, which preserves to the people the right to be secure in their persons and homes against unreasonable searches and seizures and provides that "no Warrants shall issue, but upon probable cause." Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; and Barnes v. State of Texas, Tex.Cr.R., 390 S.W.2d 266; Id., 380 U.S. 253, 85 S. Ct. 942, 13 L. Ed. 2d 818, are cited in support of this contention.
These cases relate to the necessity of stating facts constituting probable cause in a complaint or affidavit for the issuance of a warrant of arrest used as a basis for a search, or a search warrant, and have no application to a complaint made in corporation court as the basis of a criminal prosecution.
No warrant of arrest was issued upon the instant complaint, and the sole question is whether it is sufficient to charge an offense. The answer is "Yes."
Appellant's remaining contention that the affiant to the complaint was not a credible person is not properly presented to this court.
The judgment is affirmed.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575399/ | 458 S.W.2d 561 (1970)
James S. ROONEY, Respondent,
v.
LLOYD METAL PRODUCTS COMPANY, a Corporation, and Richard Chestnut, Appellants.
No. 54468.
Supreme Court of Missouri, Division No. 1.
October 21, 1970.
*562 Lyman Field, Clay C. Rogers, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondent.
Lowell L. Knipmeyer, John A. Borron Jr., and Knipmeyer, McCann & Millett, Kansas City, for appellants.
MICHAEL F. GODFREY, Special Judge.
Plaintiff in his personal injury and property damage action obtained verdict and judgment against defendants in the sum of $50,000 for personal injuries and $6,873.71, voluntarily remitted by plaintiff to $4,800, for property damage, totaling $54,800. After posttrial motions were denied defendants have appealed assigning as error certain specifications which hereinafter will be considered. The parties here will *563 be designated as they were in the trial court. Since defendants strenuously contend that plaintiff was guilty of contributory negligence as a matter of law this contention, in addition to the jury verdict, requires a detailed recital of the facts involved. We must consider the evidence in the light most favorable to plaintiff, giving him the benefit of all reasonable inferences. Herr v. Ruprecht, Mo., 331 S.W.2d 642, 645[1], 649[10]; Slaughter v. Myers, Mo., 335 S.W.2d 50, 51[1]; Brubaker v. Moore, Mo., 432 S.W.2d 216, 217[1]; Thompson v. Byers Transportation Company, 362 Mo. 42, 239 S.W.2d 498, 499-500[1-4], [5]. As thus considered, it appears that this automobile-truck collision occurred on interstate highway I-35 and I-29, a designated federal interstate highway system in Kansas City, Clay County, Missouri. This highway at point relevant here, runs in a northward-southward direction, is a three-lane highway going north and three-lane highway going south separated by a medial strip.
The northbound three lanes of this concrete highway measure 36 feet wide, and each lane is 12 feet wide and divided into clearly marked lanes for traffic. For practical purposes this highway going north is slightly upgrade and straight with the incline from bottom to crest of hill measuring about a mile and a half. Further north beyond the crest of this hill about two-tenths of a mile the highway divides, the east or outside lane turns right or northeast towards Liberty and Des Moines and the inside lane turns northwest towards St. Joseph and Maryville and a motorist traveling north may go either way from the center lane of traffic. The speed limit on this section of the highway is 70 miles an hour maximum and 40 miles an hour minimum for motor vehicles and 60 miles an hour maximum and 40 miles an hour minimum for trucks with posted speed limits being 70 miles per hour maximum and 40 miles per hour minimum.
The collision occurred on October 27, 1966, at about 9:00 p. m. on I-29 and I-35 in the center northbound lane between Armour Road and Russell Road about half-way up the hill. The night was dark, the weather clear and pavement dry.
Plaintiff drove his 1965 Chrysler Imperial north out of Kansas City on I-35. His automobile was in good condition, the headlights on low beam were working and illuminated 150 to 225 feet ahead of his car. As he started up the hill he was driving in the right-hand outside or slow-traffic lane at a speed of 50 to 55 miles per hour. There were some cars ahead of him in that lane and as he gained on them he could see the taillights on some of these cars and the rear lights of a car near Russell Road a quarter to a half mile away. He increased his speed to 55 to 60 miles per hour and pulled into the middle lane and passed one of the cars. As he was passing the second car he saw the headlights of the car he had passed in his rear-view mirror. He has just passed the second car and was not far ahead of it when for the first time he saw a "large dark object" in front of him in his lane about 200 feet away. Realizing he was gaining on it "and in just that fraction of a second (snapping fingers) I, of course, put on my brakes for all I was worth." He attempted to turn left, the right-hand lane being occupied by traffic, but slid sideways into the rear of the unlighted trailer at an angle. The trailer was moving much slower than he, estimated at 10-15 miles per hour with no lights burning that were visible from the rear. He was traveling between 35 to 40 miles per hour at impact. The impact was violent and both vehicles proceeded down the highway some distance, about 167 feet, before stopping. After the collision the truck driver, defendant Chestnut, said he was barely creeping trying to get up the hill as he had a 33,000 pound load. In response to a question as to what he was doing out there without lights, he stated he didn't know. Plaintiff sustained substantial injuries which hereinafter will be considered and his automobile was demolished and sold for salvage.
*564 Defendant Chestnut, admitted agent and employee of defendant Lloyd Metal Products Company at the time and place involved, testified that he was driving a 1955 International tractor 190 attached to a bright red Lufkin flatbed trailer carrying a 28,000 pound load of coiled steel wire, with overall weight of load and vehicle of about 50,000 pounds. As he started up the hill he was in the middle lane and the accident occurred halfway up the hill. Cars were passing him on both his right and left and he was the slowest moving vehicle on the road going up the hill. Traffic was moderate and he intended to turn left at the bifurcation located two-tenths of a mile beyond the crest of the hill to go to Maryville. He could have changed lanes without creating a hazard. It was not necessary for him to be in the middle lane in order to turn. He was unaware that a car had struck his truck until he brought it to a stop. The impact felt like a "push" or a "surge of power" and he had no idea what caused it. The bar in the middle of the bumper of the trailer was knocked off by the impact.
Jeanne A. Sexton testified that she was a passenger in the front seat of a car, driven by her daughter Terry up the hill at 40 to 45 miles per hour in the outside lane. The plaintiff's automobile, with its headlights burning, passed them in the middle lane going about 50 to 55 miles per hour, slightly faster than they were traveling. After the plaintiff passed them, the driver of her car started to pull out into the middle lane to pass the car ahead of them and got about halfway into it when the collision occurred. They had started to pass a car ahead of them and pulled back before plaintiff passed them and the witness did not see lights on the rear of the trailer later struck by plaintiff's automobile. She didn't see a thing in the middle lane and after the collision she did not see any lights on the rear of the trailer. After the collision she asked the defendant truck driver why he was driving that truck up the middle lane with no lights and he responded that he didn't know he didn't have lights. When asked by the witness as to why he was stopped he said he was not stopped but was moving around 5 miles per hour. There were small yellow lights on the side of the truck which were not visible from the rear of the truck. This witness thought that if plaintiff had not struck defendant's trailer the automobile in which she was riding would have collided with it. The automobile she was in stopped just a few feet from plaintiff's automobile. She never did see the truck-trailer prior to the collision.
Theresa Sexton, the driver of the automobile, testified that as she proceeded up the hill going about 45 miles per hour plaintiff passed her going about 50 to 55 miles per hour, and shortly thereafter she started to pass the automobile ahead of her and pulled into the center lane when she saw "sparks and everything" and she realized there was a collision ahead of her. This witness was intending to pass the automobile ahead of her when she saw plaintiff begin to pass her. Neither before plaintiff passed her, nor afterwards and prior to the collision did this witness see any taillights in the center lane ahead of plaintiff's automobile. Nor did she see any vehicles on the highway ahead of plaintiff's automobile. After the collision she testified there were no lights burning on the rear of the trailer. She was able to bring her automobile to a stop before striking rear of plaintiff's automobile. She also testified that in response to a question put by her mother Jeanne Sexton to the defendant Chestnut as to why he didn't have any lights on, the response was that the latter thought they were on. Asked why he was stopped the defendant replied that he was just barely creeping trying to get over that hill. She testified plaintiff's automobile had its front lights burning. This witness stated her car made skid marks in attempting to stop. She also testified that there were no other cars in either the middle or right lane between her automobile and plaintiff's automobile at the time of impact. She saw the brake lights on plaintiff's automobile come on and knew *565 something was wrong. There were at least two or three vehicles going up the hill in the right-hand lane at about this same time and place.
Police Officer Charles Keller arrived at the scene shortly after the collision and measured 89 feet of overall skid marks left by the plaintiff's automobile.
Police Sergeant Robert McKinney testified on behalf of defendants that the 89 feet of overall skid marks left by plaintiff's automobile would mean 79 feet of actual skid. This witness testified to road tests performed by him to determine the coefficient of friction, a factor needed to determine speed from skid marks. He stated that the overall stopping distance, including 3/4 of a second reaction time and braking distance of a vehicle traveling at speed of 55, was approximately 195.5 feet, and at 60 miles per hour it approximated 226 feet. At the speed of 55 miles per hour, after the brakes were applied, it would take 3.3 seconds to stop a vehicle, and at 60 miles per hour it would take 3.7 seconds to stop such vehicle. He estimated that at 12½ miles per hour, the mean figure of defendants' estimated speed, that vehicle would travel 18.4 feet per second and in 3.3 seconds would travel 60.7 feet, and at 3.7 seconds would travel 68 feet. Thus he concluded that an overtaking vehicle traveling at 55 miles per hour and braking would have 256.2 feet in which it could be stopped while closing in on an overtaken vehicle traveling at 12½ miles per hour, and at 60 miles per hour it would have 294 feet in which it could be stopped. Under cross-examination this witness acknowledged that the official manual of the state (Missouri Driver's Guide) showed simple reaction time to range from 3/4 of a second to as much as 1½ seconds and he stated that tests he had conducted on a group ranging in age from 20 years to 59 years varied from .4 to .9 of a second in reaction time. The officer acknowledged that these matters of calculations, as set forth in the official manual, were "within the range of the things posited by the State," and that based on a reaction time of 1 second at a speed of 60 miles per hour the distance traveled during that time would be 88.2 feet, at speed of 55 miles per hour with 1½ seconds reaction time the distance traveled would be 121.2 feet, and at 60 miles per hour the distance traveled at 1½ seconds reaction time would approximate 132.3 feet, or exactly double the distance a vehicle would travel during such time as estimated by witness on direct examination. Such difference in figures, in addition to the fact that defendants' truck, as testified to by a witness, was only traveling 5 miles per hour, would be significant in this case in the opinion of the witness. This witness concluded that the impact was a terrific one.
With the facts of the case being in this posture the defendants, though not seriously contending against submissibility of their negligence, urge that the plaintiff was guilty of contributory negligence as a matter of law in that he failed to keep a proper lookout, drove at an excessive speed, and did not have that control over his automobile as would enable him to stop in the length of his vision as projected by his headlights or within the "assured clear distance ahead" rule. A review of the facts in this case, and the authorities hereinafter cited, demonstrates that this contention cannot be sustained. While it is true that there was evidence of reaction time in this case, as testified to by Sergeant McKinney, the totality of variables mentioned in the testimony elicited warrants us in concluding that the reaction time of a person 64 years of age, in addition to the facts and circumstances existing on the highway at the time and place, i. e., darkness of night, approaching automobile lights, cars traveling in the outside or slow lane of the highway, unexpectancy of a slowly moving darkened vehicle in the middle lane (Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299, 304[9]; Beaver v. Wilhelm, Mo.App., 321 S.W.2d 1, 3[2]) was longer than the average 3/4 of a second. Reed v. Burks, Mo.App., 393 S. *566 W.2d 377, 379-380[2]; Stimeling v. Goodman, 202 Va. 111, 115 S.E.2d 923, 926[2-4]. Further, although the official manual used in cross-examination of Officer McKinney was hearsay and improper (Breshears v. Myers, Mo., 266 S.W.2d 638, 640[3]; Appelhans v. Goldman, Mo. 349 S.W.2d 204, 206-208[1], [2, 3], [4-6]), since no objection was raised to its use, its contents were before the court below and the jury to give to it whatever weight it was deemed entitled. State ex rel. State Highway Commission v. Williams, Mo., 289 S.W.2d 64, 66[5].
See also Wood v. Ezell, Mo.App., 342 S.W.2d 503, 507[6, 7], where an expert on stopping distance testified that at 60 miles per hour a car travels 88-plus feet per second, and allowing 3/4 of a second reaction time, travels 66 feet therein, and added to braking distance of 185 feet, would require a total stopping distance of 251 feet.
Thus, in viewing the evidence in the light most favorable to the plaintiff, as we must, it appears that plaintiff traveling at speed of 60 miles per hour when he first saw or became aware of defendants' truck, estimated at around 200 feet away, traveled 132.3 feet during a reaction time of 1½ seconds while the truck, traveling at 5 miles per hour, moved 7.35 feet per second. In the 3.7 seconds it would take plaintiff's automobile, with brakes applied and traveling at 60 miles per hour to stop, the defendants' truck would travel approximately 34 feet, leaving a distance of only approximately 102 feet in which plaintiff had to stop before collision. Even based upon the 1 second reaction time calculation plaintiff would have only approximately 145.8 feet within which to bring his automobile to a stop before the collision. Under the probative facts of this case, while we do not judicially know the precise distance in which plaintiff could have brought his automobile to a stop before the collision, we have no hesitancy in holding that he could not have stopped under the facts and circumstances in evidence in this case using either reaction time figure of a second or a second and a half. Johnson v. Bush, Mo.App., 418 S.W.2d 601, 608[16, 17]; McCarthy v. Wulff, Mo., 452 S.W.2d 164, 168[9]; Eaves v. Wampler, Mo.App., 390 S.W.2d 922, 930[17, 18].
We opine that while unquestionably charts dealing with speed and stopping distances of automobiles are helpful and useful implements in determining the nice calculations involved in automobile collision cases (Danner v. Weinreich, Mo., 323 S.W.2d 746, 752[5-7]), the conclusiveness thereof, without more, should not be over-emphasized because of the fallible human estimates upon which the application of the chart calculations are based. 9C Blashfield, Cyclopedia of Automobile Law, Section 6237, page 411.
Defendants strenuously urge that the "assured clear distance ahead" rule bars a recovery by plaintiff, citing Trantham v. Gillioz, Mo.App., 348 S.W.2d 737 and Nickels v. Borgmeyer, Mo.App., 258 S.W.2d 267. Briefly stated this rule refers to the requirement that a motorist drive at such speed that he is able to stop his automobile within the distance that his headlights make visible objects ahead of him. In Trantham, supra, the owner of the automobile, a passenger therein, acquiesced in the driver not only leaving a well-marked detour to go upon a road he knew to be in the process of construction but also in traveling at a speed of 60 to 70 miles per hour. It was held that there was contributory negligence barring recovery when the automobile struck a 2 to 3 foot high barrier of dirt. These facts constitute a far different situation than those obtaining in the instant case. In fact, in the Trantham case it is recognized that "[o]rdinarily a traveler rightfully upon a public highway may, in the absence of any notice to the contrary, assume or presume that the way ahead is clear and that it may be safely traveled at a reasonable speed. But this rule does not apply if the traveler knows, or should know, that the road is under construction, especially if it is closed to public travel. The rule then is the reverse." 348 *567 S.W.2d 741[3]. See also the pertinent remarks of this court in Thompson v. Byers, 362 Mo. 42, 239 S.W.2d 498, 500[5]. In the present case, it could not be said under the evidence that plaintiff as he started up the hill traveled at an excessive speed or was derelict in not surmising that defendants' tractor-trailer would be slowly traveling up an incline in the middle lane devoid of taillights or other visible warning devices.
In the Nickels case, supra, the facts there revealed that the plaintiff trucker operated his truck with lights not sufficient to reveal a vehicle at least 500 feet ahead under normal atmospheric conditions, offered no excuse whatever therefor. The court, noting his testimony that the truck lights would enable him to see only 50 feet ahead, held him guilty of contributory negligence as a matter of law in driving with defective headlights. This case is not germane to, or controlling over, the facts presented in the instant case.
In the Trantham case, supra, it was pointed out by the court that the "assured clear distance rule" has been rejected by Missouri courts so far as it fixes an inflexible standard applicable in all events and under all circumstances and that speed alone is not necessarily negligence, but rather the facts of the particular case must be taken into consideration.
Thus, in Thompson v. Byers Transportation Company, supra, it was held that the driver of a tractor-trailer, colliding with the rear of another such vehicle stopped on highway pavement at night with no lights burning was not contributorily negligent as a matter of law on theory that he was traveling through fog at excessive speed which prevented him from stopping within distance for which his headlights revealed objects ahead of him. See also Johnson v. Lee Way Motor Freight, Mo., 261 S.W.2d 95, a case involving collision in fog.
In Walker v. Massey, Mo.App., 417 S.W.2d 14, it was held that the driver striking rear of a parked truck would not necessarily have been guilty of contributory negligence as a matter of law notwithstanding that as he approached the parked truck he was driving at such speed that he could not have stopped within the distance his headlights would have revealed the truck under then existing circumstances. In Haley v. Edwards, Mo., 276 S.W.2d 153, the court held that a motorist is not necessarily guilty of contributory negligence as a matter of law solely because he drives at a speed which prevents his stopping within range of his visibility, as other facts and circumstances, such as speed, traffic, highway conditions, visibility of atmosphere, and character of obstruction should be taken into account. Defendants argue that the violence of the impact demonstrates a greater speed of plaintiff's automobile at the time of impact than appeared in evidence. The only evidence in the record to sustain this contention is the damage to plaintiff's automobile as a result of the collision, and we decline to rule that in the face of direct testimony as to plaintiff's speed, we, as a matter of law, should hold that vehicular damage controls over positive, independent, eyewitness testimony. Thompson v. Byers Transportation Company, supra, 239 S.W.2d 500[5]. There was no evidence in this case concerning the estimated speed of plaintiff's automobile based upon skid marks and character of impact such as obtained in Dillenschneider v. Campbell, Mo.App., 350 S.W.2d 260, 266-268 [10-12], [13], [14].
We are convinced, and so hold, that under all the facts and circumstances of this case, i.e., darkness of night, approaching automobile lights, automobiles traveling in outside or slow lane of highway giving some assurance that the center lane was clear, the unexpectancy of a darkened vehicle in the middle or center lane, and the fact that a slow moving vehicle might under some circumstances be more difficult to discern than a stopped vehicle (Ruediger v. American Bus Lines, Inc., Mo. (banc), 426 S.W.2d 4, 10 [9]), a jury issue was presented on the question of plaintiff's *568 alleged contributory negligence as to speed, lookout and control. Heberer v. Duncan, et al., Mo. (banc), 449 S.W.2d 561, 563-564 [3], [4]; Reed v. Burks, Mo.App., 393 S.W.2d 377, 380 [3, 4]; Shelton v. Bruner, Mo.App., 449 S.W.2d 673, 679-680 [2], [4].
Defendants next complain that the court erred in failing to direct a verdict in their favor because plaintiff's petition failed to state a cause of action in that the action was based on § 304.015, RSMo 1959, V.A. M.S., and the exceptions noted therein were not set forth in the petition, nor supported by the evidence, thereby making the statute applicable in the case. We note that this particular assignment was not raised in the motion for a new trial nor at any time presented to or ruled upon by the trial court; however, defendants contend that under civil rule 55.43, V.A.M.R. this point was not waived. While we have some apprehension as to the correctness of this position (Ezell v. Ezell, Mo.App., 348 S.W.2d 592, 595-596 [2, 3]), we nevertheless examine in depth the merits of such contention. The thrust, as we understand it, of defendants' contention is that, since plaintiff's cause of action evolved out of the above-cited statutory section pertaining to driving on right of highway, traffic lanes and speed, the petition stating such facts under the statutory section was required to negative the exceptions contained therein in order to be valid and effective in law. This is a novel stance, as applied to automobile collision cases dealing with the construction of statutory rules of the road, and no case is cited by defendants as authority for such proposition nor have we been able to discover any. In defendants' first cited case of Wilhelm v. Hersh, Mo. App., 50 S.W.2d 735, the question there involved was the applicability of a statutory duty pertaining to rules of the road for driving from the side of highway into line of moving vehicles in municipalities. The issue of efficacy of pleadings was not involved or alluded to in the case and furnishes no authority for the proposition attributed to it by the defendants.
In Ornder v. Childers, Mo., 327 S.W.2d 913, defendants' next cited case, the question there involved, as an ancillary consideration, was the propriety of a given instruction. Plaintiff pleaded humanitarian negligence in failure to warn and submitted to jury primary negligence, not pleaded, under the applicable statute. The court stated that an action predicated upon a liability given by statute should come within the terms of the statute. This case likewise is of little succor to defendants and does not support the proposition espoused by them.
Defendants' next cited case of Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, dealt with the question of the compensation act and its applicability to the facts there involved. This case lends support for plaintiff's position on the point herein raised by the defendants. On pages 333-334 at paragraph 6 the court there said:
"The general rule is stated in another way. Where an action is at common law and invokes common-law liability only, an exception to such liability created by statute is not an element of the cause of action; it is a matter of defense. * * *
"We conclude that the petition of the plaintiff stated a cause of action within the jurisdiction of the circuit court; that the lack of jurisdiction was an affirmative defense which the defendant should have pleaded but failed to do so."
Defendants apparently misconceive the fundamental basis of plaintiff's cause of action, which is one at common law in tort for negligence. This action basically is not a statutory action, as such, wherein the legal rights afforded flow from or are created by the statute. True, the recitation of facts alleged in a petition in a negligence common law action may be such as to invoke statutory provisions without actually citing the applicable statute (Leek v. Dillard, Mo.App., 304 S.W.2d 60, 64 [5]), but this does not mean that the action is bottomed on the statute itself. Thus, in *569 Lafferty v. Wattle, Mo.App., 349 S.W.2d 519, 526-527 [8-12], the court said:
"* * * Statutory rules of the road set merely a minimal rather than a maximal standard of care, and they are not necessarily preclusive of common law negligence. * * * And even if the statute did not require such as a minimal precaution, defendant still would be subject to the general rules of negligence." See also Gooch v. Avsco, Incorporated, Mo., 337 S.W.2d 245, 251 [6, 7].
Since plaintiff's cause of action is one cognizable at common law, and not one created peculiarly by statute, any exception mentioned in the statute is properly a matter of defense. See Condos v. Associated Transports, Inc., Mo.App., 453 S.W.2d 682, 686 [1]; Robinson v. Gerber, Mo., 454 S.W.2d 933, 938 [6]. Be that as it may, and in any event, we reject the proposition advanced by defendants as unduly burdening the office of pleadings and it was not incumbent upon plaintiff to allege in his petition the exceptions referred to by defendants in order to state validly a cause of action, §§ 509.040, 509.050, 509.250, RSMo 1959, V.A.M.S.; Anderson v. Dyer, Mo.App., 456 S.W.2d 808, 810 [1]. While it is difficult to understand the rationale of defendants' statement pertaining to the support or the lack thereof in the evidence of the mentioned exceptions, since the assignment relates to pleading and stating a cause of action and not to matters of evidence, we note in passing that defendants' contention concerning the fact that they were properly and lawfully proceeding in the center lane of the northbound traffic lanes on said highway under the provisions of each and every one and all of the specified statutory exceptions cannot be sustained. We do not believe, and so hold, that a vehicle some 5016 feet away from a bifurcation or highway intersection under the circumstances and conditions existent on that highway at that time and place, i. e., defendant Chestnut's admission that traffic was moderate, that he could have changed lanes without creating a hazard and that it was not necessary for him to be in the middle or center lane in order to turn, comes within the purview of the statute dealing with left turns at highway intersections. This point is ruled against the defendants.
Next defendants contend that the trial court committed prejudicial and reversible error in giving, over defendants' objection, plaintiff's Instruction No. 3 which reads as follows:
"Your verdict must be for plaintiff, James S. Rooney, if you believe:
First, defendant Lloyd Metal Products Company, acting by and through its truck driver, defendant Richard Chestnut, in the operation of its truck, either:
drove said truck at a speed of less than 40 miles per hour, or
was proceeding on the highway at less than the normal speed of traffic thereon and failed to drive said truck in the right-hand lane for traffic, or drove said truck without any lighted lamps on the rear of the trailer, and
Second, defendants' conduct in any one or more of the respects submitted in paragraph First, was negligent, and Third, as a direct result of such negligence plaintiff sustained damage, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.
(M.A.I. No. 17.02 modifiedtendered by plaintiff)"
Defendants' complaint against this instruction is fourfold and is divided into four separate categories which we will consider in order. The first charges that the instruction misstates the law in peremptorily requiring defendants to drive their truck in the right-hand lane for traffic regardless of the circumstances and the second, akin to the first, contends that the instruction misstates the law in peremptorily requiring defendants to drive their truck at a speed of not less than forty miles per hour regardless of circumstances. Both these charges are somewhat broad and *570 general and are substantially lacking in specificity. Plaintiff predicated part of the submission of his case to the jury under § 304.010(4) 1965, V.A.M.S., which provides: "On any divided highway designated as part of the federal interstate system, no vehicle shall be operated at a speed of less than forty miles per hour, except when a slower speed is required for safe operation of the vehicle because of weather or other special conditions," and the other part of the submission of the case under § 304.015, subd. 5(3), V.A.M.S., which states: "Upon all highways any vehicle proceeding at less than the normal speed of traffic thereon shall be driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb, except as otherwise provided in sections 304.014 to 304.026."
Reference to the wording of the instruction demonstrates that it required a finding of negligence by the jury as to one or more of the alleged acts or misconduct of the defendants and it therefore did not rely on the said alleged acts or misconduct as constituting negligence per se. Clearly the plaintiff was entitled to predicate his cause of action against the defendants under common law rights or statutory duties, the violation of which and resultant damage gave rise to a right of recovery in plaintiff. In Condos v. Associated Transports, Inc., Mo.App., 453 S.W.2d 682, 687 [4], it was held that an instruction that if the jury found that the tractor-trailer driver in approaching a private drive intending to turn right and in making a right turn failed to drive as close as practicable to the right-hand edge of the highway and that as a direct result of such conduct the passenger who was in the vehicle which collided with the right-hand side of tractor-trailer and was injured was entitled to recover did not impose an absolute and unqualified duty on the tractor-trailer driver regardless of any other facts and circumstances and was proper. In the Condos case, unlike the instant one, the plaintiff relied on defendants' conduct as being negligence per se, and did not submit in her instruction a finding of negligence by the jury. In that case it is pointed out that failure to comply with a provision of the statute, in absence of showing of reasonable excuse for its nonobservance, constitutes negligence per se. In Terrell v. McKnight, 360 Mo. 19, 226 S.W.2d 714, on page 717 the court there said:
"[1] Instruction No. 1 combines in the conjunctive, statutory negligence and nonstatutory or common law negligence. That is not improper if the instruction further requires the jury to find that the alleged acts were negligently done. The instruction failed to make that requirement and the Court did not err in refusing it.
"[2] Instructions C-3 contains all of the essential portions of refused Instruction No. 1, but supplies the fatal omission in that instruction by authorizing recovery only if the jury find that defendant's truck driver did the acts complained of and that same were reasonably likely to create danger and that in doing them the truck driver failed to exercise the highest degree of care."
In the instant case, the evidence adduced by plaintiff in support of the averments of his petition charging negligence against the defendants amply supported the giving of this instruction, and in the respects delineated by the defendants as above set forth as constituting error, we hold that the instruction is not subject to the criticism levied against it. This, for the additional reason that it has been held that where there is no approved instruction applicable, the present rule requires the instruction to be simple, brief, impartial, free from argument, and that it does not require findings of detailed evidentiary facts, Cover, etc. v. Phillips Pipe Line Company, Mo., 454 S.W.2d 507, 510 [2], and that in cases involving statutory violation it is generally sufficient to couch a verdict-directing instruction substantially in the language of the statute. May v. Bradford, Mo., 369 S.W.2d 225, 228 [7].
*571 The third assertion of error against this instruction concerns the submission of part of the issues in the conjunctive, referring to that portion thereof dealing with "proceeding on the highway at less than the normal speed of traffic thereon and failed to drive said truck in the right-hand lane for traffic." Defendants contend that the above violates MAI No. 1.02, which provides: "The practice of submitting dual or multiple theories of recovery or defense in the conjunctive is prohibited." It at once is apparent that this position is without merit, first for the reason that under the statute there was no other intelligible manner in which the submission could be couched, and secondly, because MAI recognize "that some instructions will still have several elements which must be submitted in the conjunctive, but these will be in support of a single theory of recovery or defense." (MAI No. 1.02, Committee's Comment, page 7.) Plaintiff was entitled to submit his case to the jury, if supported by evidence, of any violation of the statutory provisions by defendants which proximately caused his injury and damage. The point is ruled against defendants.
Next defendants urge that the posted minimum speed limit of 40 miles per hour was without authority in law and not binding on defendants. It is sufficient answer to this contention to observe that § 304.010, subd. 4 (1965), V.A.M.S., provides authority for the posted speed limit, and it could not be seriously contended that the legislature lacked the authority or power to enact such a law. Defendants' concern as to who posted the said speed limit is of little moment in the consideration of its validity and binding effect on motorists using such highway.
Finally defendants claim that the verdict is so excessive as to demonstrate bias and prejudice on the part of the jury entitling defendants to a new trial. In their briefs filed in this Court defendants urge that the verdict is excessive and requires a remittitur. Since there is no reference to any act of misconduct or improper action occurring on the trial incorporated in defendants' briefs, save for the size of the verdict, an essential element in such an assignment, McConnell v. Pic-Walsh Freight Co., Mo., 432 S.W.2d 292, 301 [18-21], we entertain grave doubt that this point has been preserved for review. Crawford v. McNece, Mo., 388 S.W.2d 809, 816 [13-15]; Montgomery v. Travelers Protective Assn. of America, Mo.App., 434 S.W.2d 17, 20 [6]. Giving defendants benefit of that which really does not rise to the status of a doubt, we nevertheless examine the contention. Plaintiff, at the time of the collision, was a 64-year-old circuit judge who was in reasonably good health. As a result of the collision he suffered a fracture of the fifth metacarpal bone in the left hand just below the wrist; a fracture of tibia of left leg involving the knee joint; comminuted fracture of the navicular bone in right foot; fracture to the heel; chondromalacia involving left patella; fracture of the fibular malleolus; a mild cerebral concussion; aggravation of previously existing cervical arthritis; cervical strain, and laceration of forehead and head requiring 10 to 12 stitches. Plaintiff was hospitalized for three weeks and received out-patient physical therapy treatments thereafter. The navicular fracture was painful, requiring a boot cast for about three weeks and an elastic bandage thereafter. Due to the fracture line involvement into the joint surface the potential exists for pain and difficulty in walking. Plaintiff wore a glove type cast for three weeks as result of the fracture of metacarpal bone. He wore a cast on his left leg for about a month and a half. He developed pain and stiffness in his neck and wore a cervical collar. He was discharged from the hospital on crutches and used these until March, 1967. Doctor Vilmer, orthopedic surgeon, was of the opinion that the injuries to the left tibia, knee, right foot, and neck were permanent and residual disability would ensue. *572 Doctor Pickard, orthopedic surgeon, testified to complications and difficulty plaintiff experienced as the result of the injuries such as marked thickening of the right ankle and tarsal area of the foot; color change and change in circulation in right leg; increased coldness in toes of right foot; spasticity in right heel; restriction of motion in right foot; "flexion deformity" of left knee; thickening of left knee joint; thickening of tibial table; reversal of carrying angle of left knee resulting in a bowleg; atrophy of left thigh; some loss of ability to flex left knee; atrophy and limitation of motion in left shoulder; restriction of movement in neck with muscle spasm and loss of lordotic curve of spine; less grip in hand due to fracture; sleeplessness. This doctor testified to the seriousness and permanency of the injuries, and prescribed intensive physical therapy, first in the hospital and thereafter at home. Special corrective shoes were prescribed. He testified that plaintiff's complaint of continual pain since the collision was consistent with the sustained injuries and would "remain with him the rest of his life." Total medical and hospital expenses amounted to $2,323.71. The sum total of plaintiff's disability is greater than the individual parts of his disability because now literally speaking "he doesn't have a leg to stand on." As result of his injuries plaintiff's mode of living has been changed. Instead of ascending stairs in his home he now has his bed made up in the dining room of his home. He never sleeps over 3 hours a night unless he takes a sleeping pill. He was carried onto the bench until the first part of January, 1967. At time of trial he experienced headaches down to his left eye and dizzy spells. He used to work around his house and yard which he no longer can perform. His social and professional activities have been "greatly restricted." He is tired and haggard at the end of the day and has to lie down and is somewhat stooped over. His life expectancy at time of trial was 13.81 years.
After full consideration we conclude that while this is a generous verdict, as the Court stated in Nussbaum v. Kansas City Stock Yards Co. of Maine, Mo., 359 S.W.2d 335, 342 [7], "While this is a large verdict and perhaps even some remittitur reasonably might have been ordered upon consideration of the extent of plaintiff's recovery * * * we cannot hold that such a verdict indicates misconduct of the jury due to passion and prejudice," we are not prepared to hold, and therefore correspondingly rule, that the amount of the verdict is not unwarranted by the nature and extent of the injuries, and concomitant effects thereof. The principles to be applied and the analysis of factors to be considered in determining the perplexing question of the reasonableness of a verdict are set out in Hart v. City of Butler, Mo., 393 S.W.2d 568, 579-581 [18], [19-22], [23]. See also Snyder v. Jensen, Mo., 281 S.W.2d 802, where in year 1955 an award of $40,000 to 67-year-old railroad switchman with life expectancy of 13.81 years, whose gross yearly wage was $4,186, who incurred medical expense of $1,156.75 and who sustained fractures of a vertebra, bone in heel and tibia and who sustained brain injury was excessive by $5,000. See also the 1956 case of Moss v. Mindlin's, Incorporated, Mo., 301 S.W.2d 761.
For the reasons set forth above, and based upon the cases hereinabove cited, the judgment of the circuit court is affirmed.
SEILER, P. J., and HOLMAN, J., concur.
BARDGETT, J., not participating because not a member of the Court when cause was submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440062/ | 427 S.W.2d 864 (1968)
Basil SEGURA, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 41174.
Court of Criminal Appeals of Texas.
April 3, 1968.
Hollis Cordray, Houston, Court appointed, for appellant.
Carol S. Vance, Dist. Atty., Joseph W. Doucette and Edward McDonough, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., of Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is possession of heroin; the punishment, 18 years.
Appellant's sole ground of error concerns the sufficiency of the evidence to sustain the conviction.
A Houston police officer testified that he saw appellant drop a red and white object on the ground as he and another officer approached appellant. The officer picked up the object, which proved to be a crumpled cigarette package, and noticed some small packets inside the package which apparently contained powder. The second police officer corroborated this testimony.
A chemical analysis was made of the contents of the packets and they were found to contain 1.93 grams of 44.4 per cent pure heroin.
Testifying in his own behalf, appellant denied that he had dropped the package. *865 His sister testified that she saw another person at the place of arrest drop a package.
The jury resolved the fact issues against appellant and the evidence is sufficient to sustain the jury's verdict.
Appellant contends that a punishment of 18 years constitutes cruel and unusual punishment. The penalty assessed by the jury is within the statutory limit which is not less than 2 years nor more than life. Art. 725b, Sec. 23, Vernon's Ann.P.C.
The contention is without merit. Martinez v. State, Tex.Cr.App., 373 S.W.2d 246, cert. denied, 377 U.S. 937, 84 S. Ct. 1345, 12 L. Ed. 2d 301.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3073157/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00030-CR
ANDRES ALVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 41,518-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Andres Alvarez, appellant, has filed a motion to dismiss his appeal. The motion was
signed by both Alvarez and his counsel in compliance with Rule 42.2(a) of the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 42.2(a). As authorized by Rule 42.2(a), we grant the
motion.
Accordingly, we dismiss this appeal.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 2, 2014
Date Decided: June 3, 2014
Do Not Publish
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1574004/ | 224 S.W.3d 216 (2004)
ATTORNEY GENERAL OF TEXAS, Appellant,
v.
Mack CASNER, Appellee.
No. 08-03-00437-CV.
Court of Appeals of Texas, El Paso.
December 22, 2004.
Robert F. Johnson, Austin, for Appellant.
*217 Mack J. Casner, El Paso, pro se.
Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
OPINION
DAVID WELLINGTON CHEW, Justice.
This case arises from a judicial foreclosure of real property by a homeowners' association for unpaid assessment and administrative fees. The parties in this appeal are intervenors to the original action. Appellant, the Attorney General of Texas ("Attorney General") challenges the trial courts purported no-answer default judgment in favor of Appellee Mack Casner on both procedural and jurisdictional grounds. After reviewing the record, we conclude the trial court had no jurisdiction to enter its judgment. We vacate the trial court's judgment of August 18, 2003 and dismiss the case.
On March 8, 2002, Los Felinos, Inc. ("Los Felinos"), a homeowners' association, filed suit against Juan and Clarrisa Ibarra ("the Ibarras") for failure to pay homeowner assessments and administrative fees on their property unit in Coronado Country Club Estates. In its original petition, Los Felinos alleged that under the Ibarras deed, the property was subject to certain covenants, conditions, and restrictions, which reserved to Los Felinos a vendor's lien to secure payment of all assessments due. Los Felinos sought a judgment for the accrued assessments and administrative fees, establishment and foreclosure of their vendor's lien to secure the Ibarras' obligation, and a forced sale of the property. After the Ibarras were served by substituted service, an Attorney Ad Litem was appointed and a general denial answer was filed on June 6, 2002.
On November 21, 2002, the trial court signed a judgment against the Ibarras finding sufficient evidence to prove that the Ibarras were indebted to Los Felinos in the amount of $4,579.54 for past due assessments, costs of enforcement, and late charges. The trial court found that the Ibarras were also indebted to Los Felinos in the amount of $1,018.75 for reasonable attorney's fees. The trial court determined that Los Felinos had a valid and subsisting vendor's lien against the property and that the Ibarras had breached the obligations of the condominium declaration to which the property was subject. The trial court ordered foreclosure of the property in satisfaction of the judgment. In its judgment, the trial court also awarded $250 as attorney's fees to the attorney ad litem for legal services rendered to the Ibarras in the action.
On May 23, 2003, Appellee Mack Casner filed a petition under the original cause number in the Los Felinos suit. Mr. Casner alleged that he had bought the property at a judgment sale on May 6, 2003. He also alleged that on May 14, 2003, Los Felinos mailed a notice regarding the Ibarras' right of redemption of the property pursuant to Chapter 209 of the Texas Property Code. In his petition, Mr. Casner challenged the constitutionality of several of the redemption provisions in Section 209.011 of the Code. In his prayer, Mr. Casner requested that the trial court find the challenged provisions unfair, unjust, illegal, and unconstitutional. He also requested that the court enjoin "implementation" of the provisions until trial and permanently enjoin their implementation upon final trial. In the alternative, Mr. Casner plead that the trial court set aside the judgment sale and return his purchase money. Mr. Casner also stated he sought additional relief pursuant to the Texas Uniform Declaratory Judgments Act. Mr. Casner filed a Motion to Enter Default Judgment with a supporting brief on June *218 10, 2003. In his motion, Mr. Casner requested a default judgment against the Ibarras. As in his petition, Mr. Casner argued in his brief that certain redemption provisions, specifically subsections (b), (c), (g), (i), and (p) in TEX.PROP.CODE ANN. § 209.011, were unconstitutional and that the Ibarras should be permanently enjoined from any implementation of these provisions.
On June 12, 2003, Los Felinos filed a Special Appearance, objecting to personal jurisdiction on the ground that they had never been served with Mr. Casner's petition in this matter in accordance with the Texas Rules of Civil Procedure. The following day, Los Felinos filed a Plea to the Jurisdiction, Special Exceptions, and Original Answer. In its Plea to the Jurisdiction, Los Felinos challenged the trial court's subject matter jurisdiction, arguing that Mr. Casner's petition was not timely filed and that the trial court could not set aside the judgment after the plenary power period expired in the case. Los Felinos informed the court that Mr. Casner had failed to notify the Attorney General of his declaratory judgment suit which alleged the unconstitutionality of a statute.[1]
Mr. Casner responded to Los Felinos' pleadings by filing a "Statement of Jurisdiction, Intervention and Service" on June 16, 2003. In this pleading, Mr. Casner stated that the trial court had jurisdiction to hear an action attacking the outcome of a sale by execution, citing Hillkee Corp. v. Harrell, 573 S.W.2d 558 (Tex.Civ.App.-Texarkana 1978, writ ref'd n.r.e.). Mr. Casner also claimed that his petition was a post-judgment intervention in the suit, which was permitted under Rule 60 of the Texas Rules of Civil Procedure, citing to Breazeale v. Casteel, 4 S.W.3d 434 (Tex. App.-Austin 1999, pet. denied). On the same date, Mr. Casner also filed a pleading challenging Los Felinos' special appearance. On June 18, 2003, Los Felinos filed a motion to strike Mr. Casner's "petition" or plea in intervention, arguing that Mr. Casner lacked a sufficient interest in the case or alternatively his interest was not ripe, that Mr. Casner's plea was not timely, that Mr. Casner had failed to notify the Attorney General of the pendency of a suit under the Declaratory Judgments Act, and that if stricken, Mr. Casner could assert his rights in a separate action for declaratory relief.
On June 23, 2003, Mr. Casner filed a copy of a notice letter dated June 20, which had notified the Attorney General of his suit challenging the constitutionality of a statute. The letter stated that a hearing had been set on Mr. Casner's Motion to Enter Default Judgment for July 3, 2003. The following day, Mr. Casner filed his "First Supplemental Petition" in which he argued that his action was a post-judgment intervention and that he did not seek to set aside any judgment. Mr. Casner also argued that Section 37.006 of the Texas Civil Practice and Remedies Code does not require joinder of the Attorney General. Mr. Casner explained that his petition sought a determination pursuant to the Declaratory Judgments Act, requested that certain provisions of Section 209.011 of the Texas Property Code be found unconstitutional, and sought a permanent injunction. Mr. Casner also clarified that he sought the setting aside of the judgment sale, as alternative relief only if there was to be a quick return of the purchase money, which had not occurred. Therefore, he was no longer seeking this alternative relief.
*219 On July 3, 2003, the Attorney General filed a Plea in Intervention to address Mr. Casner's claim that various provisions of Section 209.011 were unconstitutional and his seeking of a declaration that the statute was invalid and an injunction prohibiting its enforcement. The trial court convened a hearing that same day on the pending motions and pleadings. Given Mr. Casner's live pleadings that he was not seeking to overturn the November 2002 judgment, Los Felinos' counsel stated that at that time it was only seeking attorney's fees. The Attorney General's counsel informed the court that it was intervening in the case because Mr. Casner had requested that the court declare provisions of the Property Code to be unconstitutional. The Attorney General's counsel questioned the trial court's jurisdiction to hear the cause, to hear Mr. Casner's petition, and even its jurisdiction to hear its plea in intervention since the final judgment in this case had been entered in November 2002. Mr. Casner informed the trial court that his intervention presented three causes of action: (1) to set aside the judgment sale; (2) a determination under the declaratory judgment act that provisions of the Texas Property Code were unconstitutional; and (3) a permanent injunction prohibiting the implementation of those unconstitutional provisions. Mr. Casner explained that he did not seek to overcome or change the judgment, but rather to protect his interest as an intervenor.
At the hearing, Mr. Casner's stated his reasons in support of finding various subsections of Section 209.011 unconstitutional, concluding that many innocent people would be hurt by these provisions, that they would degrade and devalue the affected properties, and that it was a special law that must be found unconstitutional. In response, the Attorney General defended the constitutionality of the statute, explaining that under the statutory scheme the Legislature placed certain restrictions on a property owners' associations' ability to foreclosure to collect its assessments, including allowing the property owner the right to redeem that property for a 180-day period after the sale.
Mr. Casner testified that he was not aware of Section 209.011 when he purchased the property and was not aware of the property's condition either. Since he purchased the property he had observed fifteen leaks, including a leaking roof and plaster damage to the ceiling. Mr. Casner stated that the rock walls around the property were decayed and falling apart. He observed water damage to the flooring and carpets, deterioration of the curtains, and various plumbing problems. Mr. Casner did not consider the property to be in a habitable condition. Mr. Casner believed it would cost between $20,000 to 40,000 to repair the property. Mr. Casner attempted to borrow money from a commercial lender, but was told under these circumstances, there was no way he could get a loan. According to Mr. Casner, if the prior owner redeemed the property after he made the costly repairs, he would only be paid back his purchase money, not his repair investment money, and if he rented the property, the rental income would have to be given to the prior owner. Mr. Casner also expressed concern about being out the money spent on moving out of the property upon any redemption and his inability to secure property insurance because it is currently not habitable. Following Mr. Casner's direct testimony, the hearing was recessed.
When the trial court reconvened on July 9, 2003, Los Felinos and Mr. Casner informed the court that they had reached an agreement. Los Felinos, Mr. Casner, and the presiding judge signed an Agreed Dismissal Order, which dismissed Mr. Casner's petition and all claims with prejudice *220 with regard to Los Felinos. The order recites that Mr. Casner agreed not to seek to overturn either the judgment or the judgment sale that resulted from Los Felinos' suit against the Ibarras. The trial court granted the Intervenors' requests to amend their pleadings.
On July 11, 2003, the former attorney ad litem for the Ibarras filed a Special Appearance for purposes of establishing his non-representation of the Ibarras in the pending matter. That same day, the trial court entered an order, declaring that the attorney ad litem's representation of the Ibarras terminated on November 21, 2002 and that the attorney ad litem no longer represented them.
On July 28, 2003, the trial court reconvened the hearing in this case. The live pleadings at that time were Mr. Casner's Second, Third, and Fourth Supplemental Petitions[2] and the Attorney General's Amended Plea in Intervention, Response to Motion for Default Judgment, and Motion to Strike Casner's Petition in Intervention. Mr. Casner had also filed a motion to strike the Attorney General's pleadings on the same date as the hearing. After listening to arguments on the pending motions and additional argument on Mr. Casner's claim for injunctive relief, the trial court took the motions under advisement and apparently concluded the proceedings.
On August 18, 2003, the trial court signed a judgment against the Ibarras. The judgment recites that the Ibarras,' "although duly served and notified, did not appear" and "have wholly made default." After considering the pleadings, evidence, and counsel arguments, the trial court found that:
using of Subsections (b), (c), (e), (g), (i) and (p) of Section 209.011 of the Texas Property Code by Juan A. Ibarra and Clarrisa R. Ibarra will result in unlawful and irreparable damages to Mack Casner. The Court finds, however, that the statute mentioned above as written is not unconstitutional.
The trial court then ordered that implementation of the above subsections of the statute be permanently enjoined in this cause. Further, it ordered that the Ibarras, their agents, heirs, successors, assignees, or any who have or claim to have rights in the property, were permanently enjoined from using and implementing the above subsections of the statute. The judgment does not reflect or identify the Attorney General as an Intervenor in the cause, however there is nothing in the record to indicate otherwise. The Attorney General now brings this appeal.
Post-Judgment Intervention
In Issue Two, the Attorney General argues that Mr. Casner's intervention should have been stricken because it was untimely and not reasonably related to the underlying lawsuit. We find this issue dispositive of the appeal.
Rule 60 of the Texas Rules of Civil Procedure provides: "Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party." TEX.R.CIV.P. 60. It is well-settled that a petition in intervention is untimely if it is filed after judgment was rendered and has become final and that it may not be considered unless and until that judgment has been set aside. First Alief Bank v. White, *221 682 S.W.2d 251, 252 (Tex.1984)(trial court lacked authority to consider petition in intervention filed eighty-four days after the court signed judgment because the court no longer had plenary power to modify its judgment); see TEX.R.CIV.P. 329b(d), (f). See also Citizens State Bank of Sealy, Texas v. Caney Investments, 746 S.W.2d 477, 478 (Tex.1988)(trial court erred in allowing intervention where petition in intervention for an injunction in receivership proceedings ancillary to a divorce action was filed after a final divorce decree had been rendered and become final, therefore the appeal should have been dismissed); Comal County Rural High Sch. Dist. No. 705 v. Nelson, 158 Tex. 564, 314 S.W.2d 956, 957 (1958)(petition in intervention could not be filed in the cause until and unless the district judge set aside his order of dismissal); Keim v. Anderson, 943 S.W.2d 938, 943-44 (Tex.App.-El Paso 1997, no writ)(petition in intervention cannot be filed after judgment unless the court sets aside its prior judgment).
Here, the trial court rendered its judgment in the original action on November 21, 2002. The trial court found that the Ibarras were indebted to Los Felinos and determined that the Ibarras had breached their obligations under the association's declaration and that Los Felinos had a valid vendor's lien against their property. The trial court ordered a judicial foreclosure of the property. Mr. Casner filed his petition in intervention on May 23, 2003, 183 days after the final judgment had been rendered. In his petition, Mr. Casner sought the setting aside of the judgment sale as alternative relief. In his first supplemental petition, however, Mr. Casner argued that he no longer was seeking to set aside any judgment in his post-judgment intervention. In fact, the agreed dismissal order between Los Felinos and Mr. Casner was stipulated on Mr. Casner's agreement not to seek to overturn either the judgment or the judgment sale in the underlying action. The trial court's judgment of August 18, 2003, from which this appeal was taken, does not set aside the prior judgment in the underlying action, but rather, permanently enjoins the Ibarras from taking advantage of redemption provisions contained in Section 209.011 of the Texas Property Code.
In trial court proceedings, Mr. Casner relied on Breazeale v. Casteel, to support his post-judgment intervention in this case.[3] In Breazeale, a judgment creditor filed a turnover motion against the judgment debtor after he obtained a judgment against an insurance company in an unrelated lawsuit. Breazeale, 4 S.W.3d at 435. Assignees of the debtors' interest in the judgment filed petitions to intervene in the creditor's lawsuit. Id. The Breazeale Court held that intervention is not necessarily barred after the trial court has rendered final judgment where the intervenor does not attack the substance of the judgment itself, but merely seeks to protect his interest in property that is the subject of a turnover motion. Id. at 437. We agree with the Attorney General that the Breazeale Court clearly limited its holding to post-judgment motions for turnover relief and is inapplicable to the case at hand. Following settled case law, we conclude the trial court erred when it considered Mr. Casner's petition in intervention 183 days after rendition of its final judgment in the original action. The trial court lacked jurisdiction to enter its August 18, 2003 judgment granting a permanent injunction against the Ibarras, therefore that judgment is a nullity and void. Issue Two is sustained. We declined to address the remaining issues.
*222 We vacate the trial court's August 18, 2003 judgment and in no way disturb the trial court's judgment in the original action, which was rendered on November 21, 2002. Mr. Casner's case, that is, the post-judgment petition in intervention is hereby dismissed.
NOTES
[1] In a declaratory relief proceeding in which a statute is alleged to be unconstitutional, the attorney general of the state must be served with a copy of the proceeding and is entitled to be heard. See TEX.CIV.PRAC. & REM.CODE ANN. § 37.006(b)(Vernon 1997).
[2] Mr. Casner's Second Supplemental Petition was a response to the Attorney General's Plea in Intervention. His Third Supplemental Petition was a motion to strike the Plea in Intervention. Mr. Casner's Fourth Supplemental Petition was an objection to the court's order establishing the non-representation of the Ibarras by the attorney ad litem.
[3] Mr. Casner did not file a response brief in this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2867799/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00673-CR
John Anthony Palmer, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 53780, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
A jury found appellant John Anthony Palmer guilty of aggravated sexual assault of
a child and the court assessed his punishment at forty years in prison. See Tex. Pen. Code Ann.
§ 22.021 (West Supp. 2005). In two points of error, appellant complains of charge error and of the
overruling of his motion to elect. We find no reversible error and will affirm the conviction.
The indictment alleged that on or about May 12, 1996, appellant had vaginal
intercourse with the complainant, J. P., who was then nine years old. The alleged date was the
second Sunday of May, or Mother's Day. J. P., who was sixteen years old at the time of appellant's
2003 trial, testified that she distinctly remembered that day. She was living in Killeen with
appellant, who was her stepfather, and her mother and siblings. While her mother was out of the
house, appellant took J. P. to the bedroom, locked the door, and had intercourse with her. J. P.'s
mother returned home while appellant and J. P. were still naked. Appellant told J. P. to hide in the
closet, then went to the locked door and told J. P.'s mother that he and J. P. were wrapping her
Mother's Day present. J. P.'s mother also testified that she recalled this incident, although she did
not know at the time what was really happening in the bedroom.
J. P. testified that appellant began sexually abusing her when she was four years old.
He had oral, vaginal, and anal intercourse with her on a regular basis until the year 2000, when her
mother and appellant were divorced. The family was living in Georgia when the abuse began. They
subsequently moved to Washington and then, in 1995, to Killeen.
In his first point of error, appellant complains of the overruling of his motion for an
election by the State. When the State offers evidence that the offense alleged in the indictment was
committed on multiple occasions, it must, on the defendant's timely motion, elect the act on which
it will rely for conviction. Crawford v. State, 696 S.W.2d 903, 906-07 (Tex. Crim. App. 1985);
Gutierrez v. State, 8 S.W.3d 739, 748 (Tex. App.--Austin 1999, no pet.). Although appellant was
entitled to an election in this cause, his motion was not timely because he did not request the election
until the charge conference after the close of evidence. Gutierrez, 8 S.W.3d at 748. At that point
in the trial, an election by the State would not have assisted appellant in the presentation of a defense.
Id. Point of error one is overruled.
In his second point of error, appellant contends the trial court erred by instructing the
jury that "the State is not bound by the date of May 12, 1996, alleged in the indictment, and the
defendant may be convicted if you believe beyond a reasonable doubt that he committed the offense
alleged within a period of years between February 15, 1991, and February 14, 2000, preceding the
filing of the indictment." Appellant urges that this instruction denied him his right to a unanimous
jury verdict and permitted his conviction for acts committed outside the court's jurisdiction.
Although appellant objected to the instruction, he did not make these arguments in the trial court.
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
When the indictment alleges that a crime was committed "on or about" a certain date,
the State may prove that the offense was committed at any time prior to the filing of the indictment
and within the limitations period. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).
Insofar as the court's instruction applied this settled principle to the facts of this case, there was no
error. Appellant's reliance on Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000), is misplaced.
In that case, the indictment alleged a single offense, but the court's charge authorized the defendant's
conviction for either of two different offenses proved by the State. Id. at 125. In the cause now
before us, the court's charge required the jury to unanimously find beyond a reasonable doubt that
appellant penetrated J. P.'s sexual organ with his sexual organ as alleged in the indictment. There
was no possibility of a non-unanimous guilty verdict.
Appellant also complains that the challenged instruction permitted the jury to consider
acts shown to have been committed before 1995 and thus outside of Bell County. While this is true,
the application paragraph did require the jury to find that the offense occurred in Bell County.
Considering the charge as a whole and the ample evidence of sexual assaults occurring in Bell
County, including an assault committed on the very day alleged in the indictment, the error of which
appellant complains was not egregiously harmful. See Almanza, 686 S.W.2d at 171. Point of error
two is overruled.
The judgment of conviction is affirmed.
__________________________________________
Mack Kidd, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Affirmed
Filed: October 7, 2004
Do Not Publish | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1573956/ | 408 S.W.2d 8 (1966)
STATE of Missouri, Respondent,
v.
James Morley TAYLOR, Appellant.
No. 51776.
Supreme Court of Missouri, Division No. 1.
November 14, 1966.
*9 Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
William J. Shaw, Charles R. Abele, Clayton, for appellant.
HOLMAN, Presiding Judge.
Defendant was charged with the offense of robbery in the first degree by means of a dangerous and deadly weapon. See §§ 560.120 and 560.135 (statutory references are to RSMo 1959, V.A.M.S.). The amended information also charged a prior felony conviction under the provisions of § 556.280. The jury found defendant guilty as charged and the court fixed his punishment at imprisonment in the penitentiary for a term of five years. Defendant has duly appealed from the judgment.
There is no contention on this appeal concerning the sufficiency of the evidence and hence a brief statement of facts will suffice.
The alleged robbery occurred at about 1:30 a.m. on January 17, 1965, in Wellston, St. Louis County, Missouri. The prosecuting witness, Taylor Williams, was a cab driver. Defendant entered the cab at 4439 St. Ferdinand Avenue in the City of St. Louis and sat in the rear seat. Another passenger, Margaret Carter, was riding in the front seat. Defendant directed Williams to take him to 6311 Page Boulevard. When the cab arrived at a point a short distance from 6311 Page, defendant exhibited a gun and demanded money, threatening to "blow their brains out." Williams gave him $37.00. Defendant directed Williams to stop the cab and he got out and disappeared down an alley. About two weeks later Williams identified a picture of defendant at police headquarters. Defendant was arrested and Williams identified him from his appearance and Mrs. Carter identified him by his voice.
The first contention of defendant relates to the alleged error of the court in the answer it gave to a question submitted by the jury after it had started deliberations. After the case had been submitted to the jury it sent the following written question to the court: "Instruction No. 1 states that the charge is with a loaded automatic pistol. If we do not believe the evidence showed a loaded pistol or an automatic pistol, should we find the defendant not guilty as charged?" The court sent back the following written answer: "The question is irrelevant." The defendant's attorney objected to the answer, but the trial judge tacitly overruled the objection by explaining to the attorneys (out of the presence of the jury) that he considered that the question as to whether the gun was loaded or was an automatic was irrelevant because those facts were not essential elements of the charge.
The defendant failed to mention the foregoing occurrence in his motion for a new trial. On this appeal, however, he has briefed the point and asks that we review it under the provisions of S.Ct. Rule 27.20(c), V.A.M.R., which reads as follows: "Plain errors affecting substantial rights may be considered on motion for new *10 trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom." We will accordingly consider the incident and determine whether it resulted in "manifest injustice."
As indicated by the court, the question as to whether the gun was loaded was not an essential element of the offense. It was not necessary to plead, prove, or submit that fact issue. State v. Kowertz, 324 Mo. 748, 25 S.W.2d 113 [2]; State v. Martin, Mo.Sup., 346 S.W.2d 71 [2]. It would also seem to be immaterial whether the weapon used was an automatic or some other type of pistol. There was no direct evidence that the gun was an automatic or was loaded. The only evidence from which such facts might be inferred was the testimony of Williams and Mrs. Carter concerning a noise they heard in the back seat. Although poorly described, we think they were attempting to testify that the noise sounded like that made by an automatic pistol when a shell is being injected into the chamber.
Instruction No. 1 required that the jury find that the offense was committed "by means of a certain weapon, to-wit: a loaded automatic pistol." The obviously alert and capable jury was understandably concerned about its duty to find those facts upon which there was, at best, very unsatisfactory evidence and hence the question followed.
The question submitted by the jury brought to the attention of the trial judge the fact that his main instruction had required a finding of nonessential facts upon which the evidence was doubtful. He sought to correct that error by stating to the jury, "The question is irrelevant." We do not think the meaning of that answer was clear. While the question related to nonessential facts, the question itself was very relevant when considered from the standpoint of the jury in performing its function. Moreover, the practice of exchanging communications between the jury and the trial court is not commended. State v. Taylor, Mo.Sup., 336 S.W.2d 495 [7]. We think an appropriate procedure the trial court could have followed would have been to (1) bring the jury into the courtroom, (2) withdraw instruction No. 1, (3) correct that instruction in the respects here under consideration or prepare a new one so doing; (4) read the corrected or new instruction to the jury, and (5) deliver the instruction to the jury and resubmit the case. State v. McNabb, Mo.Sup., 267 S.W. 606 [6]; State v. Mace, Mo.Sup., 278 S.W. 718 [5].
While we do not approve of the contents of the court's answer nor the procedure followed, we have nevertheless concluded that the defendant was not prejudiced by the incident. The most unfavorable interpretation (to defendant) that the jury could have placed upon the answer was that it was not required to find the facts concerning which it inquired. That is in accordance with the law, and since the entire matter concerned nonessential facts we rule that no "manifest injustice" resulted therefrom.
The remaining point briefed relates to the testimony of St. Louis City Police Officer William Franklin. The answers complained of appear in the following:
"Q Did you have an occasion on or about February 4th to place him under arrest? A I did.
"Q Will you tell the Court for what purpose ?
"A Fugitive from justice.
"Mr. McNary: I object to that, your Honor, as not being relevant"
The following occurred at the bench of the Court, out of the hearing of the jury:
"Mr. McNary: Defendant will object to the question for the reason it calls for testimony involving another crime.
*11 "The Court: What do you anticipate his answer to be?
"Mr. Koslow: The State anticipates his answer to be he was arrested as a fugitive from St. Louis County.
"Mr. McNary: On this charge?
"Mr. Koslow: On no charge, just fugitive from St. Louis County.
Mr. McNary: I object to that, I don't know if it is another crime or not. They may take it as another crime.
"The Court: He may answer."
Counsel then returned to the counsel table and the following proceedings were heard within the hearing of the jury:
"Q (by Mr. Koslow): You may answer.
"A I arrested him as a fugitive from St. Louis County."
Defendant says the answer, "fugitive from justice," was prejudicial because it would mislead the jury into thinking that defendant had attempted to flee in order to escape punishment; also that it may have indicated that he had committed another crime.
We have concluded that the testimony in question did not constitute reversible error. The contention that the ruling was erroneous because the answer implied that defendant was attempting to flee is not preserved for appellate review because that reason was not presented to the trial court at the time the objection was made. State v. Brown, Mo.Sup., 360 S.W.2d 618 [8]. Moreover, we do not think the jury would construe the answer as indicating that defendant had committed another crime. We think it is more likely that the jury would consider that the city policeman arrested defendant at the request of the St. Louis County police department as a part of its investigation of the offense in question.
There is another reason why those answers do not require a reversal. The first answer was made before objection. While an objection was thereafter made there was no motion to strike. An objection made after the answer is untimely and, in the absence of a motion to strike the answer, the ruling of the trial court is not preserved for review. State v. Velanti, Mo.Sup., 331 S.W.2d 542 [7]. The two answers had substantially the same meaning. Since defendant cannot complain of the first answer, the admission of the second answer would be harmless error even if we assume that it was inadmissible. State v. Ransom, 340 Mo. 165, 100 S.W.2d 294 [4].
An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918087/ | 1 Mich. App. 252 (1965)
135 N.W.2d 553
BERKAW
v.
MAYFLOWER CONGREGATIONAL CHURCH.
Docket No. 109.
Michigan Court of Appeals.
Decided June 21, 1965.
Leave to appeal granted August 24, 1965.
Beaumont, Smith & Harris (Alfred E. Lindbloom, of counsel), for plaintiffs.
*253 Dykema, Wheat, Spencer, Goodnow & Trigg (H. Gordon Wood, of counsel), for defendant.
Amici Curiae:
Thomas G. Long, Edmund E. Shepherd, and Edward M. Sharpe.
Leave to appeal granted by Supreme Court August 24, 1965.
WATTS, J.
Plaintiffs-appellants, the faithful minority of Mayflower Congregational Church, appeal from a decision of the Wayne county circuit court dismissing their complaint on the grounds that all the matters submitted therein have been previously adjudicated against all the classes of parties represented by them in a final adjudication by the New York court of appeals in Cadman Memorial Congregational Society of Brooklyn v. Kenyon (1953), 306 NY 151 (116 NE2d 481). This is a suit for injunctive relief and a declaratory judgment based upon the alleged invalidity of the agreement for a church merger or union. The litigation arose after the decision was made by the General Council of the Congregational Christian Churches of the United States to enter into a merger or union with the Evangelical and Reformed Church to form the United Church of Christ. A group representing the Evangelical and Reformed Church and a commission appointed by the General Council met and adopted a document called the Basis of Union which set forth the procedures to govern the proposed merger or union. In 1949, the General Council voted to consummate the merger or union, and a similar decision was made by the Evangelical and Reformed Church.
There was strong opposition to the merger or union by many Congregational churches who had the belief that the proposed United Church of Christ represented a drastic change from the traditional *254 polity of the Congregational Christian Churches. They also were of the belief that the merger or union would destroy or substantially change the nature of congregationalism. Those in opposition to the merger or union contend that the unauthorized action by the General Council commits all members of the Congregational Christian denomination to membership in the United Church of Christ. They further contend that those who choose to remain outside of the United Church of Christ will be deprived of their rights in the assets held by the General Council.
The Cadman Memorial Society of Brooklyn and the Cadman Memorial Church brought suit in 1949 against Helen Kenyon, the Moderator of the General Council. This suit which was filed in the supreme court[1] was brought on behalf of themselves and other Congregational Christian Churches similarly situated. The Cadman Church and Society requested a declaratory judgment that the General Council had no power to consummate the Basis of Union or to unite with the Evangelical and Reformed Church and that no actions taken by the General Council can or will affect the individual Congregational Christian Churches without their voluntary assent; and that those churches which do join the new church will thereby lose all the rights in and control of the various corporations, boards, and instrumentalities which had been established for the furtherance of congregationalism. Cadman also prayed for an injunction halting the merger or union of the churches and the consolidation of the corporations, boards, and agencies with their counterparts in the Evangelical and Reformed Church. The supreme court granted Cadman's pleas, declaring that the General Council was powerless to consummate *255 the Basis of Union and enjoining any further actions in that direction. The court specially enjoined the Council from uniting or transferring the corporations, agencies, and instrumentalities of the Congregational Christian Churches or their funds and properties with or to any agency of the Evangelical and Reformed Church or the United Church of Christ. Cadman Memorial Congregational Society of Brooklyn v. Kenyon (1950), 197 Misc 124 (95 NYS2d 133). On appeal, the appellate division reversed the judgment of the supreme court on the law and the facts and ordered plaintiffs' complaint dismissed. (1952), 279 App Div 1015, 1074 (111 NYS2d 808). This judgment was affirmed in a full opinion by the New York court of appeals, two judges dissenting. (1953), 306 NY 151 (116 NE2d 481).[2]
Approximately eight years after the final judgment in the Cadman Case, on June 22, 1961, plaintiffs in the instant case filed a complaint in the Wayne county circuit court to quiet title to real and personal property of defendant Mayflower Congregational Church, a Michigan corporation, in plaintiffs and in such other persons who may desire to worship according to the faith and usages of churches commonly called Congregational, and that the court determine that such property may not be used except according to the faith and usages of the churches commonly called Congregational.
Plaintiffs allege that they as members in good standing of defendant church brought suit for the protection of the true rights and interests of the church, of themselves, and of other persons who may desire to worship according to the usages and practices to which the property of the church had been dedicated.
*256 Defendant church was organized in 1930 under PA 1901, No 53,[3] entitled "An act for the organization of corporate Congregational churches." The purpose of defendant corporation, as stated in its articles of incorporation which has continued ever since without amendment or change, is to worship and labor together as a church according to the faith and usages of the churches commonly called Congregational.
Plaintiffs allege in detail the unique doctrines and practices of the Congregational churches, the formation of the United Church of Christ and how it fundamentally differs from congregationalism. Plaintiffs allege that a majority of the members of defendant church voted on April 30, 1961, to become part of the United Church of Christ. Plaintiffs further allege that to make defendant church a part of the United Church of Christ would work a change in the religious practices not conformable with the origin and historic character of the faith to which the church property is dedicated and would divert the property of defendant church to another denomination and violate the rights of the faithful minority and deprive such minority of the use of church property.
Defendant on or about July 19, 1961, filed a motion to dismiss the bill of complaint, claiming that plaintiffs were barred from maintaining the action by reason of two prior adjudications by which the matters raised in the complaint had been finally and conclusively determined against them.[4] Defendant *257 also claimed that plaintiffs were estopped by the judgment in these two cases from maintaining the action. The motion further states that the complaint failed to state a cause of action.
Defendant's motion was supported by affidavits, one by Loren T. Wood, a member of the bar of New York, to which were attached many documents. There was also attached to the motion an affidavit of Mr. Taylor, the minister of defendant church. Plaintiffs also filed affidavits in opposition to the motion to dismiss,[5] alleging that the issue of whether the United Church of Christ as formed and effected is a non-Congregational denomination has never been adjudicated. Further, that the issue of whether the plan of union provided for a new denomination which would be non-Congregational has not been adjudicated in the Cadman Case because the court *258 held that the admissions and representations of the General Council, although it was only one of the many parties to the plan of union, eliminated that ecclesiastical question from the case.
In an opinion given on April 13, 1964, Judge Miles N. Culehan of the Wayne county circuit court found:
"That the pleadings, affidavits, records, judgments and opinions of prior litigated cases show that there is no genuine issue as to any material fact but only disputed questions of law, and that defendant Mayflower Congregational Church is entitled to judgment on its motion as a matter of law.
"The Court further and severally finds that each of the following facts exist without controversy, to-wit:
"1. A representative action was heretofore instituted in the supreme court of the State of New York, county of Kings, by the Cadman Memorial Congregational Society of Brooklyn and the Cadman Memorial Church, suing on behalf of themselves and other Congregational Christian Churches similarly situated, against Helen Kenyon, as moderator of the General Council of the Congregational Christian Churches of the United States, as defendant. Final judgment in the said action (hereinafter referred to as the `Cadman Case') was rendered in favor of said defendant and against said plaintiffs. The decision (sic) in said action are reported at 197 Misc 124 (95 NYS2d 133), reversed, 279 App Div 1015, 1074 (111 NYS2d 808) (2d Dept 1952), affirmed (1953) 306 NY 151 (116 NE2d 481).
"2. A representative action was heretofore instituted in the United States district court for the southern district of New York by the First Congregational Church and Society of Burlington, Iowa, First Congregational Church of Pontiac, Michigan, and others, including Malcolm K. Burton, a minister and member of the First Congregational Church of Pontiac, Michigan, suing on behalf of themselves and all other churches, ministers and members of *259 churches similarly situated, against Evangelical and Reform (sic) Church and numerous other defendants. Final judgment in that action (hereinafter referred to as the `Burlington Case') was entered in favor of defendants and against plaintiffs, the decisions being reported at 198 F Supp 677, affirmed 305 F2d 724 (CCA 2, 1962), cert denied (1963), 372 US 918 (83 S Ct 728, 9 L ed 2d 723).
"3. On September 19, 1961, the Honorable Lila M. Neuenfelt issued an order dismissing without prejudice plaintiffs' order to show cause why a temporary injunction should not be issued.
"4. The property rights involved in this cause exceed $3,000.
"The Court concludes as matters of law that:
"1. Plaintiffs in the Cadman Case represented a class of which plaintiffs in the present action were members and claimed and sought declarations of rights and interests in the subject matter of the litigation which included all the rights and interests asserted by plaintiffs herein. Plaintiffs herein are estopped by said judgment from litigating the issues presented herein and said case is res judicata as to such issues.
"2. Plaintiffs in the Burlington Case represented a class of which plaintiffs in the present action were members and claimed and sought declarations of rights and interests in the subject matter of the litigation which included all the rights and interests asserted by plaintiffs herein. Plaintiffs herein are estopped by said judgment from litigating the issues presented herein and said case is res judicata as to such issues.
"3. Plaintiffs' order to show cause as to why a temporary injunction should not be issued should be dismissed.
"It is therefore, ordered and adjudged that defendant's original motion to dismiss, now considered a motion for accelerated judgment[6] and a motion for *260 summary judgment,[7] be and the same hereby are granted, and judgment is hereby entered in favor of defendant and said cause and plaintiffs' bill of complaint are hereby dismissed.
"It is further ordered and adjudged that plaintiffs' order to show cause why a temporary injunction should not be issued is hereby dismissed.
"It is further ordered and adjudged that the defendant shall have the right to tax its costs."
On May 11, 1965, this cause came on to be heard as an appeal on questions of law and assignments of error, the complaint, transcript, original papers, and pleadings from the Wayne county circuit court and also upon the briefs and arguments of counsel for plaintiffs-appellants and the defendant-appellee.
This Court finds that there was no genuine issue of fact presented incident to the granting of defendant-appellee's motion to dismiss the cause and the plaintiffs-appellants' bill of complaint.[8]
This Court finds that no prejudicial error to plaintiffs-appellants occurred during any of the proceedings.
Judgment of the Wayne county circuit court is hereby affirmed. Costs to defendant-appellee.
J.H. GILLIS, P.J., and McGREGOR, J., concurred.
NOTES
[1] The supreme court, the trial court in the Cadman Case, is comparable to the circuit court of the State of Michigan.
[2] Motion for reargument submitted March 8, 1954, and denied March 11, 1954, 306 NY 851 (118 NE2d 909).
[3] CL 1918. § 458.301 et seq. (Stat Ann 1963 Rev § 21.1881 et seq.).
[4] Cadman Memorial Congregational Society of Brooklyn v. Kenyon (1953), 306 NY 151. Judge Dye of the court of appeals, writing the majority opinion of the court, discussed in detail on pages 158-167 the same issues as raised in the instant case. The dissenting opinion written by Judge Froessel is found on pages 167-172.
First Congregational Church and Society of Burlington, Iowa, v. Evangelical and Reformed Church (DC SD NY, 1961), 198 F Supp 677. District Judge Dimock discussed the same issues as raised in the instant case.
First Congregational Church and Society of Burlington, Iowa, v. Evangelical and Reformed Church (CCA 2, 1962), 305 F2d 724. Circuit Judge Clark discussed the issues which were raised in the instant case.
More recent cases on point are:
Wilson v. Washington Congregational Church in the common pleas court, Lucas county, Ohio, # 190424 (affirmed by the court of appeals of Lucas county and by the supreme court of the State of Ohio in 1963, 175 Ohio St 264 [193 NE2d 702]). See 25 Ohio Opin 2d 35.
Howes v. First Congregational Church of Sheridan, Wyoming in the fifth judicial district of the State of Wyoming, October 24, 1962.
Hoffman v. Emley, in the circuit court, Waukesha county, Wisconsin, June 1, 1964.
[5] The motion to dismiss was brought on for hearing before Wayne county circuit court Judge Lila M. Neuenfelt in September, 1961, and the matter was then argued for several days. On September 29, 1961, a stipulation was entered into by the parties through their respective attorneys and an order entered that the hearing on defendant's motion to dismiss and all further proceedings in the action be suspended and adjourned, to be resumed only when the Burlington Case, one of the two cases relied on by defendant, then on appeal, would become final. After the Burlington Case was decided, Judge Neuenfelt did not desire to resume argument of the motion to dismiss because of the pendency in the State of Ohio of a case entitled Wilson v. Washington Congregational Church, 175 Ohio St 264 (193 NE2d 702). When this case was concluded, the instant case was assigned to Judge Miles N. Culehan and the motion was argued before him on April 6 and 7, 1964.
[6] See GCR 1963, 116.
[7] See GCR 1963, 117.
[8] Plaintiffs-appellants' bill of complaint requested: (1) the Wayne county circuit court to quiet title to real and personal property of defendant-appellee Mayflower Congregational Church, a Michigan corporation, in plaintiffs-appellants and such other persons who may desire to worship according to the faith and usages of churches commonly called Congregational; (2) that the court shall determine that such property may not be used except according to the faith and usages of churches commonly called Congregational; (3) that defendant-appellee church, its minister, boards, officers, agencies, and other representatives be permanently and perpetually enjoined by a final decree from having or making said church a part of the United Church of Christ or taking any action to that end; and (4) that pending the final decree herein, a writ of temporary injunction be issued of like force and effect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918089/ | 272 So.2d 623 (1973)
Jerry Lynn CORNELIUS, alias
v.
STATE.
3 Div. 170.
Court of Criminal Appeals of Alabama.
January 23, 1973.
Craig Miller, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
HARRIS, Judge.
From a conviction of robbery in the Circuit Court of Montgomery County this appeal is prosecuted. A jury fixed punishment at ten (10) years in the penitentiary.
Appellant had a court-appointed lawyer to represent him in the trial below who was also appointed to represent him on appeal. Before the appeal was perfected his trial counsel, Honorable William P. Haney, Jr., made known to the court that he would soon assume the duties of an Assistant District Attorney for Montgomery County and moved the court to appoint another lawyer to handle the case on appeal. The court appointed Honorable Craig Miller to represent appellant on appeal and he filed briefs.
In the early morning hours of August 5, 1971, the night attendant at the Shell Service Station located at the intersection of Fairview and Cleveland Avenues was robbed by two men. According to the testimony of the attendant, these two men came inside the station and asked him for some change so they could use the toll phone. He made the change and the men went outside toward the phone booth. In a few minutes the men returned and asked for more change. The attendant opened the cash register to give them more change and at this time one of the men sprayed Mace in the attendant's face. Appellant then grabbed the money from the cash register and the other robber stuck something in the attendant's back and told him to walk to the back of the building and that if he tried anything they would kill him. The robbers left and the attendant went to the telephone and called the police. He gave the police a description of the men saying "they both had on sandals; mustaches, and one had on a light blue work suit" and the other one "had on a brown shirt."
The officers immediately responded to the call and the suspects were stopped on the ramp leading up to Interstate 65, a *624 short distance from the service station. While the officers were interviewing the suspects they received a radio dispatch giving a more detailed description of the robbers and how they were dressed. One was wearing a blue shirt and blue pants and had a mustache, and the other suspect was wearing a brown shirt and brown pants and had long hair. The officers carried both suspects to the service station where they were identified by the victim of the robbery. The officers shook down the suspects and recovered the money$62.08. At trial it was shown that appellant was the one dressed in blue. The attendant made an "in-court identification", pointing out that appellant was one of the robbers.
Appellant testified and denied that he participated in this alleged robbery and denied that he had ever been to this service station before the officers carried him there. He stated that they came from Charlotte, North Carolina, and were going to get on I-65 enroute to Mobile.
Appellant filed a motion for a new trial raising prejudicial error in the action of the trial court in overruling the motion to exclude the eye-witness identification by the victim of the robbery. The contention is made here, in brief, that it was a denial of due process to singly show the defendant (appellant) to the victim of the crime charged without a pretrial lineup. He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267.
We disagree and affirm the judgment of conviction.
It is now settled law that prompt on-the-scene confrontation is "consistent with good police work", and does not offend the principles established in the cases relied upon by appellant.
In Bates v. United States, 132 U.S.App. D.C. 36, 405 F.2d 1104, Judge Burger, now Chief Justice of the Supreme Court of the United States, writing for the court said:
"There is no prohibition against a viewing of the suspect alone in what is called a `one-man showup' when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy."
In Bates, Judge Burger further wrote:
"Our review of the circumstances surrounding the apprehension of Appellant and the police conduct which led to his identification satisfies us that the claim that Appellant was denied due process of law is without merit; there was no `substantial likelihood of irreparable misidentification.' To the contrary, the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh. * * *"
The confrontation in this case occurred less than thirty (30) minutes after the robbery.
In United States ex rel. Cummings v. Zelker, 455 F.2d 714, the Court of Appeals for the Second Circuit said:
"The confrontation in this case was a reasonable one. When the two suspects were brought to Mrs. Camardella's house, only 30 minutes had elapsed since she reported the crime. It must have been obvious to the witness that the suspects were apprehended solely on the basis of the descriptions given by her to the police. Thus this prompt confrontation was desirable because it served to insure `the immediate release of an innocent suspect and at the same time [to] enable the police to resume the search for the fleeing culprit while the trail is fresh.' Bates v. United States, 132 U.S. App.D.C. 36, 405 F.2d 1104, 1106 (1968).
*625 We view the instant situation as one in which prudent police work necessitated the on-the-spot identification in order to resolve any possible doubts the police may have had when they first took the petitioner into custody."
See also United States v. Sanchez, 2 Cir., 422 F.2d 1198.
Mr. Justice Douglas, although dissenting to the affirmance of a state court conviction in Biggers v. Tennessee, supra, readily conceded:
"Of course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup."
We hold that the identification procedure in the patrol car was not such as to create a likelihood of irreparable mis-identification.
This cause is due to be affirmed.
Affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918094/ | 135 N.W.2d 175 (1965)
STATE of North Dakota, Respondent,
v.
Clarence ROHRICH, Defendant and Appellant.
No. Cr. 318.
Supreme Court of North Dakota.
May 13, 1965.
*176 Lanier, Knox & Shermoen, Fargo, (F. C. Rohrich, Linton of Counsel), for appellant.
*177 Albert A. Wolf, State's Atty., Bismarck, for respondent.
BURKE, Chief Justice.
Appellant-defendant in this case was convicted of the crime of perjury in the District Court of Burleigh County. He has appealed from the judgment of conviction. The charge of perjury arose out of defendant's testimony in a case wherein he was charged in police magistrate's court with driving a motor vehicle at a speed of thirty-five miles an hour in a zone in which the speed limit was twenty-five miles an hour. At the trial in police magistrate's court, the police officer, who made the speeding charges, testified that he clocked the defendant at a speed of thirty-five miles an hour while defendant was traveling east on Main Avenue from Sixth Street to Eighth Street; that at the intersection of Eighth Street and Main Avenue, defendant turned north into Eighth Street which at this point is a dead end street which ends half a block north of Main Avenue; that defendant stopped at the dead end and he (the officer) served the defendant with a summons for traffic violation at this location.
At Ninth Street and Main Avenue, one block east of the corner where the police officer said the defendant turned north, the speed limit changes to thirty-five miles an hour for the zone east of Ninth Street. Defendant testified that he did not turn north at Eighth Street and Main Avenue as testified to by the officer but that he turned north at a point on Main Street about two blocks east of Ninth Street, and it was in this location that the traffic summons was served. The defense to the traffic charge was that if the speed of defendant's car had been clocked at thirty-five miles an hour in the two blocks immediately west of the place where the defendant turned to the north, there was no violation because those two blocks were in a zone where the speed limit was thirty-five miles an hour.
After the trial upon the charge of speeding defendant was charged with perjury. In the information it was alleged: "* * * that * * * said defendant did then and there wilfully and unlawfully and having taken an oath before a competent person, namely David L. Milhollan, Police Magistrate of the City of Bismarck, that he would testify truthfully in a trial before said magistrate, did make a false statement which he did not believe to be true, and which statement was material to the issues in said trial." Defendant pleaded "not guilty" to this information.
At the trial upon the charge of perjury, the substance of defendant's testimony in police magistrate's court was testified to by the assistant city attorney who prosecuted that case and by the police magistrate. The police officer who had made the speeding charge testified that, contrary to defendant's testimony, defendant's speed had been clocked and the traffic summons had been served in a twenty-five mile an hour speed zone. With respect to the place of the service of the summons he was corroborated by two witnesses who stated that they saw the officer stop the defendant's car. None of this testimony was contradicted at the perjury trial.
Upon this appeal there are fifteen specifications of error. We shall consider first those which relate to the sufficiency of the evidence to sustain the verdict. Counsel for defendant urges that the evidence is insufficient because,
(1), the alleged false statements of the defendant were not material to the issues in the trial of the speeding charge in police magistrate's court;
(2), the witnesses at the perjury trial did not testify as to the substance of defendant's testimony in police magistrate's court but only as to its effect; and
(3), that the memories of the witnesses as to defendant's testimony in police magistrate's court were not sufficiently accurate to be a basis for a prosecution for perjury.
*178 None of these objections to the sufficiency of the evidence can be sustained. The main issue in the trial in police magistrate's court was whether the defendant had exceeded the speed limit. Testimony as to the location where defendant's rate of speed was timed was material to establish that defendant had violated the speed limit at that place. At the trial in police magistrate's court the police officer testified that he had timed the defendant's speed at thirty-five miles an hour for a distance of two blocks immediately west of the point where he stopped the defendant and that all of the incidents to which he testified took place west of Ninth Street in a twenty-five mile an hour speed zone. Defendant testified that he had been stopped two blocks east of the beginning of the thirty-five mile an hour speed zone. This testimony was material for two reasons; first, it challenged the credibility of the officer's entire testimony, and second, if the officer's testimony, that he timed the defendant's speed at thirty-five miles an hour in the two blocks immediately west of the location where defendant was stopped, and defendant's testimony as to the place where he was stopped was accepted as true, there was no offense because the speed limit was thirty-five miles an hour in that area. A statement made by a witness during the course of a trial is material "* * * if it has a legitimate tendency to prove or disprove some fact that is material, irrespective of the main fact at issue." 41 Am.Jur. (Perjury, Sec. 13) 10. "The test of materiality is whether a false statement can influence the tribunal * * *" in arriving at a decision. 70 C.J.S. Perjury § 11, p. 466.
It is clear that the false statements defendant was alleged to have made at his trial in police magistrate's court were statements of the facts upon which his defense to the charge of speeding was predicated. They were clearly material.
The question of whether the state's witnesses testified to the substance of defendant's testimony in police magistrate's court or to its effect is largely a question of semantics. How a witness may characterize his own testimony is unimportant. What is important, is his testimony as to the facts. The witness Saefke testified as follows:
"Q. Do you remember with certainty what questions were asked of him by his counsel and the answers to them?
"A. Not verbatim.
"Q. Do you recall the substance of those questions and the answers given?
"A. Yes, Sir.
"Q. Would you relate to the jury what the defendant's testimony was as elicited by counsel there at that hearing insofar as it relates to the place of the arrest?
"A. The place of his arrest in his testimony was that he had turned north from Main Avenue at the * * * east of Phillip's 66 Station which was across the street from Simonson's Gas."
Concerning the defendant's testimony at the prior trial the Police Magistrate testified: "He did specifically recall then (sic) making a left-hand turn approximately two blocks past the intersection of Ninth and Main. He stated that he recalled making the left turn, and after making the turn the Phillip's 66 Station was on his left, and Simonson's Cut Rate Station was across the street on the south side of Main Avenue."
In the above testimony the witnesses were not testifying as to their conclusions as to what the effect of defendant's statements were. They were testifying as to what those statements were. Such statements "may be proved by anyone who heard them." 70 C.J.S. Perjury § 58, p. 529.
The last objection as to the sufficiency of the evidence relates to the uncertainty of some of the witnesses when they were cross-examined as to the whole of the defendant's testimony at the former trial. This argument is one which goes to the *179 weight that is to be given to the recollections of the witnesses which they stated were certain. That was a question for the jury. The credibility of witnesses and the weight to be given to their testimony are matters for the jury. State v. McCray (N.D.) 99 N.W.2d 321; State v. Holte, N.D., 87 N.W.2d 47; State v. Gulke, 76 N.D. 653, 38 N.W.2d 722.
Specifications of error, 3, 4, 5 and 6 relate to the claimed misconduct of the state's attorney in attempting to get alleged prejudicial immaterial evidence into the record.
A witness, Father Samuel Homsey, who had been called as a character witness, had testified that defendant had a good reputation for truth and veracity. Upon cross-examination the state's attorney inquired if the witness had based his opinion upon his acquaintance with the defendant in his church. The witness answered that he had based his opinion upon his acquaintance with the defendant and with his family. He stated that the defendant had two sisters who were Nuns and that he was better acquainted with the defendant's family than he was with many other families in his parish. Then followed inquiries as to other members of defendant's family and finally the state's attorney asked: "Are you aware that defendant's brother was convicted * * *?" At this point defendant's attorney objected and moved for a mistrial. The objection was sustained but the motion for a mistrial was denied. Thereupon the witness volunteered the following: "Yes, I know of this and I know the circumstances regarding all this because I went through * * * I think I was closer to it than you were, but after that, what happened here, you probably know more about it than I do, but I know it was going through there." The state's attorney then asked, "What is it that you are referring to?" Again, defendant's attorney objected and moved for a mistrial. At this point the trial judge directed: "We will get off this subject altogether."
The purpose of the cross-examination was evidently to show that the witness had in fact testified as to his personal opinion of the character of the defendant not to his general reputation in the community where he lived. When the witness volunteered the information that he based his opinion in part upon his acquaintance with defendant's family and stated that defendant had two sisters who were Nuns, the state's attorney attempted to show that there was one member of defendant's family whose conduct had not been so exemplary. The result of the incident was that, despite the fact that the objection to the question of the state's attorney was sustained, the jury was informed that defendant's brother had been convicted of some offense. What the offense was, was not disclosed. Inquiry as to the brother's conviction was not material to the defendant's reputation nor was it material to test the witness's knowledge of that reputation. State v. Keul, 233 Iowa 852, 5 N.W.2d 849. Since a new trial must be granted upon other grounds we do not decide whether this incident was prejudicial.
Error is also predicated upon the fact that the state's attorney called a Kenneth Kucera as a witness in the case. Before this proposed witness took the stand, the Judge, the attorneys and the defendant, at the request of defendant's attorney, retired to chambers where the state's attorney made an offer of proof in the absence of the jury. Defendant's objection to the offer of proof was sustained and that was the end of the matter. Concerning this specification it is sufficient to say that the record shows no error.
During most of the trial the defendant was absent from conferences and arguments between the attorneys and the trial judge concerning legal questions. These conferences took place, out of the presence of the jury, in the judge's chambers. With respect to this matter the record shows the following: "The Court: I think the record should show this is the first time in any of *180 these conferences on offers of proof etc., that defendants have been present, and I wonder if counsel for defendants would be willing to agree that this would not constitute any error on the part of the trial?
"Mr. Lanier: I will waive, your Honor. However, I question my right to do so, but I do waive for any effectiveness it does." A specific waiver was also made for the record by the defendant, Rohrich, personally.
Counsel for defendant specified that the absence of defendant from these conferences was error and in his brief he states: "The only question raised by this specification of error is whether or not the voluntary waiving by both counsel and defendants cures the error." If the absence of the defendant from these conferences constituted error, a question which we do not decide, the error was clearly waived. Constitutional and statutory provisions which require the presence of an accused at a trial for a felony are for the benefit of the accused and may be waived. State v. Thompson, 56 N.D. 716, 219 N.W. 218. See also State v. Hefta (N.D.) 88 N.W.2d 626; State v. Throndson, 49 N.D. 348, 191 N.W. 628.
The last specification of error relates to the view by the jury of the scene of defendant's arrest. Counsel for appellant argues in his brief and orally that it was reversible error for the view by the jury to be had without the presence of the defendant and the trial judge. Section 29-21-26, NDCC, provides:
"When, in the opinion of the court, it is proper that the jurors should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jurors conducted in a body, in the custody of proper officers, to such place, which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no person to speak to nor communicate with the jurors, nor to do so themselves on any subject connected with the trial, and return them into court without unnecessary delay, or at a specified time. The trial judge shall be present and the state's attorney and counsel for the defendant may be present at the view by the jurors."
By the clear language of the above statute it was the mandatory duty of the trial judge to attend the viewing by the jury. His absence was error and it will be deemed prejudicial. The absence of the trial judge was not assigned as error in the specifications of error upon this appeal and, for that reason it is urged that the argument that such absence was error may not be considered on this appeal. This contention would be valid if this were a civil case. However, neither the statutes nor the rules applicable to appeals in criminal cases contain any reference to specifications of error.
An assignment of error in the appellant's brief is sufficient in criminal cases. State v. Weltner, 7 N.D. 522, 75 N.W. 779.
The judgment of the district court is reversed and a new trial granted.
ERICKSTAD, STRUTZ and TEIGEN, JJ., concur.
KNUDSON, J., not being a member of the Court at the time of submission of this case, did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919850/ | 117 N.H. 91 (1977)
ROBERT E. SMITH
v.
RAYMOND A. HELGEMOE, WARDEN, NEW HAMPSHIRE STATE PRISON
No. 7605
Supreme Court of New Hampshire.
January 31, 1977.
*92 Robert A. Stein, public defender, by brief and orally, for the plaintiff.
David H. Souter, attorney general, and Robert V. Johnson, II, assistant attorney general (Mr. Johnson orally), for the defendant.
GRIMES, J.
In this petition for habeas corpus, plaintiff seeks to avoid extradition mainly on the basis that fourth amendment requirements of probable cause have not been met and that the evidence is not sufficient to support a finding that the plaintiff is the person named in the extradition papers. We uphold the trial court's dismissal of the petition, and its order for extradition.
Plaintiff is, and was on August 5, 1976, an inmate of the New Hampshire State Prison where he is being held in lieu of bail on certain criminal charges alleged to have occurred in this state. On that date, fugitive warrants were lodged at the prison against the plaintiff in connection with extradition proceedings arising out of the murder in Massachusetts of three persons on the evening of December 31, 1975. On August 26, 1976, plaintiff appeared before the Concord District Court (Marx, J.) and was informed of his rights under RSA 612:10 and counsel was appointed for him.
*93 On September 10, 1976, this petition was filed in the superior court and after hearing, Flynn, J., denied motions to compel the attendance of a witness who was a prisoner in another state and to take depositions.
On September 27, 1976, a hearing was held on the merits of the petition during which the court had before it only the extradition documents. The plaintiff presented no testimony or evidence. The court, on the basis of the documents and treating the statements in the requisition documents to be prima facie true, found probable cause for believing plaintiff to be guilty of the crimes of murder in Massachusetts, denied habeas corpus and granted extradition. Plaintiff's exceptions were transferred by Flynn, J. A similar order was made in the case of a codefendant of plaintiff who did not appeal.
The extradition documents which were presented to the trial court, all of which are included within the requisition request signed by the Governor of Massachusetts and which are certified by the Governor "to be authentic and duly authenticated in accordance with the laws of the Commonwealth....," are as follows:
(a) Three Lowell District Court complaints.
(b) Three arrest warrants based upon the complaints.
(c) Affidavit by the Secretary of State, Massachusetts, certifying the Lowell District Court, Justice Cowdrey and the Clerk of said court, as well as their signatures.
(d) Affidavit by the Secretary of State, Massachusetts, certifying the Superior Court of Massachusetts, Justice Cowdrey and the Clerk of the said court, as well as their signatures.
(e) Certification of records by the said Clerk, certification by Justice Cowdrey as to the said Clerk, and certification by the said Clerk as to Justice Cowdrey.
(f) Affidavit by Detective Lieutenant William C. Nally, dated July 15, 1976, including a jurat by Joseph D. Neylon, a Justice of the Peace.
(g) Request for issuance of requisition to Governor Dukakis, dated July 15, 1976, by John J. Droney, Esquire, District Attorney for the Northern District Middlesex County, Massachusetts.
(h) Requisition request by Governor Dukakis, dated July 16, 1976, to Governor Thomson.
*94 [1] We hold that the Governor's authentication covers all the documents included in the papers including the affidavit of Lieutenant Nally and that they meet the requirements of RSA 612: 3.
Plaintiff argues that fourth amendment requirements have not been met because the documents do not show the evidence upon which an independent finding of probable cause may be made in this state and that the trial court did not make, and the documents would not permit, a determination that the evidence before the Massachusetts magistrates who issued the arrest warrant was sufficient to support a finding of probable cause.
[2] In Gerstein v. Pugh, 420 U.S. 103 (1975), a case involving a warrantless arrest, it was held that the fourth amendment to the Constitution of the United States required that before there could be any "significant pretrial restraint of liberty" there must be a judicial determination of probable cause. Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976), held that because extradition imposed a significant restraint on liberty the principle of Gerstein was applicable and that a judicial finding of probable cause must precede extradition.
[3] However, Ierardi held that this determination of probable cause could be made either by the demanding state or the asylum state and it was stated that the asylum state could rely upon the "regularity of the demanding state's procedures" and that the asylum state would be "entitled to rely on the official representations of its sister state that the requisite determination has been made" and that it "may credit an arrest warrant shown to have been issued upon a finding of probable cause ... just as it would credit a[n] ... indictment." Id. at 931; see Bracco v. Wooster, 91 N.H. 413, 20 A.2d 640 (1941); Fortier v. Frink, 92 N.H. 50, 24 A.2d 604 (1942).
[4] Mass. Gen. Laws Ann. ch. 276, § 22 provides that when a complaint is made to a justice of a district court "he shall examine on oath the complainant and any witnesses produced by him ... and if it appears that a crime has been committed shall ... issue a warrant...." We may assume under Ierardi that these procedures were complied with and that the warrants were issued on a finding of probable cause. Commonwealth v. Baldassini, 357 Mass. 670, 260 N.E.2d 150 (1970). There is no requirement that this state "review the adequacy of the ... determination." The extradition documents *95 do not need, therefore, to show the evidence upon which the warrants were based.
[5, 6] Although we find the determination of probable cause by Massachusetts to have met the fourth amendment requirements as viewed by Ierardi, extradition is also supported by a finding of probable cause in the asylum state. The affidavit of Detective Nally furnished a sufficient basis for that finding. It is not disputed that the information furnished by the named informer, Wilson, would support such a finding. The only objection raised is that there is not sufficient evidence from which a finding of credibility and reliability could be made. See Spinelli v. United States, 393 U.S. 410 (1969). However, the very nature of the information given shows that Wilson spoke from personal observation thus establishing reliability. Credibility was findable because the informer named was a brother of plaintiff's codefendant and was obviously a friend of plaintiff's and the information was very much against his penal interest. See United States v. Harris, 403 U.S. 573 (1971). We hold therefore that all the requirements of the fourth amendment as stated in Ierardi have been complied with.
[7] Plaintiff's contention that extradition on the basis of a sworn complaint is not authorized by RSA 612:3 has already been decided against him in Loulakis v. Walker, 103 N.H. 526, 176 A.2d 314 (1961).
[8] Plaintiff further argues that defendant has not met the burden of proving that he is the person named in the extradition papers and that he was present in the demanding state at the time of the alleged crime and thereafter fled. Wherever the burden of proof may be, see United States v. Flood, 374 F.2d 554 (2d Cir. 1967); Raftery v. Bligh, 55 F.2d 189 (1st Cir. 1932); Bracco v. Wooster supra; Annot., 93 A.L.R.2d 912, 922 (1964), we hold that the evidence in this case was sufficient to sustain the finding that the plaintiff was the person named in the extradition papers and that he was in Massachusetts at the time of the alleged offense. Plaintiff is described in the papers by name, residence, place of incarceration, date of birth, sex, race, height and weight. The Nally affidavit clearly places plaintiff in Massachusetts at the time of the commission of the crime and the fact that he is now in this state supports the finding that he is a fugitive from justice. Bracco v. Wooster supra; Thomas v. O'Brien, 98 N.H. 111, 95 A.2d 120 (1953).
*96 [9] We also reject plaintiff's claim that he was denied the effective assistance of counsel by the refusal of the trial court to summon a prisoner from out of state to be a witness and by the denial of his motion for depositions. The fact that in Debski v. State, 115 N.H. 673, 348 A.2d 343 (1975), three state witnesses came from out of state does not make the denial of plaintiff's request in this case improper. This is not a criminal action or grand jury investigation so as to come within the provisions of RSA 613-A:6 and the denial of depositions was within the discretion of the trial court which was not abused given the nature of the proceedings.
Exceptions overruled.
DOUGLAS, J., did not sit; the others concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584991/ | 187 P.3d 753 (2008)
STATE
v.
VESSEY.
No. 81039-7.
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/1575363/ | 458 S.W.2d 83 (1970)
Frank Joseph ALBERTS, Appellant,
v.
The STATE of Texas, Appellee.
No. 43002.
Court of Criminal Appeals of Texas.
July 15, 1970.
Rehearing Denied October 14, 1970.
*84 Robert B. Billings, Dallas, for appellant.
Henry Wade, Dist. Atty., Harry J. Schulz, Jr., and W. T. Westmoreland, Jr., Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is fondling; the punishment, 12 years.
The record reflects that the complaining witness, an eleven year old girl, was nine years of age at the time of the offense. The evidence is sufficient to support the conviction and it would serve no useful purpose to set forth the facts and circumstances surrounding this case.
Appellant's first ground of error complains that the trial court erred in denying his motion to quash the indictment on the ground that Article 535d Vernon's Ann. P.C. is unconstitutional.
This court has held that the statute in question sufficiently defines and creates an offense; provides for a definite minimum penalty and is capable of reasonable interpretation. Fuentes v. State, 163 Tex.Cr.R. 410, 292 S.W.2d 117; Studer v. State, 159 Tex.Cr.R. 598, 265 S.W.2d 833. The allegations contained in the indictment substantially follow the statute and sufficiently apprise the appellant of the acts he is charged with committing and of the offense with which he is charged. Reagan v. State, Tex.Cr.App., 423 S.W.2d 335.
Appellant's first ground of error is overruled.
Appellant's second ground of error complains that the trial court erred in overruling his motion in the nature of a plea in bar by reason of a former conviction arising out of the same transaction.
The record shows that appellant's first conviction was vacated when the court granted his motion for a new trial. *85 There is nothing in the record to support the contention that the second trial was barred by virtue of the double jeopardy provision of Article I, Section 14, Texas Constitution, Vernon's Ann.St.
Ground of error No. 2 is overruled.
Appellant's third, fourth and fifth grounds of error are not supported by the record and it would serve no purpose for this court to discuss the matters contained therein.
Grounds of error Nos. 6 and 7 complain that the trial court erred in overruling his motion for instructed verdict. It is appellant's contention that the complaining witness was an accomplice witness as a matter of law, and in the absence of evidence corroborating her testimony, the conviction cannot stand.
The rule applicable is:
"If from the evidence, a question is raised as to whether the child between the ages of nine and thirteen years voluntarily participated in the criminal act, or as to whether such child, so participating, is possessed of sufficient discretion to know the act to be criminal, and to have the necessary criminal intent, such issue or issues should be submitted to the jury in order that the jury may, by resolving such issue, determine whether the witness is to be considered an accomplice witness."
Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727; Olsen v. State, Tex.Cr.App., 424 S.W.2d 449.
In the present case, the trial court properly instructed the jury with regard to such rule of law, and the jury resolved the issue in favor of the state.
Grounds of error Nos. 6 and 7 are overruled.
Ground of error No. 8 complains of the overruling of his motion for continuance because of the following:
"The case began on January 29, 1968. Then the case was continued to January 31, 1968, with Judge Joe E. Brown presiding, and taken up again with Judge Latham presiding. Defendant objected to continuing the case under a different judge and moved for a continuance on that basis and on the further basis that because of the delay some of his witnesses had scattered."
Honorable Steve Latham, Judge of the 66th Judicial District of Texas, was properly assigned to Criminal District Court No. 3 of Dallas County beginning February 1, 1968. Honorable Joe E. Brown was the regular Judge of said Criminal District Court of Dallas County. After a two day delay, Judge Latham presided for one day in place of Judge Brown who had become ill, after which Judge Brown returned and presided over the remainder of the trial.
In the absence of any showing of injury or abuse of discretion, we find no error in the overruling of the motion for continuance.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3016983/ | ___________
No. 96-1090
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Larry Richard Wilhelm, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 30, 1996
Filed: June 5, 1996
___________
Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Larry Richard Wilhelm appeals the district court's1 denial of his
motion for production of documents. Having carefully reviewed the record
and the parties' briefs, we conclude the denial of the motion was proper
and that an opinion would lack precedential value.
Accordingly, we affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable Harold D. Vietor, United States District Judge
for the Southern District of Iowa. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1573973/ | 408 S.W.2d 295 (1966)
DELHI PIPELINE CORPORATION, Appellant,
v.
LEWIS, INC., Appellee.
No. 138.
Court of Civil Appeals of Texas, Corpus Christi.
April 28, 1966.
First Rehearing Denied October 20, 1966.
Second Rehearing Denied November 17, 1966.
*296 Geary, Brice & Lewis, Dallas, James P. Ryan, of Fischer Wood, Burney & Nesbitt, Corpus Christi, for appellant.
Homer E. Dean, Jr., of Lloyd, Lloyd, Dean & Ellzey, Alice, Toufic Nicolas, of Horkin, Nicolas & Nicolas, Corpus Christi, for appellee.
OPINION
SHARPE, Justice.
This appeal is from a judgment rendered in a jury trial for Lewis, Inc., appellee, plaintiff below, in the sum of $31,303.07, against Delhi Pipeline Corporation, defendant below. The parties will sometimes be referred to as "Lewis" and "Delhi".
*297 Lewis sued for damages in the amount of $25,914.76 for alleged breach of oral and written contracts, the latter having been executed on October 3, 1963, and the former having been entered into shortly thereafter, all covering pipeline projects in Victoria County, Texas; for $50,000.00 as exemplary damages and $8,000.00 for attorney's fees. By way of cross-action, Delhi sued for $4,932.45 due to alleged breach of contract by Lewis. Lewis is in the business of constructing pipeline systems and Delhi is a gas transmission company. It is undisputed that Lewis was an independent contractor and that Delhi terminated the contracts before completion of the work by Lewis.
The jury verdict established the amount of Lewis' damages as follows: $17,451.00 for expenses incurred prior to termination of the contracts; $7,500.00 for loss of profit; $5,000.00 for attorney's fees; and $15,000.00 for exemplary damages. The trial court granted Delhi's motion for judgment non obstante veredicto and to disregard the jury findings concerning exemplary damages only and denied Lewis a recovery in such respect. The judgment allowed interest on the amount of $24,951.50 from October 17, 1963 to its date of entry on September 12, 1964.
Appellant Delhi urges 37 points of error which are briefed in six groups. Appellee Lewis urges 7 reply points, similarly briefed, and one counterpoint concerning the refusal of the trial court to award exemplary damages. The points will be discussed as grouped for briefing by the parties.
Under the first group of points (1-6), relating primarily to Special Issue 1, Delhi contends that the trial court should not have rendered judgment based upon such jury finding; that there is no evidence and it is factually insufficient to raise such issue and support the answer thereto; that the trial court should have granted judgment non obstante veredicto on the entire case pursuant to Delhi's motion; and, in any event, should have granted a new trial.
Special Issue 1, its accompanying definition and the jury answer are as follows:
"Special Issue No. 1.
"Do you find from a preponderance of the evidence that under all the circumstances which existed on or prior to October 17, 1963, Plaintiff Lewis, Inc., was proceeding with due diligence on his contracts with Defendant Delhi Pipeline Corporation to install the pipelines in question?
Answer `yes' or `no'.
Answer: Yes.
"By the term `due diligence' as used herein is meant such diligence as would be required for Plaintiff to complete the contracts in accordance with the terms and provisions of the contracts between Plaintiff and Defendant and the plans and specifications."
Delhi's argument under its first group of points is that Lewis had agreed to perform the work in a manner satisfactory to Delhi's representative, Mr. C. P. Butler, and this was the real issue; that Lewis' work was not satisfactory to Butler, and his dissatisfaction was conclusive on the question of performance and breach; that the question submitted by special issue 1 was immaterial; that Lewis' failure to plead, prove and secure a jury finding of bad faith on the part of Delhi's representative is fatal to Lewis' recovery; that, in any event, there is no evidence and it is factually insufficient to raise and support the jury finding on special issue 1 that Lewis was proceeding with due diligence. Lewis contends that the trial court correctly submitted the ultimate and controlling issue of diligent compliance with the contracts and that the jury answer is amply supported by evidence. We agree with Lewis.
Delhi relies upon the rule that a contract may require that one party's performance *298 shall be to the satisfaction of the other party or, in some instances, to that of a designated third party such as an architect or engineer. See Atlas Torpedo Co. v. United States Torpedo Co., 15 S.W.2d 150 (Tex.Civ.App.1929, n. w. h.); Dixie Oil Co. v. McBurnett, 6 S.W.2d 83 (Tex. Com.App.1928, Judg.App.); Griffith v. Thomson, 244 S.W.2d 722 (Tex.Civ.App. 1951, n. w. h.); Golden State Mutual Life Insurance Co. v. Kelley, 380 S.W.2d 139 (Tex.Civ.App.1964, wr. ref., n. r. e.); Goodrum v. State, 158 S.W.2d 81 (Tex.Civ. App.1942, wr. ref., w. m.); City of San Antonio v. McKenzie Const. Co., 136 Tex. 315, 150 S.W.2d 989 (1941); Coppinger v. Republic Natural Gas Co. (10 Cir. 1948), 171 F.2d 4; Thompson-Starrett Co. v. La Belle Iron Works, (2 Cir. 1927), 17 F.2d 536. But that rule is operative only where it appears from express terms of the contract or from plain language therein that it was the intention of the parties that the determination of the person to whom the decision is entrusted would be final and conclusive; and such a provision is not to be implied. Black v. Acers, 178 S.W.2d 152 (Tex.Civ.App.1944, wr. ref.); Eckert-Fair Construction Company v. Flabiano, 342 S.W.2d 629 (Tex.Civ.App.1960, wr. ref., n. r. e.).
The sole provision concerning termination is found in the written contracts as follows:
"Contractor agrees to commence said work within ___ days from the date of this contract and to complete said work with due diligence and, in the event Contractor fails to commence said work within the time above specified or, having begun said work, abandons it or for any reason suspends or refuses to continue it for a period of five days (unless Contractor is prevented from continuing by reasons beyond his control), Company shall have the right to take over said work and complete it at Contractor's expense."
The provisions as to satisfaction of the representative of Delhi in certain particulars are contained only in the specifications which were incorporated by reference into the contracts. We agree with appellant that in such case we must consider the agreements made by the parties in the specifications along with those contained in the job contracts. Tower Contracting Co., Inc. v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957); 17A C.J.S. Contracts § 299, pp. 136-137. However, there is no provision in the specifications or the job contracts that the determination of dissatisfaction by Delhi's representative would be final, binding or conclusive; neither is there a provision that such dissatisfaction would furnish a basis for Delhi to terminate the contracts. None of the provisions for termination by Delhi is shown to exist.
The trial court correctly submitted the controlling issue, as hereinabove set out, and the jury found upon factually sufficient evidence that Lewis was proceeding with due diligence on his contracts with Delhi to install the pipelines in question on and prior to October 17, 1963, the date upon which Delhi refused to allow Lewis to proceed with the work and terminated the contracts. On the record here, an issue of bad faith on the part of Delhi's representative was not required. Delhi's first group of points (1-6) is overruled.
Under Delhi's second group of points (7-19) relating primarily to special issues 2 and 3, the contentions are made that there is no evidence and that the evidence is factually insufficient to raise such issues and to support the answers thereto; that the court erred in awarding Lewis a judgment for all expenses (under issue 2) and for profit (under issue 3), part of which was under the oral contracts, on which no right of recovery was established; that neither issues 2 or 3 represent the proper measure of damages; and that the amounts found were excessive. Special issues *299 2 and 3, together with the jury answers thereto, read as follows:
"SPECIAL ISSUE NO. 2.
"What amount of money do you find from a preponderance of the evidence would cover the reasonable and necessary expenses incurred by Lewis, Inc. in performance of the contracts in question before the termination of the contracts by Defendant Delhi Pipeline Corporation?
Answer in dollars and cents.
Answer: $17,451.00"
"SPECIAL ISSUE NO. 3.
"From a preponderance of the evidence what do you find would have been the amount of profit, if any, which Plaintiff Lewis, Inc., would have reasonably expected to derive if it had been permitted to perform its contracts with Defendant Delhi Pipeline Corporation to completion?
"In this connection, you are instructed that loss in profits is measured by the difference between the contract price and what it would have cost the contractor to carry out the contract in accordance with its provisions and the plans and specifications.
Answer in dollars and cents.
Answer: $7,500.00."
The applicable rules may be stated as follows:
"Where the contractor is prevented by the owner from doing any work under the contract, or from completing the work after partial performance, or where he is justified in abandoning further performance because of a breach by the owner, he may recover, in addition to compensation for the work already done, any damages that he may have sustained by reason of the owner's breach of the contract, including the profits that he would have made had he been permitted to perform, expense incurred in the performance of the contract up to the time of the breach, less any materials purchased by reason of the contract but not used, and damages sustained by his being compelled to sell at a loss material prepared for use under the contract." 10 Tex.Jur.2d, Building Contracts, § 62, pp. 71-72.
* * * * * *
"Loss of profits that he would have derived had he been permitted to perform may be recovered by the contractor where he has been prevented by the owner from completing the contract, or where he has justifiably abandoned further performance because of a breach by the owner, if this element of damages can be proved with reasonable certainty and was shown to be within the contemplation of the parties." 10 Tex.Jur.2d, Building Contracts, § 63, p. 74.
The above-stated rules find support in the cases of Austin Stone Industries v. Capitol Powder Company, 290 S.W.2d 689 (Tex.Civ.App.1956, wr. ref., n. r. e.); Texas Associates v. Joe Bland Const. Co., 222 S.W.2d 413 (Tex.Civ.App.1949, wr. ref., n. r. e.); Sullivan v. Dubis, 271 S.W.2d 316 (Tex.Civ.App.1954, wr. ref., n. r. e.); Kleiner v. Eubank, 358 S.W.2d 902 (Tex.Civ.App.1962, wr. ref., n. r. e.); Osage Oil and Refining Co. v. Lee Farm Oil Co., 230 S.W. 518 (Tex.Civ.App.1921, wr. ref.).
The trial court correctly submitted the ultimate issues concerning the damages suffered by Lewis. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940). The evidence was factually sufficient to support the findings on special issues 2 and 3. Delhi's second group of points (7-19) is overruled.
Under its third group of points (20-30) Delhi asserts eleven contentions relating to rulings of the trial court on the pleadings, evidence and argument of counsel in connection with the subject of exemplary *300 damages, all included under one statement and argument. Lewis, by its fourth reply point and counterpoint one contends that exemplary damages were properly plead and proved and that the trial court should have granted judgment for same.
Special issues 4 and 5 and the answers thereto read as follows:
"SPECIAL ISSUE NO. 4.
"Do you find from a preponderance of the evidence that the Plaintiff Lewis, Inc., is entitled to exemplary damages against the Defendant Delhi Pipeline Corporation?
Answer `yes' or `no'.
Answer Yes.
"You are instructed that before you can assess exemplary damages, you must believe and find from a preponderance of the evidence that Defendant Delhi Pipeline Corporation acted wilfully, maliciously and with utter disregard for the rights of the Plaintiff Lewis, Inc.
"In this connection you are also instructed that punitive damages may be assessed as punishment for a wrongful act done, if the facts warrant the same. In awarding such damages, if any, you may consider the sense of wrong and insult to the Plaintiff Lewis, Inc., and the damage to his reputation, if any as a result of the wrongful acts, if any, of the Defendant Delhi Pipeline Corporation. The amount to be fixed, if any, is in the sound discretion of the jury.
"If you have answered Special Issue No. 4, `Yes', then answer Special Issue No. 5; otherwise, do not answer same."
"SPECIAL ISSUE NO. 5.
"What amount of money, if any, if paid now in cash, would compensate Plaintiff Lewis, Inc., for its exemplary damages, if any.
Answer in dollars and cents, if any.
Answer $15,000.00"
Lewis filed motion for judgment in the total amount of $46,199.10, which included $15,000.00 for exemplary damages. Delhi filed motion for judgment non obstante veredicto and to disregard certain special issue findings, including those on special issues 4 and 5. The trial court granted Lewis' motion only to the extent of the amounts found by the jury in answer to special issues 2, 3 and 6, aggregating $29,951.00, plus interest, and granted Delhi's motion for judgment non obstante veredicto and to disregard the jury answers to special issues 4 and 5, the effect of which was to deny Lewis a recovery for exemplary damages in the amount of $15,000.00.
We agree with the trial court and appellant on the points here involved. The rule in this State is that exemplary damages cannot be recovered for a simple breach of contract, where the breach is not accompanied by a tort, even though the breach is brought about capriciously and with malice. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629 (1943); Houston & T. C. R. R. Co. v. Shirley, 54 Tex. 125 (1880); Hooks v. Fitzenrieter, 76 Tex. 277, 13 S.W. 230 (1890). The rules applicable to recovery of exemplary damages against a corporation are aptly stated in the case of Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S.W. 402 (1926), as follows:
"`It is now the settled law of this state, that, to make a corporation liable for exemplary damages, the "fraud, malice, gross negligence, or oppression" which must authorize and justify the same, must have been committed by the corporation itself, or by some superior officer representing it in its corporate capacity; or, if committed by a subordinate servant or agent, the act must have been either previously authorized, or subsequently ratified or approved by the company or such *301 superior officer, after knowledge of the facts.'"
In King v. McGuff, 149 Tex. 432, 234 S.W.2d 403, 405 (1950), the Court also said:
"While the bulk of our decisions on this subject of the master's liability in exemplary damages for the gross negligence of the servant are those involving corporate masters and large enterprises, and indeed the only authority cited below, Chronister Lumber Co. v. Williams, 116 Tex. 207, 288 S.W. 402, opinion adopted by this court, is just such a case, the general rule prevailing in Texas may, for the purposes of this suit, be stated the same as in the Restatement, Torts, § 909, as follows:
`Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
`(a) the principal authorized the doing and the manner of the act, or
`(b) the agent was unfit and the principal was reckless in employing him, or
`(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
`(d) the employer or a manager of the employer ratified or approved the act.'
"See Ft. Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397; Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409; Southwestern Gas & Electric Co. v. Stanley, 123 Tex. 157, 70 S.W.2d 413. Our decisions on the analogous subject of charging a master or principal with exemplary damages for the malicious misconduct of a servant or agent involve both individual and corporate defendants and follow the same general principles applied in cases of gross negligence. See Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, and cases cited at page 225 of the latter report."
Although Lewis' pleadings were sufficient in the absence of special exceptions to allege a cause of action for exemplary damages, the jury findings on special issues 4 and 5 would not authorize judgment in such respect for Lewis in the absence of other essential findings. Lewis did not request submission of issues concerning tortuous acts on the part of officers representing the corporation in its corporate capacity nor by lesser representatives of Delhi; nor as to whether the conduct of the latter had been authorized or ratified by the corporation. Counsel for Delhi clearly pointed out the absence of such findings in its motions filed after verdict and the trial court correctly sustained Delhi's motion for judgment non obstante veredicto. There is no jury finding in this case which would establish liability against the Delhi Corporation within the Rules announced in the authorities above cited; neither does the evidence conclusively establish such liability.
Affirmance of the judgment denying exemplary damages to Lewis removes that question from the case, and our remaining consideration is to determine if errors were committed by the trial court which affected the remainder of the verdict or the judgment. We do not believe that such error is reflected by appellant's third group of points (20-30), and, in any event the errors, if any, would be harmless under Rule 434, Texas Rules of Civil Procedure. Appellant's third group of points (20-30) and appellee's counterpoint one are overruled.
Under appellant's fourth group of points (31-33), relating to special issue 6, the contentions are made that there is no evidence and that the evidence is factually insufficient to raise and support an award of $5,000.00 for Lewis' attorney's fees; that such amount is excessive; and that attorney's fees cannot be recovered under Art. 2226, Vernon's Ann.Civ.St., where the suit is for breach of contract.
We hold that Lewis' claim for recovery of attorney's fees falls within the provisions *302 of Art. 2226, V.A.C.S. The jury finding on special issue 2 establishes reasonable and necessary expenses by Lewis in performance of the contracts amounting to $17,451.50, of which $9,471.58 was expended for labor. Delhi's superintendent-inspector testified that labor was the larger part of the expense of such project. Contracts for labor done and materials clearly are within the provisions of Art. 2226, V.A.C.S., and a corporation may recover reasonable attorney's fees in connection with those items. Ginther v. Southwest Workover Company, 286 S.W.2d 291, 295 (Tex.Civ. App., 1956, n. w. h.); Nolen v. Rig-Time, Inc., 392 S.W.2d 754 (Tex.Civ.App., 1965, wr.ref., n. r. e.); Wyche v. Wichita Engineering Company, 374 S.W.2d 728 (Tex. Civ.App., 1964, n. w. h.); and see United States of America for the use and benefit of Caldwell Foundry and Machine Company, Inc., v. Texas Construction Company, 237 F.2d 705 (5 Cir. 1955); Lone Star Producing Company v. Gulf Oil Corporation, 208 F. Supp. 85, 93 (U.S.D.C., Eastern Dist.Tex.1962).
Delhi relies upon Van Zandt v. Fort Worth Press, 359 S.W.2d 893 Tex. (1962), which involved suit by a newspaper corporation for classified and display advertising. The Supreme Court held that the claim was neither upon a sworn account nor for personal services rendered, and that attorney's fees were not recoverable under Art. 2226, V.A.C.S. However, the Court also made statements favorable to Lewis' position herein, in part, as follows:
"In quoting from Levitt v. Faber [20 Cal. App.2d Supp. 758, 64 P.2d 498] we are not to be understood as holding that services will lose their character as personal services within the meaning of Art. 2226 because in the performance of the services the claimant uses the material, implements, tools or equipment essential to the service. To perform personal services the lawyer must use his books, the doctor his diagnostic or surgical instruments, the carpenter his tools. We would thus agree with the Supreme Court of New Hampshire which held in Hale v. Brown, 59 N.H. 551, 558, that `the personal services of the lumberman include the use and earnings of his oxen, chain, canthook, and his own team and sled, if these are actually used by him and are essential to the service rendered'."
The trial in this case lasted for a week before the jury. The statement of facts contains 594 pages and numerous exhibits. It reflects the taking of numerous depositions which were referred to or used, consultations by Lewis' attorneys with him and the officials of Delhi, and other preparations for the trial. Opinion evidence was offered by an experienced trial attorney that a reasonable attorney's fee would be $8,000.00. There was evidence to support the award of $5,000.00 as attorney's fees and it is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust; neither is it excessive. Delhi's fourth group of points (31-33) is overruled.
Delhi's fifth group of points (34-36), relates to special issue 7, reading as follows:
"SPECIAL ISSUE NO. 7.
"What do you find from a preponderance of the evidence to be the reasonable and necessary costs, if any, to Defendant Delhi Pipeline Corporation to complete the contracts with Plaintiff Lewis, Inc., to install the pipelines in question?
Answer in dollars and cents.
Answer $ none"
Delhi contends that there is no evidence to support such issue; that the uncontradicted evidence showed that the necessary and reasonable cost to Delhi of completing the work under the written contract was $61,932.45; that the trial court should have set aside the answer to such issue and entered judgment for Delhi upon its counter claim, in the amount of $4,932.45, representing the difference between the contract price and the amount paid by Delhi *303 to complete the work; that the said answer was so excessive as to demonstrate prejudice, bias or sympathy on the part of the jury and a new trial should have been granted. The last-mentioned contention is not briefed.
The finding of the jury on special issue 7 was immaterial in view of the jury findings on special issues 1 through 6, which established Lewis' right of recovery and for attorney's fees. Issue 7 was submitted in connection with Delhi's cross-action upon which liability was not established against Lewis. Since no right or recovery in favor of Delhi was established, the amounts expended by it to complete the contract would be immaterial and eliminated from consideration. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939). As the issue was framed and argued, it could be understood to inquire concerning the "reasonable and necessary costs, if any" of completing the contract over and above the amount of Lewis' contract for a turnkey job, and, under that view, could properly have been answered "none". Delhi's fifth group of points (34-36) is overruled.
Delhi's point 37 asserts that "In view of the cumulative effect of the many errors committed by the trial court, Appellant was deprived of its right to a fair trial, and the trial court erred in not granting a new trial for this reason." The statement under the point reads as follows: "No statement need be given as an introduction to this Point because the same is based upon the numerous errors committed during the course of the trial, including the argument to the jury." There is no reference to any specific jury argument or alleged error, and the point is not sufficiently briefed to require consideration. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1956). Nevertheless, under the instant point we have considered each of Delhi's remaining points of error and argument made thereunder and we have held that error or reversible error has not been established by them. If errors were committed by the trial court, they were harmless, and their cumulative effect would not present reversible error so as to authorize a new trial. Rule 434, T.R.C.P. Delhi's point 37 is overruled.
The judgment of the trial court is affirmed.
NYE, Justice (concurring).
Appellee sued for $50,000.00 as damages for willful and malicious conduct on the part of the appellant which was alleged to have damaged appellee's reputation. The jury awarded $15,000.00 as exemplary damages. The trial court excluded this amount from the final judgment.
Appellant in his points 20 through 30, all relating to the exemplary damage issues, contends in effect that the trial court erred: in admitting into evidence a certain exhibit offered by the plaintiff and certain evidence relative to punitive damages; in overruling appellant's objections and request for instructions to disregard, when appellee argued to the jury concerning this certain plaintiff's exhibit; in overruling objections to certain testimony outside of the pleadings; in submitting special issues 4 and 5; and in permitting appellee to make certain arguments to the jury relative to punitive damages. Appellee by counterpoint contends that the damages should be reinstated, and added to the judgment.
Appellee sought damages for libel and slander, pleading that such sum represented actual damages to his reputation. Nowhere in the pleadings did appellee seek "punitive damages" nor was the term "exemplary damages" used in the petition. The original petition seeking such damages was excepted to and the exceptions were sustained by the trial court. Appellee's amended petition then set forth certain libelous or slanderous statements or writings, contending that the contractor was damaged. This paragraph *304 in the amended petition relating to such damages reads as follows:
VI.
"In addition thereto, Contractor would show that the Owner acted willfully, maliciously and with utter and complete disregard for the rights of Contractor; has called other owners and operators of pipe lines throughout South Texas and advised them it was terminating Contractor's contracts and made false allegations with reference to Contractor's ability to erect and construct pipe lines, as hereinafter alleged, which willful and malicious conduct on Owner's part has damaged Contractor's reputation as a pipe line contractor in the amount of $50,000.00, which sum Owner is obligated to pay Contractor. On or about October 16 and 17, 1963, Owner's duly authorized agent, Tommie E. Lohman, in the course of his employment called Mr. Coyle of Sun Oil Co. and Mr. Bell of Mobil Oil Co. and told them in substance that contractor, Lewis was not capable of laying larger oil field pipe lines, didn't know what he was doing, didn't have proper equipment and that Owner Delhi was firing him off their job; on or about the same dates, Owner Delhi's duly authorized agents, Butler and Quinn, told Tom Kelso, Andrew Quillan and Harry Ebers in substance, `Lewis doesn't know what he's doing. Let's go ahead and break the s. o. b.'"
The principle of law involved is correctly stated in McDonough v. Zamora, Tex.Civ. App., 338 S.W.2d 507, ref., n. r. e., by Justice Pope. See collection of cases cited therein.
"Punitive damages are not recoverable in actions for breach of ordinary commercial contracts, though the breach is brought about capriciously and with malice."
The allegations in plaintiff's petition which would entitle him to exemplary damages would have to be confined to tort, independently of any right to recover damages by reason of the breach of the contract. As stated in the opinion: (McDonough v. Zamora, supra)
"In other words, one may not be limited to a contract measure of damages if he actually pleads and proves a tort which is in addition to or coincident with a contract breach. It has been said that punitive damages are permitted when a breach is accompanied by `willful acts of violence, malicious or oppressive conduct.'"
The intentional breach of a contract is not punishable by punitive damages. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629. The cases which apply the correct rule are those in which punitive damages have been allowed if and only if a distinct tort is alleged and proved independent but coincident to the contract action. The reason why the trial court was authorized to disregard the jury findings as to the exemplary damages was because the plaintiff did not plead, or request, or submit a special issue concerning the tortuous conduct of the defendant or his agents. This cannot be the basis for recovery through the instruction as submitted by the trial court to the jury, i. e., "Punitive damages may be assessed as punishment for wrongful acts done, if the facts warrant the same." There were no facts proved or found by the jury authorizing exemplary or punitive damages.
The trial court was further in error in instructing the jury that: "In awarding such damages, (punitive) if any, you may consider the sense of wrong and insult to the Plaintiff Lewis, Inc., and the damage to his reputation, if any as a result of the wrongful acts, if any, of the Defendant Delhi Pipeline Corporation." Special issues 4 and 5 should not have been submitted. *305 However, the denial of the exemplary damages by the trial court when judgment was entered, cured such error.
At the time of the trial, appellee announced to the court that Lewis was withdrawing and abandoning its claim for libel and slander, and that in lieu thereof it was seeking punitive damages for malicious breach of contract. The rule of law is that in order to permit a recovery of exemplary or punitive damages, the breach of contract must be attended by some intentional wrong, injury, abuse or gross negligence which amounts to an independent tort. The fraudulent intent done with a fraudulent act is not a sufficient basis for the awarding of punitive damages. Unless the appellee having alleged and produced some evidence of some willful acts of violence, malicious or oppressive conduct, then the trial court would not be authorized to submit an issue. If on the other hand appellee had plead and proved such tortuous act, then he would have to go one step further and have a finding that the principal (corporation) authorized, ratified or approved the act; or that the person responsible for the act was representing the appellant corporation in his managerial capacity and acting within the scope of his employment. I am unable to find from appellee's pleading, such an act or count that would entitle him to an issue for exemplary damages. Macfadden's Publications v. Hardy, Tex. Civ.App., 95 S.W.2d 1023 (1936, wr. ref.).
The conduct complained of by the appellee in its pleadings may have been a separate and independent cause of action for actual and punitive or exemplary damages. However, we are not called upon to decide this point. In this case the independent tort must be coincident to the contract breach. Tortuous conduct committed after the breach of contract, no matter how malicious or inexcusable will not form the basis for recovery of punitive damages for a breach of contract. Oklahoma Fire Insurance Co. v. Ross, Tex.Civ.App., 170 S.W. 1062. In the Oklahoma Fire Insurance Co. v. Ross case, the Court was called upon to examine a judgment awarding actual damages for the breach of contract and in addition punitive damages. The Court said:
"* * * the fact that the proof may have shown a cause of action for slander afforded no ground for a recovery of punitory damages for a breach of the contract, when the slander referred to was no part of and not connected with the breach of the contract. Hence we conclude that the plaintiff was not entitled to recover anything as punitory damages, and the court should have so instructed the jury."
See 25 C.J.S. Damages § 120, pp. 1126-1129.
As to the other points alleged as error by the appellant, a review of the evidence discloses that much of the testimony complained of grew out of the actual breach of the contract by which the court submitted issues as to damages for such breach. In the Oklahoma Fire Insurance Co. v. Ross, supra, it was contended that reversible error was not committed in permitting the plaintiff to introduce testimony tending to sustain the slanderous charges, where such damages were not allowed. The Court said and I agree that:
"* * * If it be conceded that the testimony referred to was not admissible, we see no reason to suppose that it had any influence with the jury in determining whether or not the insurance company had breached the contract, and the amount of actual damages the plaintiff was entitled to recover for such breach. Doubtless that testimony was considered by the jury and spent its full force in determining the question and of the amount of punitory damages; but, as we have concluded to reverse and render upon that issue, we hold that the insurance company is entitled to no further relief because of the admission of that testimony." Oklahoma Fire Insurance Co. v. Ross, supra.
*306 I am not convinced, therefore, that the appellant has demonstrated that such error that has been complained of and committed, amounted to such a denial of the rights of the appellant, as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in this case. Rule 434, T.R.C.P. I concur in the result that the judgment of the trial court should be affirmed.
OPINION ON MOTION FOR REHEARING
SHARPE, Justice.
As a part of its motion for rehearing appellant moves for findings of fact relating to its points numbers five, eleven and eighteen. These points involve a contention that because each of the jury answers to special issues 1, 2 and 3 was against the overwhelming weight and preponderance of the evidence that the trial court erred in refusing to grant a new trial. In view of appellant's request, further consideration will be given to these points. Under the contentions made, the Court of Civil Appeals considers and weighs all evidence in the case, even though there is some evidence of probative force to support the verdict. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The jury found in answer to special issue 1 in substance that on October 17, 1963 appellee Lewis was proceeding with due diligence on the contracts with appellant. Although much evidence pro and con was introduced by both sides on the issue, it is apparent that the jury accepted the testimony of Lewis' witnesses, and it could have concluded that some of the evidence offered by Delhi was favorable to Lewis' position of due diligence. The testimony tended to show that Lewis started work on the hardest part of the job, which was the slowest part of the work, and that this was good pipeline practice; that Lewis used the best equipment and best men available for the work; that the work progressed constantly during the time Lewis was allowed to stay on the job; that Lewis never abandoned the contract and even worked on Sunday; that inspectors for Delhi constantly interfered with and obstructed the work, requiring excessive jeeping or testing of the pipe for wrapping defects; that delays were caused by the furnishing of defective pipe by Delhi; that Delhi failed to furnish profiles for bends in the pipe under creek crossings, failed to supply pipe in proper time and to legally clear the right of way; that Delhi required wider ditch than specified and compelled repairs of pipe not called for by the specifications; that, despite harassment, Lewis corrected all things demanded of him. Delhi's basic position is that the testimony shows that much of the work done by Lewis was not to the satisfaction of Mr. C. P. Butler, its representative; that many objections were made by him, that Butler was not satisfied with the way the work was progressing.
We have held that special issue 1 was correctly submitted as a controlling issue and that Butler's dissatisfaction with Lewis' work was not conclusive. We adhere to our holding that the jury answer to that issue was supported by factually sufficient evidence that Lewis was proceeding with due diligence on the contracts. The answer to special issue 1 was not against the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust.
By the answers to special issues 2 and 3 the jury found that Lewis had incurred expenses in performance of the contracts amounting to $17,451.50 and would have derived a profit of $7,500.00 if allowed to complete the same. Evidence was introduced in detail concerning the expenses incurred by Lewis, and there was testimony that the amount found by the jury was necessary and reasonable. These costs were itemized on an exhibit and testified to by Lewis' bookkeeper. One of Delhi's representatives *307 testified that 20% of the work had been completed which was of the value of $5,000.00, and another testified that 50% of the 8 5/8" pipe was complete and 15% of the over-all job was complete; that the reasonable value of work done by Lewis was $8,000.00; that labor was the largest expense; and that most of the work on a large segment of the pipeline had been done. Lewis testified as to his estimated costs and profit and outlined the basis for same. He estimated his profit at between $9,500.00 and $10,000.00. One of Delhi's representatives agreed that a reasonable profit on the job, which involved $58,375.00, would have been 20%. On that basis the profit would have been $11,774.00. The jury finding of $7,500.00 for reasonably expected profit is well within the testimony offered. The answers to special issues 2 and 3 are, in each instance, not against the overwhelming weight and preponderance of the evidence so as to be manifestly wrong and unjust.
The findings contained in this opinion on rehearing and in our original opinion, along with the jury findings will constitute the findings in response to the motion of appellant in connection with its points five, eleven and eighteen.
Appellant's motion for rehearing is without merit and is overruled.
NYE, Justice (concurring).
Appellant in his motion for rehearing has again attempted to demonstrate the harmful effect of the admission of evidence concerning exemplary damages. Each case must be looked at separately to determine if reversible error was committed; "whether the error affected the result". 31 TLR 1, "The Doctrine of Harmless Error in Texas", Robert W. Calvert, Chief Justice, Supreme Court of Texas. Although the admission of such evidence was error, it was directed toward the exemplary damage special issues and spent its full force in determining these questions. Rule 434, T.R.C.P. I concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573980/ | 408 S.W.2d 383 (1966)
STATE of Missouri ex rel. Antoine SCHOENBACHER and Karl Ederer, Relators,
v.
Honorable John J. KELLY, Jr., Judge of Division No. 7, Circuit Court, St. Louis County, Respondent.
No. 32283.
St. Louis Court of Appeals, Missouri.
October 18, 1966.
Motion for Rehearing or to Transfer Denied November 15, 1966.
*384 Victor Packman, Abraham Davis, Harvey I. Feldman, St. Louis, for relators.
Husch, Eppenberger, Donohue, Elson & Cornfeld, James W. Singer III, St. Louis, for respondent.
Motion for Rehearing or to Transfer to Supreme Court Denied November 15, 1966.
*385 TOWNSEND, Commissioner.
Original proceeding in prohibition.
The procedural history discloses the following sequence of events leading up to the application for the writ:
On May 4, 1965, Hans Coiffures International, Inc. filed its petition in the Circuit Court of St. Louis County, seeking an injunction against Schoenbacher and Ederer (relators herein) to prevent them from violating the terms of separate alleged employment contracts and in a second count to enjoin them from pursuing an alleged scheme and conspiracy to deprive plaintiff of its business, customers, trade secrets, good will, and trade name. In each count plaintiff prayed for a restraining order until such time as its prayer for temporary injunction could be heard. On the same day the respondent judge entered his order to show cause, returnable May 13, 1965, why a temporary injunction should not be granted, and in the same order restrained the defendants from pursuing certain occupations in the City or County of St. Louis until the further orders of the Court. The order recited that defendants had not been notified of the application for injunction; bond in the amount specified by the Court, $2000, was furnished. On the following day the defendants were served with the order.
Two days thereafter defendants filed their separate motions to dismiss the restraining order, which on May 8 were overruled; the restraining order was modified as to defendant Ederer. On May 11, 1965, plaintiff filed its petition for contempt, supplemented by affidavits of two persons reciting violations of the restraining order by defendants. Contempt citation was issued the same day, returnable May 13, 1965; returns to the citation were made on that day. Respondent ordered plaintiff to furnish an additional bond of $2000 by June 1, 1965.
On May 13, 1965, plaintiff announced ready to proceed with the hearing for a temporary injunction but defendants requested a continuance which was granted. On the same day respondent entered the following order:
"On oral motion of defendants order to show cause continued to 9:30 a. m., Monday, June 1, 1965; Return to Order to Show Cause to be filed prior to June 1, 1965, and cause to be tried on the merits on said date. Cause advanced to the top of the trial docket of 1 June, 1965, and peremptorily set that date."
Plaintiff filed a motion on May 24, 1965, to hold defendants in contempt for failure to appear to have their depositions taken.
Petition for Writ of Prohibition was filed in this Court on May 27, 1965, and the preliminary writ issued on June 25, 1965.
The petition in the suit for injunction sets forth that plaintiff is engaged in the business of operating and conducting a beauty salon and in the business of making wigs and toupees in St. Louis County under the trade name of "The Duke & Duchess Wigs and Toupees". It alleges the existence of individual employment contracts, each for a period of four years, with each of the defendants, Ederer as a hair stylist and Schoenbacher as a hair stylist, barber and wig and toupee maker. Each contract provided that upon the termination for any cause of the relative employment defendant would not engage in the same or similar line of business as conducted by plaintiff or work for any individual, firm or corporation engaged in such business within the City or County of St. Louis. It is further alleged that after voluntarily terminating their employment with plaintiff defendants commenced working for themselves as wig makers in St. Louis County under the name of "Lord and Lady, Ltd., Wig Masters". In the second count plaintiff charges that defendants voluntarily terminated their employment pursuant to a scheme and conspiracy wrongfully, fraudulently and illegally to deprive plaintiff of its business, customers, trade secrets, good will, trade name, and employees, and to acquire all of the same for themselves by doing business *386 in St. Louis County as wig makers. This count also charges that the defendants are using trade secrets and information imparted to them by plaintiff in carrying on plaintiff's business, by using customer lists illegally taken from plaintiff in order to acquire plaintiff's customers, or attempting to persuade plaintiff's employees to cease working for plaintiff, and are using the trade name of "Lord and Lady, Ltd., Wig Masters" deceitfully to cause the public to believe that when doing business with them the public is actually doing business with plaintiff. Copy of the contract with defendant Schoenbacher recites that it is an agreement between him and Duke & Duchess Wigs and Toupees, Inc., a Missouri corporation. Each such contract contains a provision for liquidated damages of $50.00 per day in case of breach by an employee and in addition provides that the employer shall at its option have the additional right of applying for an injunction in restraint of any such violation. There is a variation between the two contracts as to the compensation of the respective employees and as to other contractual details.
Relators' attack upon respondent's jurisdictionor lack thereof,may be adequately summarized under three heads:
(1) That the restraining order, issued without prior notice, amounted to a denial of due process, was violative of constitutional safeguards and hence was invalid;
(2) That the restrictive covenants of the employment contracts are made unlawful and void by Section 416.040, V.A.M.S.;
(3) That the petition, upon the basis of which the restraining order was issued, did not disclose a situation where, according to the usages of equity, the plaintiff was entitled to relief.
Additionally, as a contention personal to defendant Schoenbacher, it is maintained that the suit against that defendant had no contractual basis since, it is asserted, the petition shows that plaintiff was not a party to Schoenbacher's employment contract. Clearly, if there was no contract between plaintiff and Schoenbacher, respondent had no jurisdiction over the subject-matter of Schoenbacher under Count I. Consideration is given first to the contention thus made.
RELATOR SCHOENBACHER
Under Count I of the petition for an injunction it is alleged that the plaintiff operates its business under the trade name of "The Duke & Duchess Wigs and Toupees" and that it entered into the alleged contract of employment with Schoenbacher on or about July 22, 1964, which contract is attached to the petition as Exhibit B. The parties to Exhibit B are described as Duke & Duchess Wigs and Toupees, Inc. and Antoine Schoenbacher. Exhibit B is signed "Duke & Duchess Wigs and Toupees, Inc., by Hans Wiemann", and by Schoenbacher. The petition for injunction states further that Schoenbacher worked for plaintiff as a wig maker until on or about April 28, 1965. The question then plainly is whether or not plaintiff has a contract with Schoenbacher which can be the basis of the suit under Count I.
The petition of plaintiff declares that Exhibit B is a contract between itself and the named defendant. We are then presented with the question of whether the obviously faulty draftsmanship of Exhibit B precludes the plaintiff from showing that the contract was made with itself under a name assumed by the plaintiff for the purposes of dealing with Schoenbacher. Since the petition shows that the plaintiff was carrying on business under the name of Duke & Duchess Wigs and Toupees, and since the petition alleges that Exhibit B is a contract between itself and Schoenbacher, we think it is open to Hans Coiffures International, Inc. to show that for the purpose of entering into contractual relations with Schoenbacher it adopted the name of Duke & Duchess Wigs and Toupees, Inc. This conclusion is fortified by the fact that under the contract found in Exhibit B defendant *387 Schoenbacher worked for Hans Coiffures International, Inc. for several months before quitting the latter's employment. Additionally, the contract found in Exhibit B designates the employer's beauty salon, 1012-1016 South Brentwood Boulevard, St. Louis County, as the place where Schoenbacher's services were to be rendered; that location is otherwise identified as plaintiff's place of business. "* * * a person may adopt or assume a different name from his true one, and may even carry on business and make contracts under his fictitious name * * *". Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1078. It is well established that a person can bind himself in contract by another than his true name. "The intent controls" (Guess v. Russell Bros. Clothing Co., Mo.App., 231 S.W. 1015, 1016) whether the person in question is plaintiff, De Maria & Janssen v. Baum, 227 Mo.App. 212, 52 S.W.2d 418, or is defendant, Guess supra. Where that person is plaintiff, his failure to comply with the requirements of the Fictitious Name statute does not result in a condemnation of outlawry. Ditzell v. Shoecraft, 219 Mo.App. 436, 274 S.W. 880.
While it would be anomalous to find that one corporation had assumed the name of a non-existent corporation for a particular contractual purpose it does not pass the limits of credibility where mistake in drafting is written large across the face of the whole matter.
It is to be noted that under the objection to jurisdiction thus taken by relators nothing is said in the petition for prohibition and the suggestions relating thereto, denying the possibility of jurisdiction over Schoenbacher under Count II of the petition for injunction.
DUE PROCESS
Although relators' brief under Points and Authorities intermingles several variant types of complaint under a single head, analysis of their argument as a whole necessitates the statement of their objections in the manner previously stated.
Relators present here the constitutional contention that respondent's issuance of the restraining order was not in accord with due process.
It is much too late in the day to maintain that the issuance of a restraining order without notice violates per se the requirement of due process. The historical evidence is to the contrary. Long before the time of the adoption of the Fourteenth Amendment it was an established practice of chancery to grant a temporary injunction or a restraint in the nature of an injunction without notice. We are informed by Kerr on Injunctions (Boston, 1871, reprint of earlier English edition):
"Instead of issuing the writ of injunction in the first instance the court will often grant an interim order in the nature of an injunction, by which the defendant is restrained until after a particular day named, liberty being given to the plaintiff to serve notice of motion for an injunction for the day before such day. The usual practice is to extend the order over the whole of the next motion day, in order that the plaintiff may serve, by leave of the court, the defendant with notice of motion for an injunction for that day. * * * In many respects there is a convenience in proceeding by interim order instead of granting an injunction. * * * Interim orders are generally granted upon ex parte application, * * *. Where the application is ex parte it is necessary that the court should be informed of all material facts. The court does not, perhaps, upon an application for an interim order, require the same special mention of all particulars which it requires where the application is for an ex parte injunction, but it is the duty of the party who makes the application to bring all material facts before the notice of the court." (Pages 620, 621.) *388 And it is stated in Hilliard, The Law of Injunctions (Philadelphia, 1865):
"§ 113. It is said, although the practice in this country [U.S.] is to grant an injunction, on the filing of the bill, without notice to the defendant, yet the complainant must use due diligence in prosecuting his suit afterwards, or the bill will be dismissed." (P. 49-50.) (Emphasis ours.)
The treatises, older and newer, discuss at many points the practice of issuing an injunction without notice to the defendant, verifying and restating the ancient custom of the chancellors. E.g., see High on Receivers (4th ed.) §§ 3, 6. The antiquity of the practice is illustrated by the cases set out in the footnote.[1]
That various cases express conditions upon which the particular chancellor chose to act in a particular case in no way detracts from the fact that the practice was established and that the propriety of the court's action did not depend upon notice to the defendant. Where the chancellor expressed a condition upon which he would grant or deny an injunction he was simply exercising his discretion, dependent upon his weighing of the equities in the case. All this was strictly in accord with the well known principle that equity acts at discretion, individualizing each particular case, in determining whether or not equity should intervene in the situation. The statement of the condition could not result in an ossification of "equity law". It still left the operations of the chancellors within the referential framework of "Equity acts at discretion." All this had no relation to the question of whether the procedure had been correct and hence could have had no impact on any problem of due process.
The issuance of a mere restraining order does not violate the constitutional principle that a defendant may not be condemned without a hearing. The temporary restraint imposed does not purport to pass upon the merits of a controversy, is dispositive of no issue and hence does not amount to a condemnation as that term is used in the statement of the principle. The sole purpose of the restraining order is to preserve the status quo[2] until the hearing upon the order to show cause; in this respect we emphasize that the order here was only an ephemeral stage in setting the scene for a full hearing on the prayer for a temporary injunction.[3] The *389 order to show cause was made returnable on the ninth day after the date of the restraining order, the necessary effect of which was to prohibit relators from pursuing the stated occupations. Relators were protected by the bond invariably required in such situations. The amount of the bond was later doubled. In all this we detect no lack of due process[4].
Where a statute conditions the issuance of an injunction upon notice to the defendant, as has been the case in some states, then necessarily local practice must conform to the terms of the statute. Cases holding that the issuance of an injunction was improper where such a statutory requirement was not satisfied are in no way relevant to the question of constitutional due process. In this connection it is to be noted that the Missouri procedural statutes do not require that notice shall be given to defendant before issuing a temporary injunction. Sec. 526.050[5], V.A.M.S., except where the injunction is one to stay some proceeding. Section 526.100.[6] Section 526.140 relates to proceedings where "no notice of such application is required by this chapter" and provides that if "the court * * * shall deem it proper that the defendant * * * should be heard before granting the injunction", the court may require cause to be shown at a specified time and "may, in the meantime, restrain the defendant, or make such other order as the case may require." Respondent's action followed the terms of this section in that he deemed it "proper" that defendant should be heard before granting the injunction and so ordered; at the same time he exercised the authority given by the same section to restrain the defendants "in the meantime".[7] But relators contend that no statute can delimit the need for notice and an opportunity to be heard if constitutional safeguards regarding due process are respected. This contention is sufficiently considered by what has been heretofore said about the ancient practices in equity. We deem Section 526.140 and respondent's conduct thereunder to be in accord with historically established concepts of fair and reasonable proceedings and hence of due process.
APPLICABILITY OF SECTION 416.040, V.A.M.S.
Do the contracts, made a part of the petition, show on their face that they are void by reason of Section 416.040 V.A.M.S.? *390 We set out here those portions of the section quoted by the relators:
"All * * * contracts, agreements * * * or understandings made or entered into between two or more persons, designed or made with a view to lessen, or which tend to lessen, lawful trade, or full and free competition in the * * * manufacture or sale in this state of any product, commodity or article, or thing bought and sold, of any class or kind whatsoever * * * are hereby declared to be against public policy, unlawful and void; * * *."
Relators would have us believe that the applicability of the section is so clear that it determines conclusively the invalidity of the contracts and "leaves no need now for weighing provisions of such contracts on scales of equity." By a curt answer and by citing to us cases involving neither the interpretation nor the application of the section, respondent in effect ignores the issue.
A thorough examination of the annotations to this statute has revealed no case in which there was presented the question of the application of the section to a personal service contract simplex.[8] We do not believe that the language of the section is so clear and unambiguous as to give compelling evidence of legislative intent to bring contracts for purely personal services within the doom of the statute. The latter portion of the quoted section refers to "full and free competition in the * * * manufacture or sale in this state of any product, commodity or article" and admits of little doubt; however the earlier portion, "made * * * with a view to lessen, or which tend to lessen, lawful trade" embodies concepts of uncertain meaning when simple employment contracts are brought under surveillance. We attempt no inter pretation. At the most we say that the applicability of the section is a matter of uncertainty and doubt. Relators cannot determine its applicability by their mere ipse dixit. In that posture we do not regard prohibition as an appropriate vehicle by which to impose on this Court the function of making an authoritative interpretation. We take the section as we find itits meaning in doubt. Accordingly, relators have failed, on this point, to sustain the burden resting on them to show respondent's lack of jurisdiction. State ex rel. Schlueter Mfg. Co. v. Beck, 337 Mo. 839, 85 S.W.2d 1026, 1033; State ex rel. State Highway Commission v. Curtis, 365 Mo. 447, 283 S.W.2d 458, 463.
USAGES OF EQUITY
(a) Irreparable Damage. Relators regard the pleading of the probability of irreparable damage or some other type of immediate necessity as a prerequisite to the issuance of a restraining order.
It may be noted at the outset that the operative statute imposes no such requirement. Section 526.030, V.A.M.S. provides that, "The remedy by writ of injunction * * * shall exist in all cases * * * to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages." Plainly this section places upon the availability of the remedy none of the conditions or qualifications previously existing in equity, save only the one relating to the inadequacy of the legal remedy. However it would be impossible to ignore the gloss long ago put upon the section by appellate courts, Neiser v. Thomas, 99 Mo. 224, 12 S.W. 725; Boeckler v. Missouri Pac. R. Co., 10 Mo.App. 448, and the subsequent adherence thereto. State ex rel. Kenamore v. Wood, 155 Mo. 425, 56 *391 S.W. 474[9]; State ex rel. Office, etc. v. Horner, 238 Mo.App. 787, 187 S.W.2d 976, 978[10]. Accordingly we act upon the assumption that this statute did not enlarge the equity jurisdiction (Neiser v. Thomas, supra), i.e., did not remove the previously generally accepted conditions upon the exercise of the injunctive power.
We proceed to consider the necessity of pleading irreparable damage. In the petition for injunction the plaintiff alleged that the conduct of defendants would, if unrestrained, result in irreparable damage to it. It was once said by the Supreme Court that such an allegation (prophecy) is not in and of itself sufficient to invoke the interference of the court, State ex rel. Kenamore v. Wood, supra. However a showing of the probability of irreparable damage or of the need of immediate action to protect the lawful interests of the plaintiffif such be requisite to action by the courtmay well be had by pleading the facts which cause the plaintiff to take the initiative. While such recitals of facts may be traversed, yet in the nature of things they are taken as true upon an ex parte application for a restraining order; the court's opinion as to the need for immediate action must rest upon such allegations. Therefore under the Kenamore case the propriety of the temporary restraint must rest upon an assumption as to their truth. The court must first determine whether the allegations make out prima facie, good cause for the court's intervention. We think that the plaintiff in the petition for an injunction here did allege facts which taken as true, might well cause respondent to find that there was need for immediate action to protect the legal rights of plaintiff. We agree that the petition presented "an extremely aggravated and indeed unconscionable situation." Therefore we find that not only did the plaintiff plead irreparable damage in a general way but plaintiff alleged such specific facts that any requirement of a showing of the probability of irreparable damage was satisfied.
(b) Adequacy of Legal Remedy. Each of the employment contracts contains a provision for liquidated damages and in addition purports to confer upon the employer the privilege of applying for an injunction to restrain the employee from a continuing breach of contract. Relators maintain that because of the provision for liquidated damages the petition shows that plaintiff had an adequate remedy at law and so plaintiff could not be entitled to injunctive relief. We cannot agree that the mere fixing of liquidated damages necessarily demonstrates conclusively the complete sufficiency of a resort to the legal remedy for redress of a legal wrong. Wills v. Forester, 140 Mo.App. 321, 124 S.W. 1090. The fact that a contract contains a provision for liquidated damages does not make the contract one for performance in the alternative, i. e.,to give the relative party the election either to perform the principal objective of the contract or to make a monetary payment. Wills v. Forester, supra. The very use of the word "damages" in the liquidated damages clause indicates that a sanction will be imposed upon a defendant for a breach of his obligation. Stein v. Bruce, Mo.App., 366 S.W.2d 732. A breach cannot be a performance. Unless the context clearly shows a different intention, such a clause cannot give him an election between alternative methods of full performance; on the contrary it specifies a method of chastening him for not *392 performing his promise. High on Injunctions, 4th ed., § 1175. In essence a valid provision for liquidated damages merely relieves the non-breaching party of the necessity of proving his actual damages, if he chooses to sue for damages, or otherwise assert his right to damages; that is its function and it has no relation to the broad question of whether or not a monetary recovery is a measure sufficient to relieve fully the complainant from the distress he suffers by reason of defendant's wrong.
Plaintiff has pleaded generally lack of an adequate remedy at law. The allegations of specific facts found in the petition show, prima facie, that an action for damages would not afford the plaintiff an adequate remedy.
(c) Illegal and Oppressive Contract. The employment contracts are denominated oppressive and unreasonable by relators and therefore not a subject for equitable relief.
Relators' argument on this point is of course based on the fact that one of the promises of each relator is that, within the City and County of St. Louis, he would not engage, upon the termination of his employment, in a line of business the same or similar to that carried on by the plaintiff. Since the promise contains no stated limitation upon the period of the restriction of the employee's liberty of action, relators maintain that the absence of such a limitation renders the contract illegal and has "destroyed the enforceability of the contract."
This argument on the part of the relators necessitates the contention that, whenever a contract includes an engagement which restrains the promisor's freedom of action for an unlimited period of time, the restraint is of such a malignant character that it diffuses instantaneously throughout the contract and mortifies the whole. No Missouri authority which justifies such a sweeping conclusion has been cited to us.
Whatever was said in Mallinckrodt Chemical Works v. Nemnich, 83 Mo.App. 6 (affirmed 169 Mo. 388, 69 S.W. 355) regarding the effect of the absence of a time limitation in the restrictive covenant, was plain dictum as the covenant in that case contained a definite time limitationfive years. The same may be said of Reddi-Wip, Inc. v. Lemay Valve Company, Mo.App., 354 S.W.2d 913, where the Court found that there was a definite time limitation contained in the restrictive covenant.
That feature which was held to make a restrictive covenant invalid in Prentice v. Rowe, Mo.App., 324 S.W.2d 457, and Prentice v. Williams, Mo.App., 324 S.W.2d 466, was not the absence of a time limitation but the fact that the restriction was wholly unlimited as to area. The covenant contained a time limitation of two years. In the present context, the most that can be said of the latter two cases is that the Court said that in order for a restraint to be reasonable it must "usually" be qualified as to time and area, a generalized type of statement found in many other cases. Obviously the Court did not have before it and did not purport to pass upon the question of the effect of an absence of time limitation alone. By italicization and by express words the Court emphasized that it based its holdings upon the absence of any limitation upon the area within which the restraint was to operate.
Accordingly, we have before us no Missouri ruling that a contractual restraint of the kind here in question was invalid because of the absence of a time limitation. In a wide ranging and intensive survey of such a question, the editors of A.L.R. have published a lengthy annotation from which they arrive at the conclusion:
"The overwhelming majority of the cases lend support to the rule that the mere fact, standing alone, that a restrictive covenant not to compete ancillary to a contract of employment contains no time limit or is expressly made unlimited as to time does not render the restriction *393 ipso facto unenforceable." 41 A.L.R. 2d 41.
The cases elsewhere, collected and classified by the annotators, show that the effect of the absence of a time limitation depends in each case upon the reasonableness of the restriction, a matter to be considered hereinafter.
In a related area Missouri courts have held that the restrictive covenant is not made void or unenforceable by the lack of a time limitation. Gordon v. Mansfield, 84 Mo.App. 367; Kreger Glass Co. v. Kreger, Mo.App., 49 S.W.2d 260. While these were cases of the sale of a professional practice and of a business we find applied the criterion of the reasonableness of the restraint. It is stated in the Gordon case that "the test to be applied in determining whether the restraint is reasonable is whether it is such only as affords a fair protection to the interest of the party in favor of whom it is given and not so large as to interfere with the interest of the public." In accordance with that principle the Court in the Kreger Glass case limited the injunction to the period during which the plaintiff remained in business although the contract contained no time limitation.
In harmony with the approach taken in the Kreger Glass case we find that in employment contract cases some courts in the exercise of equity's discretionary power have limited the period of an injunction to such duration as is necessary to give an employer fair protection of his interest although the restrictive covenant contained no time limitation. Lewis v. Krueger, Hutchison and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798. In the latter case the court said: "Merely because a limit has not been fixed for the duration of the restraint, the agreement will not be struck down but will be enforceable for such period of time as would appear to be reasonable under the circumstances." Similarly, where the court found that a fixed period of restraint was unreasonable, it enjoined the employee for such portion of that period as it regarded as necessary to the protection of the employer. John Roane, Inc. v. Tweed, 33 Del. Ch. 4, 89 A.2d 548, 41 A.L.R. 2d 1. The approach of the respective courts in the last two cases cited has the approval of Corbin on Contracts, § 1394, where it is said: "As in the case of contracts restraining the seller of a business with its good will, the fact that the restriction on an employee goes too far to be valid as a whole does not prevent a Court from enforcing it in part insofar as it is reasonable and not oppressive. The injunction may be made operative only as to reasonable space and time * * *."
The basic and generally accepted rule is that a contractual restraint upon a promisor's freedom of action is unenforceable if the restraint is unreasonable and, of course, conversely, it is valid if the restraint is reasonable. Approaching the problem first from the negative side the Restatement of Contracts states that the restraint is unreasonable, if it
"(e) is based on a promise to refrain from competition and is not ancillary * * to an existing employment or contract of employment." (Sec. 515.) Our presently considered contracts do not conform to this part of the definition of unreasonableness. On the affirmative side, Section 516 states that the following bargain does not impose an unreasonable restraint:
"(f) A bargain by an assistant, servant or agent not to compete with his employer, or principal, during the term of his employment or agency, or thereafter, within such territory and during such time as may be reasonably necessary for the protection of the employer or principal, without imposing undue hardship on the employee or agent."
Considering only the precise wording of the latter section it leaves unclear the exact effect of failing to limit the restraint either in time or space. It does not state that, absent such limitation, *394 the restraint is unreasonable.[11] In this situation we advert to the general rule that the question of the reasonableness of a restraint is to be determined according to the facts of the particular case, Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, and hence requires a thorough consideration of all surrounding circumstances including the subject-matter of the contract, the purpose to be served, the situation of the parties, the extent of the restraint and the specialization of the business and of the employment. Obviously such surrounding circumstances can be properly investigated only upon the production of evidence. Hence where the invalidity of the promisor's engagement is not apparent upon the face of it, it is nothing more than a truism to say that the reasonableness of a restrictive covenant cannot be determined by a mere inspection of a pleading. Such a determination requires the functioning of a trial court, acting upon the basis of the evidence produced before it. It follows that relators' raising here of the question of the validity of the restrictive covenant found in paragraph 4(b) is premature and accordingly furnishes no basis for a proceeding in prohibition.
The commitment of the relators not to engage in the same or a similar line of business upon the termination of their employment is found in paragraph 4(b) of their respective contracts. By paragraph 4(a) of each contract the respective employee agrees "To devote his entire time, skill, labor and attention, to said employment during the terms of this employment * * *." Plainly, by the latter paragraph the employee engages himself to work exclusively for the plaintiff for the period of the contract. This paragraph is separable in its entirety from paragraph 4(b). We now note another section of the Restatement of Contracts, § 518, relating to restrictive covenants:
"Where a promise in reasonable restraint of trade in a bargain has added to it a promise in unreasonable restraint, the former promise is enforceable unless the entire agreement is part of a plan to obtain a monopoly; but if full performance of a promise indivisible in terms, would involve unreasonable restraint, the promise is illegal and is not enforceable even for so much of the performance as would be a reasonable restraint."
Clearly a contract for the exclusive services of an employee in a named occupation for a named period is not an unreasonable fettering of the employee's freedom of action. Paragraph 4(a) can stand by itself as a reasonable restriction upon relators and hence might well be enforceable even if paragraph 4(b) were found to be an unreasonable restraint, which, of course, we do not, by anything said herein, find to be the case. Whether or not it should be enforced by use of the injunctive process is a question which lies squarely within the power of the circuit court which could act intelligently only upon appropriate hearing and the development of the evidence as to the circumstances of the parties litigant. Accordingly we find that paragraph 4(a) by itself would afford an independent baseand possibly a sufficient basefor an injunction proceeding.[12] While equity will not decree specific performance of a *395 personal service contract it has the power to enjoin the performance of such service for anyone else.[13]
We have considered in detail the points made under the last three headsirreparable damage, adequacy of legal remedy and restrictive covenantbecause the parties have engaged in extended argument concerning each of them. However upon a thorough consideration of each it appears that the relators by applying for the writ of prohibition are endeavoring to have the injunction case tried in this court upon the merits, insofar as the three named points are concerned. Their contentions are addressed entirely to the merits of the plaintiff's case and not to the power of the circuit court to hear a case involving an alleged breach of contract. Plainly the merits can be determined only upon the holding of an appropriate hearing at which the parties can submit evidence in support of their respective contentions. By applying here for the writ, relators would circumvent the principle that prohibition cannot be used as a substitute for demurrer, appeal or error. State ex rel. Massman Const. Co. v. Buzard, 346 Mo. 1162, 145 S.W.2d 355; State ex rel. Hog Haven Farms, Inc. v. Pearcy, 328 Mo. 560, 41 S.W.2d 403; State ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; State ex rel. Supreme Temple, etc. v. Cook, 234 Mo.App., 898, 136 S.W.2d 142; State ex rel. St. Louis Cooperage Co. v. Green, 92 S.W.2d 930. If a defendant wishes to maintain that a petition does not state a cause of action, such an asserted defect is a matter addressed to the trial court by way of demurrer or the modern motion to dismiss, the overruling of which gives the losing party his right of appeal. It has been cogently stated that "Where it may be gleaned from the petition that the cause of action attempted to be stated belongs to that class of cases of which the circuit court has general jurisdiction, that court has jurisdiction to determine the sufficiency or insufficiency of the petition, and, if it should hold a bad petition good, or a good petition bad, such holding would be error which could be corrected by appeal or other appropriate remedy, but it furnishes no ground for prohibition." State ex rel. Leake v. Harris, 334 Mo. 713, 67 S.W.2d 981, 982.
Much earlier the Supreme Court had expressed itself to the same effect:
"* * * the question is one of jurisdiction, and not of pleading; for, if the court had jurisdiction over the subject-matter, it had the power to decide whether the pleadings were or were not properly drawn. * * * Given the jurisdiction, all else is a mere matter of error, to be corrected on appeal. * * * the mere failure of a petition to state a cause of action, * * * in no way affects the jurisdiction of the court." Schubach v. McDonald, 179 Mo. 163, 78 S.W. 1020, 1023, 65 L.R.A. 136; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191, 198.
Confusion has been engendered in prohibition cases by the careless use of the term, Equity Jurisdiction, as if it were some kind of special jurisdiction separate and apart and distinct from the general jurisdiction of circuit courts. Equity Jurisdiction is a term which relates not to the power of a court to act but to the content of the alleged cause of action which the petition sets forth and the prayer for relief. Raising a question of "equity jurisdiction" simply states a problem of whether or not its allegations present the kind of case in *396 which a court should exercise its power to grant the kind of relief historically afforded by the separate courts of equity. Its references are not to the general authority of the court of general jurisdiction but to the substantive question of whether enough is shown to move the court to grant the peculiar remedies of equity, according to well established principles. If it be said that a showing of probable irreparable damage from breach of contract is a requisite to equitable relief that requirement is no different in essence from the requirement in an action at law that consideration for a promise must be shown in the action for damages for breach of the promise. In each case the stated requirement is an essential condition to the granting of a judgment because each goes to the merits of the case presented. But neither requirement goes to the authority of the court to act. Neither is a jurisdictional fact. For equity courts the matter was succinctly stated by Mr. Justice Stone in DiGiovanni v. Camden Fire Insurance Ass'n., 296 U.S. 64, 69, 56 S. Ct. 1, 3, 80 L. Ed. 47: "Whether a suitor is entitled to equitable relief in the federal courts, other jurisdictional requirements being satisfied, is strictly not a question of jurisdiction in the sense of the power of a federal court to act. It is a question only of the merits; whether the case is one for the peculiar type of relief which a court of equity is competent to give". (Our emphasis.)
It is clear that the objections to jurisdiction, stated by relators under the last three heads considered, all relate to the merits of plaintiff's case and do not properly challenge respondent's jurisdiction. "The decision of issues arising on the merits is peculiarly within the jurisdiction and power of the inferior court. It may decide the issues erroneously if it will. To say that the inferior court has jurisdiction to decide an issue and has no jurisdiction to decide it erroneously is a paradox." State ex rel. Henry v. Cracraft, 237 Mo.App. 194, 168 S.W.2d 953.
Relators' complaint that the petition for an injunction was made upon information and belief lacks substance. See § 526.040, V.A.M.S., and Supreme Court Rule 92.01; State ex rel Allai v. Thatch, Judge, 361 Mo. 190, 234 S.W.2d 1, 11. Neither do we find that respondent's power to act was neutralized by failure to conform to a practice rule of his own court. Section 526.140, V.A.M.S.; Supreme Court Rule 92.19; Wade v. Wade, Mo.App., 395 S.W.2d 515.
Writ of prohibition should be denied and preliminary rule quashed.
PER CURIAM.
The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly writ of prohibition is denied and preliminary rule quashed.
WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.
NOTES
[1] Pearce v. Crutchfield, 14 Ves.J. 206 Nov. 30, 1807
"An Order was made just before the Vacation, that Mrs. Farmer should attend in Court on this day; restraining her in the meantime from all communication with a young man, of the age of eighteen; upon affidavits of an intended marriage between them. [After fruitless attempts to serve defendant] Lord Eldon granted an Injunction."
Dr. Martin and Lady Arabella Howard v. Nutkin et al., 2 Peere Wms. 266 (1724)
"* * * on motion Lord Chancellor Macclesfield granted an injunction to stay the ringing [of a church bell] until hearing." [The cause came on for hearing before the Lords Commissioners Gilbert and Raymond "who decreed that the injunction should continue during the lives of the plaintiffs and the survivor of them".]
[2] In this context, preserving the status quo is taken to mean not merely freezing the situation as the court now finds it but to mean figuratively the restoration of the parties to "the last actual, peaceable, non-contested condition which preceded the pending controversy." High on Injunctions, 4th ed., § 5a. Sometimes the preservation of the status quo involves an order in the nature of a mandatory injunction, a feature not present in the instant case.
[3] It is not necessary here to wander through the forest of injunctive nomenclaturepreliminary injunction, restraining order, temporary injunction, interim order, interlocutory injunction. No matter what the label, conduct of the addressee is restrained. As between restraining order and temporary injunction the affixing of one label or the other usually has significance only in determining the moment of its dissolution. See Perservance Common School District No. 90 v. Honey, Mo. App., 367 S.W.2d 243, where it is said: "* * * a `temporary restraining order' is an injunction." (Page 247).
[4] We are cited to Hovey v. Elliott, 167 U.S. 409, 17 S. Ct. 841, 42 L. Ed. 215. However in that case a defendant's answer was stricken, his previously entered evidence was suppressed and decree against him was entered pro confesso all because defendant was in contempt for failure to obey an interim order of the court. Held: "We rest our decision on the want of power in the courts of the District of Columbia" to render a decree pro confesso under such circumstances and such decree is not entitled to full faith and credit as against third parties. The relevance of this authority escapes us.
[5] The corresponding Supreme Court rule is 92.02, V.A.M.R. and authorizes a restraining order as well as a temporary injunction.
[6] The related Supreme Court rules are 92.03-92.07.
[7] "The assignment that the temporary restraining order was issued without notice cannot be sustained. Respondents' jurisdiction, in the sense of power to act, was not conditioned upon a showing of previous notice to relator Baumes." State ex rel. and to Use of Baumes et al. v. Mason, 348 Mo. 436, 154 S.W.2d 67, 72.
"* * * equity has never prescribed it [notice] as a condition precedent in all cases to the grant of a temporary injunction. * * * The jurisdiction of the circuit court of the case made by the petition was not dependent upon the fact of previous notice to the defendant of the motion for temporary injunction." State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845, 848. And see Ex parte Gounis, 304 Mo. 428, 263 S.W. 988, 991.
[8] In Reddi-Wip, Inc. v. Lemay Valve Co., Mo.App., 354 S.W.2d 913, there is a suggestion of possible application of Section 416.040. In any event the contractual restraint there at issue related to the defendant's manufacture and sale of a definite product. In the language of the court, the action was "one to enjoin the breach of a contract restricting the manufacture of an unpatented article."
[9] "* * * there must be some special circumstances bringing the case under some recognized head of equity jurisdiction before it will wield the powerful writ of an injunction." (at page 476)
[10] But compare the language of the opinions in Summit City Creamery Co. v. Leach, Mo.App., 41 S.W.2d 191 and Thompson v. City of Malden, Mo.App., 118 S.W.2d 1059. It was said in Gordon v. Mansfield, 84 Mo.App. 367, that "In order to invoke the remedy by injunction, it is not necessary under the statute * * * for a plaintiff to allege and prove that the legal wrong threatened is irreparable."
[11] The comment to Restatement Section 515 states that "there is a territory between the two Sections [515 and 516] of greater or less extent which is not covered by the rules stated in either section." The comment continues, "Neither the period of time during which a restraint is to last, nor the extent of the territory that is to be included is conclusive but the length of time and even more the extent of space are important factors in the determination of the reasonableness of a restrictive agreement."
[12] Essex Specialty Co. v. Bueschel, 116 N.J.Eq. 337, 173 A. 595; Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A. 227; Savoy Record Co. v. Mercury Record Corp., D.C., 108 F. Supp. 957; Winnipeg Rugby Football Club v. Freeman, D.C., 140 F. Supp. 365.
[13] Savoy Record Co. v. Mercury Record Corp., supra.
"* * * wherever this court has not proper jurisdiction to enforce specific performance, it operates to bind men's consciences, as far as they can be bound, to a true and literal performance of their agreements; and it will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a jury may give." Lumley v. Wagner, 1 DeG., M. & G. 604. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573999/ | 224 S.W.3d 106 (2007)
Dustin MEYER, a Minor, by His Next Friend, Lauren Heather MEYER, Appellant,
v.
ASTRAZENECA PHARMACEUTICALS, L.P., Respondent.
No. ED 87782.
Missouri Court of Appeals, Eastern District, Division Three.
March 27, 2007.
Application for Transfer Denied May 16, 2007.
Application for Transfer Denied June 26, 2007.
*107 James Lemonds, Michael Gross, Joseph Yeckel, St. Louis, MO, for appellants.
Steven Schwartz, Robert Rosenthal, Thomas Ward, St. Louis, MO, Richard Josephson, Earl Austin, Stephen Calvert, Houston, TX, for respondent.
Application for Transfer to Supreme Court Denied May 16, 2007.
KENNETH M. ROMINES, Judge.
Introduction
Dustin Meyer (Dustin), by Next Friend Lauren Heather Meyer, appeals a jury verdict in favor of defendant AstraZeneca Pharmaceuticals L.P. (AstraZeneca) on Dustin's product liability claim. We affirm.
Facts
On 16 April 1991, Dustin, then 18 months old, was brought to Children's Hospital after he ingested hair dye, which aspirated into his lungs. In order to keep Dustin comfortable and immobile, physicians gave Dustin a sedative called Diprivan, which is generically known as propofol. Diprivan was sold by ICI Pharmaceuticals, which is AstraZeneca's predecessor. While hospitalized, Dustin's lungs filled with fluid, and he developed Acute Respiratory Distress Syndrome, which led to cardiac arrest and left Dustin with permanent brain damage.
Dustin filed a Petition against AstraZeneca, and other parties with which he has settled and which are not parties to this appeal. Dustin alleged that AstraZeneca sold propofol in the course of its business, that propofol was then in a defective condition and, because of an inadequate warning, was unreasonably dangerous when put to a reasonably anticipated use, and thus caused Dustin's brain damage.
*108 The case was tried before a jury in the Circuit Court of the City of St. Louis, the Honorable Michael B. Calvin presiding. The Court gave a failure to warn verdict director, and an instruction in compliance with Section 537.764 RSMo (2000), state of the art. Instruction No. 11, about which complaint is made, stated: "Your verdict must be for defendant AstraZeneca if you believe the dangerous nature of propofol was not known and could not reasonably be discovered at the time the propofol was placed into the stream of commerce." The jury found in favor of AstraZeneca.
Standard of Review
Whether or not a jury was properly instructed is a question of law. Romeo v. Jones, 144 S.W.3d 324, 330 (Mo. App. E.D.2004). We review the evidence in the light most favorable to submission of the instruction. Egelhoff v. Holt, 875 S.W.2d 543, 548 (Mo. banc 1994). An instruction must be given when there is substantial evidence to support the issue submitted. Romeo at 330. Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case. Id. A party is entitled to an instruction on any theory supported by the evidence. Id.
Discussion
Dustin argues that the Court erred when it overruled his objection to Instruction No. 11. Dustin asserts that this instruction was not supported by the evidence and was therefore likely to confuse or mislead the jury. Dustin claims the evidence failed to establish AstraZeneca's inability to know and recognize the danger of propofol. Finally, Dustin claims the evidence established that AstraZeneca knew that: 1) children's hospitals were purchasing propofol; 2) propofol was being used on pediatric intensive care patients; and 3) more than 40 adverse events from the use of propofol in children in intensive care were reported before Dustin's hospitalization.
This appeal challenges the submission of Instruction No. 11 to the jury. As such, if there was substantial evidence in support of the instruction even if there is also evidence to the contrary then the instruction was properly submitted, and the jury's verdict must stand. See Romeo v. Jones, supra.
At trial, Dustin introduced evidence of studies that evaluated the potential link between propofol and injuries or deaths in pediatric intensive care patients: the Pepperman Study, AstraZeneca clinical trial 68, and AstraZeneca clinical trial 56. The first of these studies was done in 1997 six years after Dustin received propofol. Contrawise, Drs. Zaloga (Tr. 1116-27), Blumer (Tr. 1206), and Goodale (Goodale Dep. 76-78) testified that these studies showed that propofol was actually as safe as or safer than other sedatives.
Dustin also introduced evidence of a study published by Dr. Bray in 1998. In this study, Dr. Bray asserted that the use of propofol in pediatric intensive care patients can result in adverse health effects, known as "propofol infusion syndrome." However, Dr. Berkenbosch testified at trial that, in 1991, there was no information on this syndrome.
In addition, Dr. Zaloga testified that he reviewed the adverse event reports and concluded that they were not related to propofol. Tr. 1102-05. Dr. Weldon testified that "[i]t wasn't until the mid-'90s that anybody raised any concern about propofol." Tr. 700. The overwhelming opinion was that propofol is the safest sedative for chronically injured infants.
On the basis of a substantial body of testimony in regard to the nature of propofol *109 in 1991, we cannot find error in the Circuit Court's submission of Instruction No. 11. Instruction No. 11 was supported by substantial evidence and was properly submitted.
The judgment is affirmed.
GLENN A. NORTON, P.J., and LAWRENCE E. MOONEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573988/ | 408 S.W.2d 790 (1966)
HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Appellant,
v.
Agnes L. KING, Appellee.
No. 11447.
Court of Civil Appeals of Texas, Austin.
November 9, 1966.
Rehearing Denied December 7, 1966.
*791 Fred R. Disheroom, Dallas, for appellant.
Gordon Wellborn & Rex Houston, Vaughan O. Stewart, Henderson, for appellee.
HUGHES, Justice.
This is a workmen's compensation case. The case was tried to a jury and upon its verdict judgment was rendered for the employe, Agnes L. King, and against the insurance carrier, Hardware Dealers Mutual Fire Insurance Company.
The jury was asked, "Do you find from a preponderance of the evidence that Agnes King was not hired or retained by Musser Motors, Inc. as a domestic servant?"[1] The term "domestic servant" was defined, in the charge, as "a person hired or employed primarily for the performance of household duties and chores, the maintenance of the home, and the care, comfort and convenience of members of the household." The answer of the jury to the above issue was favorable to appellee. Appellant did not object to the submission of this issue.
Appellant's first two points, jointly briefed, are that the jury's answer to this issue was without any evidence to support it, and because there was "insufficient evidence" to support such answer.
These points, in our opinion, raise only a question of law, not a question of fact. The question of law is whether there is any evidence of probative value, more than a scintilla, to sustain the answer of the jury. That the answer of the jury may be against the overwhelming weight and preponderance of evidence as to be clearly wrong or manifestly unjust, a question of fact, is not before us and we express no opinion with reference to it. Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506, Houston, writ ref., n. r. e.
In deciding the "no evidence" point it is our duty to view the evidence and inferences therefrom in a light most favorable to the verdict, disregarding all evidence to the contrary. See 38 Tex. Law Review 361, Chief Justice Calvert, "No Evidence" and "Insufficient Evidence."
We will now recite evidence which, in our opinion, has probative force sufficient to support the finding of the jury.
Musser Motor Company is a family corporation, owned by Rufus Musser and his son and a brother. It is engaged in the sale of automobiles and their repair. Mr. Musser is president of the corporation and his wife works for the Company as a bookkeeper for which she receives no pay.
*792 Agnes Louise King worked for the Musser Corporation for some ten or twelve years. She originally started to work for the Mussers in Graham, Texas, and then moved to Terrell when Mr. Musser moved his place of business there. Her salary ranged from $44.00 to $65.00 per week, based on pay of $1.00 per hour, during this twelve-year period. The services which she performed for her employer were mainly those of a general handy woman and included such things as cleaning up at the office, waxing floors, cleaning windows, working at company parties and doing about anything which the Mussers considered necessary in the furtherance of the company's business. In addition to these services, Mrs. King was often sent to the homes of the various officers to clean up, cook and baby-sit. Mr. Musser testified that he felt that since the corporation officers were helping pay Mrs. King's salary, she should work in their homes. No matter where Mrs. King was assigned to work, she was continuously carried on the company's payroll and compensation premiums were paid on her just as they were paid on other company employees. The salary received by appellee was greatly in excess of the salaries received by domestic servants in the Terrell area.
On the day of the injury, appellee first went by the Musser office and then went to Rufus Musser's home around 7:30 or 8:00 that morning. She spent most of the morning cooking and the injury occurred about 1:30 p. m. that afternoon. At the time of her injury, appellee was following the specific instructions of Mrs. Musser to move a cast iron lawn chair out of the Musser's driveway and take it around the house to the front porch, so that some of the boys from the company could come out and pick it up.
Appellee testified that the chair which she was instructed to move weighed about 95 to 100 pounds; that she, contrary to instructions, moved the chair by herself, and that as she picked the chair up she felt a "catch" in her back.
Mrs. Musser testified:
"Agnes King worked for Mr. Musser and me here in Terrell and when we lived in Graham, and performed about the same kind of duties at both places. She was carried on the company payroll at all times and made $1.00 per hour. She was an able-bodied employee before she got hurt and never complained of anything being wrong with her. She injured herself moving a lawn chair. I had intended to have her husband, who was also a company employee, come out and help her move the chair. She did all the jobs that either I or my husband assigned to her from time to time. She worked at the place of business or whereever any of the stockholders wanted her to work. She worked at new-car showings and at company parties. She performed janitor work at the place of business whenever she was told to. At the time she was hurt, she was doing work I wanted her to do, except that I wanted someone to help her."
Mr. Musser testified:
"I have known Agnes King and her husband about 10 or 12 years. They worked for me in the past. We employed her husband about 10 or 12 years ago and then employed her right about the same time. Agnes occupied the same status the whole time she worked for us. We carried her on the payroll of Musser Motor Company from the time we first employed her until she last worked for us. My wife and I assigned various tasks to Agnes, just as we do any of our employees. At the time she got hurt, she was making $1.00 per hour and was still an employee of Musser Motor Company. She was hired to take care of our cabin we had in Graham, to work at shop parties, customer relations parties and to take care of the house. I cannot estimate what percentage of her work was performed at the shop and what percentage was performed elsewhere. I considered her available to work for *793 Musser Motor Company at any time or place we needed her. She was paid about three times as much as domestic servants in the Terrell area. She was a general handy woman and performed every duty we assigned her. Agnes was sent to take care of the homes and children of the various corporate officers whenever they were busy with some corporate function. She was very responsible and was often sent to relieve the various corporate officers of their responsibilities. She was a valuable asset of Musser Motor Company. We all leaned on Agnes pretty heavy because she was a valuable part of the corporate picture. We paid workmen's compensation premiums on her for years and years.
* * * * * *
Q Mr. Musser, your wife, Mrs. Inez Musser, works at the Musser Motor Company?
A Yes, sir.
Q What salary is she paid?
A None.
Q Was there any connection in her working at the motor company and your hiring Agnes King on the company payroll?
A Well, yes. We felt that the corporation would be better off by hiring someone to do the work out at the house and take care of a lot of the duties that a wife had to do, rather than to hire someone and her stay at home, and we felt like she would be more valuable to the company.
Q And when Agnes was hired by the corporation, it wasyou were going to answer a while ago, it was with the understanding that her duties were to do what?
* * * * * *
Q What were her duties to be for the corporation?
A Well, her duties for the corporation was towell, one of them wasI have a son and brother that is an owner in the corporation, is to relieve some of their duties out at the housewell, like baby-sitting whenever we have a corporation meeting, and things like that, she was to, like we do a tremendous amount of entertaining, and she was to take care of our parties and things like that. That was understood. We paid her just like we did our regular employees that we had on our payroll, men or anybody else that we had on the job. We paid her hourly, and when she went into overtime, she got overtime just like anybody else.
Q The corporation parties and banquets, did you have many of those?
A Oh, yes, we have quite a few.
Q Where do you have those?
A Here at home. We have been holding them in our home."
Maryland Casualty Co. v. Levine, 67 F.2d 816, 5th Circuit, opinion by Judge Hutcheson, is analogous. There a family corporation, owned by W. D. Haden and his two sons, employed a utility or handy man named Levine. The company owned a Chevrolet and a Packard which were kept at E. D. Haden's home. Mrs. E. D. Haden was permitted to use this car as her personal car. Part of the duties of Levine was to wash and care for these cars. His other duties were very general in nature, he doing whatever he was told to do. He also, from time to time, performed purely domestic work for Mrs. E. D. Haden. While enroute to the Haden home to wash the Packard and do other odd jobs for Mrs. Haden, Levine was accidentally killed. The Court held he was covered by our Workmen's Compensation Act at the time of his death, the Court saying:
"The duty of a general utility man like Levine is performed when, under the instructions *794 of his superior officer, he looks after company property. It is neither his duty nor his right to inquire into the use of that property which his superior officer intends to make. It is enough if what he does in regard to it is, as this was here under the evidence, within the scope of his recognized and established duties to the company."
In Texas Employers Insurance Association v. Weber, Tex.Civ.App., 386 S.W.2d 835, writ ref., n. r. e., we held that "the nature of the business in which the employee is hired to work and the duties he regularly performs are the controlling tests and not the specific activity he is engaged in at the time of his injury."
The employer's business here was the automobile business. Appellee was employed by Musser Motors, Inc. to do anything necessary in the furtherance of the business or trade of Musser Motors.
Some of the work done by appellee was of a domestic nature. It was performed, however, in furtherance of the business of Musser Motors in that it relieved Mrs. Musser of these duties in order that she could devote her time, or part of it, to working at the place of business without pay.
In addition, some of this work of a domestic nature was essential to the entertainment which Mr. Musser provided in his home for business purposes. In this enlightened age, it is not to be doubted that public relations are a business concern, and that they are fostered in many ways, including entertainment in the home.
We have, as indicated, concluded that, as a matter of law, the evidence does not show appellee to have been a "domestic servant" at the time of her injury although some, if not a major part of her work was of a domestic nature.
Webster's International Dictionary, 2nd Ed., unabridged, defines a "domestic" as "one who lives in the family of another as a hired household assistant; a house servant."
Appellant cites Wiseman v. Phipps, 176 Misc. 964, 28 N.Y.S.2d 971, and In Re Johnson's Estate, 156 Misc. 689, 282 N.Y.S. 806, as holding that a domestic servant is a person working within the house for the care, comfort, convenience and enjoyment of the home and its occupants.
We have no doubt that these authorities are sound. They are not controlling here because while some of the work performed by appellee was of a domestic nature it was not exclusively for the convenience and enjoyment of the home and its occupants; it also served to further the business of Musser Motors.
Appellant's third point is that the trial court erred in not submitting, as it requested, the following special issue and accompanying instruction:
"DO YOU FIND FROM A PREPONDERANCE OF THE EVIDENCE, THAT AT THE TIME AND ON THE OCCASION IN QUESTION, THE PLAINTIFF, AGNES L. KING, WAS NOT A DOMESTIC SERVANT?
Answer: `She was not a domestic servant,'
or `She was a domestic
servant.'
We, the Jury Answer:_______________
Domestic Servant as used in this charge means a person who primarily is employed in and about the maintenance of a home itself. Such a person is a household servant working within the house for the upkeep thereof, and the care, comfort and convenience of the occupants thereof."
The principal difference between the special issue submitted by the court regarding appellee's status as an employe and the requested issue is that the latter issue deletes the phrase "hired or retained" and limits the inquiry to the status of appellee to the "time and on the occasion in question."
*795 It seems to us that our opinion in Weber, supra, is decisive of this point. See also Holmes v. Travelers Insurance Company, Tex.Civ.App., 148 S.W.2d 270, Galveston, writ ref., where the Court stated that in determining whether a person was a farm or ranch laborer under Sec. 2 of Art. 8306, "the controlling consideration is the nature of the work the injured employee is hired to do on the employer's premises."
It is to be noted here the charge contained the customary issues of whether appellee was an employe of Musser Motors when she was injured and whether such injury was sustained in the course of such employment.
We are of the opinion that the evidence is undisputed that appellee was performing an act for Musser Motors when she was injured and that she was not at such time acting in the capacity of a domestic servant. Thus the case, in our opinion, is brought within the scope of the ruling in Levine, discussed above.
If this view is correct, then the charge given was more favorable to appellant than the requested charge.
We are also of the opinion that appellant by not objecting to the special issue submitted by the court as to the status of appellee has lost his right to complain of its form, and that this failure to object is not cured by the request of a special issue on the same subject even though it be correct. City of Denton v. Hunt, Tex.Civ.App., 235 S.W.2d 212, Fort Worth, writ ref., n. r. e.
We overrule point three.
Point four is that the trial court erred in overruling portions of its motion in limine which requested the court to instruct appellee's counsel not to mention before the jury the fact that insurance premiums had or had not been paid by Musser Motors on behalf of appellee.
It was not reversible error to overrule a motion in limine. Appellant did not object to the admission of this testimony when offered. This was its remedy. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331, Tex.Sup.
The judgment of the trial court is affirmed.
Affirmed.
NOTES
[1] "Domestic servants" are not covered by the Workmen's Compensation Act. Article 8306, Sec. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573991/ | 408 S.W.2d 825 (1966)
JEFFERSON BANK AND TRUST COMPANY, a Corporation, Plaintiff-Appellant,
v.
CENTRAL SURETY AND INSURANCE CORPORATION, a Corporation, Defendant-Respondent.
No. 51209.
Supreme Court of Missouri, Division No. 2.
December 12, 1966.
*827 Buckley & Campbell, R. Forder Buckley, Robert Lee Campbell, St. Louis, for plaintiff-appellant.
Fred J. L. Schuler, St. Louis, for defendant-respondent.
FINCH, Judge.
This case comes to the writer on reassignment.
Plaintiff bank, herein sometimes referred to as "Jefferson," brought suit on its Bankers Blanket Bond for $20,621.06. Both plaintiff and defendant surety, sometimes referred to as "Central," filed motions for summary judgment. The trial court entered judgment for Central on its motion for summary judgment and Jefferson has appealed.
Jefferson seeks recovery of the amount it was required to pay Brede Decorating, Inc., as a result of the judgment of this court in the case of Brede Decorating, Inc. v. Jefferson Bank and Trust Co., Mo., 345 S.W.2d 156, plus costs and expenses incident to that suit. The bond covered losses of specified types and included the following provisions upon which Jefferson seeks recovery:
"ON PREMISES
"(B) Any loss of Property through robbery, burglary, common-law or statutory larceny, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees, * * *."
"FORGERY OR ALTERATION
"(D) Any loss through FORGERY OR ALTERATION of, on or in any checks, drafts, acceptances, withdrawal orders or receipts for the withdrawal of funds or Property, certificates of deposit, letters of credit, warrants, money orders or orders upon public treasuries; or any loss (1) through transferring, paying or delivering any funds or Property or establishing any credit or giving any value on the faith of any written instructions or advices directed to the Insured and authorizing or acknowledging the transfer, payment, delivery or receipt of funds or Property, which instructions or advices purport to have been signed or endorsed by any customer of the Insured or by any banking institution but which instructions or advices either bear the forged signature or endorsement or have been altered without the knowledge and consent of such customer or banking institution, * * *. Mechanically reproduced facsimile signatures are treated the same as handwritten signatures."
Losses covered were those "sustained by the Insured at any time but discovered after noon of the 1st day of November, 1957, and prior to the termination or cancelation of this bond. * * *."
Two basic disputes exist between the parties on this appeal. They are (1) do the bank's losses fall within coverage provided by the Bankers Blanket Bond (false pretenses on the premises or forgery), and (2) assuming that they do, were the losses discovered during the term of the bond?
Our opinion in the Brede case, supra, recited in considerable detail the transactions out of which the recovery by Brede from Jefferson arose. Except as necessary for clarity, we will not recite those facts again. Those interested may refer to 345 S.W.2d 156 for further details. Suffice it to say here that during the period from January 6, 1955, to October 16, 1955, sixteen checks payable to Brede Decorating, Inc., were deposited in Jefferson to the credit of Acme-Williams Decorating Co., a partnership consisting of Egan, the treasurer *828 of Brede, and Siviur, a salesman for Brede. The name "Brede Decorating, Inc.," was stamped with a rubber stamp on the back of each of the sixteen checks. Below that was typed or written the words "Acme-Williams Decorating Co." None of the checks bore any individual signature or name. These endorsements were placed on the checks and the deposits were made by Egan or Siviur, but the evidence did not clearly establish which one performed the acts with respect to particular checks.
This court held in the Brede case that the resolution furnished to the bank by Brede did not authorize Egan to do what was done here; that Egan had no authority, express or implied, to endorse corporate checks for deposit to any other account; and that under the evidence Jefferson was put on inquiry to determine whether Brede had authorized the actions in question. We held that the trial court was justified in entering judgment for Brede on its after-trial motion, notwithstanding a jury verdict in favor of Jefferson.
Jefferson notified Central of the Brede suit when filed and called upon Central to defend and hold Jefferson harmless under its blanket bond. Central denied liability and declined to defend. Jefferson now seeks recovery of the judgment entered against it therein, plus attorneys' fees and expenses.
Both motions for summary judgment were submitted originally to Judge Reagan. He overruled both motions, reciting that there were issues of fact in dispute which would require a jury trial, these including a sharp dispute as to when the loss was discovered
Subsequently, a pre-trial conference was held before Judge McMillian and he filed a memorandum for the clerk reciting that the parties had stipulated that there was no issue of fact involved and that the issues were entirely ones of law which could be decided by the court. It was stipulated that the motions of both parties for summary judgment should be treated as refiled and the case submitted to the court thereon. The stipulation provided for consideration of the transcript in the prior Brede case and the Supreme Court's opinion therein, as well as the pleadings, interrogatories, depositions, requests for admissions, and affidavits in the case then pending before the court.
Thereafter, the trial court made findings of fact and conclusions of law and entered judgment for Central. Findings of fact included ones that Egan, by the endorsements and deposits, wrongfully converted the funds of Brede; that the circumstances surrounding the negotiations were so unusual as to put Jefferson on inquiry to determine whether the acts were authorized by Brede; that prior to November 1, 1957, officers of Brede made inquiry at the bank in connection with the sixteen checks and the handling thereof; and that the loss thereby was discovered prior to November 1, 1957. There were conclusions of law that there was no loss either by false pretenses or by forgery; that there was no evidence to show that the loss occurred on the premises; that the bank was guilty of conversion; and that the loss was discovered prior to November 1, 1957.
Considering first the question of coverage, we have concluded that the acts complained of do amount to false pretenses on the premises which fall within coverage B of the bond. It is true, as Central points out, that there was no evidence as to where the endorsements on the checks were made by Egan or Siviur, or that they occurred at the bank. However, when the checks, with the endorsement of Brede thereon, were presented at the bank for deposit to the account of Acme-Williams, that constituted a representation to Jefferson that the checks had been endorsed on behalf of Brede by an authorized person for the purpose of negotiating the checks. Such representation was false, and it was a false representation to the bank on its premises at the time the checks actually *829 were presented for deposit. Federal Deposit Ins. Corp. v. Hartford Accident & Indemnity Co., D.C., 106 F. Supp. 602, 604[2]; affirmed 8 Cir., 204 F.2d 933, 937[5].
Central asserts that the Brede opinion has determined, as a matter of law, that what occurred was a conversion and that the blanket bond does not cover loss by conversion. This contention overlooks the fact that the suit by Brede against Jefferson was for alleged conversion by the bank of Brede's funds as a result of the bank's handling of checks which belonged to Brede. When the opinion speaks of conversion or diversion of funds, it is characterizing what the bank did, not the nature of the acts of Egan or Siviur. The Brede opinion does not hold that the acts of Egan and Siviur were not false pretenses on the premises or, for that matter, that they were not forgeries.
In this action by Jefferson against Central we are concerned with the acts of Egan and Siviur. More specifically, we are concerned with whether they amount to false pretenses on the premises or forgeries which, in turn, induced Jefferson to convert or divert Brede's funds. We hold, as above indicated, that the acts of Egan and Siviur did constitute false pretenses on the premises. Under these circumstances, we need not extend this opinion by considering whether the acts also would fall within the coverage against loss by forgery under coverage D.
This brings us to a consideration of the second question which is whether the losses were discovered during the term of the bond written by Central for Jefferson. The trial court adopted the view of Central and held as a matter of law that the losses were discovered prior to November 1, 1957, and not covered by its bond.
Central, seeking to sustain the action of the trial court, asserts on appeal that the opinion of this court in the Brede case established that Jefferson was put on inquiry in 1955 when the checks were presented for deposit. This, says Central, constituted discovery of the loss prior to November 1, 1957, as a matter of law. We do not agree. We did hold in Brede that when the checks were presented with the endorsements heretofore described, the bank, for the purpose of determining its liability to Brede, was put on inquiry to determine whether Brede had authorized the endorsements. This did not amount to a holding, for purposes of recovery on the blanket bond, that Jefferson in fact knew at that time that the endorsements were not authorized. The holding also does not mean that a loss to the bank had occurred or been discovered at that time as a result of its handling of the checks. The language of the Bankers Blanket Bond provides coverage for losses to the bank which are discovered (not merely discoverable) during the term of the bond. The issue of when or whether there was actual discovery by the bank of a loss to it was not in issue in Brede and was not settled by that opinion.
Next, says Central, a series of six letters between Brede and Jefferson in March and April, 1957, all part of the record on appeal, should have put the bank on inquiry and constituted notice of loss to the bank. In brief, the letters from Brede contained requests for certain information and records from the bank in connection with the handling of the checks in question. The replies from Jefferson transmitted records and information to Brede. None of Brede's letters express any intention to assert a claim against the bank. On the contrary, they stated an intention to proceed against Egan and Siviur. The matter of intention is dealt with expressly in Brede's letter of March 16, 1957, as follows: "We also would like a copy of all deposit slips so that we may be able to identify the names of the various customers who sent us checks for deposit in the Brede Decorating account. We believe this will be of some help in setting up our case against Dick Siviur and James W. Egan." Instead of placing any blame *830 on the bank, Mr. Brede was blaming himself and his associates in the following language from that letter: "Jim Egan was one of four of us who owned the Brede Decorating Company. He was supposed to handle sales and complete management and he had full control of everything. That was the mistake we made." In addition, Brede's letter stated: "I am sure that with your help and with the bank's records we can accomplish what we want. I am certainly pleased with the information you have given me and it gives us something to work with. I will be waiting to hear from you with the photostatic copies of records I have indicated I would like to have."
Again, in a letter dated April 19, 1957, the last of the series, Brede acknowledged further information and arranged a personal conference in St. Louis on May 1, 1957. He stated: "My reason is to see how many deposits have been made so we will know what steps to take against Jim Egan and Dick Siviur. This will be our deciding point. In other words, if we feel that there was not enough money taken we won't bother. I hope that you will go along with me on the program * * *."
These letters do not provide a basis for us to hold as a matter of law that discovery of a loss by the bank occurred upon their receipt. We cannot affirm the action of the trial court in sustaining Central's motion for summary judgment.
We next proceed to a consideration of Jefferson's motion for summary judgment. Its position can be summarized in this manner: It had no notice of a claim or intended claim by Brede against the bank until receipt of a letter from Brede dated February 24, 1958, wherein demand was made for reimbursement for alleged loss resulting from handling of the sixteen checks. The letters exchanged in March and April, 1957, made no reference to any claim against the bank but talked of possible claims of Brede against Egan and Siviur. An affidavit of Jefferson's vice-president as to a conversation with Mr. Brede on May 1, 1957, recites that Mr. Brede mentioned sums due to Siviur and Egan by Brede which might offset the sums received by Egan and Siviur by means of the checks in question. The affidavit also states that the letter of February 24, 1958, was the first word the bank had that Brede claimed any rights against the bank. These letters and the affidavit, says Jefferson, establish as a matter of law that discovery of loss by the bank came upon receipt of the letter of February 24.
The blanket bond "undertakes and agrees to idemnify and hold harmless" the bank "from and against any losses sustained by the insured at any time but discovered after noon of the 1st day of November, 1957, and prior to termination" of the bond. In order to decide the issue as to discovery, we first must consider the kinds of losses which the bond covers. In general there are two categories. One is where the bank suffers a direct loss of its money or property for any of the causes mentioned in the bond, such as by theft. The other is where the bank does not suffer a direct loss but incurs a liability and as a result thereof has to pay money to another on account of a risk covered. This latter category is insurance against liability and is the kind with which we are concerned. Brede suffered an immediate loss when Egan and Siviur, by false pretenses and possibly forgery, converted the proceeds of Brede's checks to their our use, but the bank at that time suffered no loss or financial detriment although it may or may not have incurred a liability by reason of what it permitted to be done with Brede's money. If it developed that there were offsetting amounts due from Brede to Siviur and Egan, a possibility which Brede indicated to Jefferson's vice-president, or if Egan and Siviur reimbursed Brede, or if Brede concluded not to assert a claim, then the bank would not sustain any loss.
*831 Section 3 of the Bankers Blanket Bond provides for notice to the surety company "at the earliest practicable moment after discovery of any loss hereunder," and there is a section of the bond applicable to court costs and attorneys' fees which provides, in part, as follows: "The Underwriter will indemnify the Insured against court costs and reasonable attorneys' fees incurred and paid by the Insured in defending any suit or legal proceeding brought against the Insured to enforce the Insured's liability or alleged liability on account of any loss, claim or damage which, if established against the Insured, would constitute a valid and collectible loss sustained by the Insured under the terms of this bond. Such indemnity shall be in addition to the amount of this bond. In consideration of such indemnity, the Insured shall promptly give notice to the Underwriter of the institution of any such suit or legal proceeding; at the request of the Underwriter shall furnish it with copies of all pleadings and other papers therein; and at the Underwriter's election shall permit the Underwriter to conduct the defense of such suit or legal proceeding, in the Insured's name, through attorneys of the Underwriter's own selection. * * *"
It is to be noted that these clauses refer to the bank's liability on account of any claim which, if established against the bank, would fall within the provisions of the bond. This indicates that the time of discovery of loss mentioned in the bond is not intended to be the time when a claim of the depositor or customer is established ultimately by entry of judgment. The provisions for notice to the surety and for handling of the defense indicate otherwise.
What, then, does the bond mean when it refers to losses to the insured discovered during the period of coverage?
We are of the opinion that the proper principles for determining when discovery occurs under the terms of the Bankers Blanket Bond are announced in Wachovia Bank and Trust Co. v. Manufacturers Casualty Ins. Co., 171 F. Supp. 369, 375, wherein it is stated:
"In order to constitute a `discovery' in accordance with the terms of the policy * * * there must be facts known, at the time it is asserted that the discovery was made, which would lead a reasonable person to an assumption that a shortage existed. The facts must be viewed as they would have been by a reasonable person at the time discovery is asserted, and not as they later appeared in the light of subsequently acquired knowledge. * * *
[T]he mere discovery of certain facts which later lead to other facts which reveal the existence of a shortage does not necessarily constitute a discovery. Knowledge available to the insured must rise above a mere suspicion of loss. The fact that an investigation after the termination of the policy leads to the disclosure of an actual defalcation does not raise a previous suspicion to the level of a discovery. Inefficient business procedures, or irregularities and discrepancies in accounts, if as consistent with the integrity of employees as their dishonesty, does not constitute a discovery, even though dishonest acts may later be found to exist."
The above principles are in harmony with the definition of "discovery" given in Webster's Third New International Dictionary, as follows: "1 a: the act, process, or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or unrecognized." In other words, not only must the facts be known, but they also must be recognized for what they are, which in this case would be a claim against the bank. The same thought is expressed in Insurance Law and Practice by Appleman, Vol. 10, § 6195, page 537, as follows: "A provision requiring a bank to notify the surety in case any act of dishonesty came to its *832 knowledge, was held not to become operative because the officers or directors of the bank learned of acts of the cashier which were in fact dishonest, if they were not known to be so at the time."
The Wachovia case dealt with the first category of loss insured against in the blanket bond, namely, a direct loss by the bank. However, the principles stated therein are applicable to the second type of loss based on legal liability of the bank for loss of another. Paraphrasing the Wachovia language, it can be stated that in order to constitute a discovery in accordance with the terms of the policy there must be facts known, at the time it is asserted that the discovery was made, which would lead a reasonable person to an assumption that the bank has suffered a loss by reason of its handling of the account of its customer. Stated otherwise and applied to the facts of this case, the time of discovery of the risk insured against is when the bank must reasonably have known and recognized that Brede had suffered a loss and that Brede apparently intended to attempt to hold the bank liable for such loss.
On the record before us, there is no dispute as to what occurred between Brede and Jefferson with reference to the handling of these checks. The first contact by Brede with Jefferson was in March of 1957. The letters which were exchanged at that time are before us. The affidavit of Jefferson's vice-president recites what was said in his talk with Brede on May 1, 1957. No counteraffidavit was filed by Central. Nothing further was heard from Brede after May 1, 1957, until receipt of the February 28, 1958, letter. Meanwhile, Brede did not intimate that it claimed any rights against the bank. On the contrary, Brede told the bank that there might be offsetting amounts due from Brede to Egan and Siviur and that they were investigating to determine whether to assert a claim against Egan and Siviur for any balance due. Under these undisputed facts, we hold as a matter of law, applying the principles of Wachovia, that discovery of the loss to the bank occurred upon receipt of that letter, which was within the period covered by the blanket bond written by Central. We do not mean by this holding to state that in each and every instance the time of discovery of a loss of this character necessarily is simultaneous with formal demand by the customer on the bank, but we do hold under the particular facts of this case that this was the time of discovery of Jefferson's loss.
The pleadings and depositions indicate that Jefferson had a blanket bond from the American Automobile Insurance Company which covered a period of time expiring November 1, 1957, and that Jefferson called upon both American Automobile and Central for protection and indemnity following demand on the bank by Brede. It also was indicated that American Automobile paid Jefferson the sum of $1000 and took a covenant not to sue, apparently sometime in 1961. If these be the facts, then Jefferson was obligated to credit the $1000 recovery against the amount which it sought from Central; otherwise, it would in effect have a double recovery to the extent of $1000 for its loss arising from its handling of the Brede checks. The record is not sufficiently clear with reference to this transaction for us to make the deduction and enter judgment accordingly. Consequently, the case is reversed and remanded with directions to the trial court to ascertain the facts with respect to the transaction between Jefferson and American Automobile Insurance Company, and if, in fact, payment was made by American Automobile to Jefferson on a covenant not to sue in connection with liability of Jefferson to Brede for its handling of the checks involved herein, then such recovery shall be credited against the amount sought in this suit by Jefferson from Central, and judgment in favor of Jefferson shall then be entered by the trial court for the net amount of *833 loss, attorneys' fees and interest in accordance with the views expressed in this opinion.
EAGER, P. J., and STORCKMAN, J., concur.
DONNELLY, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573990/ | 224 S.W.3d 213 (2007)
Ex Parte Steven Donald INSALL, Applicant.
No. AP-75338.
Court of Criminal Appeals of Texas.
May 23, 2007.
David L. Richards, Fort Worth, for Appellant.
Andrea Jacobs, Assistant District Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for State.
OPINION
HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, KEASLER and COCHRAN, JJ., joined.
In this case, we deny applicant's request for habeas corpus relief on the merits and reject the State's claim that applicant's request for habeas corpus relief should be denied as waived.
Applicant was charged with possession with intent to deliver more than 400 grams of gamma hydroxybutrate, which is a Penalty Group 1 controlled substance. See Section 481.102(9), TEX. CONTROLLED SUBSTANCES *214 ACT. This offense carries a punishment range of 15 to 99 years, or life, in prison and a fine not to exceed $250,000. See Section 481.112(f), TEX. CONTROLLED SUBSTANCES ACT. Applicant and the State entered into a plea bargain under which the State recommended to the convicting court that applicant be placed on deferred adjudication community supervision (deferred adjudication probation) for ten years and pay a $1,000 fine in exchange for, among other things, applicant's guilty plea and his waiver of his right "to seek an application for writ of habeas corpus" under Article 11.07, TEX.CODE CRIM. PROC. The convicting court accepted the parties' plea bargain, placed applicant on deferred adjudication probation for ten years, and assessed a $1,000 fine. The habeas corpus record indicates that the usual procedures were followed for insuring that a guilty plea is voluntarily made. The plea papers also state that applicant could be sentenced to "15 years-99 years, life" in prison, if he violated any condition of his deferred adjudication probation and his guilt was adjudicated. Applicant subsequently violated several conditions of his probation. The convicting court adjudicated applicant guilty and sentenced him to life in prison. The habeas record does not reflect that applicant claimed that he was unaware that he could be sentenced to life imprisonment when the convicting court assessed this sentence.
Applicant is seeking habeas corpus relief, claiming that his guilty plea was involuntary because he did not understand that the convicting court could sentence him to life imprisonment if he violated his probation and his guilt was adjudicated.[1] The State claims that this Court should not consider the merits of this claim because applicant waived his right to seek habeas corpus relief in exchange for the consideration that applicant received from the State as part of the parties' plea bargain. The State asserts that "a waiver of a right to file an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure is enforceable against a defendant when the waiver was knowingly, intelligently, and voluntarily given."[2]
This is a correct statement of the law. This Court's decision in Blanco v. State recognizes that a defendant has a statutory *215 right to "waive any rights secured him by law" under Article 1.14(a), TEX.CODE CRIM. PROC., and that such a waiver is judicially enforceable unless the waiver is not "knowingly and intelligently made." See Blanco v. State, 18 S.W.3d 218, 219 (Tex.Cr.App.2000).[3] However, in Ex parte Delaney, which was handed down after this case was submitted, this Court decided that, even in a deferred adjudication case such as this, a waiver of an appeal that would follow an adjudication of guilt and sentencing "may not be valid" if "the plea agreement does not contain a recommended punishment to be imposed if guilt is adjudicated." See Ex parte Delaney, 207 S.W.3d 794, 798-99 (Tex.Cr.App.2006). This Court further stated in Delaney that "simply knowing the range of punishment for the offense is not enough" to make the waiver of appeal voluntary. See id.
Under the reasoning of Delaney, applicant's waiver of his right to seek habeas relief was involuntary or not "knowingly and intelligently made" because the plea agreement contained only the range of punishment and not a certain punishment to be imposed if guilt was adjudicated.[4] We nevertheless agree with the State that, under the facts of this case, the record also supports the convicting court's conclusion that applicant "was aware that he could be sentenced to life in prison if his deferred adjudication was revoked and he was adjudicated guilty." We, therefore, reject applicant's claim that his plea was involuntary on its merits.
Habeas corpus relief is denied.
JOHNSON, J., filed a dissenting opinion in which PRICE and HOLCOMB, JJ., joined.
JOHNSON, J., filed a dissenting opinion in which PRICE and HOLCOMB, JJ., joined.
Today, the Court creates a Catch-22 for the prosecutor and the trial court. A defendant's waiver of the right to seek relief through a writ of habeas corpus is involuntary and not knowingly and intelligently made unless that defendant knows what certain punishment will be imposed upon adjudication of guilt, i.e., if the plea agreement does not contain a recommended punishment to be imposed if guilt is adjudicated. The catch is that our precedent holds that a purported "plea-bargain agreement" on a motion to revoke community supervision, and presumably deferred-adjudication, is not enforceable, and the trial court is free to refuse it with impunity. Gutierrez v. State, 108 S.W.3d 304 (Tex.Crim.App.2003). Thus no bargaining defendant can be certain of the punishment that will be assessed at the time of revocation or adjudication.
Likewise, our precedent holds that a trial court reversibly errs if it determines, at the time of deferral of adjudication (or, presumably, a grant of community supervision), the punishment to be assessed at the time of adjudication or revocation. Ex Parte Brown, 158 S.W.3d 449 (Tex.Crim. App.2005). As a result, in the real world, a defendant can never know what "certain punishment" will be imposed upon revocation or adjudication, and a waiver of the *216 right to seek relief through a writ of habeas corpus can never be enforced.
As a practical matter, any waiver of the right to file a writ of habeas corpus is invalid because of the "knowingly and intelligently" requirement. Are we to sanction a waiver of the right to complain of constitutional violations that were unknown to the applicant at the time of trial? What of perjured testimony offered by an unknowing prosecutor? What of DNA testing that later exonerates a defendant? What of recantations? What of "experts" who are later discovered to have manufactured evidence? No one knows what issues might become relevant in the future. See, e.g., Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
The writ of habeas corpus is designed to deal with newly discovered evidence of all kinds evidence that by definition is discovered after trial and outside of the record. Until we have oracles who are able, at the time of trial, to see and tell the future, no waiver of the right to pursue a writ of habeas corpus can ever be knowing or intelligent.
I respectfully dissent.
NOTES
[1] Applicant claimed in his habeas corpus application that his guilty plea was involuntary because he pled guilty not realizing that he could be sentenced to life imprisonment if he violated his deferred adjudication probation. He asserted:
When I agreed to deferred adjudication I did not know that a violation of my probation could result in a judgment and sentence for a term of LIFE imprisonment. It was not until I conferred with another attorney (John Linebarger) in February 2005 (one month after my plea of guilty and the start of my probation) that I realized the trial judge was authorized to send me to prison for a term anywhere within the punishment range, including the maximum sentence of life. Had I known at the time of my plea that a violation could result in a Life sentence, I would not have entered the plea.
Applicant's brief in support of his writ of habeas corpus asserts that applicant is not presenting any ineffective assistance of counsel claims. This brief also asserts that applicant "does not discount the possibility that counsel may have told him" that "a violation of his probation could result in a sentence of life imprisonment" but that "due to his mental state at the time, he did not understand the significance of what he was told." Applicant, however, has presented no evidence that he suffered from any mental defect at the time of his plea.
[2] The State claims that applicant's waiver of his right to seek habeas corpus relief was voluntary because, when he made the waiver, applicant knew that he could be sentenced to life imprisonment if he violated his probation and his guilt was adjudicated.
[3] Thus, we agree with the dissent that a defendant cannot knowingly and intelligently waive matters he could not have known at the time of the waiver.
[4] It would, therefore, appear that applicant's waiver to seek habeas relief would have been judicially enforceable had he bargained for a certain life sentence in the event his guilt was adjudicated and the convicting court followed this bargain. See Delaney, 207 S.W.3d at 798-99; Blanco, 18 S.W.3d at 219-20. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574000/ | 408 S.W.2d 109 (1966)
Rudy VALADEZ, Appellant,
v.
The STATE of Texas, Appellee.
No. 39746.
Court of Criminal Appeals of Texas.
October 19, 1966.
Rehearing Denied November 23, 1966.
*110 Gib Callaway, Frederick G. Harmon, Brownwood, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
BELCHER, Commissioner.
The conviction is for murder; the punishment, thirty years.
On a former appeal this cause was reversed for an error in the charge. It is reported in Tex.Cr.App., 385 S.W.2d 239.
The facts here are substantially the same as those related in the reported opinion. The evidence adduced on the instant trial has been examined and considered and is sufficient to support the conviction.
Appellant contends that the trial court erred in overruling his motion to quash the indictment on the ground that Latin Americans had been excluded from the grand jury.
Proof was offered that the appellant is a Latin American, that he was arrested immediately after the deceased was killed, and also other proof was introduced in support of the motion.
The indictment was returned into the District Court of Brown County on August 27, 1963, alleging the offense to have been committed on or about July 12, 1963. The first trial of this cause in November, 1963, in Brown County, resulted in a hung jury. The judge, on his own motion, then transferred said cause to Coleman County, another county in the same judicial district. The appellant was found guilty on the second trial in April, 1964, and his punishment was assessed at twenty-five years. This conviction was reversed on appeal on December 2, 1964. (385 S.W.2d 239). The third trial resulted in a verdict of guilty on November 10, 1965, with the punishment assessed at thirty years and this cause is now before us for review.
After the verdict in the instant case on November 10, 1965, the appellant on December 9, 1965, for the first time filed a motion to quash the indictment on the ground that Latin Americans had been excluded from the grand jury. On January 5, 1966, the motion to quash was heard and overruled.
Art. 358 C.C.P. (Now Art. 19.27 C.C.P.) provided as follows:
"Before the grand jury has been impaneled, any person may challenge the *111 array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge."
A motion to set aside an indictment should be made at the first opportunity. Tyson v. State, 146 Tex. Crim. 128, 171 S.W.2d 496.
In Armentrout v. State, 138 Tex. Crim. 539, 135 S.W.2d 479, a motion to quash an indictment on the ground that the grand jury was illegally constituted was made, and the court held that where one has been arrested and charged and has an opportunity to challenge the array he must do so.
In considering a similar contention in Michel v. State of Louisiana, 350 U.S. 91, 76 S. Ct. 158, 100 L. Ed. 83 (1965), the United States Supreme Court refused to consider the petitioners' contention that the grand jury which indicted them was improperly constituted. The court's judgment was based on the fact that Louisiana law required all objections to the manner of selection or the composition of the grand jury be made before entering upon the trial of the case, and objections not made within this time period were waived. No objection was made by the petitioners to the composition of the grand jury within the time allowed by Louisiana law. The United States Supreme Court said:
"It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury. [350 U.S. at 97, 76 S.Ct. at 162.] `No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right * * *.'" 350 U.S. at 99, 76 S.Ct. at 163. See United States v. Sigler, D.C., 234 F. Supp. 171 (1964).
It is evident that the appellant was afforded reasonable opportunity to make objections to the manner of selecting, drawing and impaneling the grand jury, but he failed to timely object to the composition of the grand jury as required by the state law. The refusal of the motion to quash the indictment was not error.
Appellant contends that the trial court committed "Error in charging and failing to apply Article 1223, [Vernon's Ann.] Penal Code."
Art. 1223, supra, is set out in the charge.
The charge defines a "deadly weapon" as one "which from the manner used is calculated or likely to produce death or serious bodily injury." It further instructs the jury that if the deceased in attacking Alvin Valadez was using a deadly weapon, as defined, then the law presumed that the deceased intended to murder Alvin Valadez; and also it charged that if it reasonably appeared to the appellant viewed from his standpoint alone, that Alvin Valadez was in danger of death or serious bodily injury at the hands of the deceased, then he would be justified in killing the deceased, and if they had a reasonable doubt thereof to acquit the appellant.
The charge as a whole adequately protects the rights of the appellant, and no reversible error is presented.
It is insisted that the trial court erred in submitting a charge on provoking the difficulty.
Upon arriving home, the appellant saw Alvin Valadez and first learned that Alvin had been in a fight at the home of Romero which was about five blocks away. Then appellant entered his home, obtained his pistol and some cartridges, loaded the pistol, and went to Romero's and entered *112 the residence without an invitation, and after a brief time he shot and killed the deceased in the house. The evidence was sufficient to raise the issue and the court did not err in charging on provoking the difficulty. Muckleroy v. State, 165 Tex. Cr.R. 629, 310 S.W.2d 315; Tew v. State, Tex.Cr.App., 379 S.W.2d 893.
The judgment is affirmed.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574005/ | 408 S.W.2d 521 (1966)
George GONZALES et ux., Appellants,
v.
TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
No. 4109.
Court of Civil Appeals of Texas, Eastland.
October 28, 1966.
Rehearing Denied November 18, 1966.
*522 Huff & Bowers, Lubbock, for appellant.
Crenshaw, Dupree & Milan, Lubbock, for appellee.
WALTER, Justice.
Tony Gonzales filed suit against Texas Employers Insurance Association for a general injury under the Workmen's Compensation Law. He died from causes wholly unrelated to his injury. His parents, as sole surviving heirs, were substituted as parties plaintiff. Among other things they pleaded that as a result of his accident, their son Tony suffered loss of the use of his left leg, his right leg and both legs. The insurance company filed exceptions to plaintiffs' petition, a general denial and said that Tony's loss of use of his leg, or legs, was due solely to the general injury to his back and that such was a general injury and that he sustained no injury to his legs.
The court granted the insurance company's motion for summary judgment and plaintiffs have appealed contending the court erred in holding that they were not entitled to benefits under the Workmen's Compensation Law as surviving parents. They also contend that the court erred in holding that accrued compensation was not payable up to the time of Tony's death.
The parties are in agreement that in the case of a general injury the right of action for compensation therefor does not survive, in the sense that the employee's heirs, as such, may prosecute the same; whereas, in the case of specific injury the right of action at once becomes a vested right for a liquidated sum prescribed by statute, and it survives to the heirs at law of the employee. Texas Employers Insurance Association v. Phillips, 130 Tex. 182, 107 S.W.2d 991 (Tex.Com.App.).
The appellants have pleaded a cause of action for a specific injury under Article 8306, Section 12. The appellee filed a general denial under Rule 92 of Texas Rules of Civil Procedure which puts in issue all matters pleaded by the appellants which are not required to be denied under oath.
Appellee says:
"The Second Amended Petition filed by Mr. and Mrs. George Gonzales after the death of the employee, Tony Gonzales, is an obvious attempt to circumvent the well established law of the State of Texas as announced in the cases above cited. As noted above, the claim for total and permanent incapacity by virtue *523 of a general injury to the back was dropped in the Second Amended Petition and plaintiffs, Mr. and Mrs. Gonzales, alleged, in essence, that by virtue of the injury to his back and low back there was an impingement and pressure on nerves leading into both of Tony Gonzales' legs resulting in a loss of use of both legs, and plaintiff sought to recover $35.00 a week for 200 weeks for the loss of use of the right leg and the same sum for the total and permanent loss of use of the left leg."
Our Supreme Court in Aetna Casualty and Surety Company v. Moore, 361 S.W.2d 183 (1962) said:
"We are in agreement with the underlying reasoning of the foregoing cases that violence would be done to the spirit and intent of Workmen's Compensation Laws if the specific injury provisions are construed to limit such recovery to instances of direct injury to the specific member, principally in the fact that to hold otherwise would preclude recovery by an injured employee of compensation for a resulting injury to a specific member not directly involved in the accident when the injured employee is unable to establish a resulting loss of earning capacity. The view we are adopting would seem clearly to be more consistent with the purposes of our Workmen's Compensation Act in its provision for compensation to an injured employee for the loss, or the loss of use, of a specific member, regardless of the question of impairment to his earning capacity."
In Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, (1965), our Supreme Court said:
"This is a summary judgment case; and in answering the above question, we must follow certain rules laid down by this Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat'l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup. 1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true."
Under the pleadings at the time summary judgment was rendered, the appellants could have recovered a judgment for a specific injury which survives to the employee's heirs.
If Tony had sustained a general injury, as appellee contends, any claim he had for compensation survived his death for the amount accruing and unpaid from the date of his injury to the date of his death. Texas Employers Insurance Ass'n v. Phillips, 130 Tex. 182, 107 S.W.2d 991. Appellee says there are no specific pleadings of the appellants to support such a recovery. If it appears anywhere in the record that a fact issue is raised, whether supported by the pleadings or not, a summary judgment is improper. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956).
The judgment is reversed and the cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574011/ | 707 F. Supp. 461 (1989)
Thomas F. LASH, Plaintiff,
v.
BALLARD CONSTRUCTION CO., a corporation; and Tri-State Construction, Inc., a corporation, Defendants.
No. C88-771M.
United States District Court, W.D. Washington, at Seattle.
January 23, 1989.
Shannon Stafford, Stafford, Frey & Mertel, Seattle, Wash., for plaintiff.
*462 David Tewell, Tewell, Thorpe & Findlay, Inc., Michael A. Barcott, Faulkner, Banfield, Doogan & Holmes, Seattle, Wash., for Ballard Const. Co.
David L. Ashbaugh, Stanislaw, Ashbaugh, Chism, Jacobson & Riper, Seattle, Wash., for Tri-State Const., Inc.
ORDER GRANTING DEFENDANT BALLARD'S MOTION FOR SUMMARY JUDGMENT
McGOVERN, District Judge.
ISSUE
The parties agree that the issue before the Court is whether the injury to Plaintiff Thomas Lash, which occurred during the course and scope of his employment, occurred upon a "vessel" within the meaning of 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA).
FACTUAL BACKGROUND
The following facts are established by affidavits and are not in dispute. Thomas F. Lash was employed by Defendant Ballard Construction Co. on March 8, 1988. He was working on dredging an underwater trench near Pier 53 for a storm sewer outfall pipe to be installed through the Madison Street/Pier 53 sea wall. The actual dredging was done by a piece of equipment with a clamshell shovel. The dredging equipment was placed upon a unit described variously as a "work platform" and a "derrick barge." This unit was designed and built exclusively by employees of Ballard Construction solely for use at the Pier 53 construction site.
The unit measures 9' × 18' and consists primarily of 12" × 12" timbers bolted together forming an outside frame with styrofoam within to provide buoyancy. Laid across the 12" × 12" timbers are other timbers to provide a platform.
The unit has no motive power, but was positioned around the pier by use of skiffs or pike poles. It has no towing cleats, no raked bow, no skeg nor keel, and no running lights.
There are six handmade cleats made from cut and welded rebar for use in securing the unit to the work area.
Aside from positioning the unit around the pier by use of a skiff or pike poles, the unit was moved daily from the Pier 53 worksite to the moorage site at Pier 48. The trips, made with one person aboard, were timed to yield to commuter ferries, whose paths had to be crossed, and hand held flashlights were used as running lights during trips made after sundown.
APPLICABLE LAW
(1) Availability of Summary Judgment on Vessel Issue
Summary judgment has been found proper concerning a question of "seaman's status" where the result turned on the question of whether or not there was a "vessel":
Summary judgment is proper on the question of seaman status where the underlying facts are undisputed and the record reveals no evidence from which reasonable persons might draw conflicting inferences on any of the elements of the seaman test.
Bernard v. Binnings Const. Co., Inc., 741 F.2d 824, 828 (Fifth Cir.1984). While the Bernard Court acknowledges that only in rare circumstances should the issue of seaman status be taken from the trier of fact, the Court also notes that it has not been reluctant to affirm the grant of summary judgment on various elements of the test of seaman status, including lack of "permanency or substantiality" in relationship to vessels, lack of vessel in navigation, lack of vessel, lack of permanent assignment to vessel in navigation. Id., n. 12.
In the instant case, the Court must determine whether there is a vessel. If there is no vessel, then the Plaintiff has no case. In determining whether a vessel exists in this case, as in Bernard, the task of this Court is review the undisputed facts "to determine whether reasonable persons might draw conflicting inferences." Id., at 828, citing Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240, 244 *463 (5th Cir.1983), cert. denied, 464 U.S. 1069, 104 S. Ct. 974, 79 L. Ed. 2d 212 (1984).
(2) The Longshore & Harbor Workers' Compensation Act
It is undisputed that Plaintiff Lash is properly covered by the LHWCA. Under the LHWCA, an employer is required to pay compensation to injured workers; this is an exclusive remedy for an employee against his employer. 33 U.S.C. § 905(a). Nevertheless, the statute goes on to provide that an employee injured "by the negligence of a vessel, ... may bring an action against such vessel...." 33 U.S.C. § 905(b). The term "vessel" includes in its meaning a "vessel owner." 33 U.S.C. § 902(21). Thus, an employee may bring an action against his employer as vessel owner for damages caused by the owner's negligence in his capacity as vessel owner. 33 U.S.C. § 905(b); Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 456 (3d Cir.1982).
In order for Plaintiff's claim under 33 U.S.C. § 905(b) to survive, the waterborne structure involved must be a "vessel" for purposes of maritime jurisdiction. See, Richendollar v. Diamond M. Drilling Company, Inc., 819 F.2d 124 (5th Cir.1987). Many cases concerned with the issue of whether a particular structure is a "vessel" have come out of the Fifth Circuit. One case from that Circuit, Bernard v. Binnings Construction Co., Inc., 741 F.2d 824 (5th Cir.1984) is strikingly similar to Lash's case.
(3) "Vessel" Determination
In Bernard, the Court had to decide whether or not the district court erred in determining as a matter of law that the structure upon which Plaintiff was working when he was injured was not a vessel under the Jones Act.
Before getting into the facts of Bernard, Plaintiff's argument that there is a slightly different inquiry in a Jones Act case as distinguished from a LHWCA case is a distinction without significance to the determination of the issue in this case. A Jones Act case requires a showing of the claimant's attachment to a vessel and that his duties are to primarily aid in the vessel's navigation, but these are additional elements that do not render useless Jones Act cases addressing the "vessel" issue. For example, in Cook v. Belden Concrete Products, Inc., 472 F.2d 999, rehearing denied, 472 F.2d 1405, (5th Cir.), cert. denied, 414 U.S. 868, 94 S. Ct. 175, 38 L. Ed. 2d 116 (1973), the Court concluded that a construction platform, consisting of a flatdeck barge with no motive power, was not a vessel for purposes of jurisdiction under the Jones Act or the general maritime law. It stated:
While a floating dry dock under tow in navigable waters may for a limited time become a subject of maritime jurisdiction, United States v. Moran Towing & Transportation Co., 374 F.2d 656 (4th Cir.1967), neither the capability for such movement nor the fact that the dock has been moved through navigable waters in the past establishes that the dock while secured to the bank and in service is a vessel....
Id. at 1001, n. 5, citations omitted. The Court noted that the floating construction platform was capable of limited movement and was in the normal course of its service towed from point-to-point in navigable waters, but concluded:
The permanence of fixation, however, is not the criterion which governs the maritime status of floating dry docks and similar structures. As the Supreme Court pointed out in The Robert W. Parsons the "determinative factors upon the question of jurisdiction [are] the purpose for which the craft was constructed and the business in which it is engaged." 191 U.S. 17, 30, 24 S. Ct. 8, 12, 48 L. Ed. 73 (1903).
Id. The "vessel" issue is a jurisdictional issue whether the matter is being considered in the context of the Jones Act or the LHWCA, and the additional elements that must be demonstrated in a Jones Act case are easily separated from the analysis.
The plaintiff in Bernard was engaged in guiding sheet pilings into place and breaking concrete away from existing pilings, *464 tasks he accomplished from the water side of the pilings while standing on a small raft or work punt (which Bernard consistently referred to as a "flat boat" or "work boat"). This work punt was 4' × 16' square with a tank at each end and the middle for buoyancy; it had no deck, no crew quarters, no navigational lights, and no means of self-propulsion other than paddling. Although it was not clear from the record whether Bernard moved from piling to piling on shore or on the punt or whether the punt was tied to the pilings, the Court stated, "These unanswered questions, however, do not prevent us from affirming the district court's summary judgment." Bernard, 741 F.2d at 826, n. 4.
The Court began its analysis with general principles. It noted that the term "vessel" has generally been defined broadly and in its traditional sense as "structures designed or utilized for `transportation of passengers, cargo or equipment from place to place across navigable waters,'" and cited 46 U.S.C.App. § 801 and Cook. It also noted that "a variety of special purpose structures, far removed from the conventional notion of ships and seagoing barges, are Jones Act vessels," but that
the size of the structure, its ability to float, the permanence of its fixation to the shore or bottom, and the fact of its movement or its capability of movement across navigable waters are not conclusive of vessel status.
We note also that a structure whose purpose or primary business is not navigation or commerce across navigable waters may nonetheless satisfy the Jones Act's vessel requirement if, at the time of the worker's injury, the structure was actually engaged in navigation.
Bernard, 741 F.2d at 829. Addressing the facts before it, the Court concluded:
The undisputed evidence supports only one rational inference: the work punt was not designed for navigation, was not engaged in the business of navigation, and was not actually in navigation at the time of Bernard's injuries. The work punt lacks all indicia of a structure designed for navigation; it has no raked bow, no means of self-propulsion, and no crew quarters or navigational lights. The parties have stipulated that the work punt was used solely as "a small work platform." In short, we find no evidence from which a trier of fact could reasonably have concluded that the work punt's primary purpose, design or business was other than to provide a work platform. * * *
We find that the work punt is analogous to a floating dry dock. Its primary function is to serve as a work platform and any transportation function it may have performed is incidental to that purpose.
Id. at 832.
Similarly, in the instant case, the floating platform was not designed for navigation and was not engaged in the business of navigation. The floating platform lacks all indicia of a structure designed for navigation, just as Bernard's work punt did. There is no dispute that the platform was used solely as a structure upon which to float a clamshell shovel so that it could do the required dredging work. That the shovel may have been floated between the work site and the moorage site daily across navigable waters is merely incidental to the structure's primary purpose of providing a floating platform for the clamshell shovel to work. There is no evidence from which a trier of fact could reasonably conclude that the platform's primary purpose, design, or business was other than to provide a work platform, and that its transportation function was incidental to that purpose.
Plaintiff attaches significance to the work platform's being untied at the time of the accident. Plaintiff Lash explains in his affidavit that at the time of the accident, after the shovel had grasped an object too large and heavy to bring to the surface, he and his co-worker untied the platform (which he calls a barge) from the piers. They intended to reposition the work platform with the bucket on the bottom, resecure the work platform, and drag the bucket with the object along the bottom out of the way. Unfortunately, the platform then started to list and heel rapidly throwing Plaintiff into the water injuring him.
*465 That the work platform was untied from the pier at the time of the accident does not affect the conclusion that the platform is not a "vessel." Untying the platform from the pier in order to reposition it and relieve the shovel of the heavy object can hardly be described as "navigation" except in the most strained definition of the term. Minor repositioning movements about the work site are a part of the natural manner in which a floating work platform would be utilized and cannot reasonably be thought to confer vessel status on the platform each time it is repositioned.
Plaintiff cites several cases where specialized waterborne structures have been held to be vessels. Defendant properly distinguishes them in terms of the primary purpose of the vessels or their specific usage at the time of the injury. That the platform was capable of and was moved about with the aid of skiffs or pike poles was incidental to its main function: that of a floating platform to provide a purchase for the clamshell shovel to do its dredging work.
CONCLUSION
The primary function of the floating platform in this case was that of a work platform, i.e., a platform that would serve as a base on the water side of the pier for the dredging by the clamshell shovel. Although the work platform was untied from the pier at the time of the accident, it was not engaged in navigation. Therefore, the work platform is not a "vessel" within the meaning of the Longshore and Harbor Workers' Compensation Act. Reasonable persons could not draw from the facts inferences that conflict with this conclusion.
Summary Judgment is appropriate, there being no genuine issue of any material fact and no basis as a matter of law for Plaintiff's claim under 33 U.S.C. § 905(b). Accordingly, Plaintiff's cause of action is DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573985/ | 408 S.W.2d 50 (1966)
Terry Lee SMITH, a minor, by his Mother and Next Friend, Peggy Smith, Appellant,
v.
CONSOLIDATED SCHOOL DISTRICT NO. 2, Joe Herndon, Superintendent of Consolidated School District No. 2, and H. Robert Cradock, Respondents.
No. 51349.
Supreme Court of Missouri, En Banc.
November 14, 1966.
*52 Donald F. Price, Clem W. Fairchild, Herbert M. Kohn, Kansas City, of counsel, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
James H. Greene, Jr., Raytown, E. E. Thompson, Kansas City, of counsel, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondents.
HOLMAN, Judge.
Plaintiff, a minor, sued the defendant school district, its superintendent, and a physical education instructor for alleged negligence, praying $35,000 in damages for his personal injuries. Each defendant filed a separate motion to dismiss for failure to state a claim on which relief could be granted. All three motions were sustained. Plaintiff filed his motion to amend the judgment or for a new trial, and therein stated, among other things, that the court erred in refusing to grant leave to amend. No request for leave to amend appears in the record and, though counsel argue here that an amendment should have been permitted, there is nothing before us on that point. The motion was overruled and plaintiff appealed in due course.
The appeal was originally heard in Division Two. An opinion was prepared which was not adopted and the case was thereafter transferred to Court en Banc. Additional briefs were filed and the cause was reargued and resubmitted. An opinion was thereafter prepared which was not adopted and the cause has recently been reassigned to the undersigned. Portions of the lastmentioned opinion are here adopted without the use of quotation marks.
The school involved was the South High School at Raytown. The injury was alleged to have been received in a wrestling class while plaintiff was practicing "holds and falls and other wrestling experiences." The petition alleged, in substance, omitting essentially formal matters: that the State Department of Education had not ordered, suggested or recommended wrestling as a part of the physical education curriculum, but that defendants made it a required part thereof for the school year 1963-1964; that therein it was the duty of the defendants to "promote rules, regulations, instructions, teaching and supervision" to protect the students; that on January 24, 1964, plaintiff was engaged in that activity, as required, and that he had no knowledge of wrestling but relied on the defendants, and was injured. It was further alleged that defendants, jointly and severally, were negligent: (1) in failing to properly instruct plaintiff and in failing to "designate rules and regulations" for wrestling activities; (2) in failing to ascertain if plaintiff and his wrestling partner understood the "instructions so given," the danger of injury, and the methods of protection; (3) that "defendants" were present and saw or could have seen that plaintiff was about to be injured and failed to warn him or stop the wrestling; (4) in failing to exercise "ordinary care under the circumstances," and in failing to "employ" proper instruction; (5) in failing to "employ proper supervision," and (6) in failing to perform their statutory duty "to select and employ a suitable and competent instructor." As to the school district alone, plaintiff alleged that it failed to "select and employ a suitable and competent Superintendent of Schools to control the wrestling and employment of competent teachers," that it failed to eliminate wrestling from its curriculum and that it thus failed to comply with "the laws of the State." It was further alleged that "as a direct and approximate result" of the claimed negligence plaintiff sustained an injury to his shoulder and to other specified parts of his body.
*53 The points made by plaintiff's counsel, including those in their original and supplemental briefs, are: that the doctrine of sovereign immunity is archaic and it should be abolished; that defendants acted outside their legal and statutory powers; that an amendment of the petition should have been permitted; that the motions to dismiss should have been considered separately; that if any immunity be held to exist, the individual defendants do not share it; that the individual defendants are liable for their own acts, whether of misfeasance or nonfeasance; that it was the duty of the Superintendent to employ only "Totally Proficient" persons to instruct in an "unauthorized activity"; and, finally, that if the instructor Cradock was negligent then Herndon is also liable under the principles applicable to a master-servant relationship.
The case is briefed jointly for the defendants, but with differing issues. Counsel say, in essence, that the rule of sovereign immunity is fully effective, and that it protects the school district from all liability; that the individual defendants were performing governmental and discretionary functions and that they are not liable in actions for negligence; that the petition alleges, as to them, mere nonfeasance for which they would not be liable in any event; that they stood in the relation of loco parentis to the plaintiff, and for that reason are not liable for an unintentional tort.
Before reaching the points of ultimate controversy, we shall clear up a few others. The record made on the sustaining of each motion was that the motion to dismiss was sustained. This was not followed by an order that the cause was dismissed as to the respective defendant, which is certainly a more acceptable practice if that is what is really intended. However, as stated, no request for leave to amend is shown, and the plaintiff filed his motion to "Amend Judgment" or for a new trial, obviously regarding the order as a final judgment. That motion was overruled. Under the authorities the order now appealed from constituted a final, appealable judgment. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Missouri Military Academy v. McCollum, Mo.App., 344 S.W.2d 636; Heard v. Fry's Estate, Mo.App., 336 S.W.2d 729.
Counsel for plaintiff insist that the inclusion of wrestling in the curriculum as a required course in physical education was outside of the defendants' lawful authority. They cite nothing which so shows. Both sides go outside the record in discussing supposed regulations and manuals of the State Department of Education. Section 163.250, RSMo 1959, cited by plaintiff, which was repealed, effective July 1, 1965, Laws 1963, p. 200, and replaced by § 161.102 Cum.Sup.1965, merely gives the Department authority to adopt rules and regulations for courses in physical education and to compile and promulgate a manual of physical education. The statute is permissive, not prohibitory, and we may not assume that the Department has prohibited courses in wrestling or that our schools would include such a course, if prohibited. Plaintiff merely pleads that the Department "does not order, suggest or recommend wrestling * * *." We find nothing to indicate that wrestling was being taught "outside the powers and authority granted by statute" and we shall not further consider any such allegations as lending legal support to the plaintiff's petition. If any regulation of the Department of Education actually prohibited wrestling, the regulation should have been pleaded specifically. The courts will not interfere with the exercise of a school district's discretion except in a case of clear abuse, fraud, or some similar conduct. 78 C.J.S. Schools and School Districts § 99.
The theory that Cradock, the physical education instructor, was an employee of Herndon, the Superintendent, and that Herndon would be liable for his acts in a master-servant relationship, is wholly *54 fallacious. It is a matter of public knowledge, and we may say of judicial notice, that all teachers in the public schools are employees of the school district and are employed by it on contracts. See §§ 163.080-163.100, RSMo 1959. The superintendent may presumably recommend, but he does not employ. He is neither the master nor the employer of any teacher. These conclusions also refute the allegations to the effect that Herndon failed to employ a suitable and competent instructor for wrestling.
Plaintiff's counsel ask us to review the doctrine of sovereign immunity and to abolish it by judicial decree. As their principal authority they cite and quote from an article in Vol. 30, NACCA Law Journal, 1. c. 30, which in turn, cites three state cases, and two under the Federal Tort Claims Act. For more than a century the courts of Missouri have uniformly held generally that political subdivisions of the state are not subject to liability in suits for negligence. Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; State ex rel. Jordon v. Haynes, 72 Mo. 377; Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306; Lamar v. Bolivar Special Road District, Mo.Sup., 201 S.W. 890; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063; Cullor v. Jackson Township, Putnam County, Mo.Sup., 249 S.W.2d 393. School districts are political subdivisions of the state. Art. 10, § 15, Constitution of Missouri, V.A.M.S., § 70.210, RSMo 1959, V.A.M.S. As such, school districts have long been held immune from liability in tort for negligence. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Krueger v. Board of Education of City of St. Louis (Banc), 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086; Dick v. Board of Education of City of St. Louis, Mo.Sup., 238 S.W. 1073. Our holdings have been so uniform that nothing is to be gained by restating the reasons for and against the doctrine of sovereign immunity.
We are aware that the theory of governmental immunity has been severely criticized, largely by text writers and in law review articles. Borchard, Government Liability in Tort, 34 Yale L.J. 1, 129, 229; 2 Harper & James, The Law of Torts, § 29.3, p. 1610; Prosser on Torts, 3rd Ed., Ch. 27, p. 1001 et seq.; 22 University of Chicago L.R. 610. It seems clear, however, that the principle of governmental immunity still prevails in the majority of states. With particular reference to schools and school districts see 86 A.L.R. 2d 499 et seq. Some of the erosions of the rule, almost inextricably mixed in the discussion of the more questionable immunities of municipal corporations, appear in Prosser, supra, at page 1012. We regard the rule in Missouri as one of fixed public policy, and any abandonment of it, either as to political subdivisions or the state itself, should come through the legislative process. Several states have taken such action. 86 A.L.R. 2d 1. c. 502, 503. The chaos which resulted in California upon the sudden judicial rejection of the whole theory of governmental immunity is fully discussed in 36 Southern Calif.L.R. p. 161. It was necessary for the legislature to immediately enact a moratorium to preserve the status quo until the whole subject could be intelligently considered at the next legislative session. Calif.Stats.1961, ch. 1404.
We are inclined to agree with the statements made by the Supreme Court of Colorado in Tesone v. School District No. RE-2, in the County of Boulder, 152 Colo. 596, 384 P.2d 82, 1. c. 84, 85, when it said, in part: "We have held repeatedly that if liability is to arise against a governmental agency for the negligent acts of its servants engaged in a governmental function, this liability, heretofore unknown to the law of this state, must be a creation of the legislative branch of the government. I repeat again that it is not the function of the judiciary to create confusion and instability in well settled law, nor is it within the province of judges to refuse to apply firmly established principles of law *55 simply because those rules do not conform to the individual judge's philosophical notion as to what the law should be. * * * Courts are not arbiters of public policy. * * * When successive legislative sessions come and go without amending or doing away with the rule; when hundreds of county commissioners through their organization resist a change; when the work of countless members of the boards of school districts throughout the state would be directly affected by a change in the law which would operate retrospectively; when the heavy majority of such board members and many of their constituents are opposed to `repudiation' of the rule on well grounded concepts of public policy; how can it be said with certainty that the rule is so manifestly `unjust' or that it is such an `anachronism' that the judiciary should usurp legislative powers and do away with it?" The motion of the defendant School District to dismiss was properly sustained.
We reach now the question of the liability of the defendant Herndon. We have already denied plaintiff's contentions that Herndon as master was liable for any negligence of Cradock, the instructor, and that he was negligent in failing to employ a competent instructor. As applicable to Herndon, the petition alleges generally: that the defendants failed to properly instruct plaintiff, failed to ascertain if he understood the instructions given and the dangers involved, failed to employ "proper supervision," failed to select and employ a competent instructor, failed to eliminate wrestling from the curriculum, and that defendants, though present at the time of the occurrence, failed to warn plaintiff or to stop the wrestling. No facts are alleged which would directly connect Herndon in any way with a duty to instruct anyone in the wrestling course, to check on the plaintiff's individual knowledge, or personally to supervise the activities. And, he was not required to eliminate wrestling from the curriculum, for it is not shown to have been an unauthorized activity. The only remaining allegation is that the defendants, though present, failed to warn plaintiff of the dangers or to stop the wrestling. The facts thus alleged are insufficient to cast any such duty on Herndon, especially in view of the fact that a presumably competent and certificated instructor had been employed and was in charge. We hold that no cause of action was stated against Herndon, and no request for leave to amend being shown, the judgment of dismissal as to him was proper.
Finally, we will consider whether the court erred in sustaining the motion to dismiss filed by defendant Cradock, the physical education instructor. The allegations of the petition in regard to said defendant, summarized and consolidated, were that he (1) failed to properly instruct plaintiff in wrestling, (2) failed to "designate rules and regulations for such wrestling activities," and (3) being present, saw, or by the exercise of ordinary care, could have seen that plaintiff was about to be injured and failed and neglected to warn him or to stop the wrestling, and thus avoid the injury to plaintiff.
We have concluded that the petition failed to allege sufficient facts to state a claim for relief against Cradock. Our disposition of the case is such that we do not reach certain contentions briefed by said defendant, i. e., (1) that he was a "public officer clothed with discretionary powers and at all times engaged wholly in performing a governmental function and thus not liable for acts of mere negligence"; (2) that he is not liable to plaintiff for alleged negligent acts of omission constituting nonfeasance; and (3) that the relationship of loco parentis existed between him and plaintiff and he was accordingly not liable to plaintiff for an unintentional tort.
In considering the sufficiency of the petition we are mindful that "the averments are to be given a liberal construction and the petition accorded those *56 reasonable inferences fairly indulged from the facts stated." Royster v. Baker, Mo. Sup., 365 S.W.2d 496, 500. However, it should also be noted that "the averment of a legal conclusion is not a statement of an issuable fact and is to be treated as no statement at all." Goodson v. City of Ferguson, Mo.Sup., 339 S.W.2d 841, 845, 846. We are of the opinion that since plaintiff seeks to recover for injuries resulting from his participation in a sport involving physical combat in which each party is seeking to overpower the other, the very nature of the activity is such as to require that he allege, with considerable specificality those facts which would raise a duty of care on the part of Cradock to stop the wrestling or take other action to prevent an injury to plaintiff.
Wrestling is one of the oldest and most universal of sports. It was a highly developed sport at least 3,000 years B. C. See Vol. 23 Encyclopedia Britannica, p. 804, 4th Edition. "It is common knowledge, and experience has shown, that competitive contests, athletic events and gymnasium exercises, like most other activities of life, have certain dangers and hazards, and injuries are sustained therefrom on many occasions despite the use of necessary care, regulations and safety appliances. Wrestling is in this category. It is a form of sport or athletics in which many individuals of all ages voluntarily partake at one time or another, regardless of size, weight, supervision or equipment, and usually no liability attaches thereto." Reynolds v. State of New York, 207 Misc. 963, 141 N.Y.S.2d 615, 617. Modern competitive wrestling is governed by various rules with certain holds barred. Under intercollegiate rules, "[s]trangling, butting, holds for punishment alone and grips considered dangerous to life and limb, such as the full nelson, toe hold, etc., are forbidden. It is illegal to slam an opponent to the mat unless the slammer has one knee on the mat." 29 Encyclopedia Americana, 567. It has come to our attention that competitive High School wrestling in this state is supervised by the Missouri High School Activities Association, and that the intercollegiate rules with certain modifications relating to High Schools, are applicable. We do not, however, consider those rules as we cannot take judicial notice thereof. Dunbar v. Board of Zoning Adjustment, Mo.App., 387 S.W.2d 164.
The allegation that Cradock was negligent in failing to properly instruct plaintiff and in failing to designate rules for wrestling activities are conclusions. There is nothing contained in those allegations which tend to show wherein those alleged omissions caused plaintiff to sustain injury or in what manner the performance of those acts would have prevented injury. Those allegations do not aid plaintiff in stating a claim for relief.
The allegation that Cradock saw, or in the exercise of ordinary care could have seen, that plaintiff was about to be injured, and failed to take preventive action, is unusual and has given us some difficulty. In determining the meaning and effect of that allegation we think it is important to consider that plaintiff was not engaged in a wrestling match. He alleged that at that time he was complying with the requirement "to participate with other students in a wrestling class and to practice certain holds and falls and other wrestling experiences." We also consider it significant that plaintiff did not allege that his opponent was larger, stronger, or more skillful than he. It will be noted that there is no allegation as to the hold that was being used by plaintiff's opponent or that such hold was dangerous or barred by any rules that may have been applicable to High School wrestling. In the absence of an allegation to the contrary it may be assumed that Cradock was not instructing plaintiff and his opponent in the use of holds which were known to be dangerous or were barred by any applicable rules.
It would be very difficult to see that a wrestler is about to be injured since the sport is one where the participants may release *57 a hold or a hold may be broken at any instant. The allegation under consideration is a conclusion. In order to place a duty on Cradock to take preventive action some fact should have been alleged which would have indicated that plaintiff was in danger of immediate specific injury. We also think that plaintiff should have alleged that after Cradock had knowledge that plaintiff was about to be injured there remained time in which he could have taken effective preventive action prior to the time plaintiff's injury was sustained. If, for example, plaintiff had alleged that his opponent had a strangle hold on him; that Cradock had actual or constructive knowledge thereof and knew that such was a dangerous hold and if continued for a period of time would cause serious injury to plaintiff; that after acquiring such knowledge Cradock had time in which to warn plaintiff or to stop the wrestling prior to plaintiff's injury and failed to do so then we would say (with the qualification hereafter stated) that he had alleged a claim on which relief could have been granted.
We have indicated that if plaintiff had made certain specific factual allegations he would have stated a claim for relief. That, of course, was stated without a consideration of the three special defenses defendant Cradock has briefed and which we have heretofore set out. It should be made clear that if there is merit in any of those defenses plaintiff could not have stated a claim, in any event, under the general factual situation here involved.
For the reasons stated we rule that the allegation under consideration is not sufficient to state a claim for relief against Cradock. Furthermore, as we have indicated, the petition, when considered as a whole, fails to state such a claim and hence the court did not err in sustaining Cradock's motion to dismiss.
The judgment is affirmed as to all defendants.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573998/ | 408 S.W.2d 353 (1966)
Saul L. CUPP, Plaintiff (Respondent),
v.
Robert MONTGOMERY and Almeda Montgomery, Defendants (Appellants).
No. 32128.
St. Louis Court of Appeals, Missouri.
September 20, 1966.
Motion for Rehearing or to Transfer Denied October 19, 1966.
Application to Transfer Denied December 12, 1966.
*354 Willson, Cunningham, McClellan & Gunn, Jerome M. McLaughlin, St. Louis, for defendants-appellants.
Edward F. Downey, John J. Delabar, St. Louis, for plaintiff-respondent.
Motion for Rehearing or to Transfer to Supreme Court Denied October 19, 1966.
RUDDY, Judge.
Defendants have appealed from a judgment in favor of plaintiff in the sum of $5,000 for damages resulting from personal injuries sustained when plaintiff slipped and fell off of the back porch on premises owned and occupied by defendants. Defendants offered no evidence and the case was submitted to the jury on the evidence adduced by the plaintiff.
Plaintiff is the uncle of defendant, Almeda Montgomery, whose mother is the sister of plaintiff. Defendants are husband and wife and were the owners of and resided at 4813 Roseblossom Lane in Hazelwood, Missouri. Some time prior to March 31, 1962, defendant, Robert Montgomery, called his wife's mother and asked her to tell plaintiff to come to the home of defendants to help with the sowing of grass seed in the yard of defendants' property. This message was conveyed to plaintiff's wife who in turn told plaintiff. On March 31, 1962, at 12:00 noon, pursuant to the invitation, plaintiff and his wife arrived at the home of defendants. After the noon repast, plaintiff and defendant, Robert Montgomery, started to sow grass seed in the yard. The yard had been dug by a rotary tiller. When this was done is not shown in the record. After sowing the seed they sprinkled water on the ground and, thereafter, spread straw over the ground. As a result of their activities there was mud over most of the yard. Attached to the back of defendants' home and adjacent to a doorway entrance to the home of defendants was a small platform type porch consisting of a concrete slab, gray in color, which was four or five feet square. The top level of the porch was fourteen inches above the surrounding ground. On the left side of the porch, as you face the house, there were two steps leading up to the porch level.
About 3:00 P.M. plaintiff went into defendants' home through the doorway referred to above, and in doing so he did not use the steps leading up to the porch. Instead, he stepped directly from the yard to the top level of the porch. His purpose in going into the house was to get a drink of water. Thereafter, he returned to his activities in the yard.
About 5:00 P.M. defendant, Robert Montgomery, went into the house and in doing so "* * * tracked mud * * *" on the back porch. About an hour later, at approximately 6:00 P.M., plaintiff desiring another drink of water, started to step directly from the yard to the top level of the porch. Again, he did not use the steps. He placed his left foot on the porch, as he explained it, "Right on the edge," at which time his right foot was still on the ground. As he started to raise his right foot up to reach the level of the porch with both feet, he slipped completely back to the ground and was injured. He looked to see what caused his foot to slip and saw it was some mud on the edge of the porch, which he described as, "* * * near the color of the porch * * *." When looking at the mud he could see the impression his foot left as it went through the mud. Plaintiff, when asked to describe the lighting conditions said, "* * * it wasn't dark and it wasn't light, I would say something near dusk, * * *." He said that both of his *355 feet were not on the concrete porch at the time he fell, only his left foot was on the porch. In his cross examination plaintiff testified that he had been to the home of defendants on a number of occasions prior to this occurrence and had stayed at their home overnight. Also, in his cross examination, plaintiff testified that when he approached the porch he was looking in the general direction of it, could see the porch, but could see no mud on it at that time. When he stepped up onto the porch with his left foot he did not see any mud, but after he fell and looked to see what caused his fall, he said the mud was clearly visible. When asked if that was the only mud he saw there, he answered, "Yes, that is all I know there was mud therethat is all I could see." He said he did not have any mud on his shoes because he had cleaned them off on the straw before he started into the house and looked at the bottom of his shoes before he walked in. Inasmuch as defendants do not claim the verdict is excessive we omit all evidence pertaining to the nature and extent of plaintiff's injury.
Defendant, Almeda Montgomery, was in her home at the time of the fall and after administering first aid to the plaintiff went out and looked at the porch. In describing the lighting conditions she said it was dusk twilight at the time and that the outside electric porch light was not turned on. She described the color of the concrete as gray and the mud as, "* * * a kind of a clay mud." The mud she saw on the porch was, "Kind of on the edge" of the porch and she immediately took a pan of water and a broom and scrubbed it off.
Defendant, Robert Montgomery, did not testify in the trial below. However, over defendants' objection a statement signed by Robert Montgomery contained in a Request for Admissions made pursuant to Civil Rule 59.01(a), V.A.M.R. was read into evidence. Defendants do not include in their points relied on in this appeal any contention that the statement was inadmissible.
The pertinent parts of the statement signed by Robert Montgomery and read to the jury are as follows:
"My name is Robert Montgomery. My wife, Almeda and I (together with our children) are the owners and occupants of 4813 Roseblossom in St. Louis County, Missouri. On Saturday, March 31, 1962, we were working in our yard seeding and soaking the back yard. We invited Saul Cupp and his wife, Margaret Cupp, to our house to help with the yard work. Saul broke his left leg by his ankle about 6:00 P.M. on March 31, 1962, when he fell on our back porch on a slippery and muddy place where I tracked mud when going into the house about one hour before Saul fell. I didn't warn Saul about the mud on the porch because I was busy and it was sunshiny and bright when I tracked the mud onto the porch. It was getting dark when Saul fell but we didn't turn the light on in back. The muddy spot on the porch wasn't easy to see because it was similar in color to the porch. I guess I could have wiped the porch clean in a minute or two and eliminated the risk of someone slipping on it, but I didn't want to take the time to do it because I was busy."
Defendants in their first contention assert that their motion for a directed verdict at the close of plaintiff's case should have been sustained for the reason that the evidence established that at the time of plaintiff's fall he was a social guest or bare licensee and plaintiff failed to prove any actionable negligence against defendants. Opposing this is plaintiff's contention that he was an invitee, and he further contends that, even if he was a licensee he made a submissible case because of defendants' active negligence.
Under the facts of this case it is certain that plaintiff was not a trespasser. He was either an invitee or a licensee and if he was injured by the active negligence of defendants it would be immaterial whether he was an invitee or a licensee.
*356 In either case defendants would be liable for damages resulting from such negligence. If we were to accept defendants' characterization of plaintiff's status at the time of his injury, namely, that of a bare licensee, nevertheless, defendants would be liable if active negligence was committed by them. Where injuries to a licensee are caused by the affirmative or active conduct of another, as distinguished from an existing or passive condition of the premises, the person committing the acts is subject to liability for failure to exercise ordinary care towards such licensee if his presence on the land is known or should reasonably be known to the actor. White v. Burkeybile, Mo., 386 S.W.2d 418; Anderson v. Welty, Mo.App., 334 S.W.2d 132. As said in the case of Anderson v. Welty, supra, (1.c. 137)
"* * * Numerous Missouri cases have recognized this general rule. As our Supreme Court put it in Menteer v. V. Scalzo Fruit Co., supra, 240 Mo. [177] loc. cit. 184, 144 S.W. [833] loc. cit. 835, a licensee `may complain of wanton or intentional injury or active negligence, it is said, but not that the place into which he goes for his own purposes and without invitation was not made safe in anticipation of his unexpected and undesired presence'; or, as succinctly stated in Twine v. Norris Grain Co., 241 Mo. App. 7, 19, 226 S.W.2d 415, 422(7), `It is true, of course, that a land occupier is subject to liability for bodily harm caused to a licensee by the active or affirmative negligence of the occupier.' * * *"
We will assume, without so ruling, that plaintiff was a licensee at the time of his injury.
At the threshold of our discussion it is necessary to determine what constitutes active negligence as opposed to passive negligence. First, we point out, it is undisputed that plaintiff's presence on the property was known to both defendants. Active or affirmative negligence has been defined as negligence occurring in connection with activities conducted on the premises; Wolfson v. Chelist, Mo.App., 278 S.W.2d 39, 47; Anderson v. Welty, supra; Simpson v. Richmond, 154 Cal. App. 2d 27, 315 P.2d 435, 437; Potter Title & Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76; whereas, passive negligence is negligence that causes danger by reason of the physical condition of the premises. Anderson v. Welty, supra, or, as we said in Wolfson v. Chelist (supra, 278 S.W.2d 1.c. 47) "* * * negligence which permits defects or causes dangers upon the property. * * *"
In some cases the creation by the licensor of a new danger or the commission of an act which would increase a hazard after entry on the premises has been held to be the equivalent of active negligence. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 822; Ziegler v. Elms, Mo., 388 S.W.2d 839, 841; Warner v. Lieberman, D.C., 154 F. Supp. 362, 365; Newman v. Fox West Coast Theatres, 86 Cal. App. 2d 428, 194 P.2d 706; Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364, 156 A.L.R. 1229; Brigman v. Fiske-Carter Constr. Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773, 776.
In the case of Newman v. Fox West Coast Theatres, supra, the Court said that active negligence is a dereliction of duty and pointed out that a licensee accepts the premises as he finds them when he entered and was entitled to presume that the premises would remain in the same relatively safe condition in which he found them when he entered.
It is now generally held that as to any active operations which the occupier of premises carries on, there is an obligation to exercise reasonable care for the protection of a licensee. Oettinger v. Stewart, 24 Cal. 2d 133, 148 P.2d 19, 156 A.L.R. 1221-1238. For further discussion as to "Liability to trespasser or bare licensee as affected by distinction between active and passive negligence," see 49 A.L.R. 778, et seq.
*357 Summing up what we have said and cited we observe that the proper distinction between passive negligence and affirmative or active negligence is that passive negligence "* * * denotes negligence which permits defects or causes dangers upon the property. * * *" (Wolfson v. Chelist, Mo.App., 278 S.W.2d 39) and which is permitted to continue or to remain after licensee's entry and active negligence is negligence occurring in connection with activities conducted on the premises while licensee is present and his presence is known or should be known to the licensor.
Keeping in mind the above distinction we think plaintiff's injury was the result of active negligence. We are aware, as pointed out by defendants, that plaintiff as a licensee, accepted the premises as he found them when he entered insofar as any defective condition thereon might exist. It is undisputed that the mud on the porch which caused plaintiff's fall was not there when plaintiff entered the premises. The mud on the porch which caused plaintiff's injury was carried or "* * * tracked * * *" on the porch by defendant, Robert Montgomery, and thereby created a danger and hazard not present when plaintiff entered. The muddy condition of the yard and the mud "* * * tracked * * *" on the porch resulted from activities conducted on the premises, namely, the sprinkling of the yard with water after the grass seed was sown. The evidence shows that as a result of the activities conducted in the seeding of the yard, there was mud over most of the yard. Defendant, Robert Montgomery, admitted he "* * * tracked mud * * *" on the porch where plaintiff fell. He admitted the place where plaintiff fell was "* * * slippery and muddy * * *." He admitted he did not clean the mud off of the porch and was aware of the risk of someone falling. He knew of plaintiff's presence and admits he did not warn him of the presence of the mud. The evidence shows that plaintiff did not know of the presence of the mud. We are aware that the failure to warn, standing alone, is negative in nature (Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 450(8), 55 A.L.R. 2d 516); however, when it is coupled with an affirmative negligent act arising out of the activities defendant, Robert Montgomery, was engaged in on the premises, the act being the tracking of the mud on the porch and his knowledge thereof and his failure to correct the condition or to warn plaintiff of the danger, it presents facts from which a jury could find active or affirmative negligence.
We have found no Missouri case involving comparable facts. There are cases involving moving objects causing injuries to a licensee where the occupier of the premises was held liable. However, cases from other jurisdictions involving analogous facts have held the licensor liable, holding there was active negligence.
In the case of Newman v. Fox West Coast Theatres, supra, plaintiff entered defendant's theatre without paying an admission fee and with the consent of the theatre manager. Plaintiff was held to be a licensee and in that case it was said, "* * that a licensee may recover for `active negligence' or `any overt acts of negligence' as distinguished from a `passive negligence.' * * *" It appears that sometime after plaintiff entered the theatre one of the patrons entered the ladies' rest room because of illness. Apparently because of her illness a condition ensued in which there were wet paper towels and blood on the floor and also considerable water on the floor of the rest room extending to the lavatory door. This condition was reported to the manager who did nothing about the matter. Thereafter, plaintiff visited the ladies' rest room and upon entering slipped and fell receiving injury. Defendant contended that there was no active negligence established. In holding for the plaintiff the court said at 194 P.2d 1.c. 708:
"* * * In the instant case it may be assumed that respondent, as a licensee, *358 was obliged to accept the premises as she found them when she entered. But she was entitled to presume that the premises would remain in a relatively safe condition in which she found them when she entered. That there was no water or any foreign substance on the floor of the washroom at the time respondent entered the theatre is established by the testimony of defendant's usherette who inspected the washroom four times that evening. Admittedly the extent of appellant's obligation to respondent as a licensee was to use ordinary care; but when, after her entrance, there occurred on the premises a new condition involving greater risk of injury to a visiting patron, there also arose a new duty of appellant to rectify that condition or to warn such patron of that condition and the risk involved therein. * * *"
We can see no material difference between the facts in the above case and those in the instant case.
In the case of Anderson v. Cinnamon, supra, the above case (Newman v. Fox West Coast Theatre, supra) was cited to the court by plaintiff in support of a contention that defendant was guilty of active negligence. In the Cinnamon case the court held that plaintiff's petition did not show a case of active negligence, in that failure of defendant, Barney Cinnamon, to warn the fireman to leave the porch was not active negligence. While the Supreme Court did not say that the Newman case involved active negligence it distinguished it from the case under review in the following words: "* * * defendant allowed water to get on a washroom floor creating an unsafe condition after plaintiff was permitted to come on the premises, * * *." (Emphasis ours)
In the case of Union News Co. v. Freeborn, 111 Ohio St. 105, 144 N.E. 595, plaintiff, described as a licensee by the court, in attempting to find her way to a train which she desired to take in the Union Depot in Cleveland, where she was transferring from another train, entered the restaurant of the defendant, which was located in the depot, and there inquired of an attendant where she could get the train she desired, and, pursuant to the direction, plaintiff then recrossed the room of the restaurant to procure her suitcase, and in passing out of the restaurant to her train, in accordance with the direction given her, she slipped and fell and was injured, such fall having been caused by soapy water on the floor previously oiled, which a workman had placed there after she crossed the room and before she returned, of which condition plaintiff had no knowledge. In affirming the judgment for the plaintiff the court said:
"* * * As heretofore indicated, evidence in the record supports the claim that the dangerous condition described was a new danger, and was created between the time plaintiff crossed the floor and her return, recrossing the floor of the restaurant at the same place. The claim asserted and supported by evidence was therefore one of active negligence on the part of defendant in placing before the plaintiff a new situation of danger, of which she had no knowledge and of which no attempt was made to apprise her. The principle involved is no different than that applicable, if, under the same circumstances, a flight of steps had been removed from the course she was directed to take, between the time she passed over the steps and her return or attempted return the same way. * * *"
The only difference between the above case and the instant case is that in the cited case the cause of the fall was soapy water, whereas, in the instant case it was mud. A distinction without a difference. In the case of Morrison v. Hotel Rutledge Co., 200 A.D. 636, 193 N.Y.S. 428, plaintiff was discharged by the defendant hotel company and was permitted to remain overnight in defendant's hotel. On the following morning she fell and suffered injuries *359 because of a cake of soap on a stairway while she was on her way to get utensils belonging to her and used by her in her work. The lower court dismissed plaintiff's complaint, and the appellate court in holding that the complaint was improperly dismissed held that the complaint stated a cause of action of active negligence. It was assumed that the complaint showed plaintiff was a mere licensee. The complaint alleged that the soap had been left on the stairway by the scrub woman and the act was one of active negligence.
Defendants' contention that the trial court erred in overruling their motion for directed verdict at the close of the entire case must be overruled unless there is merit in their contention that plaintiff was guilty of contributory negligence as a matter of law. In support of this they contend that (a) the mud condition causing the fall and complained of by plaintiff was an open and obvious one of which plaintiff knew or should have known; (b) that defendants' duty was fulfilled when they provided a safe way into the house by means of the steps leading up to the back porch and; (c) that the manner in which plaintiff attempted to ascend to the porch of defendants' premises convicted him of contributory negligence as a matter of law.
In support of their contention that the condition causing plaintiff's fall was an open and obvious one of which plaintiff knew or should have known, defendants cite a number of cases. There is no need to discuss these cases. It is sufficient to point out what was said in one of the cases when discussing the contributory negligence of plaintiff, that "* * * there is no exact test or formula by which it may be determined whether or not a condition is so open and obvious that one is bound to see it. Each case must turn upon its own facts and circumstances. * * *" Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 630, 1. c. 630 and Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 206 S.W.2d 501, 507. As a general rule a person is not required to look for danger when he has no cause to anticipate danger, or when the danger is caused by negligence of another. Elgin v. Kroger Grocery & Baking Co., supra, 1. c. 507. The issue of contributory negligence is always for the jury unless, from the whole evidence and all inferences fairly deducible therefrom, when viewed in a light most favorable to plaintiff, the only reasonable conclusion is that he was guilty of negligence proximately causing his injury. Anderson v. Welty, supra, 334 S.W.2d 1. c. 138 and cases cited therein. Applying the aforesaid rule we cannot say that plaintiff was guilty of contributory negligence as a matter of law in the respect complained of. It is clear from the evidence that plaintiff did not know of the presence of the mud on the porch. There was no reason to expect mud to be on the porch because just a few hours before plaintiff had traversed the same course and apparently encountered no mud. There was no reason for him to expect danger from the mud at the time he fell. There is no evidence to show that the presence of the mud was open and obvious to plaintiff or should have been at the time he approached the porch. The jury could have found from the evidence that the mud was of approximately the same color as the cement porch; that it was dusk and approaching twilight; and that the electric porch light was not turned on. Defendant, Robert Montgomery, said it was getting dark when the plaintiff fell and said that the muddy spot on the porch was not easy to see because it was similar in color to the porch. While plaintiff said the mud was clearly visible when looking to see what caused his fall, this is no proof to show it could and should have been seen by him as he approached and ascended the porch. We cannot say as a matter of law that the plaintiff in the instant case failed to act as an ordinary prudent person would act under same or similar circumstances. As said in the case of Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, 1. c. 537, "* * * `Where the danger is not so obvious that a person should have *360 seen it in the exercise of ordinary care, failure to discover it is not negligence.' * * *"
Nor do we think plaintiff was guilty of contributory negligence as a matter of law for the reasons set out heretofore in (b) and (c). Plaintiff did not exceed the scope of his invitation by stepping up directly on the porch from the ground instead of using the steps. This is not a case where plaintiff had two ways open, one safe and the other unsafe. Of course, if one selects a known unsafe way instead of a safe route open to him, recovery will be defeated. Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958, 961. We cannot say as a matter of law that plaintiff selected an unsafe way to reach the level of the porch. The step up from the ground was only fourteen inches and the evidence shows that plaintiff had successfully negotiated this step without mishap on a prior occasion that same afternoon. Overlooked by defendants is the fact that plaintiff's fall was not caused by stepping directly onto the porch from the ground, but in stepping onto a place on the porch which contained mud and was made slippery thereby. As we have heretofore said, whether or not plaintiff should have seen the muddy condition of the porch prior to stepping thereon was a matter for the jury's determination. Stepping up onto the level of a porch fourteen inches above the ground, we cannot say as a matter of law, is an obviously hazardous undertaking. Defendants say that plaintiff should have taken the steps leading up to the porch because they were free and clear of any mud or other foreign substance. We find no testimony concerning the condition of these steps. It is true that when plaintiff was asked if the mud he slipped on was the only mud he saw, that he answered "Yes," but he also said "* * * I know there was mud therethat is all I could see." There is nothing in the question asked and the answer given that indicates he had made any reference to the condition of the steps leading up to the porch. In the case of Buff v. Loch, Mo.App., 396 S.W.2d 263, we were confronted with a somewhat similar factual situation to that here present. In that case defendant asserted that plaintiff was contributorily negligent as a matter of law. We held that the question was one of fact for the jury to determine and denied defendant's contention. The contention of defendants that the trial court erred in overruling their motion for a directed verdict at the close of the entire case must be overruled.
In their next point defendants complain about plaintiff's Instruction No. 1. What we have said heretofore sufficiently answers the substance of their first complaint about this instruction. As we have pointed out it is immaterial whether plaintiff is considered an invitee or licensee when he was on the premises. In either case defendants would be liable if plaintiff's injuries were caused by active negligence.
Defendants' second complaint about this instruction must be sustained. They complain that the instruction is prejudicially erroneous in that it fails to require a finding that plaintiff had no knowledge of the condition which is alleged to have caused his fall. The instruction is lengthy and we need not set it out. At no place in the instruction was the jury required to find that plaintiff had no knowledge of the condition which caused his fall. This is not disputed by plaintiff and plaintiff in his brief seeks to excuse this failure for reasons that we find insufficient. In our case of Daggs v. Patsos, Mo.App., 260 S.W.2d 794, we said:
"It is clearly the law that absence of knowledge of the dangerous condition, on the part of the plaintiff, is an essential element of plaintiff's case. The theory of liability in this type of case is that the unsafe condition is known to the owner and unknown to the invitee. There is no liability for an injury from a danger that is obvious or as well known to the invitee as to the owner. * * *" (Citing cases).
*361 We held that the giving of this instruction that failed to include this essential element of the case was reversibly erroneous and remanded the case for a new trial.
In the case of Hoffman v. Kroger Co., Mo.App., 340 S.W.2d 152, it was contended that the verdict directing instruction was erroneous because it failed to require the jury to find that the plaintiff had no knowledge of the drainage depression on the parking lot. We pointed out that the theory of liability in these cases requires that the dangerous condition must be known to the defendant and unknown to the plaintiff and that absence of knowledge of the condition on the part of the plaintiff is an essential part of plaintiff's case, citing Daggs v. Patsos, supra. Because of the failure of plaintiff to include in his verdict directing instruction the essential element referred to, we find the instruction is erroneous and the case must be remanded.
In the final point relied on by defendants they contend that the trial court erred in giving and reading to the jury the measure of damages instruction which permitted the jury to consider plaintiff's loss of income. Defendants contend there was no evidence in the record upon which to base such a finding. In support of this they urge the argument that the only evidence of income offered by plaintiff was that of Unemployment Compensation Benefits which plaintiff testified he was receiving at the time of his injury. Defendants contend that the trial court was in error in permitting this testimony but state that even if it was properly received Unemployment Compensation Benefits are not properly considered as income. In the case of Naeger v. Naeger, Mo.App., 339 S.W.2d 492, we held that plaintiff's loss of Unemployment Compensation as a result of injuries which made him no longer available for work due to his disability was a proper element of damages to be considered by the jury. For a discussion of our reasons for so holding see the text of the case. This final point of defendants is overruled.
Because of the error in giving plaintiff's Instruction No. 1 the judgment is reversed and the cause is remanded for a new trial.
WOLFE, P. J., and ANDERSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573989/ | 224 S.W.3d 126 (2007)
STATE of Missouri, Respondent,
v.
Thomas GIBBS, Appellant.
No. WD 66334.
Missouri Court of Appeals, Western District.
April 3, 2007.
Motion for Rehearing and/or Transfer Denied May 29, 2007.
Application for Transfer Denied June 26, 2007.
*128 William J. Swift, Appellate Defender, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for respondent.
Before ROBERT G. ULRICH, P.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 29, 2007.
JAMES M. SMART, JR., Judge.
Thomas Gibbs appeals his convictions following a jury trial for first degree robbery and resisting arrest. Gibbs claims that the trial court erred in admitting certain evidence and certain of his incriminating statements because these were the fruit of an illegal arrest. He also claims that the evidence was insufficient to convict him of resisting arrest.
Background
On February 16, 2005, at approximately 10:25 a.m., Kim Luetjen was working a lobby window at the U.S. Bank in Sedalia, Missouri. She was approached by a man wearing a blue hooded jacket with yellow trim. The man had his jacket zipped three-quarters of the way up and the hood pulled up over his head. Ms. Luetjen had noticed him earlier because she thought it was odd that he was wearing his jacket with the hood over his head when it was approximately 70 degrees outside that day.
The man handed Ms. Luetjen a note that said "This is a hold up. I have a gun. Hand over the money in the draw [sic]." Ms. Luetjen turned to her drawer, which was behind her, retrieved all of the money in it and gave it to the man. He then left quickly. Ms. Luetjen told her supervisor, Stephanie Carpenter, what had occurred. Ms. Carpenter had also noticed the man because of his unusual dress. The two *129 women locked the bank doors and called the police.
After speaking to Ms. Luetjen and Ms. Carpenter, the police began a search for the suspect. One officer made contact with a woman who informed him that another woman named Janel Atkins would be able to help find the suspect. Ms. Atkins provided information suggesting that the suspect for which the police were looking was a man named Thomas Gibbs. Ms. Atkins consented to a search of her house for two duffel bags that allegedly belonged to Gibbs. Ms. Atkins also indicated that Gibbs would be using a black bicycle as his transportation.
The black bicycle was found at a local motel. Gibbs had checked into the motel, but was no longer there. Other officers were also in the area asking employees at local businesses if anyone had seen a man matching the suspect's description. Sergeant Nathan Ahern arrived at another motel and spoke to the clerk of the motel. Ahern learned that a man matching the suspect's description had recently checked in to the motel. The clerk gave Ahern a key to the room in which the suspect was staying.
Before going to the room, Ahern flagged down Chief Ted Litschauer in order to obtain his assistance at the motel. Litschauer covered the rear of the motel. Without knocking or announcing his presence, Sergeant Ahern used the key given to him to open the door to the motel room to the extent permitted by the chain lock, about an inch and a half to two inches. Ahern was wearing his police uniform. Ahern could see Gibbs standing at the foot of the bed. Although Ahern did not know Gibbs, he called out the name "Tom." At that point Gibbs ran out of Ahern's sight. Ahern forced the door the rest of the way open. Ahern located Gibbs climbing out of the bathroom window. Most of Gibbs's upper torso was already out of the window by this time. Ahern grabbed Gibbs's legs, but due to Gibbs's weight, Ahern was unable to pull Gibbs back into the room. He instead let Gibbs drop to the ground outside and followed Gibbs out the window. He landed on top of Gibbs. As he landed, he noticed a knife located on the ground next to Gibbs.
Sergeant Ahern told Gibbs to stop resisting, but Gibbs did not comply. Shortly after Gibbs and Ahern dropped out of the window, Chief Litschauer arrived to help. Litschauer was dressed in street clothes, but was wearing a black t-shirt that had the emblem of a badge on it and said "City of Sedalia Police" on the back in large letters. Litschauer testified that it took several minutes to subdue Gibbs. Sergeant Ahern finally used pepper spray on Gibbs in order to subdue his resistance. Once Litschauer and Ahern had handcuffs on Gibbs, he stopped resisting. Litschauer patted Gibbs down and found a wad of money in his left pocket totaling $249, a seven-inch collapsed knife in his right pocket in addition to the one found on the ground, and a glass pipe used for smoking crack cocaine clenched in his hand.
Police transported Ms. Luetjen and Ms. Carpenter to the motel to view the suspect. Each one identified Gibbs as the man who robbed the bank.
At the station, after treatment for the pepper spray, Gibbs was taken to an interrogation room where Officer Prouty read him his Miranda rights. At some point Gibbs requested to talk to Officer Stewart, who had transported him to the station. Officer Stewart came to the interrogation room to interview Gibbs. During this interview, Gibbs made incriminating statements about his involvement with the bank robbery. Gibbs informed the officers that he had put the note used to rob the bank *130 in the pocket of the jacket he wore during the robbery. He also said that he had put the jacket in the back of a pickup truck at the Golden Corral near the bank.
Gibbs was transported to a cell. About ten days later, on the evening of February 27th, Gibbs summoned the correctional officers on duty and informed them that he had forgotten to tell the police earlier that some of the money from the robbery was in his shoe. The officers retrieved Gibbs's belongings from the property room at the jail. They found Gibbs's shoes and searched them, finding $1460 under the sole of the right shoe.
Gibbs was charged by amended information in the Circuit Court of Cooper County with robbery in the first degree and felony resisting arrest. At the jury trial in November 2005, the prosecution presented its evidence. The defense did not put on any evidence. The jury returned a verdict of guilty on both counts. Gibbs now appeals to this court.
Fourth Amendment Issue
When it is asserted that the evidence was obtained through an unlawful search and seizure, the State has the burden of showing that the evidence should be admitted. See State v. Ricketts, 981 S.W.2d 657, 659 (Mo.App.1998). Although the findings as to disputed facts are reviewed under the clearly erroneous standard, whether the Fourth Amendment has been violated is a question of law which we review de novo. Id.
Although Gibbs's arrest was made without a warrant, he does not raise an issue as to the probable cause to arrest him. Instead, he complains about the manner in which he was arrested. He claims that all evidence obtained as a result of this arrest should have been suppressed as "fruit of the poisonous tree" due to the failure to knock and announce before the arrest intrusion. Gibbs complains that the officers violated the privacy rights recognized in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1979), and Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), in their failure to knock and announce their presence at his motel room before attempting to enter. He claims there were no exigent circumstances warranting a "no knock" entry. He asserts that his rights under the Fourth Amendment of the United States Constitution, and under article I, section 15 of the Missouri Constitution were violated.
The analysis under the Fourth Amendment is the same as under article I, section 15 of the Missouri Constitution. Ricketts, 981 S.W.2d at 660. For purposes of Fourth Amendment analysis, a "no knock" entry is justified if there are exigent circumstances, such as a threat of physical violence, or a reasonable fear that evidence would be destroyed. Wilson, 514 U.S. at 936, 115 S. Ct. 1914. The courts have also determined that, despite its unconditional language, section 544.200 also makes an exception for situations in which there are exigent circumstances. State v. Parrish, 852 S.W.2d 426, 429 (Mo.App. 1993).
Gibbs claims that this situation did not involve exigent circumstances. He says that therefore his arrest was illegal. He specifically requests a suppression of (1) the evidence found during the patdown after his arrest: the $249 in his pocket, the two knives, and the pipe used for smoking crack cocaine, (2) the identifications that Ms. Luetjen and Ms. Carpenter made at the motel after his arrest, (3) the statements made to the police officers at the police station after his arrest, (4) the jacket and note in the jacket pocket found after he told the police where he had put *131 it, and (5) the money found in his shoe after he told Officer Turner where to look for it.
The Payton Principle
The U.S. Supreme Court in Payton v. New York concluded that the Fourth Amendment prohibits police from "making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Payton, 445 U.S. at 576, 100 S. Ct. 1371. Theodore Payton was suspected in the murder of a gas station manager. Id. The police located his apartment and broke the door down in order to enter it without a warrant. Id. They found evidence that was later admitted at Payton's murder trial. Id. at 577, 100 S. Ct. 1371. Focusing on the significant privacy interest one has in his home, the Court stated that, absent exigent circumstances, police may not validly enter into a suspect's home without a warrant. Id. at 590, 100 S. Ct. 1371. Even when the police have a search warrant, the common law "knock and announce" principle must be considered as a part of the reasonableness inquiry. Wilson, 514 U.S. at 929, 115 S. Ct. 1914.
The need to knock and announce yields under exigent circumstances. Id. at 936, 115 S. Ct. 1914. Such circumstances include situations in which there is a threat of physical violence, where a prisoner escapes and retreats into his home, or where it is likely that evidence would be destroyed if advance notice were given. Id. The United States Supreme Court in Wilson, while recognizing that the facts could support a finding of exigent circumstances in that case, noted that the Arkansas Supreme Court had never made a factual determination in that regard. The Court remanded the case to the state court to determine whether the unannounced entry was reasonable in that instance. Id. at 937, 115 S. Ct. 1914.
When the Supreme Court next visited the issue of "knock and announce" procedures, the Court held that there is no per se rule attached to particular kinds of crimes whereby knock and announce procedures are inapplicable. See Richards v. Wisconsin, 520 U.S. 385, 388, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). However, the court reaffirmed that if the police have a reasonable suspicion that, under the particular circumstances of the case, knocking and announcing would be dangerous or futile or would inhibit investigation such as through the destruction of evidence, the unannounced entry would still be justified. Id. at 394, 117 S. Ct. 1416.
In this case, Gibbs was in his motel room when the door was opened. There was a reasonable privacy interest disrupted by the police. Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964) (motel employee could not consent to the search of a motel room that had been legitimately rented by a motel guest); see also Mitchell, 20 S.W.3d at 557. When rented by a person, a motel room generally carries the same expectation of privacy as one's home. Rowland, 73 S.W.3d at 822.
The State contends that Sergeant Ahern's entry into Gibbs's motel room without a warrant was justified based on exigent circumstances. The State points out that Gibbs was suspected of robbing a bank and that in the course of that robbery the robber stated he had a gun, thereby impliedly threatening the use of the gun. The State contends that Gibbs presented a threat of physical violence to Sergeant Ahern and to people in the vicinity of the motel. Gibbs contends that because Ahern and Chief Litschauer had all the exits from the motel room covered, *132 there is little likelihood that Gibbs posed a threat to anyone.
The officers had no reason to believe that there was anyone in the motel room other than Gibbs. Therefore, the argument that Gibbs was a threat to people other than the officers is too tenuous to support a finding of exigent circumstances by itself. See Ricketts, 981 S.W.2d at 662.
When officers are aware of facts that indicate that knocking and announcing may endanger their safety, exigent circumstances can exist. See United States v. Maxwell, 25 F.3d 1389, 1395 (8th Cir.1994). However, the State fails to distinguish this case from Payton in such a way as to show that Sergeant Ahern should reasonably have anticipated that knocking and announcing would increase the danger to him. It is not entirely clear that an attempt at surreptitious entry with a key would be safer than standing beside the door (rather than in front of it), banging on the door, and announcing that police have the area surrounded. The courts have ruled that a reasonable belief that firearms may be present within a location, standing alone, is insufficient evidence of exigent circumstances. United States v. Marts, 986 F.2d 1216, 1218 (8th Cir.1993). More significant is information indicating that the suspect's record indicates the suspect may be considered dangerous or violent or might be inclined to use the firearms against the officers. Id. at 1217. Cases in which courts have held that officers' fear for their own safety or the safety of others was justified have generally included more information than merely that the suspect apparently had a firearm and was suspected of committing a crime. See, e.g., Maxwell, 25 F.3d at 1395 (suspect had recently purchased a .25 caliber handgun, had a propensity for violence, had a prior felony conviction for assault with the use of a weapon, police had intercepted phone calls where suspect had described assaults he committed, and suspect had associations with a gang with a reputation for violence); United States v. Murphy, 69 F.3d 237, 243 (8th Cir.1995) (suspect sometimes carried a weapon, had weapons in his home, had threatened to kill a Jew or blow up a synagogue, had a violent past, had shot a person following an argument, and was on parole from a second-degree murder conviction).
In some cases, the courts have found no exigent circumstances even though firearms were reasonably thought to be in the premises. Generally these cases have not involved violent crimes or other evidence that the suspect is violent. See Ricketts, 981 S.W.2d at 662 (suspect was a drug trafficker but did not have any prior convictions; and although there may have been a reasonable belief that weapons were in the home, without more this was insufficient to justify a no knock entry); State v. Varvil, 686 S.W.2d 507, 512 (Mo. App.1985) (suspect was involved in selling stolen automobile parts; suspect was armed but no shots had been fired for several hours and he was in a building that was completely staked out by the police); Marts, 986 F.2d at 1217 (suspect was involved in drug trafficking and illegal firearms; firearms were reasonably suspected to be in the residence; but there was no information to indicate suspect was likely to use firearms against the officers).
Exigent circumstances and probable cause will justify an entry and search without a search warrant, but still the knock and announce procedure should be followed unless the officers are reasonably in fear for their own safety. Payton, 445 U.S. at 588-590, 100 S. Ct. 1371. Some exigent circumstances will justify a search without a warrant. See, e.g., United States v. Easter, 552 F.2d 230 (8th Cir.1977) (suspects who had just committed robbery at *133 gunpoint entered a residence carrying weapons). Other exigent circumstances may justify failing to knock and announce. See Wilson, 514 U.S. at 936, 115 S. Ct. 1914.
The State relies on a recipe of considerations created by the Missouri courts for determining when exigent circumstances exist generally. The factors to be considered by the court that favor a finding of exigent circumstances are:
(1) that a grave offense is involved, particularly a violent crime; (2) the suspect is reasonably believed to be armed; (3) a clear showing of probable cause to believe the suspect committed the offense; (4) strong reason to believe the suspect is in the premises to be entered; (5) a likelihood the suspect will escape if not swiftly apprehended; (6) the entry, though not consented, is made peaceably.
Varvil, 686 S.W.2d at 512. The State contends that this case meets all factors. Here factors (1), (2), (3), and (4) arguably are met, but that is not necessarily the end of the inquiry. We must be mindful of the Supreme Court's mandate in Richards that there is no per se rule for a "no knock" entry, but that each case must be decided based on its own particular set of circumstances. Richards, 520 U.S. at 394-95, 117 S. Ct. 1416.
If a per se exception were allowed for each category of criminal investigation that included a considerable albeit hypothetical risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless.
Id. at 394, 117 S. Ct. 1416.
In the present case, the State says that the police were on a "manhunt." Although it was a "manhunt," it was not necessarily a manhunt for a desperate and violent offender who was a serious threat to take hostages or engage in other immediate mayhem. It was a manhunt for a man in a motel room who had apparently committed a robbery (in which no weapon was displayed and no one was injured) and whose transportation consisted of a bicycle and his feet.
There is no argument here that the police needed either a search warrant or an arrest warrant to make the arrest, but it is not so clear that the "no knock" entry was justified by the exigent circumstances. There was no evidence at the suppression hearing indicating that police had any indication that Gibbs had actually used a gun in the robbery or had any history of violence. Nor was there any evidence that there was such an urgency that the police did not have time to run criminal records check on Gibbs.
The State also argues, though, that this is not about "knock and announce" because Gibbs was not apprehended in his motel room, but outside the motel room in a public place. In response, Gibbs notes that he was "seized" when Sergeant Ahern grabbed his legs as he was attempting to escape out of the window. Gibbs relies on the rule that "the mere grasping or application of physical force" constitutes a seizure or arrest, regardless of whether or not this application of force succeeded in subduing the arrestee. The State contends that the ultimate subduing of Gibbs outside of the motel was separate from the initial attempt to seize Gibbs; therefore, the State argues, knock and announce does not apply. It is true, as noted in California v. Hodari D., 499 U.S. 621, 624-25, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), that if an arrestee breaks away, the initial seizure is ended. Here, however, there was such a substantial continuity of action for knock and announce purposes that it would undermine *134 the constitutional rule of Payton to say that the consequences of the rule can be avoided when the suspect flees his dwelling in response to the unannounced entry.
It is true that in New York v. Harris, 495 U.S. 14, 20, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the court indicated the suppression of evidence in a Payton violation would be limited to evidence found, or statements taken, inside the dwelling unit. Harris, however, did not involve a case in which the suspect fled from his apartment and was apprehended outside the apartment. Similarly, United States v. Wixom, 460 F.2d 206 (8th Cir.1972), and United States v. Pierson, 219 F.3d 803 (8th Cir. 2000), are not on point because they did not involve unannounced entry into the hotel rooms, but involved arrests after each suspect had voluntarily left the room for reasons not related to a Payton violation. In Pierson, for instance, the officers phoned the suspect, pretended to be hotel management, and asked him to come to the front desk of the hotel. Although the officers in Pierson used deception to get the suspect out of his room, they did not first invade the suspect's private dwelling.
If a suspect fleeing an unannounced entry could be arrested outside of the motel room with no consequence flowing from the Payton violation, officers, by simply allowing the suspect to try an escape, and then arresting him outside, could nullify the Payton principle.
It does not appear that we can justify the "no knock" entry under Payton in these circumstances. The fact that the alleged crime was an armed robbery (in which there was a threat that he might have a gun and might use a gun) does not appear, by itself, to be enough. See Richards, 520 U.S. at 394, 117 S. Ct. 1416. The fact that firearms might have been in the motel room is not enough. See Marts, 986 F.2d at 1218. There was no other evidence (apart from the facts of the robbery itself) that the suspect was likely to be violent. See Maxwell, 25 F.3d at 1395; Murphy, 69 F.3d at 243. Thus, we conclude that Sergeant Ahern's unannounced opening of the door without first knocking and announcing was not in accordance with the Fourth Amendment standards expressed in Payton.
Because of the failure to knock and announce before entering, the evidence derived from the seizure and patdown was not properly admissible under Payton unless there was some applicable exception to the Payton rule. Here, if we consider the fact that Gibbs managed to get outside of the motel room as not being an exception, we do not have one. The State, in any event, fails to argue any other theory of exception.
If the police had possessed a search warrant, our analysis might be different as to any items Gibbs possessed that were apparently related to the robbery, such as the wad of money. In Hudson v. Michigan, ___ U.S. ___, ___, 126 S. Ct. 2159, 2162, 165 L. Ed. 2d 56 (2006), in which the Supreme Court addressed the issue of whether violation of the "knock and announce" rule requires suppression of all evidence found in a search, the Court held that the rule does not prevent the State from taking evidence that was anticipated in a legitimate warrant, even if the police failed to "knock and announce." Id. at 2165. The Court based this decision on the conclusion that the interests protected by the "knock and announce" rule are somewhat different from the interests protected by the unreasonable seizure of evidence. Id.
In the present case, there was no search warrant, and no one suggests that, for purposes of making the arrest, the *135 police needed to get one. Also, neither party rejects the notion that there would have been grounds for the issuance of a warrant. Because Hudson was decided recently, there is little case law interpreting the decision relating to situations not involving a search warrant. Two cases based on Hudson declined to exclude evidence obtained even without a warrant, though there was a failure to knock and announce. In re Frank S., 142 Cal. App. 4th 145, 47 Cal. Rptr. 3d 320, 324 (2006); United States v. Smith, 457 F. Supp. 2d 802, 806 (D.Mich.2006). Both of these cases involved parolees. Because parolees have a lesser privacy interest, only a reasonable suspicion is required to conduct a warrantless search of their homes. See Smith, 457 F.Supp.2d at 803. Both cases involved situations in which there was a reasonable suspicion sufficient for a search without a warrant, but where officers failed to knock and announce their presence. Id. at 806; Frank S., 47 Cal. Rptr.3d at 324. Both courts concluded that the reasoning in Hudson could be applied to warrantless searches of this type, assuming that the search itself was lawful, but that the "knock and announce" rule had been violated. Smith, 457 F.Supp.2d at 806; Frank S., 47 Cal.Rptr.3d at 324.
We are persuaded, however, that Payton still governs non-parolee cases (such as this one) involving a failure of knock and announce without a search warrant. We conclude that the wad of money, the knives, and the glass pipe should have been suppressed as fruit of the knock and announce violation.
We do not decide, as Gibbs would like us to, that the arrest itself was illegal. Gibbs fails to persuade that the fact that under Payton there was a violation of "knock and announce" means that the arrest was invalid. In view of New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990) and Hudson v. Michigan, ___ U.S. ___, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), in which the court limited the "fruit of the poisonous tree" doctrine, we conclude that the arrest itself, supported as it was by probable cause, was not illegal. See Harris, 495 U.S. at 19, 110 S. Ct. 1640 ("Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the station house, given Miranda warnings, and allowed to talk.")
The Out-of-Court Identifications
Although there was a violation of knock and announce, evidence of the eye-witnesses' identification of Gibbs at the motel would not have to be excluded. We do not wish to suggest that the purpose of knocking and announcing is to give a suspect a better shot at an escape. The purpose, according to Payton, is simply a reasonable accommodation of privacy interests under the circumstances. Thus, we conclude, the failure to knock and announce would have had no effect on either the out-of-court (at the motel) identifications of Gibbs as the robber, or the identifications in court. The identifications, both at the motel and in court, were admissible. See United States v. Crews, 445 U.S. 463, 471-74, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980).
Statements Made at the Police Station
Regardless of the "knock and announce" violation, the statements made at the police station were also properly admitted. New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). The Court in Harris held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an *136 arrest made in the home in violation of Payton." Harris, 495 U.S. at 21, 110 S. Ct. 1640. The court in Hudson appeared to reaffirm the holding in Harris. Hudson, 126 S.Ct. at 2164-65.
The Court in Harris reasoned that the statements made outside the home, or in this case, outside the motel room, are not the fruit of the fact that there was a knock and announce violation. Harris, 495 U.S. at 20, 110 S. Ct. 1640. Applying the reasoning in Harris to Gibbs's case, the fact that Gibbs's arrest may have violated the "knock and announce" rule has no bearing on whether his statements were made voluntarily or not. Suppressing the statements merely because the officer failed to knock and announce his presence would not serve the purpose of the rule created by Payton. See id. The requirements are meant to protect the privacy of Gibbs's motel room and anything incriminating gathered from arresting Gibbs in his motel room. See id. Because these statements were taken at the police station, suppression of such statements would not further the rule created in Wilson, and would contravene the mandate of Harris. Therefore, the statements made at the police station were properly admitted.
The Jacket, the Demand Note, and the Money in the Shoe
The jacket and demand note and the money in the shoe were the direct result of statements made by Mr. Gibbs at the police station. The lower court determined, and Gibbs does not contest on appeal, that the statements given at the police station were voluntary and that Gibbs understood and voluntarily waived his Miranda rights when he gave these statements. The official misconduct here (the use of the key to open the door without announcement) had nothing to do with Gibbs's statements later made to jail officers. See Harris, 495 U.S. at 20, 110 S. Ct. 1640. Therefore, there is no reason to suppress these items, as their admission resulted only from voluntary statements given to the police.
Summary as to Knock and Announce
In summary, we conclude that the items recovered from Gibbs at the time of his arrest outside the hotel room should have been excluded from evidence under Payton v. New York. At the same time, because of the overwhelming evidence of guilt in the case appearing from the properly introduced evidence (including the identification testimony, the admissions of guilt, the money in the shoe, the jacket, and the demand note), we conclude that the record shows beyond a reasonable doubt that the erroneous admission in evidence of the items he possessed at the time of his arrest was harmless error.
Section 544.200
Gibbs also contends that the failure to knock and announce violated section 544.200, RSMo 2000, which provides:
To make an arrest in criminal actions, the officer may break open any outer or inner door or window of a dwelling house or other building, or any other enclosure, if, after notice of his office and purpose, he be refused admittance.
The apparent purpose of this statute is to reduce unnecessary damage to property caused by overzealous police officers seeking to make an arrest. It concerns the breaking open of doors and windows. The breaking is not authorized to occur unless the officer is first refused admittance. The statute thus differs somewhat from the old common law knock and announce principles recognized in Payton. While this statute may also include privacy concerns, its very language suggests it is primarily concerned with property damage. *137 See Green v. Denison, 738 S.W.2d 861, 867 (Mo. banc 1987) ("There [was] no violation of the terms of the statute. No officer broke an outer or inner door or window."). Payton, on the other hand, is apparently less about breakage of property than it is about unannounced intrusion onto privacy. Here, because of the facts of this case, Section 544.200 is inapplicable. The officer opened the door with a key, which was an intrusion but not a destruction of any property; and it was not until after Gibbs started to make his escape (thereby impliedly refusing admittance) that the officer forced the door, which was chain-locked. The statute allows breaking when the officer is refused admittance. For these reasons, Officer Ahern did not violate section 544.200.
Sufficiency of the Evidence of Resisting Arrest
Next Gibbs challenges the sufficiency of the evidence on the conviction of resisting arrest. When reviewing the sufficiency of the evidence, we consider all evidence and all reasonable inferences in favor of the verdict, and we reject all contrary evidence and inferences. Parrish, 852 S.W.2d at 428. Our review is limited to whether the jury had substantial evidence before it from which it could find the defendant guilty beyond a reasonable doubt. Id. Substantial evidence is evidence from which the jury can reasonably find the issue in harmony with the evidence. Id.
Mr. Gibbs was convicted of resisting arrest in violation of section 575.150 RSMo. In relevant part, section 575.150 provides:
1. A person commits the crime of resisting or interfering with arrest . . . if, knowing that a law enforcement officer is making an arrest . . . or the person reasonably should know that a law enforcement officer is making an arrest[,] for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest . . . by using or threatening the use of violence or physical force or by fleeing from such officer[.]
The statutory language makes it a prerequisite to conviction that the defendant knew or should have known that an officer was making or attempting to make an arrest. State v. Christian, 184 S.W.3d 597, 603 (Mo.App.2006). Gibbs contends that there was insufficient evidence from which the jury could conclude that Gibbs knew Sergeant Ahern and Chief Litschauer were law enforcement officers, rather than others of Gibbs's enemies, attempting to subdue him.
There was circumstantial evidence from which the jury could reasonably infer that Gibbs knew or should have known that law enforcement officers were attempting to arrest him. The fact that the evidence is circumstantial does not make it less sufficient. See State v. Hutchison, 957 S.W.2d 757, 767 (Mo. banc 1997).
Sergeant Ahern testified that he opened the door wide enough to be able to see Gibbs sufficiently to determine that he matched the description of the suspect for whom he was looking. From this, the jury could infer that the door was also opened wide enough for Mr. Gibbs to see the police uniform that Ahern was wearing.
Chief Litschauer testified that while he and Ahern were attempting to hold him down to subdue him, Gibbs turned his head over quite a few times (to look back at them). From this, the jury could reasonably infer that Gibbs could see that Sergeant Ahern was wearing a police uniform.
Gibbs argues that the officers never testified that they identified themselves as *138 law enforcement, and so he could not have known that it was law enforcement that was attempting to subdue him. He also argues that the officers pepper-sprayed him, impairing his vision. These arguments are for the jury to consider. The jury could have concluded from this evidence that Gibbs did not know law enforcement was attempting to subdue him, but it could also have concluded that he did know law enforcement was attempting to subdue him.
There was sufficient evidence from which a reasonable jury could infer that Gibbs was aware that law enforcement officers were attempting to subdue him. If we consider all evidence and all reasonable inferences in the light most favorable to the verdict and reject the contrary evidence and inferences, we must conclude that there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Gibbs knew law enforcement was attempting to subdue him and was resisting their efforts through the use of force.
Conclusion
The evidence seized from Gibbs at the time of his arrest and patdown was improperly admitted, because it was seized in violation of the knock and announce principle which is implicit in the Fourth Amendment, as recognized in Payton. The other evidence in the case, however, including, inter alia, the admissions of guilt, the money found under the sole of the shoe, the jacket, the demand note, and the eyewitness identifications, constituted overwhelming evidence of guilt of the robbery charge. Thus, the error in failing to exclude the evidence seized in connection with the arrest and patdown was harmless beyond a reasonable doubt.
The evidence also supported the verdict of guilt in connection with the offense of resisting arrest.
We affirm the judgment of convictions for first degree robbery and for resisting arrest.
ULRICH and LOWENSTEIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1573996/ | 224 S.W.3d 485 (2007)
James Hail BENSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-05-00063-CR.
Court of Appeals of Texas, Houston (1st Dist.).
April 5, 2007.
*488 Tony Aninao, Houston, for Appellant.
Carol M. Cameron, Assistant District Attorney, Houston, for Appellee.
Panel consisted of Justices KEYES, ALCALA, and BLAND.
EN BANC OPINION
ELSA ALCALA, Justice.
Appellant, James Hail Benson, appeals from the trial court's judgment that revoked his deferred adjudication and sentenced him to 12 years in prison and a $500 fine for the second-degree felony of aggravated assault with a deadly weapon. See TEX. PEN.CODE ANN § 22.02(a)-(b) (Vernon Supp.2006). In his first issue, appellant asserts that the trial court erred by failing to appoint appellate counsel in time for him to file a motion for new trial. He asks that we abate the present appeal and remand the cause to the trial court for an evidentiary hearing to determine whether he received effective assistance of counsel during the period for filing a motion for new trial. In his second and third issues, appellant contends that the 12-year sentence constitutes cruel and unusual punishment and violates his due process rights. We conclude that the Court of Criminal Appeals has disapproved of our procedure that requires abatement for an evidentiary hearing, as set forth in Jack v. State, 42 S.W.3d 291, 294 (Tex.App.-Houston [1st Dist.] 2001, order) (Jack I). See also Jack v. State, 64 S.W.3d 694, 696-97 (Tex.App.-Houston [1st Dist.] 2002) (Jack II), pet. dism'd, 149 S.W.3d 119 (Tex. Crim.App.2004) (Jack III). We decline to abate the appeal, and hold that appellant has failed on direct appeal to rebut the presumption that he was represented by trial counsel during the period of time for filing a motion for new trial. We further hold that he waived the right to complain about the length of his sentence because he failed to object on those grounds to the trial court. We affirm.
Procedural Background
In February 2000, the trial court accepted appellant's guilty plea and placed him on five years' deferred adjudication community supervision for aggravated assault. About four years later, the State filed a motion to adjudicate appellant's guilt, alleging that he committed another aggravated assault with a deadly weapon. Appellant, who was represented by appointed *489 attorney John Clark, pleaded not true to the allegation. Following an evidentiary hearing, the trial court found the allegation true. In the punishment phase of the hearing, no additional evidence was introduced, but each side made a closing argument, with the State requesting a sentence near the maximum of 20 years and appellant's attorney asking for a sentence in the range of five or six years. The trial court sentenced appellant to 12 years in prison and a $500 fine on July 20, 2004. After appellant was sentenced, his trial counsel neither objected to the sentence, nor filed a motion to withdraw from the case, nor filed anything else with the trial court.
Nine days after sentencing, appellant filed a pro se notice of appeal. Appellant's pro se notice of appeal states, "Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL." On January 14, 2005, almost five months after appellant filed the notice of appeal, the trial court certified appellant's right of appeal,[1] which included the notation that appellant's attorneys were "J. Clark/J. Guerinot." On February 18, 2005, appellant filed a pro se motion in this Court requesting an extension of time to file a pro se brief.
On March 7, 2005, we abated the appeal. In our order of abatement, we stated, "The problem is that appellant is not represented by counsel on appeal." (Emphasis added.) We ordered the trial court to conduct a hearing to determine whether appellant wished to pursue the appeal and whether appellant was indigent. Our order required the trial court to appoint appellate counsel for appellant if appellant desired to pursue the appeal and was found to be indigent. On April 15, 2005, the trial court conducted the hearing that was ordered by our abatement. At the hearing, the trial court found appellant to be indigent and appointed appellate counsel for appellant. At the time that appellate counsel was appointed, the trial court judge stated, "Well, I don't know why you weren't appointed a lawyer on appeal ... because you should have been appointed a lawyer...." (Emphasis added.) The hearing following our March 7 abatement did not address whether appellant was represented by trial counsel during the 30-day-window for filing a motion for new trial; rather, it concerned only whether appellant was represented by appointed counsel to pursue the appeal.
After we reinstated the appeal, appellant's newly appointed appellate counsel filed an appellate brief that requested a second abatement of the case, citing to Jack I and Jack II. See Jack I, 42 S.W.3d at 294; Jack II, 64 S.W.3d at 696-97. On July 19, 2006, we issued an order that abated this cause for a second time. Our order stated, "We abate the appeal and remand the cause for a hearing to determine whether appellant had counsel, and whether he received ineffective assistance of counsel, during the 30-day period for filing a motion for new trial." While the first abatement order instructed the trial court to address appellant's lack of representation by appellate counsel for the appeal, in the second abatement we instructed the trial court to address appellant's purported lack of representation by trial counsel during the 30-day period for filing a motion for new trial. In our order abating *490 the case for the second time, we stated, "Once the appeal is reinstated, we will rule on appellant's request to file an out-of-time motion for new trial." We therefore did not rule on the merits of whether we would allow appellant to file an out-of-time motion for new trial, which was the ultimate remedy sought by appellant. Instead, we opted to wait to decide that issue until after the trial court conducted an evidentiary hearing on whether appellant was represented by trial counsel during the 30-day window for filing a motion for new trial.
The State filed a motion to reconsider the order that abated the case for a second time. Upon the State's motion requesting rehearing, and after requesting a response from appellant, we withdrew the order abating this case, and reinstated the appeal on September 6, 2006. The trial court, therefore, never conducted the evidentiary hearing that had been ordered in the second abatement, concerning whether appellant was represented by trial counsel during the 30-day-window for filing a motion for new trial.
Representation During Window for Filing Motion for New Trial
In his first issue, appellant contends that he was denied his right to counsel at a critical stage of the proceedings against himthe period of time for filing a motion for new trialbecause the trial court failed to appoint appellate counsel immediately after sentencing. Appellant requests remand of the cause to the trial court with instructions that appellant be permitted to file a motion for new trial and for the trial court to conduct a hearing on the motion. The State responds that we should discontinue our practice of abating appeals for the trial court to determine whether appellant was deprived of counsel during the period of time for filing a motion for new trial because we lack statutory or procedural authority to do so, and because the Court of Criminal Appeals has disapproved of the practice.
A. Time Period for Filing Motion for New Trial is Critical Stage of Proceeding
A defendant has a right to file a motion for new trial, but must do so no later than 30 days after sentence is imposed. See TEX.R.APP. P. 21.4(a). A trial court has 75 days from the imposition of sentence to rule on the motion for new trial. TEX. R.APP. P. 21.8(a).
Although a motion for new trial is not required in order to present a point of error on appeal, see TEX.R.APP. P. 21.2, a hearing on the motion serves to develop evidence that is not otherwise in the record. See Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App.1998) (en banc). Motions for new trial have been used primarily for claims of newly discovered evidence or jury misconduct, and are helpful for developing evidence of a trial attorney's ineffective assistance of counsel, particularly when the issues concern a claim that is premised on a trial attorney's failure to act. See id. at 361-62.
Texas courts of appeals have held the period for filing a motion for new trial is a critical stage at which a defendant is entitled to counsel. See Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App.-Texarkana 2000, order), disp. on merits, 47 S.W.3d 683 (Tex.App.-Texarkana 2001, pet. ref'd); Hanson v. State, 11 S.W.3d 285, 288-89 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736-37 (Tex.App.-Austin 1999, order), disp. on merits, Nos. 03-99-00301-CR, 03-99-0302-CR, 2000 WL 564168 (Tex.App.-Austin, May 11, 2000, pet. ref'd) (not designated for publication); Burnett v. State, 959 S.W.2d 652, 656 (Tex.App.-Houston *491 [1st Dist.] 1997, pet. ref'd). When a defendant is deprived of effective counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time limits. See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App. 1987) (en banc). Here, appellant did not file a motion for new trial, but in his brief he contends that had he been represented by counsel after sentencing, he would have filed a motion for new trial alleging ineffective assistance of trial counsel. If appellant was deprived of effective counsel during the window for filing a motion for new trial, then our remedy would be to reset the appellate time periods to allow him to file the motion for new trial. See id. We determine whether appellant was deprived of effective counsel during the window for filing a motion for new trial by applying the rebuttable presumption set forth by the Court of Criminal Appeals. See id. at 798.
B. Appellate Courts Must Presume that Trial Counsel Continues Representation
1. The Presumption
"Appointed trial counsel remains as the defendant's counsel for all purposes until he is expressly permitted to withdraw, even if the appointment was for the trial only." Id. "[I]t is abundantly clear that an appointed attorney's legal responsibilities do not magically and automatically terminate at the conclusion of the trial . . . The continuity of representation from trial to appeal is necessary to correct the ambiguity of representation which all too often follows a conviction." Id. at 796-97. "[T]rial counsel, retained or appointed, has the duty, obligation, and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, and the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal." Ex Parte Axel, 757 S.W.2d 369, 374 (Tex.Crim.App.1988) (en banc).
Our appellate review, therefore, begins with the presumption that trial counsel continued to effectively represent appellant during the window for filing a motion for new trial. See Ward, 740 S.W.2d at 798; Oldham, 977 S.W.2d at 361. Further, we presume that the reason that a motion for new trial was not filed was because the appellant considered filing it but opted not to file it. Oldham, 977 S.W.2d at 363 ("When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected."). The presumption that trial counsel continued to represent the appellant, however, may be rebutted. See id.
2. Evidence Necessary to Rebut Presumption
If a defendant rebuts the presumption by showing that he was not adequately represented during the period for filing a motion for new trial, then the remedy is to abate the proceedings and restart the appellate timetable. See Ward, 740 S.W.2d at 800. The burden to produce evidence to rebut the presumption falls on the appellant. See Oldham, 977 S.W.2d at 363.
To defeat the presumption, the record must show more than the mere facts that
appellant filed a pro se notice of appeal and indigency;
the trial court noted that the appellate attorney was "to be determined";
*492 the trial court appointed appellate counsel after the expiration of the time for filing a motion for new trial;
on appeal, appellant claims that he would have complained about ineffective assistance of counsel in a motion for new trial, had one been presented;
appellant appeared in court without counsel when he signed the pauper's oath requesting appointed appellate counsel; and
the record shows no activity by trial counsel or any motion to withdraw from the case.
Oldham, 977 S.W.2d at 362-63 (holding that facts that Oldham filed pro se notice of appeal and indigency, that trial court noted that attorney of record on appeal was "to be determined," that trial counsel did not withdraw from case or conduct any activity after Oldham was sentenced, and that trial court appointed appellate counsel after expiration of window for filing motion for new trial, were insufficient to rebut presumption that trial counsel continued to represent appellant during window for filing motion for new trial); Smith v. State, 17 S.W.3d 660, 662-63 (Tex.Crim.App. 2000) (Smith II) (reversing Smith v. State, 990 S.W.2d 893 (Tex.App.-Houston [1st Dist.] 1999) (Smith I)) (holding that facts that Smith filed pro se notice of appeal, that trial court appointed appellate counsel after expiration of window for filing motion for new trial, that Smith was brought to court without counsel when he signed pauper's oath to receive appointed appellate counsel, and that Smith complained about ineffective assistance of counsel that he claims he would have developed at motion for new trial hearing, were insufficient to rebut presumption that trial counsel continued to represent appellant during window for filing motion for new trial).
In Oldham, the Court of Criminal Appeals explained why each of these facts was insufficient to rebut the presumption of continued representation by trial counsel. Oldham, 977 S.W.2d at 362-63. Concerning the fact that appellant filed a pro se notice of appeal, the Court of Criminal Appeals explained that the filing of the notice of appeal is evidence that the appellant was informed of at least some of his appellate rights. Id. at 363. Other circumstances that show an absence of representation by appellate counsel do not translate into an absence of representation by trial counsel, who is presumed to have continued to effectively represent the appellant, "unless the record affirmatively displays otherwise." See id. at 362-63. The court concluded in Oldham that "the record shows that the appellant was officially represented by counsel at all times in the litigation, and the appellant has failed to overcome the presumption that counsel was acting effectively at all times." Id. at 363.
The Court of Criminal Appeals' decisions in Oldham and Smith thus require that appellate courts presume that the appellant was represented by counsel during the window for filing a motion for new trial unless the defendant rebuts the presumption. However, in Jack I we declined to apply the presumption immediately, and instead ordered the abatement of the appeal for a factual determination by the trial court to determine whether appellant was represented by counsel during the window for filing a motion for new trial. Jack I, 42 S.W.3d at 294. We then applied the Oldham and Smith presumptions after abatement of the case. Id. at 292-94. Because the State is requesting that we discontinue these abatements, we review in more detail the Jack decisions.
C. The Jack Decisions
1. Jack I Requires an Initial Abatement by Appellate Court
*493 In Jack I, we held that "an abatement is proper to allow appellant the opportunity to rebut the rebuttable presumption that he was effectively represented by [his trial counsel] during the 30-day period after [sentencing]." Id. at 293. We remanded "the cause for a hearing to determine whether appellant had counsel, and whether he received effective assistance of counsel, during the 30-day period for filing a motion for new trial." Id. at 294. In opting to abate the case, we expressly declined to apply the Smith and Oldham presumption at that time, noting instead that we would carry the issue. Id. at 293.
We did not set out a test for determining when abatement was warranted, commenting only that, "Whether abatement is appropriate will depend, of course, on the facts of each case" and that "it is appropriate in this case." Id. at 294. In Jack I, we observed that, "Everything in the record indicates that appellant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial." Id. at 293. We referred to the record that showed that
the trial judge made a statement on the docket sheet that indicated that an attorney on appeal was to be appointed;
the district clerk made a statement in a letter to the court of appeals stating that the attorney of record for the appeal was to be determined;
appellant and his appellate attorney's motion to abate the appeal indicated that had appellate counsel been appointed within the 30-day critical stage for filing a motion for new trial, she would have filed a motion for new trial alleging ineffective assistance of trial counsel because trial counsel did not subpoena material witnesses;[2] and
trial counsel did not file a motion for new trial, or move to withdraw from the case.
Id. at 292. We stated in Jack I that, "The present record may be stronger in some respects for appellant than the record in Smith," but we opted to abate the case rather than to "`determine' the facts based upon the present record, nor yet grant the motion for an out-of-time motion for new trial." Id. at 293.
Based on the record in the direct appeal of Jack I, the only difference between the Jack cases, Oldham, and Smith appears to be that in the Jack cases, the defendant did not file a pro se notice of appeal, as opposed to Oldham and Smith, who did file pro se notices of appeal. See id. at 292. If Jack I controls this case, therefore, we must abate the appeal for a factual determination to be conducted by the trial court on the issue of whether appellant was represented by counsel during the period for filing a motion for new trial, and we may not apply the presumption in Oldham and Smith until after such an abatement occurs. See id. at 293. Stated more plainly, Jack I requires that we defer the presumption that the defendant was effectively represented by counsel during the period for filing a motion for new trial until after the case is abated to the trial court where additional facts will be acquired, but the Court of Criminal Appeals in Oldham and Smith requires that we immediately apply the presumption based on the evidence that is available in the direct appeal, without abating for additional *494 facts. In short, in Jack I we added a step to the appellate process.
2. Jack II Requires a Second Abatement by Appellate Court
After the abatement in Jack I, the trial court conducted the evidentiary hearing that we ordered, and it entered findings of fact and conclusions of law concerning trial counsel's representation of Jack during the period for filing a motion for new trial.[3]Jack II, 64 S.W.3d at 695-96. We then lifted the order of abatement. It was not until after we lifted the order of abatement that we applied the Court of Criminal Appeals' presumption that trial counsel continued to effectively represent Jack during the window for filing a motion for new trial. See id. at 696. We determined that the evidence presented to the trial court during the first abatement was sufficient to rebut the presumption that trial counsel continued to represent Jack during the period for filing a motion for new trial. Id. We held, "[t]he proper remedy is to abate the appeal and remand the cause to recommence the time period for filing a new trial motion." Id. at 697. In short, in Jack II, we restarted the appellate timetable and ordered that the case be abated to allow Jack the opportunity to file a motion for new trial and request a motion for new trial hearing.
Jack II was a per curiam order. En banc review was requested and a majority of the court denied the request, with several justices dissenting. The State filed a petition for discretionary review of our Jack II decision, which the Court of Criminal Appeals addressed in Jack III. See Jack III, 149 S.W.3d at 123.
3. Jack III
After initially granting the petition for discretionary review, the Court of Criminal Appeals dismissed the petition because it concluded that the order was interlocutory. Id. at 123-25. However, in discussing its procedural posture, the Court of Criminal Appeals criticized the abatement procedure employed by our court. Id. at 121-23. The court said, "The First Court of Appeals explicitly stated that it was not relying upon TEX.R.APP. P. 2, but it did not state what rule that it was relying upon." *495 Id. at 121 (emphasis in original).[4] The Court of Criminal Appeals referred to Justice Taft's dissent in Jack II, as follows:
Although agreeing that the "double abatement" procedure might be an admirable exercise in equity, Justice Taft dissented because the court had no "authority to create a new abatement mechanism, even to achieve a just result." . . . He stated that "The [original abatement] order set an ill-advised judicial precedent by adding a new, time-consuming step to the appellate process without citing any supporting authority on point," and argued that "the double abatement procedure established in our order does not conserve judicial resources."
Id. at 122. After quoting Justice Taft's dissent, the Court of Criminal Appeals observed that the abatement procedure in Jack did not conserve judicial resources, but rather "had the opposite effect" because "[b]y twice remanding the case, the beginning of the appellate timetable had already been delayed by more than eighteen months." Id. The court held that it could not review the interlocutory decision, "[r]egardless of the validity of the procedure ordered by the court of appeals[.]" Id. at 125. But, citing its decisions in Ward, Oldham, and Smith, the Court of Criminal Appeals observed that "the State is correct" that it "has thrice reviewed this out-of time motion for new trial abatement procedure and has held, in those cases, that the Rules of Appellate Procedure did not permit this practice." Id. at 123-24.
Although the Court of Criminal Appeals held that its review of the abatement procedure in Jack II was interlocutory, it repeatedly criticized our decision by noting that the abatement was not authorized by the Rules of Appellate Procedure. See id. at 124. We thus conclude that the Court of Criminal Appeals has disapproved of the abatement procedure used in Jack I and Jack II and questioned our legal authority to abate the appeals in that case. Id. In view of its disapproval, and its observation that the Jack procedure does not comport with the Court of Criminal Appeals' decisions in the area, we follow the pronouncements of our superior court as stated in Jack III, and hold that, in view of those pronouncements, the precedential value of Jack I and Jack II has been abrogated.[5] We therefore abandon the abatement procedure used in Jack I. *496 See Jack I, 42 S.W.3d at 294.[6]
D. The Relief Requested by Appellant
The dissenting opinions contend that our decision to abandon the abatement procedure used in Jack I is advisory because appellant never sought a Jack I abatement, and instead requested only a Jack II abatement to reset the appellate timetables. See id.; Jack II, 64 S.W.3d at 696-97. This is incorrect for two reasons. First, appellant's original appellate brief requests relief under Jack I and Jack II. Appellant states, "Appellant prays that this Honorable Court enter the following order of relief [citation to authority]: That this appeal be ABATED under the abatement procedures outlined in Jack v. State, 42 S.W.3d 291 (Tex.App.-Houston [1st Dist.] 2001) [Jack I] and subsequent order 64 S.W.3d 694 (Tex.App.-Houston [1st Dist.] 2002), [Jack II] and the cause be REMANDED back to the trial court . . . ." Appellant thus precisely cited to Jack I in his request for an abatement.
Secondly, even if we assumed that appellant had not requested an abatement under Jack I by requesting only a Jack II abatement for the resetting of the appellate timetables, we are required to follow the applicable law that controls an issue. In Jack I, we stated, "Everything in the record indicates that appellant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial." Jack I, 42 S.W.3d at 293 (emphasis added). But rather than conclude in Jack I that Jack had rebutted the presumption in his presentation of the case in the direct appeal, we abated the case for Jack to have an evidentiary hearing on the issue of whether trial counsel abandoned him. Id. at 293-94. We said in Jack I that we should abate when "it is appropriate" depending on "the facts of each case." Id. at 294. Therefore, even if we assumed that appellant did not request an abatement under Jack I, we would still have to apply the precedent of this Court, which includes the requirement that we abate for an evidentiary hearing, even when "[e]verything in the record indicates that appellant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial." See id. at 293. Our decision thus is not advisory, because unless we abandon the Jack I abatement procedure, our precedent would require that we abate under Jack I before we could abate under Jack II. Our decision today to abandon the Jack I abatement procedure requires that we now apply the presumptions set forth in Oldham and Smith to the facts that are currently available in the record before us. See Oldham, 977 S.W.2d at 362-63; Smith II, 17 S.W.3d at 662.
E. Application to Appellant
Under Oldham and Smith, we must determine whether the record evidence is sufficient to rebut the presumption that appellant was effectively represented by counsel during the post-trial period for filing a motion for new trial. Oldham, 977 S.W.2d at 362-63; Smith II, 17 S.W.3d at 662. With one exception, the facts here are identical to those in Oldham and Smith. Oldham, 977 S.W.2d at 362-63; Smith II, 17 S.W.3d at 662. Like Oldham and Smith, appellant filed a *497 pro se notice of appeal and indigency, and the trial court appointed appellate counsel after the expiration of the window for filing a motion for new trial. See Oldham, 977 S.W.2d at 355; Smith II, 17 S.W.3d at 661. Also as in Oldham, trial counsel did not withdraw from the case or conduct any activity after the trial court sentenced appellant. See Oldham, 977 S.W.2d at 362-63. Further, no appellate attorney was appointed by the trial court when either Oldham or appellant was sentenced, with Oldham's attorney "to be determined" and appellant's attorney being appointed after an abatement to determine who his counsel was because no appellate attorney was appointed for the appeal. See id. at 355. Also, as in Smith, appellant contends on appeal that he would have developed his complaint of ineffective assistance of counsel at a motion for new trial hearing. See Smith II, 17 S.W.3d at 661.
The only fact that is dissimilar to Oldham and Smith is appellant's statement in his pro se notice of appeal. Appellant's pro se notice of appeal, filed nine days after he was sentenced, included the statement, "NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING [appellant] also prays for the APPOINTMENT OF APPELLATE COUNSEL." Appellant presents this Court only with the conclusory statement, made nine days after he was sentenced, that he had not been "represented since sentencing." According to the dissenting opinions, when a defendant asserts that he has not been "represented since sentencing," that statement is sufficient, in and of itself, to require that the appellate timetables be reset. We disagree.
Appellant does not assert that trial counsel failed to consult with and fully advise appellant about the "meaning and effect of the judgment rendered by the court." See Ex Parte Axel, 757 S.W.2d at 374. Appellant does not allege that trial counsel failed to consider or discuss the option of filing a motion for new trial, or that he refused to file one, or even that appellant made such a request. See generally Burnett v. State, 959 S.W.2d 652, 659 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Appellant further does not argue that trial counsel failed to express his professional judgment as to possible grounds for appeal and their merit, or failed to delineate advantages and disadvantages of appeal. See Ex Parte Axel, 757 S.W.2d at 374.
In short, appellant did not represent to the trial court nor does he or his counsel represent to this Court that trial counsel failed to advise him of his right to file a motion for new trial, to appeal from the trial court's judgment or the necessity of giving notice of appeal, or refused to take such actions after discussing them with appellant. As the Court of Criminal Appeals has noted, the filing of the notice of appeal is evidence that the appellant was informed of at least some of his appellate rights. See Oldham, 977 S.W.2d at 363.
In Burnett, we considered appellant's statement made in a notice of appeal that claimed that trial counsel told him that he needed to "write this letter to appeal the length of sentence" and concluded that the statement was insufficient to establish deprivation of counsel. Burnett, 959 S.W.2d at 659. We said in Burnett, "For all we know, trial counsel told appellant about a panoply of appellate rights, rules, odds of success, and left it up to appellant to contact counsel if appellant wanted to appeal." Id. Like Burnett, the record here is insufficient to rebut the presumption that trial counsel advised appellant about his appellate rights, rules, and odds of success. It is further insufficient to rebut the presumption *498 that trial counsel acted in accordance with his continuing duty to represent his client. Id.
We cannot conclude that appellant's conclusory statement is sufficient to rebut the presumption that trial counsel continued to represent him effectively. See Oldham, 977 S.W.2d at 362-63; see also Buerger v. State, 60 S.W.3d 358, 362 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (disapproving of conclusory affidavits). We must presume that counsel who represented appellant at the motion to adjudicate hearing "adequately counseled" appellant and continued to represent him during the window for filing a motion for new trial See id. at 363. We must further presume that appointed trial counsel discussed with appellant the option of filing a motion for new trial and that appellant chose not to file one. See id. We hold that the record shows that appellant was officially represented by counsel at all times in the litigation, and appellant has failed to overcome the presumption that counsel was acting effectively at all times. See id.; see also Smith II, 17 S.W.3d at 662.
We overrule appellant's first issue.
Waiver of Sentencing Complaints
In his second issue, appellant contends that his 12-year sentence for the offense of aggravated assault with a deadly weapon constitutes a cruel and unusual punishment prohibited by the Eighth Amendment. See U.S. CONST. amend. VIII. In his third issue, appellant contends that the 12-year sentence violated his due process rights under the Texas Constitution. See TEX. CONST. art. I, § 19.
An appellant must present to the trial court a timely, specific objection and obtain an adverse ruling to preserve for appeal his complaints concerning cruel and unusual punishment and violation of due process rights. See TEX.R.APP. P. 33.1(a)(1)(A); Alexander v. State, 137 S.W.3d 127, 130-31 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (holding failure to object to trial court of violations of federal and state due process rights waives appellate review of those claims); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding failure to object to trial court that sentence is grossly disproportionate to offense and violates federal and state constitutional guarantees against cruel and unusual punishment waives appellate review of those claims).
The record contains no objections by appellant concerning his 12-year sentence. We conclude that appellant waived his challenge to his 12-year sentence by failing to assert objections on the grounds that the sentence constitutes cruel and unusual punishment and violates his due process rights.
We overrule appellant's second and third issues.
Conclusion
We affirm the judgment of the trial court.
En banc consideration was requested. TEX.R.APP. P. 41.2(c).
A majority of the Court voted for en banc consideration.
The en banc court consists of Chief Justice RADACK and Justices TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, and BLAND.
Justice ALCALA, writing for the majority of the en banc Court, joined by Chief Justice RADACK and Justices TAFT, NUCHIA, HANKS, HIGLEY, and BLAND.
*499 Justice KEYES, dissenting.
Justice JENNINGS, dissenting.
EVELYN V. KEYES, Justice, dissenting on en banc.
I respectfully dissent. This is appellant's second request for abatement. We previously abated the appeal, in February 2005, and ordered the trial court to conduct a hearing to determine whether appellant, a pro se litigant, was indigent and wished to appeal and, if so, to appoint appellate counsel. The trial court held the hearing and appointed counsel for appellant on April 15, 2005. In his second request for abatement, appellant contends the record demonstrates that he was without counsel from the date of sentencing, July 20, 2004, until April 15, 2005, when the trial court appointed appellate counsel, and, therefore, he was deprived of his constitutional right to counsel during a critical phase of these criminal proceedings. He asks that we abate the appeal and remand the cause to the trial court to start the appellate timetable running again so that he may file a motion for new trial.
When appellant first made his request for a second abatement, we mistakenly understood him to be requesting, first, abatement for a Jack I hearing to permit him to overcome the presumption that he was represented by counsel during the running of the appellate timetable and, second, abatement to start the appellate timetable running again so that he could file an out-of-time motion for new trial. See Jack v. State, 42 S.W.3d 291, 294 (Tex. App.-Houston [1st Dist.] 2001, order) (Jack I); see also Jack v. State, 64 S.W.3d 694, 696-97 (Tex.App.-Houston [1st Dist.] 2002) (Jack II), pet. dism'd, 149 S.W.3d 119 (Tex.Crim.App.2004) (Jack III); Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App. 2000) ("[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected"); Oldham v. State, 977 S.W.2d 354, 368 (Tex.Crim.App.1998) (motions for new trial are helpful for developing evidence of trial attorney's ineffective assistance of counsel, particularly when issues concern claim premised on trial attorney's failure to act).
On July 19, 2006, the panel issued an order in response to appellant's request that abated this cause for a second time. We stated, "We abate the appeal and remand the cause for a hearing to determine whether appellant had counsel, and whether he received ineffective assistance of counsel, during the 30-day period for filing a motion for new trial." We also stated, "Once the appeal is reinstated, we will rule on appellant's request to file an out-of-time motion for new trial." We did not rule on the merits of whether we would allow appellant to file an out-of-time motion for new trial, which was the remedy appellant sought. Instead, we opted to wait to decide that issue until after the trial court conducted an evidentiary hearing on whether appellant was represented by trial counsel during the 30-day window for filing a motion for new trial. This put us in the position of ordering abatement for a purpose for which it was not sought and creating and implementing a duplicative process of our own that would require yet another abatement should we ultimately grant appellant's request to restart the appellate timetable to permit an out-of-time motion for new trial.
The State filed a motion to reconsider the order that abated the case for a second time. Upon the State's motion requesting rehearing, and after requesting a response from appellant, we withdrew our July 19, 2006 order abating this case and reinstated the appeal on September 6, 2006. The trial court, therefore, never conducted the *500 evidentiary hearing that had been ordered in the second abatement.
The majority of the full court now compounds the panel's error by denying appellant the right to the hearing he did not seek (to determine whether he had post-trial counsel) but which the panel inappropriately granted, holding (in my view, erroneously) on the basis of the record already before the Court that appellant did not overcome the presumption that he was represented by counsel in the critical post-trial period; the majority then erroneously denies appellant the remedy he did seek in the belief that he had overcome the presumption that he had had representation in the post-trial period, namely abatement to file his out-of-time motion for new trial. In the process, we overrule Jack I, which is before the Court only because we misconstrued appellant's request for the second abatement, and not otherwise.
The Court, like the panel, mistakenly characterizes appellant's request as a request that we abate the proceedings to allow him the opportunity to overcome the presumption that he was represented by counsel during the critical period between sentencing and the running of appellate deadlines. Such a hearing is called a Jack I hearing. Because I do not think the issue of overruling Jack I is properly presented by this case, I think it is a mistake to address it and that our en banc opinion overruling Jack I is advisory. Not only is a Jack I situation not before us, so that our overruling Jack I is advisory, but also by overruling Jack I in an improper case we make it unavailable to us in a proper case. Nothing in Jack I itself requires this court to hold a Jack I hearing when we have a record sufficient to determine whether an appellant was or was not represented by counsel in the immediate post-sentencing hearing. The majority nevertheless now posits such a requirement and overrules the requirement it posits.
As Justice Jennings' dissent likewise points out, appellant did not ask for abatement to allow him to make a record to overcome the presumption that he was represented between the time of sentencing and the time the timetable for filing a motion for new trial ran. Appellant actually argues that he has overcome the presumption, and he asks for abatement to start the appellate timetable running again. This is the appropriate remedy once it is established that an appellant was without counsel during the critical post-sentencing period. See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App.1987) (when defendant is deprived of effective counsel during period for filing motion for new trial, remedy is to reset appellate time limits); see also Ex parte Axel, 757 S.W.2d 369, 374-75 (Tex.Crim.App.1988) (when defendant is denied constitutional right to effective assistance of counsel in protecting and preserving his appellate rights, appellant is entitled to out-of-time appeal); Jack II, 64 S.W.3d at 697.
I agree with appellant that the record before this Court amply supports the conclusion that appellant was not represented by counsel between the time of sentencing, July 20, 2004, and the appointment of appellate counsel on April 15, 2005. As the majority acknowledges, after appellant was sentenced, his counsel neither objected to the sentence, nor filed a motion to withdraw from the case, nor filed anything else with the trial court. Appellant filed a pro se notice of appeal nine days after sentencing that clearly stated, "Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL." On January 14, 2005, almost five months after *501 appellant filed the notice of appeal, the trial court certified appellant's right of appeal. On February 18, 2005, appellant filed a pro se motion in this Court requesting an extension of time to file a pro se brief. On March 7, 2005, we abated the appeal, stating, "The problem is that appellant is not represented by counsel on appeal." We ordered the trial court to appoint appellate counsel for appellant if appellant desired to pursue the appeal and was found to be indigent. On April 15, 2005, the trial court conducted the hearing, found that appellant was indigent and wished to be represented, appointed appellate counsel, and stated, "Well, I don't know why you weren't appointed a lawyer on appeal ... because you should have been appointed a lawyer...."
There is less than a scintilla of evidence in the record that appellant had counsel at any time between July 20, 2004 and April 15, 2005. Therefore, there is nothing in the record to overcome appellant's evidence rebutting the presumption of counsel during the critical post-trial period and nothing to be gained by creating and then denying a requirement that we abate so that appellant can make such a record.
Nevertheless, the Court, after overruling Jack I, determines, solely on the basis of a string of presumptions of its own, that appellant has not overcome the presumption that he was represented by counsel during the time for filing a motion for new trial. I cannot imagine what more the Court would require to determine that appellant was not represented by counsel between the date of his sentencing on July 20, 2004 and April 15, 2005. Nor can I imagine on what evidentiary basis it can conclude that he has not overcome the presumption that he was represented by counsel during the running of deadlines in the trial court. Nor can I imagine what purpose would be served by holding a hearing to make such a determination. Nor, finally, can I interpret appellant's request that we abate this appeal so that he can file a motion for new trial to build a record on ineffective assistance of counsel during the post-trial period as a request that the trial court hold a hearing to determine whether he had counsel during the period for filing a motion for new trial. Appellant requests a Ward and Jack II abatement, not a Jack I abatement.
I would hold, on the basis of Smith and Oldham, that appellant has overcome the presumption that he was represented by counsel during the running of appellate timetables and that his appellate counsel is now seeking the appropriate remedy under Ward, namely, remand to start the appellate timetable running again so that he can file a motion for new trial to build a record to substantiate appellant's claims of ineffective assistance of counsel. See Smith, 17 S.W.3d at 662; Oldham, 977 S.W.2d at 368; Ward, 740 S.W.2d at 800.
I would abate the appeal and remand the cause to the trial court with instructions that the court reset the appellate timetables. I would not use this occasion to revisit our holding in Jack I because I do not believe that issue is properly before us, and, therefore, the majority opinion is advisory.
TERRY JENNINGS, Justice, dissenting.
The majority misstates the relief actually requested by appellant, James Hail Benson, misconstrues the statement that he made in his pro se notice of appeal, and then, in violation of the doctrine of stare decisis, proceeds to use this case to overrule and "abandon" the well-reasoned and six-year-old precedent of Jack v. State, 42 S.W.3d 291 (Tex.App.-Houston [1st Dist.] 2001, order) (Jack I). In so doing, the *502 majority establishes in Texas jurisprudence a classic "catch-22,"[1] which violates the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19. Accordingly, I respectfully dissent.
The Problem: A Legal Catch-22
Texas Courts have long noted that, in reviewing a criminal defendant's contention that he received ineffective assistance of counsel at trial, we look to the totality of the trial representation to determine the effectiveness of counsel, indulging a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). A claim of ineffective assistance must be firmly supported in the record, see id., and it can be extremely difficult to show that trial counsel's performance was deficient when there is no proper evidentiary record developed at a hearing on a motion for new trial. See Johnson v. State, 176 S.W.3d 74, 79 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd); Sudds v. State, 140 S.W.3d 813, 819 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002)).
This aptly demonstrates what the Texas Court of Criminal Appeals has long recognized, i.e., "[w]ithout doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review." Trevino v. State, 565 S.W.2d 938, 940 (Tex.Crim.App.1978) (quoted in Jack I, 42 S.W.3d at 292) (emphasis added). Texas courts have consistently held that "the time period for filing a motion for new trial is a critical stage of a criminal proceeding in which defendants are entitled to assistance of counsel." Jack I, 42 S.W.3d at 292 (citations omitted). Moreover, as acknowledged by the majority, "[w]hen a defendant is deprived of effective assistance of counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time limits." See Ward v. State, 740 S.W.2d 794, 800 (Tex.Crim.App.1987); see also Jack v. State, 64 S.W.3d 694, 697 (Tex. App.-Houston [1st Dist.] 2002, order) (Jack II).
Accordingly, the Texas Court of Criminal Appeals has indicated that trial courts should appoint appellate counsel "at the same time that a defendant gives notice of appeal to ensure that a defendant's post trial rights and options are fully protected." Jack v. State, 149 S.W.3d 119, 122 n. 4 (Tex.Crim.App.2004) (Jack III). Under Texas Rule of Appellate Procedure 25.2(a)(2), a trial court should "enter the certification of appeal at the time of sentencing, and it is at that time, if an indigent defendant has the right to appeal and wishes to do so, the trial court will appoint counsel." Id. (citing TEX.R.APP. P. 25.2(a)(2)).
However, a serious problem arises when, as here, a case "sometimes slip[s] through the crack and, although notice of appeal was timely filed, appointment of appellate counsel was not made until long after" the date that the notice of appeal was filed. Jack III, 149 S.W.3d at 122 n. 4. In such cases, if the defendant wants to *503 appeal his conviction on the ground that his trial counsel was ineffective, but the trial court does not appoint appellant counsel until after the deadline has past for filing a motion for new trial, the defendant will be precluded from presenting a meaningful appeal. He will not be able to present a proper evidentiary record developed at a hearing on a motion for new trial all because of an administrative error made by the trial court. He will be caught up in a legal catch-22. It is this problem that we effectively addressed in Jack I and Jack II.
Jack I & Jack II
In Jack I, the defendant's court-appointed appellate counsel filed a motion to abate the appeal and for leave to file an out-of-time motion for new trial. 42 S.W.3d at 292. She asserted that because the trial court appointed appellate counsel more than 30 days after the defendant was sentenced, the defendant was unrepresented by counsel during the 30-day period for filing a motion for new trial. Id. She also asserted that had she been timely appointed, she would have filed a motion for new trial, alleging ineffective assistance of trial counsel because trial counsel did not subpoena material witnesses. Id. Although we noted that everything in the record indicated that the defendant was not assisted by counsel during the 30-day critical stage for filing a motion for new trial, we recognized that the Texas Court of Criminal Appeals has previously held that "[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected." Id. at 293 (quoting Smith v. State, 17 S.W.3d 660, 662 (Tex.Crim.App. 2000)); Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App.1998) (en banc) (emphasis added).
Obviously, a presumption is not truly rebuttable if one is not allowed an opportunity to rebut it. Accordingly, we held that an abatement was proper to "allow appellant the opportunity to rebut the rebuttable presumption" that he was effectively represented by counsel during the critical 30-day period for filing a motion for new trial. Jack I, 42 S.W.3d at 293 (citing TEX.R.APP. P. 44.4, 43.6). In doing so, we expressly followed Texas Rule of Appellate Procedure 44.4, which provides:
A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
TEX.R.APP. P. 44.4(a) (emphasis added). In such circumstances, we "must direct the trial court to correct the error" and "then proceed as if the erroneous action or failure to act had not occurred." TEX.R.APP. P. 44.4(b). Moreover, Texas Rule of Appellate Procedure 43.6 provides that we "may make any other appropriate order that the law and nature of the case require." TEX.R.APP. P. 43.6. We also relied on McIntire v. State, 698 S.W.2d 652, 662 (Tex.Crim.App.1985) (op. on reh'g) (abating to determine feasibility of hearing on three-year-old motion for new trial) and Crosson v. State, 36 S.W.3d 642, 294 (Tex. App.-Houston [1st Dist.] 2000, order) (abating for suppression hearing, listing many similar situations for which abatement has been ordered).
Accordingly, we then abated the appeal and remanded the cause to the trial court for a hearing to determine whether appellant had counsel and whether he received effective assistance of counsel during the *504 30-day period for filing a motion for new trial. Jack I, 42 S.W.3d at 294.
Subsequently, in Jack II, we noted that the trial court's findings upon the abatement and remand defeated the presumption that the defendant had considered and rejected filing a motion for new trial during the critical 30-day period. 64 S.W.3d at 696. We also noted that the proper remedy was to abate the appeal and remand the cause to recommence the time period for filing a new trial motion. Id. at 697. We did so, without disturbing the trial court's judgment, and ordered that upon remand, the appellate timetables were to begin anew, starting from the date of our order. Id. We explained that if the trial court granted the new trial motion, the appellate record was to be supplemented with that order, and the defendant's appeal would be dismissed. Id. We also explained that if the trial court overruled the new trial motion, the record would be supplemented with that order and the record of any hearing held on the motion, and the parties would be permitted to brief any issues related to the overruled motion. Id.
In regard to the remand after Jack I, as noted by Justice Cohen in his concurring opinion:
No judicial resources were wasted in this case. The trial judge signed his findings 38 days after our abatement order issued. The record got here three weeks later. The abatement hearing covers only six pages of testimony and lasted only minutes. The defendant answered seven questions; trial counsel answered five. The trial judge commented that this was a "simple record" to make.
Id. at 698 (Cohen, J., concurring) (emphasis added). More importantly, this Court recognized and effectively and efficiently followed Rules 44.4 and 43.6 and case law to abate the case, ensuring that the defendant was able to timely and properly present his appeal to this Court.
The Issue Presented
In overruling Jack I, the majority asserts that appellant "asks that we abate the present appeal and remand the cause to the trial court for an evidentiary hearing to determine whether he received effective assistance of counsel during the period for filing a motion for new trial." See Jack I, 42 S.W.3d at 294. However, appellant seeks no such relief at all.
Unlike the defendant in Jack I, here, appellant did not file a motion to abate his appeal for the opportunity to rebut the "rebuttable presumption" that he had considered and rejected filing a new trial motion. Rather, appellant, in his August 25, 2005 brief, articulates his point of error as follows:
A new trial should be granted because of the violation of Appellant's right to effective assistance of counsel, when the trial court neglected to give appellant appointed counsel in order to assist the Appellant for timely filing of a motion for new trial and evidentiary hearing thereon.
Although appellant cites both Jack I and Jack II under this point, the only request made by appellant of this Court is that
the cause be REMANDED back to the trial court, with instructions for the trial court to allow Appellant 30 days to file a Motion for New Trial to more fully develop his claim of grounds of ineffective assistance of counsel, and to actually conduct an evidentiary hearing 75 days from the date of the filing of any motion. . . .
See Jack II, 64 S.W.3d at 697 (emphasis added).
Appellant in no way argues for an abatement under Jack I "to determine whether *505 he received effective assistance of counsel during the period for filing a motion for new trial" as represented by the majority. In fact, appellant expressly argues that he is entitled to a remand to present his new trial motion, see Jack II, because "the instant records supply more than sufficient evidence to rebut any presumption of counsel" after sentencing. In its September 26, 2005 brief, the State argues that appellant "presents nothing for review" and, alternatively, that appellant has simply failed to rebut the rebuttable presumption. Thus, the issue of whether or not to overrule and abandon Jack I is not properly before this Court.[2]
In support of his argument that the record, as it now stands, provides enough information to rebut the rebuttable presumption that he considered a new trial motion and rejected it, appellant refers to his pro se notice of appeal, dated July 29, 2004, upon which he wrote:
Appellant, an indigent, prays for the setting of APPEAL BOND, and NOT BEING REPRESENTED BY COUNSEL SINCE SENTENCING also prays for the APPOINTMENT OF APPELLATE COUNSEL.
RESPECTFULLY SUBMITTED, JAMES BENSON, DEFENDANT, PRO SE.
Rather than reading appellant's pro se notice of appeal literally as a simple statement of fact, i.e., that he in fact did not have legal representation "SINCE SENTENCING," the majority misconstrues the statement as "conclusory." However, "conclusory" is defined as "[e]xpressing a factual inference without stating the underlying facts on which the inference is based." BLACK'S LAW DICTIONARY 284 (7th ed.2001). Here, appellant's statement that he had not been represented by counsel "SINCE SENTENCING" is an affirmative statement of fact it is not expressing a factual inference.
The majority faults appellant for not presenting this Court with a record showing that he (1) asserted that his "trial counsel failed to consult with and fully advise appellant about the meaning and effect of the judgment rendered by the trial court"; (2) alleged that his "trial counsel failed to consider or discuss the option of filing a motion for new trial, or that he refused to file one, or even that appellant made such a request"; and (3) argued that "trial counsel failed to express his professional judgment as to possible grounds for appeal and their merit, or failed to delineate advantages and disadvantages of appeal." It concludes that because appellant did not make these representations to the trial court or to this Court, "the record here is insufficient to rebut the presumption that trial counsel advised appellant about his appellate rights, rules, and odds of success" and that "appellant's conclusory statement is [in]sufficient to rebut the presumption that trial counsel continued to effectively represent him."
How could appellate counsel make such a record after this Court has now, in overruling and abandoning Jack I, deprived him of the ability to rebut the rebuttable presumption that appellant considered and rejected filing a new trial motion? He cannot. Appellant is caught in this Court's catch-22. How would an indigent defendant, not represented by counsel "SINCE SENTENCING," possibly know to, or how to, make such a record in the trial court for consideration by this Court? He could *506 not. Again, he is caught in this Court's catch-22.[3]
Moreover, although such representations certainly may serve to rebut the rebuttable presumption that an appellant has considered and rejected a new trial motion when one is not filed in a case, the law does not require that these specific representations be made or proved to rebut the presumption. In support of its conclusions that these specific representations are required to rebut that presumption, the majority relies on Ex Parte Axel, 757 S.W.2d 369, 374 (Tex.Crim.App.1988) and Burnett v. State, 959 S.W.2d 652, 659 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Neither case is applicable here.
The Court of Criminal Appeals in Ex Parte Axel held that trial counsel "has the duty, obligation and responsibility to consult with and fully to advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal." 757 S.W.2d at 374. Because the defendant's trial counsel effectively abandoned him, the court found that "in reality this presumptively indigent applicant did not receive any practical assistance of counsel in protecting and preserving his appellate rights." Id. Thus, it concluded that the defendant had been denied effective assistance of counsel on appeal in violation of his due process rights and held that he was "entitled to an out of time appeal." Id. at 374-75. Because it was not an issue in the case, the court did not even consider or discuss the rebuttable presumption that an appellant has considered and rejected a motion for new trial when one is not filed in a case.
Burnett is substantively and easily distinguishable because the pro se notice of appeal in issue, which was apparently filed by the defendant's mother, stated that "appellant was told by his attorney that appellant needed to `write this letter' . . . to appeal the length of sentencing." 959 S.W.2d at 654-55. Unlike the instant case, the defendant did not inform the trial court that he had not been represented by counsel "SINCE SENTENCING."
The bottom line is that the majority's misconstruction of appellant's statement as "conclusory" cannot be justified in light of appellant's affirmative and unequivocal statement that he was in fact not represented by counsel "SINCE SENTENCING." In fact, as noted by the majority, the trial court did not even certify appellant's right to appeal until January 14, 2005, almost five months after appellant filed his pro se notice of appeal. Moreover, this Court actually had to abate the appeal to order the trial court to appoint appellate counsel. As acknowledged by the majority, the trial court on remand stated on the record, "Well, I don't know why you weren't appointed a lawyer on appeal because you should have been appointed a lawyer . . . ." Here, as in Ex Parte Axel, appellant has demonstrated that he was effectively abandoned by trial counsel.
*507 Nevertheless, despite the record before us, including our own actual abatement and remand of the case ordering the trial court to appoint appellate counsel, the majority actually holds that "the record shows that appellant was officially represented by counsel at all times in the litigation, and appellant has failed to overcome the presumption that counsel was acting effectively at all times." Then, rather than addressing appellant's actual point of error and argument, the majority uses its extraordinary holding to revisit and overrule Jack I by "abandon[ing] the abatement procedure used in Jack I."
Welcome Back Jack
Abandoning abatement as used in Jack I and the majority's reasoning in doing so is problematic for a number of reasons. First, this Court has no authority to ignore the requirements of Rule 44.4 as outlined above. If a trial court's failure to act "prevents the proper presentation of a case" on appeal and the trial court can correct the error, an appellate court "must direct the trial court to cure the error." TEX.R.APP. P. 44.4 (emphasis added). As noted by the Court of Criminal Appeals in Jack III, trial courts should appoint appellate counsel "at the same time that a defendant gives notice of appeal to ensure that a defendant's post trial rights and options are fully protected." 149 S.W.3d at 122 n. 4. Failure to do so necessarily prevents a defendant from properly presenting his appeal in violation of the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19.
Second, in regard to the majority's representation that "we added a step to the appellate process," in Jack I, again, Rule 44.4 actually requires that we direct the trial court to cure any error that "prevents the proper presentation of a case." TEX. R.APP. P. 44.4. Moreover, even the majority, citing Ward v. State, recognizes that "[w]hen a defendant is deprived of counsel during the period for filing a motion for new trial, the remedy is to reset the appellate time tables." See 740 S.W.2d 794 (Tex.Crim.App.1987). Following Rule 44.4 and established precedent is not "adding a step" to the appellate process.
Third, the majority's conclusion that the Court of Criminal Appeals "criticized" and "disapproved" of abatement as used in Jack I and "questioned our legal authority" to abate is unfounded. In the three years since the Court of Criminal Appeals issued its opinion in Jack III, this Court has continued to abate cases under Jack I when necessary. Only now has this Court come to the conclusion, under "the pronouncements of our superior court," that the precedential value of Jack I and Jack II has been abrogated. Yet, in Jack III, the court merely held that "[r]egardless of the validity of the procedure ordered by the court of appeals, its decision turned out to be an interlocutory order, not a final one." 149 S.W.3d at 125. Thus, it dismissed the State's petition for discretionary review and remanded the case to us for further proceedings. Id. It is well-settled law that "[w]hen a party attempts to appeal a non-appealable interlocutory order, appellate courts have no jurisdiction except to declare the interlocutory nature of the order and dismiss the appeal." Lipshy Motorcars, Inc. v. Sovereign Assocs., Inc., 944 S.W.2d 68, 70 (Tex.App.-Dallas 1997, no writ); see Yancey v. Jacob Stern & Sons, Inc., 564 S.W.2d 487, 488 (Tex.Civ. App.-Houston [1st Dist.] 1978, no writ). After ascertaining that dismissal was proper, it would have been improper for the court to issue any such advisory opinion. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993). Texas *508 courts simply have no jurisdiction to render advisory opinions. See id.
It is true that in discussing the issue presented in the State's petition for discretionary review and in laying out the procedural posture of the case, the Court in Jack III did quote the criticism in the opinions of the three justices on our Court who dissented in Jack II. 149 S.W.3d at 122; see Jack II, 64 S.W.3d at 698 (Taft, J., dissenting) (Nuchia, J., joined by Radack & Taft, JJ., dissenting to denial of en banc reconsideration). However, the court also quoted Justice Cohen's concurring opinion, acknowledging the problem that we addressed in Jack I. 149 S.W.3d at 121-22 n. 4. It is also true that the court in Jack III asserted that we did not reveal the rule upon which we relied in abating the case. 149 S.W.3d at 121. However, in Jack I, we clearly stated that we were following Rules 44.4 and 43.6 and case law in initially abating the case. 42 S.W.3d at 293. Also, the court in Jack III did note that "the State is correct" that it, in the words of the State, "has thrice reviewed this out-of-time motion for new trial abatement procedure." 149 S.W.3d at 123; see Smith, 17 S.W.3d at 662; Oldham, 977 S.W.2d at 363; Price v. State, 826 S.W.2d 947, 947 (Tex.Crim.App.1992). However, the court emphasized that in these cases it held that abatement was invalid only "under the cited rule of appellate procedure." Jack III, 149 S.W.3d at 124. In Jack I, we noted that the Court in Oldham limited its holding on the issue to the use of Rule 2(b):
Our holding on this issue is strictly limited to the use of Rule 2(b). We should not be understood as restricting court of appeals' power to abate an appeal and remand a case under authority other than Rule 2(b). When judicial resources can be conserved in the interest of justice, we encourage the courts of appeals to adopt and continue to use methods for resolving issues sooner rather than later, as long as such methods are legally endorsed.
Jack I, 42 S.W.3d at 293 (quoting Oldham, 977 S.W.2d at 360) (emphasis added). Accordingly, in Jack I, we expressly did not rely on Rule 2(b) in initially abating the case. Id. at 294. Thus, Price, Oldham, and Smith are simply inapplicable.
Fourth, in regard to the assertion that abatement as used in Jack I has "the opposite effect" of conserving "judicial resources," this case serves to illustrate precisely why that statement is patently false. For example, appellate counsel could have, after his appointment on April 15, 2005, filed in this Court a Jack I motion to abate to allow him the opportunity to rebut the rebuttable presumption that appellant considered and rejected filing a new trial motion. We certainly could have abated the case for a "minutes"-long hearing to determine the issue and then, if necessary, ordered that he be allowed to file his new trial motion. Had the trial court granted the new trial motion, we would have immediately dismissed this appeal. Had the trial court denied the motion, appellant could have timely and meaningfully presented his point in this appeal. This could have been accomplished well before appellant's brief was filed on August 25, 2005.
As noted above, appellant requested no such relief. Thus, this Court should have timely addressed the issue when the case came at issue on September 26, 2005, after the State filed its brief. We should have, under Jack II and Ward, sustained appellant's first issue and ordered that appellant be allowed to file his new trial motion. Again, had the trial court granted the motion, we would have immediately dismissed the appeal. Had the trial court denied the motion, appellant could have timely and meaningfully presented his point in this *509 appeal. This could have been accomplished before this case was submitted on May 23, 2006.
However, rather than handle our business in a timely and efficient manner, the majority now suggests that appellant later "develop a record of ineffective assistance of trial counsel or lack of trial counsel" through a subsequent and separate "post-judgment phase through habeas corpus proceedings." See TEX.CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005). Under article 11.07, appellant may not even bring such a post-conviction writ until after his conviction becomes final, i.e., after he has exhausted his appeals. See id. at § 3. Also, he would not have the right to counsel to assist him in such a habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539 (1987). Thus, the majority's suggestion rings hollow. Not only does it create yet another more burdensome obstacle for appellant, it would make another court reinvent the wheel by doing the work that we could have accomplished after a "minutes"-long hearing. More importantly, as noted below, appellant has a right to present his appeal "at a meaningful time and in a meaningful manner." Ward, 740 S.W.2d at 800 (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)) (emphasis added).
Finally, in regard to the notion that abating a case under Jack I might be "an admirable exercise in equity," it must be stated that such abatements are not merely equitable, but actually required under the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. Art. I, § 19. It is more than unseemly for a court of law to create a catch-22, precluding a defendant from properly presenting his appeal because, through no fault of his own, his case "slipped through a crack" when the trial court untimely appointed his appellate counsel. Justice Felix Frankfurter wrote that "[f]airness of procedure is `due process in the primary sense.'" Joint Anti-Fascist Ref. Comm. v. McGrath, 341 U.S. 123, 161, 71 S. Ct. 624, 643, 95 L. Ed. 817 (1951). He further emphasized that
Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances.
Id. at 174, 71 S.Ct. at 650.
In Evitts v. Lucey, the United States Supreme Court held that there is a constitutional guarantee of effective assistance of counsel on appeal in every criminal prosecution. 469 U.S. 387, 395-96, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821 (1985). In Evitts, although the defendant's retained counsel filed a notice of appeal, brief, and record, he failed to submit a statement of appeal required by the Kentucky Rules of Appellate Procedure. Id. at 389, 105 S.Ct. at 832. After the Kentucky Court of Appeals dismissed the defendant's appeal for failure to file a statement of appeal, the Supreme Court affirmed the granting of a writ of habeas corpus because the defendant had been denied effective assistance of counsel on appeal. Id. at 390, 405, 105 S.Ct. at 832-33, 841. The Supreme Court emphasized:
In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that like a trial is governed by intricate rules that to a layperson would be hopelessly forbidding. *510 An unrepresented appellant like an unrepresented defendant at trial is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right like nominal representation at trial does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.
Id. at 396, 105 S.Ct. at 836.
Thus, the Supreme Court held that appellate counsel's failure to file the statement of appeal constituted a lack of effective assistance of counsel on appeal in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 397-98, 105 S.Ct. at 836-37. The Court noted, "counsel's failure was particularly egregious in that it essentially waived respondent's opportunity to make a case on the merits; it is difficult to distinguish respondent's situation from that of someone who had no counsel at all." Id. at 395, n. 6, 105 S.Ct. at 835, n. 6.
Relying on Evitts, the Texas Court of Criminal Appeals, in Ward, noted that the failure of appellate counsel to comply with a simple procedural rule operated to deny the defendant "an opportunity at a meaningful time and in a meaningful manner to present his appeal." 740 S.W.2d at 800 (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)). It noted that the absence of a statement of facts severely limited appellate review and rendered the defendant's "appeal a `meaningless ritual.'" Id. (quoting Evitts, 469 U.S. at 394, 105 S.Ct. at 834).
In Ward, although the defendant's trial counsel remained the defendant's counsel on appeal because he failed to withdraw, counsel actually believed that his representation of the defendant ceased after trial. Id. The court explained that "as a practical matter," the defendant "received no assistance as to the substantive issues that may be presented on appeal." Id. Accordingly, the court held that the defendant had been denied his right to effective assistance of counsel on appeal in violation of his Fourteenth Amendment due process rights under the Federal Constitution and article one, section 19 of the Texas Constitution. Id. It reversed the court of appeals decision to the contrary and remanded the case to that court "with instructions to abate the appeal." Id. (emphasis added). Further, it ordered that "all applicable time limits on appeal shall be calculated as if the notice of appeal were given on the date of the overruling of the final motion for rehearing of this Order, or on the 16th day after rendition of this Order if no motion for rehearing is filed." Id.
Here, the record conclusively establishes that appellant, "SINCE SENTENCING," was not represented by counsel. The trial court did not even certify appellant's right to appeal until almost five months after appellant filed his pro se notice of appeal, and we had to actually abate the appeal to order the trial court to appoint appellate counsel. The trial court's failure to timely appoint appellate counsel precluded appellant from filing a new trial motion and properly presenting the issue of whether his trial counsel provided effective assistance, i.e., it denied appellant "an opportunity at a meaningful time and in a meaningful manner to present his appeal." Ward, 740 S.W.2d at 800. Thus, "as a practical matter," appellant "received no assistance" as to the substantive issue that he seeks to present on appeal. Id.
Accordingly, this Court should sustain appellant's first point of error, abate the appeal, and remand the cause to recommence *511 the time period for filing a motion for new trial. Id.; Jack II, 64 S.W.3d at 697. On remand, the appellate time tables should begin anew. Ward, 740 S.W.2d at 800; Jack II, 64 S.W.3d at 697. This Court's failure to do so, and its abandonment of abatement as used in Jack I, violates the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19.
Conclusion
Here, appellant's case "slipped through a crack," and the trial court's failure to timely appoint appellant counsel deprived him of the ability to present his appeal in a "meaningful time" and in a "meaningful manner." Rather than recognizing the simple fact that the record, as it stands, demonstrates that appellant was not represented by counsel during the time period for filing a motion for new trial, the majority misconstrues as "conclusory" the statement of appellant made in his pro se notice of appeal that he had not been represented "SINCE SENTENCING." It then misstates the relief that appellant is seeking, and, in violation of the doctrine of stare decisis, uses this case to overrule and abandon the well-reasoned and six-year-old precedent of Jack I.
The majority ignores Rules 44.4 and 43.6 and Evitts and Ward. In effect, it creates a legal catch-22 in violation of both the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. Art. I, § 19. Here, the words of Justice Robert H. Jackson are most appropriate:
Let it not be overlooked that due process of law is not for the sole benefit of the accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice . . . .
Shaughnessy v. United States, 345 U.S. 206, 224-25, 73 S. Ct. 625, 635, 97 L. Ed. 956 (Jackson, J., dissenting).
NOTES
[1] Appellant has a right to appeal the sentencing phase of the motion to adjudicate hearing. See Kahookele v. State, 189 S.W.3d 303, 304 (Tex.Crim.App.2006) (en banc); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006); TEX CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (Vernon Supp.2006).
[2] We note that the Court of Criminal Appeals has expressed its disapproval of our consideration of an affidavit attached to a motion filed with this court, which was not a part of our appellate record. See Jack v. State, 149 S.W.3d 119, 121 n. 1 (Tex.Crim.App.2004) (Jack III).
[3] The trial court's findings of fact following the abatement hearing stated,
FINDINGS OF FACT
. . .
2. Attorney Jeff Hale was appointed to represent the defendant.
3. Attorney Jeff Hale represented the defendant at his jury trial.
4. On July 6, 2000, the defendant was convicted. . . .
5. On July 6, 2000, a pro se Notice of Appeal was filed. The Notice of Appeal was completed by Mr. Hale and signed by the defendant at Mr. Hale's instruction.
6. Mr. Hale did not discuss the merits and/or grounds for a Motion for New Trial with the defendant.
7. Mr. Hale told the defendant that he no longer represented the defendant and that appellate counsel would be appointed.
8. The court staff advised Mr. Hale that he no longer represented the defendant and that appellate counsel would be appointed.
9. Mr. Hale did not speak with or in any way counsel the defendant after July 6, 2000.
10. Mr. Hale believed his duties were completed with the end of the jury trial on July 6, 2000.
11. The defendant was not aware of the 30-day time limit for filing a motion for new trial.
12. The defendant relied on Mr. Hale's assurance that the court would appoint appellate counsel.
13. The defendant was not aware of his appellate rights and did not attempt to represent himself.
14. On September 13, 2000, appellate counsel, Mary Acosta, was appointed.
Jack v. State, 64 S.W.3d 694, 695-96 (Tex. App.-Houston [1st Dist.] 2002, pet. dism'd) (Jack II).
[4] Rule 2 of the Rules of Appellate Procedure reads:
On a party's motion or on its own initiative an appellate court may to expedite a decision or for other good cause suspend a rule's operation in a particular case and order a different procedure; but a court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case.
TEX.R.APP. P. 2.
[5] Although we do not abate the appeal, we note that a defendant may develop a record of ineffective assistance of trial counsel or lack of counsel during the post-judgment phase through habeas corpus proceedings. As the Court of Criminal Appeals has previously stated, "[W]hen direct appeal has not provided an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, we will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal." Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998); Ex Parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997) (en banc). Therefore, although Justice Cohen noted in his dissenting opinion that, "In every Jack hearing so far, the evidence has shown that the defendant was denied his constitutional right to counsel during that critical stage of proceedings," see Jack II, 64 S.W.3d at 698 at 698, we note that this evidence could alternatively have been gathered in a habeas corpus proceeding.
[6] Intermediate Texas courts of appeals are split regarding this type of abatement procedure. Waco and Amarillo have abated cases. See, e.g., In re K.K., 180 S.W.3d 681, 681 (Tex.App.-Waco 2005, no pet.) (abating parental rights termination proceedings); Salazar v. State, No. 07-04-0090-CR, 2004 WL 2608303 *1 (Tex.App.-Amarillo 2004) (not designated for publication). But other courts have not. See Hardge v. State, No. 14-00-01095-CR, 2001 WL 1340546 *1 n. 1 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Yarbrough v. State, 57 S.W.3d 611, 616 (Tex.App.-Texarkana 2001, no pet.).
[1] "Catch-22" is defined as "a dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions." THE NEW OXFORD AMERICAN DICTIONARY 270 (1st ed.2001). It originates from the title of the novel authored by Joseph Heller.
[2] In fact, as noted by the majority, this Court, after the case had already been submitted on May 23, 2006, ordered sua sponte an abatement as used in Jack I on July 19, 2006. Only then did the State challenge this Court's sua sponte order.
[3] As Joseph Heller wrote in Catch-22:
[Captain] Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle. "That's some catch, that Catch-22," he observed.
"It's the best there is," Doc Daneeka agreed.
JOSEPH HELLER, CATCH-22 46 (Simon & Schuster 2004) (1961). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574072/ | 224 S.W.3d 787 (2007)
Vera Fay HAVELKA, Appellant,
v.
STATE of Texas, Appellee.
No. 11-05-00183-CR.
Court of Appeals of Texas, Eastland.
May 3, 2007.
*788 Marty Cannedy, Wichita Falls, for appellant.
Michael E. Fouts, Dist. Atty., Haskell, for appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
OPINION
JIM R. WRIGHT, Chief Justice.
The jury convicted Vera Fay Havelka of unlawful use of a criminal instrument. TEX. PEN.CODE ANN. § 16.01 (Vernon 2003). The trial court assessed punishment at two years imprisonment, probated for five years, and a fine of $2,400. The judgment of the trial court is modified to reflect that the conviction is a Class A misdemeanor. As modified, the judgment is affirmed as to the conviction. The portion of the judgment assessing punishment is reversed, and the cause is remanded for a new trial as to punishment only.
In her first two issues on appeal, appellant argues that the evidence is both legally and factually insufficient to support the verdict. Appellant asserts in her third issue that, if convicted at all, she should have been convicted of no more than a Class A misdemeanor.
To determine if the evidence is legally sufficient, we must review 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. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Crim. App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.App.2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses' testimony. TEX.CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
Ammonia is a hazardous chemical compound rich in nitrogen that is used as fertilizer in farming operations. Anhydrous ammonia is a form in which it is *789 used. "Anhydrous" simply means that the ammonia is not mixed with water. Normally, after it leaves the vendor's storage facility, anhydrous ammonia is stored in tanks in areas close to where it will be used.
Anhydrous ammonia is also used in the illegal manufacture of methamphetamine. Sometimes anhydrous ammonia is stolen from field tanks on the farms. One method of stealing the anhydrous ammonia involves the use of empty, smaller propane tanks.[1] The smaller tanks require modification before they can be used to steal and transport anhydrous ammonia. Tape is placed around the threads of a soda bottle, and the soda bottle is screwed into a hole in the propane tank. That bottle is then used to function as a funnel in filling the propane tank from the larger field tank. When the smaller tank has been filled, the soda bottle is removed, and a water faucet is screwed into the tank in its place.
On June 12, 2004, Haskell County Deputy Sheriff Winston Stephens was at a rural location conducting surveillance in connection with some thefts of anhydrous ammonia from field tanks. There had been twelve prior thefts of anhydrous ammonia from the tanks. At about 2:00 a.m., while Deputy Stephens was conducting his surveillance, he noticed that someone was driving into the area. He saw the headlights of the vehicle. He drove up to the moving vehicle, a pickup. He saw several containers in the back of the pickup. Deputy Stephens recognized the containers as being the type used to steal anhydrous ammonia, and he stopped the vehicle. Appellant told Deputy Stephens that one of the containers he had seen was a gas tank and that the other was a water tank.
Although there was nothing in the area except for the tanks and an uninhabited house, appellant told Deputy Stephens that they were on the way to the town of Throckmorton. The evidence shows that the road led to the tanks, not to Throckmorton.
Deputy Stephens saw something that was covered up on the passenger's side of the pickup. Appellant's passenger denied knowing what it was. When the passenger uncovered it, Deputy Stephens found a propane tank with a hole in it and a soda bottle screwed into the top of it, like the ones used to steal anhydrous ammonia.
Deputy Stephens arrested appellant and the passenger. Other items were located during an inventory search of the pickup, including an outside water faucet wrapped in the same tape as the soda bottle on the propane tank, a pipe wrench, and flashlights. The faucet had a bluish-green discoloration, a reaction associated with oxidation that occurs during the handling of anhydrous ammonia.
Appellant asserts that the evidence is legally insufficient because "the State must produce evidence that affirmatively links the contraband to [a]ppellant in such a way that a reasonable inference may arise that the defendant knew of its existence and exercised control over it." The "links" rule is not an independent test for legal sufficiency but is merely a shorthand catchphrase for the myriad variety of circumstantial evidence that may establish knowing "possession" or "control, management, or care" of contraband. Evans v. State, 202 S.W.3d 158, 161-62 n. 9 (Tex. Crim.App.2006). A nonexclusive list of factors that may circumstantially establish the legal sufficiency of the evidence to *790 prove a knowing possession include the following: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. at 162 n. 12.
After reviewing the evidence in the light most favorable to the jury's verdict, we hold that it is legally sufficient to support the conviction. We also hold that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. The evidence is legally and factually sufficient to support the judgment. Appellant's first two issues on appeal are overruled.
A grand jury indicted appellant for possession of a propane tank modified so that it would serve to receive anhydrous ammonia for use in the manufacturing of methamphetamine.[2] The grand jury indicted appellant under Section 16.01 of the Texas Penal Code. That section contains the following language:
(a) A person commits an offense if:
(1) he possesses a criminal instrument with intent to use it in the commission of an offense.
. . . .
(c) An offense under Subsection (a)(1) is one category lower than the offense intended. An offense under Subsection (a)(2) is a state jail felony.
Section 16.01(a)(1), (c).
At the outset, we note that neither party has provided, nor have we been able to locate, any case in which this statute was used in a prosecution in a case of this nature. This prosecution involves Section 16.01(a)(1). Section 16.01(c) informs us that an offense under 16.01(a)(1) is one category lower than the offense intended. If the offense had been under 16.01(a)(2), the statute makes it clear that the offense would have been a state jail felony. Rather than determine the punishment applicable to a conviction for this crime, we must first determine the grade of the offense. The offense in which the criminal instrument would be used in this case is the illegal manufacture of methamphetamine.[3]
*791 TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2003) addresses the various levels of offenses involving the manufacture, delivery, or possession with intent to deliver methamphetamine. The most serious offense is one punishable for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more. There are other intermediate offenses, all of which provide for a punishment dependent upon the amount of methamphetamine manufactured, delivered, or possessed with the intent to deliver. The least serious offense is a state jail felony if the amount is less than one gram.
The proof contemplated in Section 481.112 involves, in part, the amount of the methamphetamine manufactured, delivered, or possessed with the intent to deliver. The offense in this case, possession of a criminal instrument, is one degree less than the offense for which the use of the criminal instrument is intended. The classification of this offense, therefore, depends upon how much methamphetamine appellant intended to manufacture. There is no evidence, nor can there in reason be any evidence, regarding the amount of methamphetamine to be manufactured. Under these circumstances and under the statute, it would be rare indeed that such proof would be available.
When the classification of a controlled substance offense is dependent upon the amount of the controlled substance, the amount need not be pleaded and proven to sustain a conviction for the lowest classification. Stockton v. State, 756 S.W.2d 873 (Tex.App.-Austin 1988, no writ) (citing Suarez v. State, 532 S.W.2d 602 (Tex.Crim.App.1976)). The lowest classification for the manufacture of methamphetamine is a state jail felony. Section 16.01(c) provides that possession of a criminal instrument should be one degree less than the offense intended. In the absence of proof of the amount intended to be manufactured, which would be difficult to prove at best, manufacture of methamphetamine would be classified as a state jail felony. One degree less than that would be a Class A misdemeanor. Appellant was convicted of a state jail felony; appellant should have been convicted of a Class A misdemeanor. Appellant's third issue is sustained.
The judgment of the trial court is modified to reflect that the conviction is a Class A misdemeanor. As modified, the judgment is affirmed as to the conviction. The portion of the judgment assessing punishment is reversed, and the cause is remanded for a new trial as to punishment only.
NOTES
[1] We note that the tank in the record is referred to both as a butane tank and a propane tank. Appellant was indicted for possession of a propane tank modified to receive anhydrous ammonia.
[2] The indictment charges that appellant:
[W]ith intent to use it in the commission of an offense, namely, Manufacture of a Controlled Substance, namely Methamphetamine, intentionally or knowingly possess a criminal instrument, to-wit: a propane tank modified so that it would serve to receive anhydrous ammonia, that was specially designed, made, or adapted for use in the commission of said offense.
[3] We note that the indictment in this case did not charge appellant with possession of the tank with intent to commit an offense under TEX. HEALTH & SAFETY CODE ANN. § 481.124 (Vernon Supp.2006) (possession of anhydrous ammonia with intent to manufacture methamphetamine). Under Section 481.124, the possession of anhydrous ammonia in a container that is not designed to hold anhydrous ammonia is a second-degree felony. Therefore, if appellant had been charged with possessing the tank with intent to possess or transport anhydrous ammonia, the offense in this case would have been a third-degree felony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918105/ | 272 So. 2d 837 (1973)
H. Jefferson MILLS, Jr. and Valerie B. Mills, His Wife, Appellants,
v.
ROBERT W. GOTTFRIED, INC., a Florida Corporation, Appellee.
No. 72-102.
District Court of Appeal of Florida, Fourth District.
February 12, 1973.
*838 James S. Robinson, of Sullivan & Robinson, West Palm Beach, and Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellants.
Elwyn L. Middleton, of Burns, Middleton, Farrell & Faust, Palm Beach, for appellee.
REED, Chief Judge.
This is an interlocutory appeal from an order of the Circuit Court for Palm Beach County, Florida, in a suit to foreclose a statutory mechanic's lien.
The plaintiff, Robert W. Gottfried, Inc., alleged in its complaint that it fully performed a written contract with the defendants under which it was required to construct a home for the defendants on real property in Palm Beach County, Florida. The complaint averred that final payment was due the plaintiff in the amount of $37,478.26. The relief sought was an adjudication of the amount due the plaintiff from the defendants, the declaration of a mechanic's lien for that amount, and the foreclosure of the lien in the event payment of the amount found due was not made by a short day.
Instead of answering the complaint, the defendants filed a motion to dismiss on the ground that the trial court lacked jurisdiction. The motion asked in the alternative for an order directing the plaintiff to arbitrate its claim. The trial court denied the motion, and the defendants perfected this appeal.
The motion to dismiss on the ground that the trial court lacked jurisdiction was without merit. The complaint which was taken as admitted at the motion stage of the proceedings clearly indicates that the plaintiff was seeking to foreclose a statutory mechanic's lien on real property, under Chapter 713, F.S. 1971, F.S.A. Jurisdiction to hear and decide such an action is vested in the circuit court by Article V, subsection 6(3), Florida Constitution of 1885, as amended, and is continued in that court by the newly adopted Article V which became generally effective in January of 1973.
Insofar as the alternative relief sought by the motion, that is, an order for arbitration, a closer question is presented. The contract between the plaintiff and the defendants provided:
"All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise... ."
These provisions for arbitration are not contrary to the public policy of this state (see Section 682.02, F.S. 1971, F.S.A.) and should be enforced in accordance with the Florida Arbitration Code, Chapter 682, F.S. 1971, F.S.A. However, both the agreement and the Florida Arbitration Code contemplate the submission to arbitration of real controversies not questions simply of academic interest. When the motion to dismiss was filed in the present case, there was no controversy to submit to arbitration. As noted above, the defendants' answer had not been filed. Hence, all the trial judge had before him was an uncontroverted claim for the payment of a sum certain and a demand for a lien to enforce the payment. The trial judge, therefore, did not err in denying the defendants' alternative motion for arbitration.
To avoid a further appeal in this cause, we take the liberty of expressing the view that if after remand and the filing of defensive pleadings, a controversy between the parties should appear either as to the plaintiff's right to final payment or the amount thereof, an application may be made to the trial court in accordance with Section 682.03(2), F.S. 1971, F.S.A., for an order for arbitration. Normally such an application should be granted. The order *839 for arbitration should stay the judicial proceedings pending a determination of the controversy submitted to arbitration (see Section 682.03(3)). Once the arbitration is completed, the trial court may on motion of either party dissolve the stay order and proceed to confirm, vacate, or modify the award in accordance with Sections 682.12-682.14, F.S. 1971, F.S.A., and to enter a judgment in accordance with Section 682.15, F.S. 1971, F.S.A. Contemporaneously therewith, the court may adjudicate the right of the plaintiff to a mechanic's lien for the purpose of enforcing such judgment as plaintiff may obtain.
The right to a lien may be waived expressly or by implication, but before such an important right is deemed to have been waived by the implication of one's conduct, the implication should be clear and unambiguous. See Section 713.20, F.S. 1971, F.S.A., and cf. Fireman's Fund Insurance Co. v. Vogel, Fla.App. 1967, 195 So. 2d 20, 24. The present contract contains, insofar as we can tell, no express waiver of the contractor's right to assert a mechanic's lien. And, in our opinion, the mere execution of the contract containing the above-quoted arbitration provision did not clearly imply an intent to relinquish the contractor's right to the judicial enforcement of a mechanic's lien for amounts found due under the contract. Thus it follows that although the plaintiff may be required to arbitrate the issue of its entitlement to final payment and the amount thereof because of the arbitration agreement, the plaintiff still retains the right to enforce the amount ultimately determined to be due by means of a mechanic's lien, if plaintiff is otherwise entitled to such a lien.
We have not overlooked the two opinions by the Third District Court of Appeal which are pointed out in the appellee's brief, Cruger v. Allstate Insurance Company, Fla.App. 1964, 162 So. 2d 690 and Shearson, Hammill & Co. v. Vouis, Fla.App. 1971, 247 So. 2d 733. In Cruger v. Allstate Insurance Co., the Third District held that where the sole right of an insured to arbitrate depends on coverage of an insurance policy with respect to losses caused by an uninsured motorist, the insurance company had a right to obtain a declaratory judgment as to coverage and, as an incident to such determination, to have the trial court decide all other issues with regard to the rights and liabilities of the parties regardless of the contractual provisions in the policy for arbitration as to those rights and liabilities.
In Shearson, Hammill & Co. v. Vouis, supra, the Third District had before it a petition for certiorari to review an order of the trial court that refused to stay a common law tort action. The plaintiff's action was based on allegations of fraud and breach of fiduciary duty by the defendants in connection with certain stock purchases made by the plaintiff on a margin account with the defendant Shearson, Hammill & Co. The defendants moved the trial court for the entry of a stay pending arbitration. The trial court refused to stay the proceedings even though the margin contract between the plaintiff and defendant Shearson, Hammill & Co. provided:
"Any controversy arising out of or relating to my account ... shall be settled by arbitration."
This order was approved on appeal by the District Court on two grounds. The first was that arbitration of the issues of fraud and breach of fiduciary duty was not consistent with the policy and the language of the Florida Securities Law. The second was that the agreement to arbitrate future disputes could not be enforced because it was an attempt to oust the court's jurisdiction.
Respectfully, we decline to apply the rationale of those opinions to the present case because in our view the aforementioned opinions do not give effect to the intention of the legislature as expressed in F.S., Section 682.02, F.S.A. to accord legal recognition to contracts providing for arbitration, where those agreements do not *840 preclude application of the Florida Arbitration Code to the agreement to arbitrate, the arbitration, and the award under such agreement.
For the foregoing reasons, the order on appeal is affirmed and the cause is remanded to the trial court for further proceedings.
WALDEN and OWEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1004506/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4380
TERRY LEE CHURCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-99-222)
Argued: April 6, 2001
Decided: May 31, 2001
Before WIDENER and WILKINS, Circuit Judges, and
Patrick Michael DUFFY, United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kenneth Eugene Webb, Jr., BOWLES, RICE,
MCDAVID, GRAFF & LOVE, Charleston, West Virginia, for Appel-
lant. Susan Marie Arnold, Assistant United States Attorney, Charles-
ton, West Virginia, for Appellee. ON BRIEF: Charles M. Love, III,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
2 UNITED STATES v. CHURCH
Charleston, West Virginia; John A. Michelich, Senior Trial Attorney,
Criminal Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Terry Lee Church appeals from her conviction for
obstructing a bank investigation under 18 U.S.C. § 1517 and from the
sentence imposed on her by the district court.1 For the reasons set
forth below, we affirm.
I.
On June 21, 1999, the Office of the Comptroller of the Currency
and the Federal Deposit Insurance Corporation began an investigation
of the First National Bank of Keystone ("Bank") in Keystone, West
Virginia. Church was the Chief Operating Officer and Senior Vice
President of the Bank during this investigation. Church was in charge
of the daily operations of the Bank. On September 2, 1999, the FDIC
declared the bank insolvent and relieved Church of her responsibili-
ties at the Bank.
During the investigation, Church had directed bank employees to
alter records sought by bank investigators, provide some documents
while concealing others, and misrepresent to bank investigators cer-
tain bank transactions. Church also had ordered employees from her
1
Church’s co-defendant, Michael H. Graham, was convicted in the
same trial and sentenced. He filed a consolidated appeal with Church.
However, on November 20, 2000, we dismissed Graham’s appeal on his
motion under Rule 42(b) of the Federal Rules of Appellate Procedure.
UNITED STATES v. CHURCH 3
hardware store and her farm to assist bank employees in removing
and burying bank records from the bank and the storage in the school-
house on August 12 and 15, 1999. The bank investigators had
requested several types of bank records that were not provided or
were incomplete. Some of the requested documents were later seized
from Church’s property.
Following an excavation by federal investigators of bank records
and documents from Church’s farm near Keystone, a warrant was
issued for Church’s arrest on October 14, 1999. Church was charged
with one count of conspiracy to obstruct a bank investigation by fed-
eral agencies under 18 U.S.C. § 1517 and with two counts of obstruct-
ing a bank investigation on specific dates. The grand jury returned a
true bill on the three-count indictment against Church.
II.
Church first appeals from her conviction on the basis that 18
U.S.C. § 15172 is unconstitutionally vague. We disagree.
A.
We review de novo any ruling on the constitutionality of federal
statutes. A fundamental requirement of due process is that penal stat-
utes be written to put people of common intelligence on notice of the
particular types of conduct that the statute prohibits. See, e.g., United
States v. Lanier, 520 U.S. 259, 267 (1997). "‘The . . . principle is that
no [person] shall be held criminally responsible for conduct which
[that person] could not reasonably understand to be proscribed.’" Id.
at 265 (quoting Bouie v. City of Columbia, 378 U.S. 347, 351 (1964)
(internal quotation omitted)). The Supreme Court has noted "the
2
The statute reads in whole:
Whoever corruptly obstructs or attempts to obstruct any exami-
nation of a financial institution by an agency of the United States
with jurisdiction to conduct an examination of such financial
institution shall be fined under this title, imprisoned not more
than 5 years, or both.
18 U.S.C. § 1517.
4 UNITED STATES v. CHURCH
vagueness doctrine bars enforcement of ‘a statute which either forbids
or requires the doing of an act in terms so vague that [people] of com-
mon intelligence must necessarily guess at its meaning and differ as
to its application.’" Id. at 266 (quoting Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926)). However, criminal statutes are not
unconstitutional simply because the language may contribute to inter-
pretations in which reasonable minds may differ on particular applica-
tions, and the statute is sufficiently definite if "the common-sense
meaning" is clear. United States v. Powell, 423 U.S. 87, 93 (1975).
Church’s challenge to section 1517 is reviewed only as the statute
was applied to her. See Schleifer v. City of Charlottesville, 159 F.3d
843, 853 (4th Cir. 1998). "[V]agueness challenges to statutes which
do not involve First Amendment freedoms must be examined in the
light of the facts of the case at hand." United States v. Mazurie, 419
U.S. 544, 550 (1975); Parker v. Levy, 417 U.S. 733, 757 (1974). The
Supreme Court has noted "that the approach to ‘vagueness’ governing
a case like this is different from that followed in cases arising under
the First Amendment. There we are concerned with the vagueness of
the statute ‘on its face’ because such vagueness may in itself deter
constitutionally protected and socially desirable conduct." United
States v. National Dairy Products Corp., 372 U.S. 29, 31-32, 36
(1963).
Church argues that section 1517 as applied to her was unconstitu-
tionally vague. No appellate court has reported a case addressing the
constitutionality of section 1517. Section 1517 is one of the federal
obstruction-of-justice statutes. See 18 U.S.C. §§ 1501-1518; United
States v. Aguilar, 515 U.S. 593 (1995) (setting forth specific elements
required to satisfy 18 U.S.C. § 1503, which is the most broadly
worded obstruction-of-justice statute).
In Aguilar, the Supreme Court reversed a conviction for obstruc-
tion of justice under section 15033 as applied in that case. The govern-
3
Section 1503(a) states in relevant part:
Whoever . . . corruptly or by threats or force, or by any threaten-
ing letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administra-
tion of justice, shall be punished as provided in subsection (b).
...
UNITED STATES v. CHURCH 5
ment’s evidence was insufficient to show that the defendant’s false
statements to FBI agents were intended to obstruct a judicial proceed-
ing. In fact, the government in Aguilar did not prove that the defen-
dant knew his false statements to the FBI would be communicated to
the grand jury.
The Supreme Court held that in order to convict under section
1503, the government need not demonstrate that justice was in fact
obstructed but must prove only that "the endeavor [has] the natural
and probable effect of interfering with the due administration of jus-
tice." United States v. Aguilar, 515 U.S. 593, 599 (1995) (internal
quotes omitted). In addition, the substance of the defendant’s obstruc-
tion need not be material to the bank investigation. Here, in contrast
to Aguilar, the government proved Church instructed employees to
fraudulently hide, destroy, and manufacture bank records for the pur-
pose of obstructing the investigation. The Government also proved
Church directed her actions at the investigation.
The vagueness "doctrine incorporates notions of fair notice or
warning. Moreover, it requires legislatures to set reasonably clear
guidelines for law enforcement officials and triers of fact in order to
prevent ‘arbitrary and discriminatory enforcement.’" Parker v. Levy,
417 U.S. 733, 752 (1974) (quoting Smith v. Goguen, 415 U.S. 566,
572-73 (1974)). In analyzing a statute’s vagueness, the court should
assume the statute reads as the courts have previously interpreted it
and that it is properly applied to the appellant. Then, the reviewing
court should determine in that light whether the statute is too vague
and indefinite. See Wainwright v. Stone, 414 U.S. 21, 22-23 (1973).
Section 1517 is unambiguous in the light imposed by Wainwright.
The terms and judicial constructions of a statute may make it apply
unquestionably to certain activities, and yet its application to other
activities may remain uncertain due to the absence of a stated stan-
dard for inclusion or exclusion of activities from its scope. Smith v.
Goguen, 415 U.S. at 577-578. We look only for a violation of consti-
tutional protections, and the statutory language is not vague in pro-
scribing her corrupt obstruction of the bank investigation which the
Government proved at trial.
Church relies heavily on United States v. Poindexter, 951 F.2d 369,
379 (D.C. Cir. 1991), wherein the District of Columbia Circuit Court
6 UNITED STATES v. CHURCH
found that the Government could not constitutionally convict
Poindexter under section 15054 for his own independent lies to Con-
gress. In Poindexter, the court observed that the term "corruptly," as
used in section 1505, mandates a transitive interpretation as opposed
to an intransitive interpretation. Id. at 377-86. Poindexter was only
charged with lying to Congress, a clearly intransitive act which is not
covered by the statute under the court’s construction of that statute.
Thus, the court found section 1505 was vague as it was applied to
Poindexter’s actions in that case, but the court expressly approved an
interpretation of section 1505 that outlawed conduct "‘corrupting’
another person by influencing him to violate his legal duty."
Poindexter, 951 F.2d at 379.
The D.C. Circuit reviewed its decision in Poindexter in light of
another obstruction-of-justice statute, 18 U.S.C. § 1512,5 and found
the same language was not unconstitutionally vague under different
factual circumstances:
While we agree that the two statutes are sufficiently similar
to support a "transitive" reading of the word "corruptly" in
§ 1512(b), we disagree with Morrison’s claim that his con-
duct could not still fall under the statutory ban. . . . Morrison
4
Section 1505 states in the relevant part:
Whoever corruptly, or by threats or force, or by any threatening
letter or communication influences, obstructs, or impedes or
endeavors to influence, obstruct, or impede the due and proper
administration of the law under which any pending proceeding
is being had before any department or agency of the United
States . . . .
5
Section 1512(b) states in relevant part:
Whoever . . . corruptly persuades another person, or attempts to
do so, or engages in misleading conduct toward another person,
with intent to—
(1) influence, delay, or prevent the testimony of any person in
an official proceeding; [or]
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document,
or other object, from an official proceeding . . . .
UNITED STATES v. CHURCH 7
tried to "corrupt" Doris Holmes by exhorting her to violate
her legal duty to testify truthfully in court.
United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996); see
also United States v. Shotts, 145 F.3d 1289, 1301 & n.24 (11th Cir.
1998).
We believe section 1517 is not vague as applied in this case. The
legislative history of "corruptly" in section 1517 states:
The requirement that the obstruction, or attempted
obstruction, be done corruptly means that the conduct must
be engaged in voluntarily and intentionally, and with the bad
purpose of accomplishing either an unlawful end or result,
or a lawful end or result by some unlawful method or
means. The motive to act corruptly is ordinarily a hope or
expectation of either financial gain or other benefit to one’s
self, or some aid or profit or benefit to another.
H.R. Rep. No. 681(I), 101st Cong., 2nd Sess., 174 n.5, reprinted in
U.S.C.C.A.N. 6472, 6580. Church’s actions met this requirement that
the obstruction was done "corruptly". The record shows that Church
enlisted Graham and other employees to lie to the Government
agents, to falsify documents, and to assist in the transportation and
burial of bank records sought in the investigation. Such conduct falls
squarely within the common-sense meaning of section 1517. There-
fore, Church’s conviction cannot be reversed on the grounds that the
statute is unconstitutionally vague as applied to Church’s conduct. See
also United States v. Kelley, 36 F.3d 1118, 1127-28 (D.C. Cir. 1994).
The evidence showed that Church not only failed to comply with
the subpoena and represented that she had complied with all requests,
but it also showed she directed employees to alter records sought by
bank investigators and conceal documents. The altered and concealed
records were unmistakably relevant to the grand jury’s investigation
and were probative of whether the bank was insolvent. By withhold-
ing those documents, Church materially obstructed the grand jury’s
investigation. "[T]he destruction or concealment of documents can
fall within the prohibition" of section 1503 when done with the requi-
site corrupt motive." United States v. Rasheed, 663 F.2d 843, 852 (9th
8 UNITED STATES v. CHURCH
Cir. 1981). In Rasheed, that corrupt motive was supplied when the act
is done "with the purpose of obstructing justice." Id. The evidence in
this case was more than sufficient to sustain a verdict that Church
deliberately concealed material portions of the subpoenaed documents
with the corrupt motive of obstructing the bank investigation. There-
fore, her challenge to the conviction under section 1517 must fail.
Church also argues that the statute as applied to her may now be
applied to almost any act that has the effect of obstructing bank audits
by the FDIC. Based on this alleged overreach of the statute, Church
urges this Court to find "corruptly" in the statute is void for vague-
ness. "Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a statute may con-
stitutionally be applied will not be heard to challenge that statute on
the ground that it may conceivably be applied unconstitutionally to
others, in other situations not before the Court." Broadrick v. Okla-
homa, 413 U.S. 601, 610 (1973). Under the statute, Church’s conduct
clearly may be prosecuted. In this appeal, we are only concerned
whether Church’s constitutional protections were violated by the stat-
ute’s application to her. Because Church was fairly on notice that her
conduct was prohibited by the statute and evidenced the requisite cor-
rupt intent, this Court finds the statute was not unconstitutionally
vague. Whatever limits may be placed upon the scope of section 1517
by the rules of statutory construction or the vagueness doctrine of
constitutional law, those limits do not preclude a conviction in this
case.
B.
We find Church’s remaining grounds on appeal meritless. First, the
indictment is sufficient because it contained the elements of the
offense intended to be charged and sufficiently informed Church of
the crimes with which the government charged her so she could ade-
quately prepare a defense and could plead the judgment as a bar to
any subsequent prosecution for the same offense. United States v.
Debrow, 346 U.S. 374 (1953); Hagner v. United States, 285 U.S. 427
(1932); United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994);
United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967). Second, no
appellate court has recognized or implemented a "presumption of cor-
UNITED STATES v. CHURCH 9
6
ruptness" for any obstruction-of-justice statute, and the district court
properly instructed the jury without applying a "presumption of cor-
ruptness." Third, "[w]here, as here, a motion for judgment of acquittal
is based on insufficiency of the evidence, the conviction must be sus-
tained if the evidence, when viewed in the light most favorable to the
Government, is sufficient for any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt." United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). The record below
is replete with evidence, direct and circumstantial, that supports the
deferential standard of reviewing whether Church corruptly
obstructed or attempted to obstruct the bank investigation. Fourth, the
evidence about which Church complains does not present any abuse
of discretion which would warrant reversing the district court’s rul-
ings. See Scales v. United States, 367 U.S. 203, 256 (1961); United
States v. Obi, 239 F.3d 662, 667 (4th Cir. 2001). Fifth and for
Church’s sentencing only, the district court explicitly found by a pre-
ponderance of the evidence that Church "willfully gave material false
testimony under oath on the witness stand here in this courtroom" and
"substantial[ly] interfered with the administration of justice," and the
record supports the district court’s findings. Church’s sentencing
enhancement for obstruction of justice is not error. See United States
v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
CONCLUSION
For the reasons stated herein, we affirm Church’s conviction and
sentence.
AFFIRMED
6
The term "presumption of corruptness" appears nowhere on computer
databases of federal cases and is apparently contrived by Church in this
appeal. | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/315352/ | 488 F.2d 89
Antonios ORGETTAS, Appellant,v.Liberian S/T CRINIS, her boats, engines, tackle, apparel,etc., Liberian S/T NEFELI, her boats, engines, tackle,apparel, etc., and Mara Steamship Co., S.A., PolarisSteamship Co., S.A., Boyd, Weir & Sewell Inc., and Andreadis(U.K.) Ltd., all foreign corporations or associations, andStratis G. Andreadis, a non-resident, as owners and/oroperators of the Liberian S/T Crinis and the Liberian S/TNefeli and Dimitrios Pitaoulis and John Doe, bothnon-residents, individually and as Masters of the LiberianS/T Crinis and the Liberian S/T Nefeli, Appellees.
No. 71-1180.
United States Court of Appeals,Fourth Circuit.
Argued Nov. 5, 1973.Decided Dec. 6, 1973.
Burt M. Morewitz, Newport News, Va., for appellant.
Virgil S. Gore, Jr., Norfolk, Va. (John R. Crumpler, Jr., and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellees.
Before CLARK, Associate Justice, Retired, Supreme Court,* HAYNSWORTH, Chief Judge, and CRAVEN, Circuit Judge.
PER CURIAM:
1
We heard seaman Orgettas' prior appeal from the refusal of the district court to exercise its admiralty jurisdiction on August 31, 1971, and upon stipulation of the respondents that they would voluntarily enter a general appearance in the appropriate Greek court and consent to a trial there, we vacated the district court's order declining jurisdiction and remanded the case for retention on the docket pending consummation of respondents' agreement.
2
On this second appeal it now appears that the agreement has been fully consummated. The Greek court entertained the suit by Orgettas against Mara Steamship Corporation on the merits and concluded that Greek law, rather than the law of the flag (Liberia), applied because the original employment contract between Orgettas and Mara was entered upon in Greece. The Greek court further held that Orgettas was not entitled to recover under Greek law for having allegedly contracted tuberculosis during his employment as a seaman aboard the CRINIS.1
3
Having lost in Greece, Orgettas returned to the United States district court, and that court again declined to exercise admiralty jurisdiction.
4
Absence of another forum in which a seaman can receive a hearing on the merits is "a persuasive argument for exercising a discretionary jurisdiction to adjudge a controversy." Gkiafis v. Steamship YIOSONAS, 387 F.2d 460, 462-463 (4th Cir. 1967), quoting Lauritzen v. Larsen, 345 U.S. 571, 589-590 (1953). But here respondents made a Greek forum available. Moreover, and more importantly, there is here not even one significant contact between the foreign seaman and the United States. See, e. g., Heros v. Cockinos, 177 F.2d 570 (4th Cir. 1949); The Fletero v. Arias, 206 F.2d 267 (4th Cir. 1953). To require the district court to exercise jurisdiction under these circumstances would make such jurisdiction compulsory rather than discretionary. See Heredia v. Davies, 12 F.2d 500 (4th Cir. 1926). The district court has not exercised its discretion "on wrong principles" nor has it "acted so absolutely differently" from the view which this court holds that we are justified in saying such discretion has been exercised wrongly. The BELGENLAND v. Jensen, 114 U.S. 355, 368, 5 S.Ct. 860, 29 L.Ed. 152 (1885).
5
Affirmed.
*
Sitting by Designation
1
As to the respondent, Polaris Steamship Corporation (the NEFELI), the Greek court held that it lacked jurisdiction because, unlike the contract with Mara, the contract between Orgettas and Polaris was not signed in Greece and there were insufficient other contacts with Greece to bring the claim within the Greek court's jurisdiction. Since the claim asserted against Polaris is identical with that asserted against Mara it seems reasonable to assume that had the Greek court exercised jurisdiction the result on the merits would have been the same, i. e., a declaration that Greek law applied and that it afforded Orgettas no relief | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2585136/ | 187 P.3d 751 (2008)
EDENHOLM
v.
FLYTRAP NETWORK SEC., INC.
No. 81088-5.
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/1574193/ | 17 So.3d 299 (2009)
MANCIAS
v.
STATE.
No. 3D09-1674.
District Court of Appeal of Florida, Third District.
July 29, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3016984/ | _____________
No. 95-4119EA
_____________
United States of America, *
*
Appellee, *
*
v. *
*
Jerry Jobe, *
*
Appellant. *
Appeals from the United States
_____________ District Court for the Eastern
District of Arkansas.
No. 95-4141EA
_____________ [UNPUBLISHED]
United States of America, *
*
Appellee, *
*
v. *
*
Betty Obergfell Turner, *
*
Appellant. *
_____________
Submitted: May 17, 1996
Filed: June 5, 1996
_____________
Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
_____________
PER CURIAM.
Following their convictions for conspiracy, money laundering, and
illegal financial activity affecting interstate commerce, Jerry Jobe and
Betty Obergfell Turner appeal their convictions and sentences. Having
heard the parties' arguments and having considered the briefs and record,
we conclude that Jobe's and Turner's convictions and sentences should be
affirmed.
Jobe and Turner contend the evidence is insufficient to support the
jury's verdicts. Essentially, Jobe and Turner view the evidence in their
most favorable light and ignore the abundant evidence of their guilt.
Nevertheless, the record contains substantial evidence on which the jury
reasonably could have found Jobe and Turner guilty on all charges.
We also reject Jobe's and Turner's arguments about their sentences.
Their contention that the district court improperly denied them a downward
departure because their mine-run money laundering scheme falls outside the
heartland of money laundering is meritless. Likewise, we reject Turner's
contention that the district court improperly enhanced Turner's sentence
for abuse of a position of trust. Because the district court did not
violate law when imposing Jobe's and Turner's sentences within the
applicable guidelines range, or misapply the guidelines, we must affirm the
sentences. We also conclude the district court properly ordered Jobe and
Turner to pay restitution.
Having concluded the district court correctly resolved each of Jobe's
and Turner's claims and that an extended discussion of the issues will
serve no useful purpose, we affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3017006/ | __________
95-3078
__________
In re: Kenneth L. Kasden, *
*
Debtor. *
*
- - - - - - - - - - - - - *
*
Steiner and Saffer, *
* Appeal from the United States
Plaintiff/Appellee, * District Court for the
* District of Minnesota
v. * [PUBLISHED]
*
Kenneth L. Kasden, *
*
Defendant/Appellant. *
__________
Submitted: May 16, 1996
Filed: June 4, 1996
__________
Before MURPHY and ROSS, Circuit Judges, and VAN SICKLE, District Judge.*
__________
PER CURIAM.
Kenneth Kasden filed for protection under Chapter 7 of the Bankruptcy
Code in August 1994, and identified property located in Edina, Minnesota
as exempt homestead property. Steiner and Saffer, which is a judgment
creditor of Kasden, filed an objection to his
*The HONORABLE BRUCE M. VAN SICKLE, United States District
Judge for the District of North Dakota, sitting by
designation.
claimed homestead exemption,1 arguing that Kasden had lost his homestead
exemption to the property when he ceased to occupy it for more than six
months without filing notice as required by Minnesota Statute § 510.07.
Kasden has not resided on the property since it was damaged extensively by
fire in November 1993 and has not filed a homestead notice with the county
recorder.
The bankruptcy court denied the objection of Steiner and Saffer on
two grounds: that a person forced from homestead property due to casualty
has not ceased to occupy it within the meaning of the statute, and that
Kasden physically occupied the property, albeit not as a residence. The
2
district court reversed and remanded on the basis that Minnesota law does
not recognize a casualty exception to statutory abandonment, Joy v.
Cooperative Oil Ass'n, 360 N.W.2d 363, 366 (Minn. Ct. App. 1984) (en
banc), review denied (Minn. March 6, 1985) (owner absent from property more
than six months due to destruction of premises by fire lost homestead
exemption when he failed to file notice), and requires that a property
owner occupy the property as a residence to maintain a homestead exemption.
After careful review of the record before us and the arguments
raised, we conclude the district court correctly resolved the issues. The
order is affirmed. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The bankruptcy trustee also filed an objection to the
claimed exemption, but is not a party to this appeal.
2
The Honorable Donald D. Alsop, United States District Judge
for the District of Minnesota.
2 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3017012/ | _____________
No. 95-3260WM
_____________
Dennis Lee Etter, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
_____________
Submitted: May 15, 1996
Filed: June 4, 1996
_____________
Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
_____________
PER CURIAM.
Dennis Lee Etter appeals the district court's denial of Etter's 28
U.S.C. § 2255 motion. Etter contends his sentencing counsel was
ineffective because counsel failed to object to the classification of the
methamphetamine as d-methamphetamine, to the inclusion in the base offense
level calculation of the amount of methamphetamine distributed before
Etter's involvement in the conspiracy, and to the lack of a recommendation
in the presentence report for a mitigating-role reduction. Because Etter
waived these contentions by virtue of the stipulations in his written plea
agreement, we conclude counsel's failure to raise the objections Etter
purportedly asked him to raise could not have prejudiced Etter.
Specifically, Etter stipulated he was accountable for the amount of
methamphetamine attributed to him, and that he was not entitled to a
mitigating-role adjustment. Etter also agreed to a base offense level
derived from treating the substance involved as
d-methamphetamine. We thus affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3346117/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: 157 AND 158
The instant action involves a "property dispute" with respect to a parcel of land identified by colored markings on a map (Exhibit N).
This matter was resolved in favor of the defendant and judgment entered in his favor. Plaintiff appealed to the Appellate Court which affirmed the judgment. (Highland Associates LLC v. George Fohl et al.,62 Conn. App. 612). The plaintiff thereafter filed a Petition for Certification to the Supreme Court which was denied. (May 30, 2001) CT Page 12367
The Judgment file refers to Exhibit N and in effect incorporates said Exhibit by reference.
"A Judgment file consists of the writing out of the judgment for record, giving a history of the various steps in the action leading up to it, and it is prepared and signed at a time subsequent to the rendition of the judgment. A final judgment is the adjudication which finally disposes of the case before the court". State v. Moore, 158 Conn. 461,463.
Where as here the Judgment file refers to an Exhibit (N) which defines the area of land in dispute said Exhibit N is incorporated into the Judgment file and becomes an integral part thereof. A copy of said Exhibit is to remain a part of the court file.
The Judgment file including Exhibit N which is incorporated therein is a public record and available for review and/or copying and recording on the land records.
Plaintiff's counsel has manifested a desire to have all exhibits including Exhibit N returned to him.
The clerk's office is to retain all exhibits for 60 days so that defendant's counsel may copy same. Thereafter said exhibits may be returned to plaintiff's counsel.
By The Court
John C. Flanagan, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2585031/ | 187 P.3d 753 (2008)
STATE
v.
PHADNIS.
No. 80926-7.
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/3338688/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
The plaintiff B M Processing Company Inc., hereinafter (B M), a Connecticut Corporation with its principal place of business in South Windsor, brings this action in six counts against the defendant, Tonsha Business Systems Inc., hereinafter (Tonsha), also a Connecticut corporation with its principal place of business in South Windsor.
In the first count plaintiff alleges a breach of contract claiming that the parties entered into an agreement under which the defendant was to design and print certain materials known as presentation covers for the plaintiff. The plaintiff claims that the color and quality of these presentation covers were supposed to match exactly the color and quality of certain brochures that the defendant had previously had printed by the defendant. The plaintiff alleges that after examining two proofs, the defendant acknowledged that the quality and color of the presentation covers did not match the brochure but assured plaintiff that the final product would match the quality and color of the brochure and that relying upon this assurance the defendant was authorized to print the final presentation covers and that for this the plaintiffs paid the defendant a partial payment of $4,265.12. The plaintiff alleges a breach of agreement in that the color and quality of the covers do not match the brochure; that the plaintiff cannot use these covers for any purpose and that the plaintiff has suffered damages because of this breach.
In the second count the plaintiff repeats the allegations of the first count and in addition thereto notes that plaintiff delivered certain original artwork and other proprietary materials to the defendant to assist in the design and preparation of the printing of the presentation covers; that the defendant was a bailee and that defendant had refused to return this material to the plaintiff despite the plaintiff's demand; that such refusal is a breach of the agreement between the parties and as a result the plaintiff has been deprived of the value of the property and may be forced to recreate same to its loss and damage.
In the third count the plaintiff repeats all of the CT Page 3904 allegations of the first two counts and further alleges that the defendant's refusal to return the personal property after demand constitutes theft of the plaintiff's property within the meaning of General Statutes Section 52-564.
In the fourth count plaintiff alleges a breach of the covenant of good faith and fair dealing implied in the agreement.
The fifth count is a CUTPA action in which the plaintiff claims that the defendant's conduct constitutes an unfair deceptive practice in violation of § 42-110a of the Connecticut General Statutes. The plaintiff maintains that the defendant will not return the personal property and said refusal to return the artwork is wrongful because defendant knows that some or all of it is not related to the presentation cover job for which defendant claims a balance due and that the reason for refusing to return the artwork is a pretext designed to force the plaintiff to accept the presentation covers despite the defendant's breach of agreement and that the refusal to return said property constitutes an intentional violation of the plaintiff's rights to said personal property.
In the sixth count plaintiff alleges all of the facts mentioned above and in addition claims that the defendant was negligent in the performance of his duties to perform printing services in a workman-like and timely fashion and with that degree of care and skill required of other printers required in the area and as a result of the defendant's negligence the plaintiff has suffered damages.
The defendant has filed an answer in which it denies all of the pertinent allegations of the plaintiff's complaint and in addition thereto has filed a counterclaim in three counts. In the first count the defendant alleges a breach of contract by the plaintiffs in that the plaintiffs signed off on a proposal to print 5000 of the presentation covers for which the defendant was to be paid $6,552.92 and although the defendant has performed the work and the services provided for in said proposal the plaintiff has refused to pay the balance of $2,287.80 due defendant.
In the second count the defendant alleges a breach of the covenant of good faith and fair dealing in that the plaintiff CT Page 3905 was throughout the work fully informed and supplied with proofs of the work in progress and that the plaintiff was required to "sign off" approval of the work in progress before the defendant proceeded and that the plaintiff approved and accepted all the work performed on any subsequent phase of the work and that the plaintiff wrongfully refused to pay the balance due for work which it had authorized.
In the third count the defendant alleges a violation of § 42-110a (CUTPA) in that refusing to pay the balance due for the work which the plaintiff approved and authorized and demanding the presentation covers and other artwork produced in connection with the project was deceptive and a violation of the Unfair Trade Practices Act and that plaintiff's statements that the work was not produced to his requirements was false since the product had been previously approved by it.
The plaintiff has filed a reply in which it denies the allegations of the defendant.
The court having heard the parties believes that the following facts are true and arrives at the following conclusions. In July of 1994 the plaintiff, B M, and the defendant, Tonsha, entered into an agreement pursuant to which the defendant agreed to design and to print certain materials known as presentation covers for the plaintiff using artwork and other original materials supplied by the plaintiff. This agreement provided that the color and quality of the presentation cover would match the color and quality of certain brochures that the defendant had previously printed for the plaintiff which the plaintiff intended to use in conjunction with the presentation covers. A presentation cover is in the nature of a folder with a pocket which would house promotional materials for B M's use in the generation of new business. Between the months of June and September 1994 the plaintiff and defendant negotiated terms for the printing of the plaintiff's new presentation covers. Negotiations were conducted for the plaintiff by Mr. DeRose who came up from New York each time there was a conference with respect to the presentation covers. David Hand a vice president and creative director of the defendant's company conducted the principal negotiations for the defendant although he was joined at times by Sharon Fales president of the defendant Company. There was no written contract but it CT Page 3906 is undisputed that the defendant agreed to produce some 5000 presentation covers for which the plaintiff agreed to pay $5911.00. The anticipated delivery date was late October of 1994. Mr. DeRose had made it clear to the defendant that color was important and that he wanted the presentation covers to match the coloring in the brochures as closely as possible and this was understood by the defendant. Both parties realized that the presentation covers were to be used in conjunction with the brochures. In accordance with the terms of the agreement the plaintiff paid $4265.12 prior to printing of the covers.
The principal controversy in this case revolves around the issue of color. Color is subjective and numerous factors such as paper stock, ink, temperature, humidity and design will affect color. When DeRose first came in contact with Hand with respect to the issue of color Hand gave DeRose several choices including a two color process, use of foil and a four-color process. The last is that which was chosen by DeRose. The defendant provided the plaintiff with a proof which is Plaintiff's Exhibit No. 10 in which the colors in the proof closely approximated the colors in the brochure. This proof was returned with markings on two of the coupons and on the coupon redemption report. Each marking identifies a change in the background.
A second proof was submitted which again very closely approximated the coloring of the brochure. This proof was returned with three corrections. The first was on a coupon labeled "rebate". It has two notations which indicate that there was to be an addition to the red type. The second correction was the elimination of a white dot on the "redemption report" and the third indicated that a bar was to be added in the area that said "B M processing preliminary invoice list". On the back of this Exhibit D is a white label which states "OK — W/Green Bar added and Red correction". In conjunction with this proof a sign off sheet was returned signed by Mr. DeRose dated October 5, 1994. It calls for a quantity of 5000 and ink to be by a four color process. It contains a checkmark and an arrow next to the notation "OK to print as is". Beneath this is a line labeled "New proof wanted with changes". There is no check mark opposite this line. Under the label "Comments" just below the above mentioned lines is written the words "Green screen in top first color bar — beef up red". CT Page 3907
The defendant changed the coloring and proceeded to print 5000 of these presentation covers plus an overrun without having the changed covers examined by a representative from the plaintiff. These presentation covers were printed by another company not by Tonsha. Plaintiffs were not aware that the printing was going to be done by another company. They were under the impression that the printing would be done by Tonsha.
The final product which is marked as Exhibits 12 and 13 is substantially different in coloring from the first and second proofs and from the brochure. The difference is easily recognizable in such areas as the red markings around the logo which now is almost purple compared to the bright red of the original proofs and brochure. The entire presentation cover is substantially darker with the coupon redemption report being much less readable with the various blues and greens substantially darker than the proofs and the brochure. The overall background of the two coupons which were to have the backgrounds changed are substantially different from the proofs and the brochure. The colors on the first and second proofs very closely approximated the colors on the brochure. (Exhibit 3.)
If Derose had approved the proofs as prepared with only the addition of the "extra green bar" on the computer sheet, the final product would have matched the brochure very closely. In the opinion of the court it would be impossible to match the colors of the brochure exactly.
It was the obligation of the defendant to produce a commercially acceptable product i.e. one in which the colors match the brochure as closely as the printer was able to do. In this the defendant failed. All it had to do to produce an acceptable presentation cover was to add the green bar and the coupon redemption report eliminate a white spot in the green and make the red on the rebate coupon the same as the red in the brochure. This it could have done inasmuch as it had already done so in the bars around the logo and in the fifty cents redemption coupon. Instead it somehow changed its process and darkened everything considerably changing the bright red bars around the logo to a purple and changing the red in "migrainol" coupon to a much deeper tone than in the brochure. Not only was the overall aspect of the presentation CT Page 3908 cover darkened but the rebate coupon and the "save fifty cent" coupon were now entirely different colors with the blues practically eliminated.
The fact that the plaintiff's agent signed the so-called sign-off sheet and checked off "OK to print as is" is ineffective as a defense to printing the final product. It is obvious that it was not intended that the second proof be printed as is but was to be changed. It would be in accordance with acceptable printing practice to send a proof of such changes to the plaintiff before proceeding with the entire job.
In the opinion of this court the defendant has breached its agreement with the plaintiff by having produced a product which does not conform to the terms of the agreement i. e. an inferior product which did not match the colors of the brochure as closely as the defendant had already shown that it could so match the colors.
In the opinion of the court the defendant was also negligent in running off 5000 copies of the covers plus an overrun without having consulted with the plaintiff as to the final product.
While the plaintiff has alleged a loss of business because of the breach of contract and the negligence of the defendant the court is of the opinion that it has failed in its proof in this regard. The evidence submitted i.e. a comparison between the amount of business picked up during a period within which the old presentation covers were used and a period in which the newer colored presentation covers (printed for the plaintiff by another corporation) were used lacked any controls. While defendant testified that nothing else had changed there was no evidence offered to indicate that any individuals were influenced by the changes in the covers. There was no evidence submitted with respect to the natural growth of the business and there was no evidence as to what literature the presentation covers contained when they were distributed; to whom they were distributed; to what types of businesses, etc. And it was also clear on examination of the exhibits submitted that there were duplications, omissions and errors on the lists of customers as well as inconsistent data etc. CT Page 3909
In the opinion of the court the proven measure of damages in this case is the loss of the use of the money that the plaintiff spent in its attempt to have new brochures printed. The only evidence of the plaintiff's expense in negotiating for the presentation covers was the actual advance payment to the defendant in the amount of $4265.12. Accordingly judgment may enter for the plaintiff in the amount of $4265.12 plus interest on each payment made from the date it was made.
In the second count the plaintiff has alleged a breach of contract and the defendant's refusal to return certain artwork which was turned over to the defendant by the plaintiff for use in duplicating the artwork of the brochure. This is artwork which had been used originally to produce the brochure. Plaintiff has also alleged that the failure to turn over this artwork constitutes theft and violation of § 52-564
of the Connecticut General Statutes and in paragraph five the plaintiff has alleged that said refusal to turn over this artwork is a violation of § 42a-110 (CUTPA). In the opinion of this court this is the property of the plaintiff inasmuch as it was originally produced for the purposes of printing the brochure and was loaned to the defendant for purposes of printing the presentation cover. Since, the contract of the presentation cover was breached and the contract was not fulfilled in accordance with its terms the defendant has no claim to same and is herewith ordered to return same to the plaintiff forthwith.
With respect to the claim of theft the court finds there is no merit to this claim. There is insufficient evidence to indicate a sufficient intention to fit the matter within the statute and the same is true with respect to the CUTPA claim.
The defendant maintains in the counterclaim that the plaintiff breached the contract and seeks to have the plaintiff fulfill the contract or pay damages and is holding the artwork until the matter is resolved. With respect to the defendant's counterclaim the court finds no merit to any of the three counts. As indicated in the earlier portion of this opinion the defendant not the plaintiff is in breach of the contract. Judgment may enter for the plaintiff on the defendant's counterclaim. The artwork is to be returned and the defendant is to pay the judgment forthwith. CT Page 3910
Robert J. Hale State Judge Referee | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2750470/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1978
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Denise Suzel Harris
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 7, 2014
Filed: November 12, 2014
[Unpublished]
____________
Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.
____________
PER CURIAM.
Denise Harris directly appeals after she pled guilty to conspiracy charges and
the district court1 sentenced her below the calculated Guidelines range. Her counsel
1
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
has filed a brief under Anders v. California, 386 U.S. 738 (1967), acknowledging an
appeal waiver in Harris’s plea agreement and asserting arguments. Counsel has also
moved for leave to withdraw. Harris has filed a pro se supplemental brief challenging
her sentence.
After careful de novo review, we enforce the appeal waiver. See United States
v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (court should enforce appeal
waiver and dismiss appeal where it falls within scope of waiver, plea agreement and
waiver were entered into knowingly and voluntarily, and no miscarriage of justice
would result); see also United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)
(standard of review). We note that Harris’s statements under oath at the plea hearing
showed that she entered into both the plea agreement and the appeal waiver
knowingly and voluntarily. See Nguyen v. United States, 114 F.3d 699, 703 (8th Cir.
1997) (defendant’s statements made during plea hearing carry strong presumption of
verity).
Having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues outside the scope of the appeal
waiver. This appeal is dismissed, and counsel’s motion to withdraw is granted.
______________________________
-2- | 01-03-2023 | 11-12-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1918090/ | 993 A.2d 8 (2010)
2010 ME 33
STATE of Maine
v.
Gilbert E. TELFORD.
Docket: Oxf-09-36.
Supreme Judicial Court of Maine.
Argued: January 13, 2010.
Decided: April 8, 2010.
*9 Walter F. McKee, Esq., James A. Billings, Esq. (orally), Lipman, Katz & McKee, P.A., Augusta, ME, for Gilbert Telford.
Norman R. Croteau, District Attorney, Joseph M. O'Connor, Asst. Dist. Atty. (orally), South Paris, ME, Janet T. Mills, Attorney General, Donald W. Macomber, Asst. Atty. Gen., Augusta, ME, for State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and JABAR, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, LEVY, and MEAD, JJ.
Concurrence: SILVER, and JABAR, JJ.
MEAD, J.
[¶ 1] Gilbert E. Telford appeals from a judgment of the Superior Court (Oxford County, Cole, J.) amending the conditions of his probation by adding an additional condition at the request of his probation officer. Telford argues that the plea agreement he entered into with the State on the underlying indictment constituted a contract that the State could not breach by requesting additional probation conditions after the initial entry of judgment. We affirm the judgment amending the conditions of his probation.
I. BACKGROUND
[¶ 2] In January 2008, Telford pleaded guilty to an indictment charging him with possession of sexually explicit material (Class C), 17-A M.R.S. § 284(1)(C) (2009). Pursuant to a plea agreement, he was sentenced to five years imprisonment, with all but six months suspended, and six years of probation. Three special conditions of probation were imposed, forbidding Telford from possessing a personal computer, requiring that he forfeit the computer equipment used in the commission of his crime, and requiring him to comply with sex offender registration requirements. In July 2008, Telford's probation officer, who was not involved in the plea negotiations, moved to amend the conditions of probation by adding three new conditions: (1) that Telford complete a sex offender evaluation; (2) that he follow its recommendations; and (3) that he submit *10 to random searches for sexually explicit material. Telford opposed the motion.[1]
[¶ 3] The Superior Court held a hearing on the motion in January 2009, almost one year after sentencing. The State acknowledged that at Telford's sentencing hearing it failed to request the three conditions it now sought, agreed that the proposed new conditions were not part of the original sentence imposed by the court, and advised that Telford had complied with the terms of his probation thus far. Telford acknowledged that there were no specific plea negotiations ruling out the additional conditions. Telford's probation officer testified that he considered the existing conditions to be inadequate to allow proper supervision because he had no ability to determine the best services for Telford, and no mechanism for verifying that he was not in possession of a personal computer.
[¶ 4] The court concluded that the absence of the conditions sought by the probation officer was an inadvertent omission by the parties and granted the State's motion in part, ordering only that Telford complete a sex offender evaluation and that he submit to random searches for pornographic materials. It declined to order compliance with recommendations that might result from the evaluation, saying that it preferred to see the results before doing so. This appeal followed.
II. DISCUSSION
[¶ 5] Telford argues that his plea agreement with the State constituted a contract, and because the additional conditions of probation the State later sought were not part of that agreement, the Superior Court erred in imposing them. The State counters that the court's action was authorized by 17-A M.R.S. § 1202(2) (2009), and was not barred by our decision in State v. Russo, 2008 ME 31, 942 A.2d 694.
[¶ 6] The Legislature has explicitly provided for post-sentencing modification of conditions of probation, and for the early termination of probation altogether:
2. During the period of probation specified in the sentence . . . and upon application of a person on probation or the person's probation officer, or upon its own motion, the court may, after a hearing. . . modify the requirements imposed by the court . . . add further requirements authorized by section 1204 or relieve the person on probation of any requirement imposed by the court . . . that, in its opinion, imposes on the person an unreasonable burden.
. . . .
3. Once the period of probation has commenced, on motion of the probation officer, or of the person on probation, or on its own motion, the court may terminate at any time a period of probation and discharge the convicted person at any time earlier than that provided in the sentence . . . if warranted by the conduct of such person.
17-A M.R.S. § 1202(2), (3) (2009); see State v. Spencer, 2003 ME 112, ¶ 8, 831 A.2d 419, 421 ("A court addressing a motion to modify conditions of probation has three options. It may modify a condition, add a condition, or relieve the defendant from a condition entirely.").
[¶ 7] We have held that no change in circumstances or triggering action by the probationer is required before a court may add conditions of probation. See *11 State v. Collins, 681 A.2d 1168, 1170 (Me. 1996). Instead, "[w]hen presented with a request to modify a condition of probation, the trial court must find that the requested condition would advance one of the purposes set forth in [17-A M.R.S. § 1204]." Id. at 1170-71; see 17-A M.R.S. § 1202(2). The court's findings of fact in support of its decision to modify probation conditions are reviewed for clear error. Spencer, 2003 ME 112, ¶ 6, 831 A.2d at 421.
[¶ 8] Here the Superior Court ordered that Telford submit to a sex offender evaluation and to random searches for pornographic material after finding that "[t]his is a serious situation and I want to make sure that his rights are protected, but also that the public is protected." The court's concern was supported by information presented by the State at the original sentencing hearing and at the motion hearing that Telford's collection of child pornography was described by the Computer Crimes Task Force as the largest collection of child pornography it had encountered, consisting of some 7500 images and videos. The Legislature has specified that a court's broad sentencing authority includes the discretion to impose as a condition of probation "any . . . condition[] reasonably related to the rehabilitation of the convicted person or the public safety or security." 17-A M.R.S. § 1204(2-A)(M) (2009). On this record, the court did not err in finding that the additional conditions sought by the State satisfied the statute.
[¶ 9] Telford does not dispute that the additional conditions added by the court are reasonably related to the purposes of his probation. He contends, instead, that they could not be imposed because they were not part of his plea agreement with the State. Because the additional conditions advanced one of the purposes set forth in section 1204, the court's decision to add them was authorized by section 1202(2). 17-A M.R.S. §§ 1202(2), 1204(2-A)(M). Accordingly, the court's judgment will stand unless Telford is correct in asserting that contract analysis both trumps the statute and favors his position. Neither assertion is true.
[¶ 10] In State v. Russo, we reiterated that "[p]lea agreements are contracts and contract principles apply when interpreting them," before holding that on the facts of that case, the State's conduct constituted a "substantial breach" of the plea agreement. 2008 ME 31, ¶¶ 9, 14, 17, 942 A.2d at 697, 698, 699 (quotation marks omitted). In this case, the plea agreement is not implicated. Unlike the defendant in Russo, who was indicted after he bargained to avoid being indicted, Telford received precisely what he bargained for when he was sentenced, and the State has not sought to alter the original judgment.
[¶ 11] Section 1202(2) embodies a legislative determination that the State and the defendant in a criminal case both face the possibility that the terms or length of a probationary period may be changed after sentencing. Conditions of probation may be modified, added, or eliminated, or a court may terminate probation altogether. Spencer, 2003 ME 112, ¶ 8, 831 A.2d at 421; 17-A M.R.S. § 1202(3). Almost from the time of statehood, we have said that a party to a contract is bound by the terms of the law that govern the subject matter of the contract, regardless of whether the contract expressly refers to them.[2]
*12 [¶ 12] In this instance, Telford is presumed to have been aware when he entered into his plea agreement of the possibility that by operation of statute additional conditions could be added to his original conditions of probation, just as the State is presumed to have known that the original conditions could be deleted or Telford's probation terminated before it fully ran.[3] In contract terms, those possibilities were part of the bargain. Neither party can be heard to complain that one of the possibilities came to pass, so long as the Superior Court acted in accordance with section 1202(2). Because the court did act in accordance with the statute, Telford's argument that the imposition of additional conditions was barred because that action constituted a breach of the plea agreement fails.
The entry is:
Judgment affirmed.
JABAR, J., with whom SILVER, J., joins, concurring.
[¶ 13] I concur in and join the Court's decision to affirm the Superior Court's judgment. I agree with the Court that the trial court has the authority pursuant to 17-A M.R.S. § 1202(2) (2009) to entertain motions to amend conditions of probation and to impose special conditions of probation not imposed at the time of sentencing. I also agree that no change of circumstances is required for a court to grant a motion for additional conditions. See State v. Collins, 681 A.2d 1168, 1170 (Me.1996). However, I believe that when the defendant alleges that the addition of special conditions to his probation violates a plea agreement, the court must consider whether the imposition of these additional conditions would constitute a substantial breach of the plea agreement.
[¶ 14] Plea agreements are a significant part of the criminal justice system. State v. Russo, 2008 ME 31, 942 A.2d 694 and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) make this very clear. In Santobello, the United States Supreme Court stated:
This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
404 U.S. at 262, 92 S.Ct. 495. In Russo, we held that the express terms of a plea agreement must be upheld when the State commits a "substantial breach" of the *13 agreement. 2008 ME 31, ¶ 17, 942 A.2d at 699.
[¶ 15] Although contract principles apply when interpreting plea agreements, the real test is whether the defendant knowingly and voluntarily entered a guilty plea. See M.R.Crim. P. 11. The terms of the plea agreement are an essential component of this determination and are scrutinized more closely than commercial contracts "because the defendant's fundamental and constitutional rights are implicated." State v. Murphy, 2004 ME 118, ¶ 9, 861 A.2d 657, 661 (quotation marks omitted). If there is any ambiguity regarding the terms of the plea agreement, it is resolved in favor of the defendant. See id.; Russo, 2008 ME 31, ¶ 17, 942 A.2d at 699.
[¶ 16] In Santobello, the Supreme Court discussed the remedies that are available to a defendant whose plea agreement was violated. In some circumstances specific performance is a possibility, and in others the only remedy is the withdrawal of the guilty plea. Santobello, 404 U.S. at 263, 92 S.Ct. 495. The Santobello Court left it to the discretion of the trial court to decide whether there can be specific performance of the plea agreement or whether the defendant should be entitled to withdraw his plea. Id. at 262-63.
[¶ 17] Here, the Court states that Telford is presumed to have been aware of the possibility that additional conditions could be imposed. The Court indicates that unless the plea agreement specifically rules out the possibility of special conditions being added in the future, the State is free to request the addition of special conditions of probation.
[¶ 18] I do not believe that this is the practice between prosecutors and defense attorneys in this state. Neither the inclusion of specific conditions of probation nor the absence of special conditions of probation in plea agreements leaves the door open for the possibility that special conditions could be added in the future. Special conditions of probation may range from simple matters such as additional reporting requirements to onerous conditions such as house arrest. They could involve the defendant giving up his Fourth or Fifth Amendment rights. The number and type of special conditions that may be imposed in a particular case is expansive. The Court's decision will have a dramatic impact upon the present practice among prosecutors, defense counsel, and the trial courts in dealing with special conditions of probation that are part of plea agreements.
[¶ 19] Commonly, prosecutors and defense attorneys exchange letters in order to document the agreement reached between them and to explain the agreement to the court during the Rule 11 sentencing proceeding. Telford's attorney received a letter from the Assistant District Attorney documenting the agreement reached by the parties. The letter indicated that the State would recommend a special condition of probation, namely, that Telford could not possess a computer. Telford pleaded guilty in the Superior Court and during the Rule 11 sentencing proceeding, the court confirmed that there was a plea agreement and one of the provisions was that Telford would be placed on probation with a special condition. The possibility of additional future conditions is not contained in the prosecutor's letter documenting the plea agreement between the State and Telford, and it was not mentioned during Telford's Rule 11 sentencing proceeding.
[¶ 20] In this case, Telford did not get what he bargained for. The addition of a sex offender evaluation and random searches for sexually explicit material were not part of the plea agreement entered *14 into between Telford's attorney and the prosecution. Notwithstanding my belief that Telford did not get what he bargained for, the question that remains is whether the addition of special conditions represented a substantial breach of the plea agreement. See Russo, 2008 ME ¶ 31, 17, 942 A.2d at 699.
[¶ 21] Although Telford's attorney strenuously argued that the addition of the special conditions violated his plea agreement, I do not believe that the additional conditions would constitute a substantial breach of his plea agreement. The trial court did not make any specific findings regarding Telford's plea agreement except to state that the absence of a condition requiring a sex offender evaluation was "more of an omission considering the nature of the charges."
[¶ 22] Telford pleaded guilty to a Class C felony, possession of sexually explicit materials. Facing a maximum sentence of five years, Telford agreed to plead guilty in exchange for the State's recommendation that he receive a sentence of five years, with all but six months suspended. He was also put on probation for six years with a special condition that he not be allowed to possess a personal computer or related peripherals. In view of the potential sentence that he could have received, the addition of a sex offender evaluation and random searches for pornographic materials cannot be said to be a substantial breach of his plea agreement. Looking at the facts objectively, it is hard to imagine that Telford would not have entered into the plea agreement had these two conditions been required at the time of sentencing.
[¶ 23] Although I agree with the Court's decision to affirm the judgment, I do not agree with its analysis surrounding the trial court's obligation to ascertain whether or not a defendant's plea agreement has been violated. When deciding whether special conditions should be added to the defendant's probation, and when the defendant alleges that the requested conditions are in violation of a plea agreement, the trial court should always determine whether there is a substantial breach of the plea agreement. The court should not presume that the defendant is charged with the knowledge that special conditions may be added notwithstanding a plea agreement.
NOTES
[1] Telford has not sought to withdraw his plea or otherwise challenge the voluntary or knowing nature of his plea. He argues only that the probation officer's request for modification of the conditions of his probation cannot be countenanced by this Court.
[2] See Woodman v. Woodman, 3 Me. 350, 352-53 (1825) ("All persons are presumed to know the law; and they must govern themselves by legal principles in their contracts and transactions with each other; and by such principles must Courts be governed in the construction of these contracts, and in their decisions upon the rights of parties. . . ."); Howe v. Bradley, 19 Me. 31, 34 (1841) ("Parties are presumed to know and to make their contracts with reference to the state of the law at the time."); So. Boston Iron Co. v. Boston Locomotive Works, 51 Me. 585, 589 (1862) ("the party contracting is presumed to be conusant of the laws of the place where he is, and he must know that his contract is to be judged . . . according to those laws which are supposed to be an element in the contract itself").
[3] The record in this matter is devoid of any evidence suggesting that Telford was actually aware, or unaware, of this possibility. His counsel does not argue that a defendant's knowledge, or lack thereof, informs the issue before the Court. Maine Rule of Criminal Procedure 11 does not require that a sentencing court imposing a period of probation pursuant to a plea agreement explicitly advise a defendant that the original probation conditions may be changed by the court if statutory requirements are satisfied, and today's decision does not impose such a requirement. Nevertheless, best practices suggest that a court should advise a defendant of that not uncommon possibility, or ascertain that counsel has done so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918095/ | 272 So.2d 534 (1972)
EXCHANGE REALTY CORPORATION, a Florida Corporation, and the Exchange National Bank of Tampa, a National Banking Corporation, Appellants,
v.
HILLSBOROUGH COUNTY, Florida, et al., Appellees.
No. 71-86.
District Court of Appeal of Florida, Second District.
December 1, 1972.
Rehearing Denied February 21, 1973.
*535 C. Lawrence Stagg, of Holland & Knight, Tampa, for appellants.
Wm. Terrell Hodges, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee, R.R. Walden.
HOBSON, Acting Chief Judge.
Appellants sought a declaratory decree in the trial court attacking ad valorem tax assessments as being illegal, unequal and invalid and praying for injunctive relief requiring reduction of the assessments. The trial court sitting without a jury dismissed the complaint and supplemental complaint and required the appellants to pay taxes based upon the contested assessments. From this final judgment appellants appeal, contending that: (1) the assessments were in excess of fair market value; (2) were assessed at a substantially greater proportion of its value than other comparable properties in the county and that (3) the assessor failed to consider the income produced by the property.
As to appellants' contentions (1) and (2), it is well settled that the tax assessor is accorded a wide discretion in fixing a valuation on property for tax purposes and courts will not disturb such assessed valuations unless there is a clear and positive showing of arbitrary action or intentional discrimination that results in a manifest and gross inequality as to amount in law to a fraud.
In Powell v. Kelly, 223 So.2d 305 (Fla. 1969) it was held:
"The fixing of a valuation on property by a tax assessor for the purpose of taxation is an administrative act involving the exercise of administrative discretion, and the Court will not in general control that discretion unless it is illegally or fraudulently exercised or exerted in such manner or under such circumstances as will amount, in law to a fraud. A situation might be presented for judicial interference where specific assessment is so obviously and flagrantly excessive as to impute clearly to the assessor an intention to discriminate arbitrarily against the taxpayer; or where there appears prejudicial or material error in matter of law, independent of the exercise of a discretion as to value."
In Tampa Coca-Cola Bottling Company v. Walden, 230 So.2d 52 (Fla.App. 1969), Judge Pierce of this Court so ably stated the law as follows:
"The making of assessed valuations upon individual properties by the Tax Assessor for purposes of ad valorem taxation is an administrative act for which the assessor is politically responsible to the people of the county. This being so, and inasmuch as value is necessarily a matter of judgment and opinion, Tax Assessors are and always have been legally accorded a wide discretion in the *536 valuation of property for tax purposes. Their good faith is presumed and their assessments when made in the manner provided by law are accepted as prima facie correct so that the same will not be disturbed by the courts unless there is a clear and positive showing of arbitrary action, or intentional discrimination resulting in such manifest and gross inequality as to amount to a fraud upon the taxpayer. Stated another way, the taxpayer's complaint and proof must make a complete case for equitable relief by excluding every reasonable hypothesis of a legal assessment against him." [Citations omitted]
After a careful review of the record on appeal, we find that appellants have failed to make a clear and positive showing of arbitrary action or intentional discrimination on the part of the tax assessor which resulted in such a manifest and gross inequality as to amount to a fraud upon the appellants.
As to appellants' contention (3), Florida Statute, § 193.011, F.S.A., sets forth income from the property as one of the required criteria to be considered by a tax assessor in determining a property assessment. In the instant case the assessor admitted that he did not consider the income from the property in arriving at the assessment placed upon the property of the appellants.
In the recent case of Palm Corporation v. Homer, Fla. 1972, 261 So.2d 822, our Supreme Court held that the failure by the assessor to use the criterion of income did not satisfy legal requirements and, therefore, was not a proper assessment.
The assessor, having failed to take into consideration the criterion of income, the final judgment here is reversed and remanded.
McNULTY, J., and DAYTON, ORVILLE L., Associate Judge, (RET.), concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574097/ | 743 N.W.2d 872 (2007)
KONO
v.
MEEKER
No. 06-1554.
Court of Appeals of Iowa.
December 12, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/310880/ | 478 F.2d 248
AEROJET-GENERAL CORPORATION, an Ohio corporation, Plaintiff-Appellee,v.The AMERICAN ARBITRATION ASSOCIATION, a New Yorkcorporation, Defendant-Appellee,Non-Ferrous Metal Refining, Ltd., an Israeli corporation,Defendant-Appellant.
No. 71-2565.
United States Court of Appeals,Ninth Circuit.
April 30, 1973.
Melvyn B. Fliegel (argued), Irving L. Halpern, Schwartz & Alschuler, Los Angeles, Cal., for defendant-appellant.
Orville O. Orr, Jr. (argued), John G. Wigmore, Lawler, Feliz & Hall, Bruce A. Bevan, Jr., Musick, Peeler & Garrett, Los Angeles, Cal., for appellees.
Before DUNIWAY and WRIGHT, Circuit Judges, and LINDBERG,* District Judge.
EUGENE A. WRIGHT, Circuit Judge:
1
The plaintiff-appellee Aerojet contracted with defendant-appellant Non-Ferrous in 1969 and 1970 to engage in a commercial venture in Israel. Aerojet, an Ohio corporation, has its principal place of business in the Central District of California. Non-Ferrous, an Israeli corporation, has its principal place of business there. Each contract provided that any dispute arising thereunder was subject to arbitration in accordance with the rules of the American Arbitration Association (AAA).
2
A dispute involving a $30,000,000 contract arose in November 1970. Non-Ferrous requested arbitration in New York. Aerojet responded with a lawsuit in the state court of New York seeking to enjoin the proposed arbitration on the ground that it had been fraudulently induced to enter into the contract calling for arbitration. An ex parte stay of arbitration was vacated in March 1971 when the New York court ordered the parties to proceed with arbitration. This order was affirmed on appeal on June 10, 1971.
3
After the final decision in the New York action was rendered, Aerojet, by letter to the AAA, objected to New York as the locale and gave reasons for holding the arbitration in Los Angeles. Non-Ferrous responded with a statement on behalf of its own choice of New York.
4
On July 12, 1971, the AAA concluded that the arbitration should be held in New York.1 Aerojet objected and requested review of the decision by the Association's Executive Vice President. When the latter reaffirmed the designation Aerojet immediately sued in the district court in California. On July 21, 1971 Aerojet obtained an ex parte order temporarily restraining the AAA from conducting the arbitration in New York.
5
Aerojet's amended complaint in the district court based jurisdiction on diversity of citizenship [28 U.S.C. Sec. 1332]. It set forth the facts substantially as we have outlined them, but charged the AAA with arbitrary and unreasonable conduct in its selection of New York as the locale for arbitration.
6
"in that New York City bears no relationship to either the dispute between plaintiff and Non-Ferrous nor the parties and witnesses nor the making and performance of the aforesaid contracts; and, that the proper locale in which to proceed with the arbitration is an agreeable location within this District. . . ." [p. 4, Amended Complaint]
7
There followed a statement that Aerojet and its witnesses would find it more convenient to arbitrate in Los Angeles than in New York. The AAA replied to the motion for preliminary injunction with affidavits of its officers, giving reasons for fixing New York as the locale for arbitration.2
8
After the hearing in the district court the AAA and Non-Ferrous were enjoined from proceeding to arbitrate in New York "pending the trial of the cause on its merits." This was on August 12, 1971. Non-Ferrous appealed this order [28 U.S.C. Sec. 1292(a)(1).3
I.
9
Our first question is whether judicial scrutiny of arbitration proceedings is ever appropriate prior to the rendition of a final arbitration award.4 If not, then the order of the district court must be reversed irrespective of the merits of the AAA's decision.
10
The use of arbitration as a means of settling disputes has been accorded specific Congressional endorsement in the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq., and should be encouraged by the federal courts. Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942). It is apparent, therefore, that judicial review prior to the rendition of a final arbitration award should be indulged, if at all, only in the most extreme cases. The basic purpose of arbitration is the speedy disposition of disputes without the expense and delay of extended court proceedings. Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d Cir. 1967). To permit what is in effect an appeal of an interlocutory ruling of the arbitrator would frustrate this purpose.
11
For this reason it has been held that court review of evidentiary rulings should not be had before a final award has been rendered. See Compania Panemena Maritima v. J. E. Hurley Lumber Co., 244 F.2d 286 (2d Cir. 1957). Cf. Application of Katz, 3 A.D.2d 238, 160 N.Y.S.2d 159 (1957).
12
On the other hand a ruling fixing the place for hearing may cause irreparable harm to one or more of the parties. As this court noted in Pacific Car & Foundry v. Pence, 403 F.2d 949 (9th Cir. 1968), error in denying a change of venue cannot effectively be remedied on appeal from the final judgment. Extreme cases can be imagined in which the choice of locale for arbitration is not made in good faith and severe irreparable injury is inflicted on one or more of the parties. In such case the courts should be free to prevent a manifest injustice. For this reason we decline to hold that immediate judicial review of a ruling setting the place for arbitration is never justified. Cf. Pacific Car & Foundry, Inc. v. Pence, supra. Only an extreme case could warrant such judicial review, and this is emphatically not such a case.
II.
13
Nor do we feel that the language in the AAA's Commercial Arbitration Rules that its determination as to locale is "final and binding" precludes a limited inquiry into whether that determination was made in accordance with a minimum standard of fair dealing. While it has been held that parties to an arbitration can agree to eliminate all court review of the proceedings, Gramling v. Food Machinery & Chemical Corp., 151 F. Supp. 853 (D.S.C.1957), the intention to do so must clearly appear. Payne v. SS Tropic Breeze, 423 F.2d 236 (1st Cir. 1970).
14
Ordinary language to the effect that the decisions of the arbitrator shall be "final and binding" has been held not to preclude some judicial review. Goodall-Sanford, Inc. v. United Textile Workers, 233 F.2d 104 (1st Cir. 1956). As the Fifth Circuit has stated, " 'Finality' is a mirage if relied upon to preclude any judicial review of an arbitration award. . . ." Brotherhood of Railroad Trainmen v. Central of Georgia Railway Co., 415 F.2d 403, 412-413 (1969).
III.
15
Having concluded that some judicial scrutiny of the arbitrator's choice of locale was appropriate we must consider whether the court was justified in granting an injunction against the arbitration proceedings prior to a trial of the facts. Aerojet argues that the preliminary injunction was proper because it was likely that the determination of the arbitrator would be set aside as "arbitrary and capricious." We disagree.
16
In the first place we doubt that that the standard Aerojet would have us apply is the proper standard of review. Aerojet's contentions amount to no more than a lengthy statement that the AAA acted erroneously in choosing New York over Los Angeles as the situs for the arbitration. The "correctness" of the abitrator's rulings is not a proper concern of the reviewing court. Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 184 F. Supp. 116 (S.D.N.Y.1959), aff'd 274 F.2d 805 (2d Cir. 1960). See also Lundgren v. Freeman, 307 F.2d 104 (9th Cir. 1962).
17
An arbitration award must be upheld unless it be shown that there was partiality on the part of an arbitrator, Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S. Ct. 337, 21 L. Ed. 2d 301 (1968), or that the arbitrator exceeded his authority, Orion Shipping & Trading Co. v. Eastern States Petroleum Corp. of Panama, S.A., 312 F.2d 299 (2d Cir. 1963), or that the award was rendered in "manifest disregard of the law." Trafalgar Shipping Co. v. International Milling Co., 401 F.2d 568, 572 (2d Cir. 1968).5
18
There is no allegation that any such state of facts existed; nor is it at all likely that Aerojet could have proved such facts even if they had been properly alleged. Indeed, even if we applied something akin to the "clearly erroneous" test that Aerojet requests, we would still uphold the AAA's decision. In view of the factors recited by representatives of the association in support of its choice of New York the selection was entirely reasonable. Cf. Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268 (2d Cir. 1971).
IV.
19
This is an equity case, and it is well established that in such a case, although a reviewing court will usually decide only those issues which are necessary to dispose of an appeal, an interlocutory appeal brings the entire case before the court. Thus, in equity cases "[i]f insuperable objection to maintaining the bill clearly appears, it may be dismissed and the litigation terminated." Deckert v. Independence Shares Corp., 1940, 311 U.S. 282, 287, 61 S. Ct. 229, 232, 85 L. Ed. 189. Accord, Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 52-53, 58 S. Ct. 459, 82 L. Ed. 638; Denver v. New York Trust Co., 1913, 229 U.S. 123, 136, 33 S. Ct. 657, 57 L. Ed. 1101; Mast, Foos & Co. v. Stover Mfg. Co., 1900, 177 U.S. 485, 494-495, 20 S. Ct. 708, 44 L. Ed. 856; Johnson v. England, 356 F.2d 44, 46 n. 1 (9 Cir., 1966). At least one Court of Appeals has exercised this power to enter judgment for an appealing plaintiff. Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, (2 Cir., 1966). Moore believes that this is entirely proper in certain cases. 9 J. Moore, Federal Practice p 110.25 at 273 (2d ed. 1972). Normally this power is used to review other, nonappealable orders of the district court, such as the denial of a motion to dismiss.
20
Both the AAA and Non-Ferrous asked the district court to dismiss the complaint at the hearing on the motion for a preliminary injunction but neither of them made a motion to dismiss and the district court did not discuss the matter. However, the power to dispose of the whole case is not restricted to such situations.
21
In Mast, Foos, & Co. v. Stover Mfg. Co., supra, a patent case, the Supreme Court held:
22
"Does this doctrine apply to a case where a temporary injunction is granted pendente lite upon affidavits and immediately upon the filing of a bill? We are of opinion that this must be determined upon the circumstances of the particular case. . . . [I]f there be nothing in the affidavits tending to throw a doubt upon the existence or date of the anticipating devices, and giving them their proper effect, they establish the invalidity of the patent; or if no question be made regarding the identity of the alleged infringing device, and it appear clear that such device is not an infringement, and no suggestion be made of further proofs upon the subject, we think the court should not only overrule the order for the injunction, but dismiss the bill." 177 U.S. at 495, 20 S.Ct. at 712.
23
See also Denver v. New York Trust Co., supra.
24
This reasoning supports an order dismissing Aerojet's complaint. The affidavits filed in connection with the motion for a preliminary injunction do not conflict in any material respect. Rather, they establish that both parties will be inconvenienced in terms of transporting records and witnesses if the arbitration is held in New York, that Aerojet would not incur such expenses if the arbitration were held in Los Angeles while Non-Ferrous' burden would be increased, and that the AAA took these and other factors into account in making its decision.
25
The only factual showing that could conceivably strengthen Aerojet's case would be that its two non-employee witnesses definitely would not go to New York. However, "no suggestion [has been] made of further proofs upon the subject." Moreover, Aerojet concedes that Israel would be a rational location, and if the witnesses would not go to New York, presumably they would not go to Israel either.
26
In sum, there is no material factual dispute in the case, and under the standard of review that we have set out in Part I of this opinion, Non-Ferrous and the AAA would clearly be entitled to judgment as a matter of law should they so move. Under Mast, Foos & Co., it is appropriate for us to terminate the litigation now.
V.
27
Our mandate issued on April 2, 1973 following our order which read:
28
"The order of the district court is reversed and the preliminary injunction is dissolved. An opinion will follow."
29
Upon issuance of the mandate, the Court of Appeals loses control of the judgment except for its power to recall the mandate. Meredith v. Fair, 5 Cir., 1962, 306 F.2d 374, 376. However, we can and do exercise that power here.
30
The authority of a Court of Appeals to recall its mandate is not conferred by statute, but its existence cannot be questioned. Greater Boston Television Corp. v. F. C. C., 149 U.S.App.D.C. 322, 463 F.2d 268, 277, 1971; Meredith v. Fair, supra, 306 F.2d at 3786 Broadly stated, this authority may be exercised for "good cause" and to "prevent injustice," and one of the classic examples of such circumstances is where the mandate does not fully express the intentions of the court. Greater Boston Television Corp. v. F. C. C., supra, 463 F.2d at 277-278. Thus, in Meredith v. Fair, supra, the Court of Appeals directed the district court to "issue [the injunction] as prayed for in the complaint." Subsequently, after dissolving an improperly granted stay, the court concluded that its instructions were too general, sua sponte recalled the mandate, and set out in detail the relief to be granted. 306 F.2d at 378-379.
31
Similarly, our March 8, 1973 order is incomplete, and does not fully express our intentions. We will therefore recall the mandate to make its disposition of the case complete.
CONCLUSION
It is ordered that:
32
1. The mandate is recalled.
33
2. This court's judgment is modified to read:
34
The order of the district court is reversed and the preliminary injunction is dissolved. The action shall be dismissed with prejudice and the mandate shall issue forthwith.
*
Of the Western District of Washington
1
Section 10, Commercial Arbitration Rules provides:
"Sec. 10. Fixing of Locale-The parties may mutually agree on the locale where the arbitration is to be held. If the locale is not designated within seven days from the date of filing the Demand or Submission the AAA shall have power to determine the locale. Its decision shall be final and binding. If any party requests that the hearing be held in a specific locale and the other party files no objection thereto within seven days after notice of request, the locale shall be the one requested."
2
The affidavit of Donald T. Cahill, Assistant to the Executive Vice President of the AAA, stated:
"(a) Claimant's [Aerojet's] initial demand for arbitration . . . was filed in the New York Regional Office of the Association and the respondent [Non-Ferrous], seeking an order staying the arbitration proceedings, filed motion papers in the New York courts, at first instance in the Supreme Court of New York County, Special Term Part 1, and later on appeal to the Supreme Court, Appellate Division, First Department . . . Thus, the New York jurisdiction was the location to which the parties addressed themselves from the very beginning of the case.
"(b) The fact that the parties agreed in their contract that the law of California would apply and govern their case, is not conclusive on the locale of the hearing. If the arbitration is held in New York, the arbitrators can still apply California law.
"(c) While it is true respondent, its Divisions, Officers and employees are located in California, consideration was given to the fact that the claimant is based in Isreal, thereby making it necessary for it to transport all its witnesses and evidence from one country to another. If the hearings were to be held in California, an extra and unequal burden and expense would be placed on the claimant with respect to transporting these witnesses and evidence to that location. I determined New York to be a fair central point, equally accessible and convenient to both parties.
"(d) Regarding the fact that the contracts involved in this case were negotiated, drawn and executed in California, the performance of the agreements, involves activities taking place in Israel. Further, because such performance does take place in Israel, there is a closer connection between the subject matter of contracts and Israel than between the subject matter and California. Thus, the claimant could have, if so desired, requested Israel as the location for the arbitration hearings."
3
We heard oral argument on March 7, 1973, and entered an order on March 8, 1973 reversing the district court and dissolving a preliminary injunction. We indicated that a formal opinion would follow. For reasons that we shall hereafter explain, we contemplated that the parties would proceed at once with arbitration proceedings. Appellee moved on March 22, 1973 to stay the order of March 8 until 10 days after the filing of this opinion. That motion was denied
4
Emphasis should be placed on the word "proceedings." There can always be prior judicial inquiry into the validity of an agreement to arbitrate. In the present case it is conceded that there was a valid agreement to arbitrate at a locale selected by the AAA. See In re Royal Globe Ins. Co. v. Spain, 36 A.D.2d 632, 319 N. Y.S.2d 115 (1971)
5
Even if we assume there is some distinction between the ruling of the AAA here and a final arbitration award covered by 9 U.S.C. Sec. 10 the test would be the same. It was part of the arbitration agreement that the AAA could select a locale for the arbitration if the parties failed to agree on one. In re Royal Globe Ins. Co. v. Spain, supra note 3. When the parties to a contract agree that a factual determination is to be made by a neutral third party that determination is upheld in the absence of fraud or gross mistake as would necessarily imply bad faith. Baez v. Disabled American Veterans Service Foundation, 119 F. Supp. 490 (S.D.N.Y. 1954); Davidson v. Times Printing Co., 63 Wash. 577, 116 P. 18 (1911)
6
It was once the law that a Court of Appeals' power to recall its mandate expired at the end of the term at which it was issued. However, the better view is that this limitation was removed by the abolition of the "term" concept in 1948, the lapse of time being significant only with respect to the court's duty to "prevent injustice." Greater Boston Television Corp. v. F.C.C., supra, 463 F.2d at 275-276. At any rate, the March 8 order and subsequent mandate were clearly issued within the present "term." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3094340/ | Opinion filed January 6,
2011
In The
Eleventh
Court of Appeals
__________
No. 11-09-00036-CV
__________
ROBERT
A. LANSINK, Appellant
V.
LISA
K. LANSINK, Appellee
On
Appeal from the 324th District Court
Tarrant
County, Texas
Trial Court
Cause No. 324-356592-03
M E M O R A N
D U M O P I N I O N
Robert
A. Lansink appeals the trial court’s amended final order of November 12, 2008,
in which Robert was declared a vexatious litigant toward Lisa K. Lansink, their
children, and Lisa’s attorney. In the order, the trial court ordered Robert to
pay $11,700 to Lisa’s attorney, struck part of Robert’s earlier affidavit of
relinquishment, enjoined the parties from communicating with the court ex
parte, and ordered Robert to deposit into the registry of the trial court
attorney’s fees of $25,000 if he filed an appeal or a postjudgment motion. We
affirm.
Robert
presents five issues on appeal. In the first issue, Robert argues that the
trial court erred in finding that his suit had been dismissed by the 48th
District Court. In the second and third issues, Robert challenges the trial
court’s authority to strike portions of an affidavit that had been filed in a
prior suit. In his fourth issue, Robert complains of the trial court’s
effective denial of his motion for new trial. Finally, Robert urges that the
trial court erred in declaring him to be a vexatious litigant.
With
respect to his first issue, the record does not support Robert’s assertion that
the trial court in this case, the 324th court, found that the 48th court had “dismissed”
Robert’s claims. To the contrary, the record shows that Robert’s claims were
disposed of by the 324th court. Robert filed the petition at issue in this
appeal in the 48th court. The 48th court transferred the case upon finding
that Robert’s claims stemmed from an action for divorce that had already been
disposed of by the 324th court. Lisa filed an answer in which she requested
attorney’s fees and also asserted a plea in bar, a motion to consider the
petition as a bill of review and to require a security deposit, and a motion to
declare Robert a vexatious litigant. The 324th court disposed of Robert’s
claims in an order signed April 9, 2008, which provided that the petition
originally filed by Robert in the 48th court “is barred,” that the petition “should
have been filed as a Bill of Review under the original cause number,” and that
Robert failed to deposit $25,000 into the court’s registry within three days of
the filing of his petition. Robert’s first issue is overruled.
In
the next two issues, Robert complains of the trial court’s striking portions of
an affidavit that Robert had filed in support of his voluntary relinquishment
of parental rights. The judgment reflects that the trial court “on its own
motion” struck portions of an affidavit of relinquishment that Robert had filed
in the clerk’s office on December 17, 2007. The trial court noted in open
court that the affidavit of relinquishment filed by Robert in the clerk’s
office was “not the one that was presented to the Court” and that the affidavit
he filed contained “allegations of evidentiary fact that should not have been
included.” [1]
A
trial court has exclusive jurisdiction of proceedings to determine the
correctness of or to change the face of its own records. Boggess v. Harris,
39 S.W. 565 (Tex. 1897). A trial court is authorized to change the contents of
its record. Gerneth v. Galbraith-Foxworth Lumber Co., 300 S.W. 17, 20 (Tex.
1927); Goode v. Shoukfeh, 915 S.W.2d 666, 671 n.6 (Tex. App.—Amarillo
1996), aff’d, 943 S.W.2d 441 (Tex. 1997). Robert does not take issue
with the trial court’s finding that the affidavit Robert filed in the clerk’s
office was not the one that he had presented to the trial court at the hearing
regarding termination of parental rights. Nor does the record in this appeal
controvert that finding. A final order terminating Robert’s parental rights had
been entered on December 17, 2007. The propriety of that order was not at
issue in the underlying proceeding and is not at issue in this appeal. Consequently,
any error in striking portions of the affidavit from the clerk’s record would
not be reversible error because it did not cause the rendition of an improper
judgment. See Tex. R. App. P.
44.1. The second and third issues are overruled.
In
his fourth issue, Robert contends that the trial court erred in effectively
denying his motion for new trial with respect to the trial court’s order of April
9, 2008. Prior to entering that order, the trial court held a hearing in
March. Robert was not present at the hearing and had not been given timely
notice of a trial setting. See Tex.
R. Civ. P. 245. A trial court may, however, hold a pretrial hearing
upon shorter notice than the notice required by Rule 245 for a trial setting. See
Tex. R. Civ. P. 21, 166. The
record reflects that Lisa’s counsel certified that he complied with the rules
in serving notice of the hearing. The trial court ruled that the petition
filed by Robert was actually a bill of review; that Robert was required,
pursuant to the final order of December 17, 2007, to deposit $25,000 into the
court’s registry within three days of filing a bill of review; and that Robert
violated the December 17 order by failing to deposit $25,000 into the court’s
registry or post a $25,000 bond. The trial court also declared Robert to be a
vexatious litigant and ordered him to pay $4,800 in attorney’s fees to Lisa’s
attorney. The trial court subsequently granted in part a motion for new trial
filed by Robert. The court explicitly granted the new trial only on the issues
relating to attorney’s fees and to Robert being declared a vexatious litigant.
Robert asserts that a new trial should have been granted as to the entire April
order. We disagree.
A
trial court is authorized to grant a motion for new trial in part when the
matter upon which the new trial is granted may be separated without unfairness
to the parties. Tex. R. Civ. P. 320.
The claims asserted by Robert were separable from those upon which the trial
court granted a new trial. Furthermore, a judgment may be rendered by way of a
pretrial hearing in limited circumstances where the only issues to decide are
legal issues. Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d
303, 323 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Martin v.
Dosohs I, Ltd., 2 S.W.3d 350, 354-55 (Tex. App.—San Antonio 1999, pet.
denied). The trial court did not err in using the pretrial hearing to decide
legal issues involving no fact disputes. After Robert failed to deposit funds
into the registry of the court, the trial court held a hearing and determined
that Robert had failed to comply with the previous order of the trial court.
Based upon Robert’s noncompliance, the trial court was authorized to dismiss
Robert’s petition. See Sweed v. Nye, 319 S.W.3d 791 (Tex. App.—El Paso
2010, pet. denied). Robert has not shown that the trial court abused its
discretion in refusing to grant a new trial as to the claims asserted in his
petition. The fourth issue is overruled.
In
his final issue, Robert argues that the trial court erred in declaring him to
be a vexatious litigant. We disagree.
A
plaintiff may be declared a vexatious litigant pursuant to Tex. Civ. Prac. & Rem. Code Ann. §
11.054(2) (Vernon 2002) if the defendant shows that there is not a reasonable probability
that the plaintiff will prevail in the litigation against the defendant and
that:
[A]fter a litigation
has been finally determined against the plaintiff, the plaintiff repeatedly
relitigates or attempts to relitigate, in propria persona, either:
(A) the validity of the determination against the same
defendant as to whom the litigation was finally determined; or
(B) the
cause of action, claim, controversy, or any of the issues of fact or law
determined or concluded by the final determination against the same defendant
as to whom the litigation was finally determined.
Section
11.054(2). On appeal, we review a determination that a person is a vexatious
litigant under an abuse of discretion standard. Pandozy v. Beaty, 254
S.W.3d 613, 619 (Tex. App.—Texarkana 2008, no pet.).
The
record in this case shows that the trial court had entered a final decree of
divorce in March 2005 disposing of the parties’ marital property and that among
the numerous filings by Robert against Lisa are two pro se petitions that
support the trial court’s vexatious finding. These petitions were effectively
bills of review attacking the earlier disposition of the marital property due
to Lisa’s alleged fraud and negligence. The more recent of these two petitions
was filed in the 48th court on December 20, 2007, and was subsequently
transferred to the 324th court. In February 2007, Robert had filed a similar
petition alleging the same causes of action against Lisa in the 141st court.
That pro se petition was consolidated into the case in the 324th court, where
it was subsequently struck in a December 3, 2007 order of the trial court upon
the granting of a motion for sanctions against Robert. The order striking Robert’s
February petition constituted a final determination of the causes of action
pleaded therein against Lisa. See TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 919 (Tex. 1991) (sanctions such as striking pleadings may have
the effect of adjudicating a dispute). Robert’s subsequent refiling of these
claims in the December 20 petition was an attempt to thwart the order striking
his February petition and constituted an attempt to relitigate the same claims
against Lisa that had already been adjudicated. Because the February petition
had been struck, there was no reasonable probability that Robert would prevail
in a subsequent petition alleging the same claims against the same defendant. We
hold that the trial court did not abuse its discretion in determining that
Robert is a vexatious litigant. The fifth issue is overruled.
The
judgment of the trial court is affirmed.
JIM
R. WRIGHT
CHIEF
JUSTICE
January 6, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]We note that the trial court purported to act pursuant
to Tex. Fam. Code Ann. § 6.402(c)
(Vernon 2006), which requires a trial court to “strike an allegation of
evidentiary fact from the pleadings on the motion of a party or on the court’s
own motion” in a suit for dissolution of marriage. Robert correctly asserts
that Section 6.402(c) applies only to suits for dissolution of marriage and
that the Lansinks had been divorced for well over two years when he filed the
affidavit of relinquishment. The trial court’s misguided reliance upon Section
6.402(c), however, does not affect the propriety of its ruling. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1577908/ | 670 N.W.2d 416 (2003)
STATE of Iowa, Appellee,
v.
John Nell MITCHELL, Appellant.
No. 02-0407.
Supreme Court of Iowa.
September 4, 2003.
Rehearing Denied October 30, 2003.
*417 Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, William E. Davis, County Attorney, and Michael J. Walton, Assistant County Attorney, for appellee.
CADY, Justice.
This is an appeal by John Nell Mitchell from a conviction for second-degree sexual abuse of a child following a new trial ordered in State v. Mitchell, 633 N.W.2d 295 (Iowa 2001) [hereinafter Mitchell I]. In Mitchell I, we considered Mitchell's challenge to the admission of the testimony at trial of two girls who testified Mitchell sexually assaulted them. Both girls were acquaintances of the victim, the girl Mitchell was accused of assaulting in both cases, whom we identify as Amy.[1] Ultimately, we *418 concluded the district court had errantly allowed the admission of the evidence by the other victims. Mitchell I, 633 N.W.2d at 300. In doing so, we accepted Mitchell's argument that the girls' testimony was impermissible evidence of his propensity to commit similar acts against Amy while rebuffing the State's assertion that the testimony was admissible for the alternative purpose of enhancing Amy's credibility. See id. One of the issues posed in this appeal is whether similar evidence, introduced through the testimony of Amy's mother, is admissible. We further consider whether Mitchell's sentencing following his second trial was vindictive and thus unconstitutional. For the reasons that follow, we conclude that the evidence was admissible and the sentencing was proper. We affirm the district court's judgment and sentence.
I. Background Facts and Proceedings.
Amy was ten at the time Mitchell began living with her mother, Julie, in 1997. At some point during the spring of that year, Julie reported that her ex-husbandAmy's fatherhad sexually assaulted Amy. A social worker later took Amy to a doctor to confirm the abuse. While waiting to see the doctor, Amy confided in the social worker that it was Mitchellnot her fatherwho had abused her.
Amy later described several instances of abuse in a videotaped conversation with a police detective and recounted the abuse in her testimony at trial. The earliest acts of abuse included Mitchell touching Amy's breast and vaginal areas while she was clothed. This activity escalated to Mitchell touching Amy in the same areas but underneath her clothing. Subsequent acts included Mitchell performing oral sex and inserting his penis into her vagina on more than one occasion. Amy also stated that he ejaculated on one occasion and threatened to kill her if she told anyone about the sexual abuse.
Mitchell was arrested and charged with three counts of sexual abuse in the second degree. After we reversed his conviction in Mitchell I, a second trial was held. Mitchell chose to represent himself in the new trial with stand-by counsel aiding him. After a nearly weeklong trial, the jury returned a verdict of guilty on all three counts. Mitchell was then sentenced to three consecutive sentences of twenty-five years each, to run consecutive to a pre-existing two-year sentence. He challenges the district court's judgment and sentence with this appeal.
II. Standard of Review.
We review a district court's decision on the admissibility of evidence for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). A claim of vindictiveness in sentencing implicates constitutional guarantees of due process, making our review of that issue de novo. See In re C.M., 652 N.W.2d 204, 209 (Iowa 2002).
III. Evidence of Prior Bad Acts.
Mitchell's first claim of error centers on the admission of testimony elicited by the State on cross-examination of Amy's mother. Mitchell called Amy's mother as a witness in his case in chief, apparently in an effort to establish that she met with the police detective before his interview with Amy in an effort to slant the evidence against Mitchell or otherwise conspire against him. Mitchell's general defense at trial was that DHS social workers, Scott County law enforcement, and members *419 of Amy's family conspired to bring about his conviction.
During Mitchell's direct examination of the mother, the following exchange occurred:
Q. You was interviewed by a Dr.Michael Venema, a police officer, in May of '98, was you not? A. I think it was around that time. I can't swear to it.
Q. Okay. I believe his testimony is he interviewed you May of '98, the 8th day of May '98, and I believe he scheduled an appointment with [Amy] to interview her, if you have any knowledge of that I think probably in June '98, the 12th day. Do you have any knowledge of that? A. Of him interviewing her?
Q. Yeah. A. Yes, I gave him her name, so I wasn't called in on her. I was called in on [Karen] and [Susanna].
Q. Well, I'm asking you about [Amy]. A. Yes.
MR. WALTON [(the prosecutor)]: No. He was asking her about the interview, and she just told him what the interview was about.
THE COURT: She answered your question, Mr. Mitchell.
This exchange prompted the following cross-examination by the State:
Q. Mrs. [C.], Mr. Mitchell asked you about a meeting you had with Detective Venema on May 8 of 1998. A. Yes.
Q. And that meeting had nothing to do with your daughter, [Amy], did it? A. No, it did not.
Q. In fact, in the beginning of that meetingmaybe you know this; maybe you don'tDetective Venema had no idea that you were the mother of a girl that had lived with John Mitchell. A. No, he was not.
Q. He became aware of that after meeting with you. Is that correct? A. Yes, after the conversation we had about the reason I was there with [Karen] and [Susanna], then I asked him.
Q. Okay. What was the purpose of the meeting you had with Detective Venema on May 8 of 1998? A. Okay. They came up to Mrs. [P's] and asked me to come to the police station because there had been a report filed from Debbie [F.]
Q. Who is Debbie [F.]? A. That's [Karen]
THE DEFENDANT: Objection, your Honor. That has nothing to do with this.
A. [Karen] and [Susanna's] mother.
THE DEFENDANT: It has nothing to do with this. I object.
...
THE COURT: Can you state what your objection is?
THE DEFENDANT: My objection is Mr. Walton trying to bring in other issues thatto mislead the jury totally away from what this case is about. You instructed me not to go beyond a certain scope that he object to, which is I feel exculpatory evidence that this jury should know. If he's gonna go with that, I will go further.
THE COURT: Mr. Mitchell, based on that objection, that's overruled. You may answer.
Q. What was the purpose of the meeting with Detective Venema on May 8 of 1998? A. Okay. As I stated, Debbie [F.] made a complaint against John Mitchellthat is [Susanna] and [Karen's] motherthat he had been sexually abusing them.
Q. Okay. Who is Debbie [F.]? A. That's [Karen] and [Susanna's] mother. I lived with her for a time of period [sic].
Q. Are you a friend of Debbie [F.]? A. Yes, I am.
*420 Q. And was John Mitchell a friend of Debbie [F.'s] family? A. Yes.
Q. Okay. Who was [Karen]? A. She's Debbie's oldest daughter.
Q. And in 1997, 1998, what was her age, approximately? A. Approximately about 12. I think she was a year older than [Amy].
Q. Okay. And that's who Detective Venema wanted to talk to you about? A. Yes.
Q. And did he want to talk to you about anything else? A. No. That wasjust what knowledge I had of John having contact with these children.
Q. And wereyou said children. Were there other children? A. Yes. There was [Karen's] younger sister, [Susanna], and then I told him maybe he ought to talk to my daughter [Amy] because of the way they were acting. It was all type of the same over and overafter I sat back and looked at it, each one of the children were acting out the same, throwing fits, tearing things up.
Q. And it was at that point on May 8 of 1998 that you informed Detective Venema that you had a daughter that had also been with Mr. Mitchell. A. Yes, sir.
Q. And was that the first time Detective Venema knew about [Amy]? A. Yes, sir.
Q. As far as you know? A. Yes, sir.
MR. WALTON: Thank you. I have no further questions.
Mitchell alleges that the State's cross-examination produced indirectly the same evidence of prior bad actsthe alleged sexual abuse of two other girlswhich we declared inadmissible in Mitchell I where similar information was introduced directly through the testimony of the victims, Karen and Susanna. See Mitchell I, 633 N.W.2d at 300; Iowa R. of Evid. 5.404(b). The State responds by arguing that Mitchell's objection to this evidence was insufficient to preserve this issue for appeal and, in the alternative, that the evidence was presented after Mitchell "opened the door" to refute his general conspiracy defense. The State also argues that the testimony was not impermissibly prejudicial, particularly because the prosecutor did not belabor the issue. See Iowa R. Evid. 5.403. Mitchell responds to these arguments by asserting that a fair reading of the record refutes the State's arguments related to error preservation and invited error. Moreover, even if the evidence was relevanta point he does not concedethe State simply went too far when eliciting the prejudicial disclosure of Mitchell's alleged abuse of the other two girls.
Although there may be a question of whether Mitchell adequately preserved error by his objection, we believe this issue is resolved under both of the State's alternative arguments. See State v. Grosvenor, 402 N.W.2d 402, 406 (Iowa 1987) ("The fact that defendant appeared pro se does not excuse his failure to preserve this claim of error."). We have long subscribed to the maxim that, "`one who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himself of the opening.'" 1 John W. Strong, et al., McCormick on Evidence § 57, at 253 (5th ed. 1999) (quoting Warren Live Stock Co. v. Farr, 142 F. 116, 117 (8th Cir.1905)); see also State v. Spilger, 508 N.W.2d 650, 652 (Iowa 1993); State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992); State v. Finnigan, 478 N.W.2d 630, 631-32 (Iowa 1991); State v. Jones, 471 N.W.2d 833, 835-36 (Iowa 1991); State v. Williams, 195 Iowa 785, 796-98, 192 N.W. 901, 906-07 (1923). In his direct examination of Amy's mother, Mitchell pursued a line of questioning to inferentially bolster his conspiratorial *421 theory of the case, eliciting testimony that she met with the police prior to the time the police interviewed Amy. The record is replete with instances of Mitchell attempting to establish evidence of an untoward conspiracy, including his opening statement,[2] his examination of Amy,[3] her social worker,[4] and the detective who investigated Amy's abuse,[5] his closing statement,[6] and elsewhere. We believe Mitchell's *422 direct examination of Amy's mother was also in furtherance of this theory of the case and thus opened the door to refutation of that theory in the State's cross-examination. The questions asked on direct examination by Mitchell did not necessarily open the door, but the inference he sought to draw from the questioning did. Thus, the State was entitled to rebut this conspiracy theory with evidence of the actual facts that caused Amy's mother to meet with police before the police interviewed Amy.
Moreover, the testimony elicited on cross-examination did not belabor Mitchell's relationship to the other two girls or go into extensive detail about the alleged acts or any further criminal action taken as a result of those acts. The questions merely revealed that a complaint had been filed against Mitchell involving two other girls and the police sought to interview Amy's mother to determine if she had any information concerning the complaint. For this reason, we agree with the State that whatever effect was created by the testimony was insufficiently prejudicial to overcome the evidence indicating Mitchell's guilt. See State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995) ("The only direct evidence is the complainants testimony. But under today's law, that is sufficient to convict. The law has abandoned any notion that a rape victim's accusation must be corroborated."). Ultimately, this incident is distinguishable from Mitchell I, where the inadmissible evidence consisted of the actual testimony of Karen and Susanna and was offered for no legitimate purpose other than to show Mitchell's propensity to abuse Amy. See Mitchell I, 633 N.W.2d at 300. Additionally, the record in the first case did not disclose the existence of a conspiracy theory involving Amy's mother, which would have entitled the State to rebut the theory. In this trial, Mitchell opened the door through which the State attempted to undermine his theory of the case by showing the actual circumstances that explained why Amy's mother spoke with the police detective prior to Amy being interviewed. He cannot now complain that the State took advantage of this method of attacking his theory, particularly when the State's response was not overly prejudicial.
IV. Alleged Vindictiveness in Sentencing.
Mitchell also argues that a disparity in the length of the sentences ordered by the district court in his first and second trials evinces vindictiveness on the part of the court in violation of constitutional due process guarantees. At the end of his first trial, Mitchell was sentenced to two consecutive terms not to exceed twenty-five years each. A third term was ordered to run concurrently with the other two twenty-five-year sentences. A fourth termfor indecent contact with a childwas also ordered to run concurrently with his other sentences. When explaining his reasoning for sentencing Mitchell to what amounted to a period not to exceed fifty years, the district judge explained:
The Court did not have any option as to whether incarceration would be granted or not, but the reasonthe reasons for the consecutive sentences are as follows: The Court has reviewed ... the presentence investigation report, including the prior criminal record. And basically the reason for the consecutive sentences are because of the prior criminal record which include prior sexual offenses regarding children. Number two, the seriousness of these offenses. And those are the reasons. Protect the *423 community, seriousness of the offenses, and prior criminal record.
After being convicted of the three counts of sexual abuse in the second degree in his new trial, Mitchell was sentenced by a different district judge to three consecutive terms not to exceed twenty-five years each. His additional sentence for indecent contact with a child was also ordered to run consecutively to his other three sentences, meaning he was sentenced to a total period not to exceed seventy-seven years. In sentencing Mitchell, the court explained:
The reasons for the sentences arethe sentences are mandatory on each count. The reason for the consecutive sentence on each Count and based on the former conviction in 1999 of indecent contact with a child are the facts that you have been convicted of sex abuse charges, one of which was here in Scott County and the other which was in Dade County, Florida in 1986, and also the facts and circumstances surrounding each Count for which you were convicted in this case.
Mitchell is correct in asserting that an increase in sentence length between a first and second trial is a red flag for possible judicial vindictiveness in sentencing. Ordinarily, judges are given broad discretion in sentencing an offender. See State v. Rodenburg, 562 N.W.2d 186, 187 (Iowa 1997). However, because the imposition of "a harsher sentence upon reconviction for the purpose of punishing a defendant for exercising his rights in seeking to have the conviction set aside is a flagrant violation of due process of law," the utmost scrutiny must be applied to ensure that the second sentence was not the product of vindictiveness. Connelly v. Comm'r of Corr., 258 Conn. 374, 780 A.2d 890, 896 (2001). While we have not had the opportunity to fully develop standards under which a claim of vindictiveness can be examined, the United States Supreme Court's many statements on this issue provide appropriate guidance for our current and future consideration. See Callender v. Skiles, 591 N.W.2d 182, 187 (Iowa 1999); see also Stephen G. Murphy, Jr., Comment, Limits on Enhanced Sentences Following Appeal and Retrial: Has Pearce Been Pierced?, 19 Conn. L.R. 973, 974-85 (1987) (discussing the progression of the Court's jurisprudence in the vindictive sentencing area).
The Court's first pronouncement in this area came in North Carolina v. Pearce, where it laid out the baseline approach to judicial vindictiveness questions:
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. *424 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656, 669-70 (1969) (footnote omitted).
Pearce led most courts that construed it to extend a presumption of vindictiveness in cases in which a sentence increased after a retrial arising from a successful challenge to a prior conviction. See Wasman v. United States, 468 U.S. 559, 565, 104 S.Ct. 3217, 3221, 82 L.Ed.2d 424, 430 (1984). Mitchell claims he was entitled to this presumption in this case. Since Pearce, however, the Court has shaped the contours of this due process protection, clarifying the Pearce rule. See Connelly, 780 A.2d at 896-98 (summarizing Court holdings related to the vindictiveness standard). Most importantly, in Texas v. McCullough, the Court observed:
Beyond doubt, vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial. The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial. Like other "judicially created means of effectuating the rights secured by the [Constitution]," we have restricted application of Pearce to areas where its "objectives are thought most efficaciously served." Accordingly, in each case, we look to the need, under the circumstances, to "guard against vindictiveness in the resentencing process."
475 U.S. 134, 138, 106 S.Ct. 976, 978-79, 89 L.Ed.2d 104, 110 (1986) (citations omitted); see also Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204-05, 104 L.Ed.2d 865, 872-73 (1989). In McCullough, the Court determined that the Pearce presumption was inapplicable, partially "because different sentencers [(a jury and then a judge)] assessed the varying sentences that McCullough received." Id. at 140, 106 S.Ct. at 979, 89 L.Ed.2d at 111-12.
Subsequent interpretations of the McCullough approach to questions of judicial vindictiveness in sentencing have resulted in the conclusion that "when a different judge sentences a defendant after a retrial, and that judge articulates logical, nonvindictive reasons for the sentence, there simply is no sound basis to presume that the sentence is the product of judicial vindictiveness." Connelly, 780 A.2d at 901; see also State v. Robbins, 123 Idaho 527, 850 P.2d 176, 180-81 (1993); State v. Colwell, 127 Idaho 854, 908 P.2d 156, 161 (Ct.App.1995); State v. Forsyth, 233 Mont. 389, 761 P.2d 363, 384 (1988), overruled in part by State v. Curtis, 241 Mont. 288, 787 P.2d 306, 313 (1990); People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897, 898 (N.Y.App.Div.1987); Commonwealth v. Mikesell, 371 Pa.Super. 209, 537 A.2d 1372, 1380-81 (1988). However, this does not mean that the examination of an increased sentence is toothless, for if a defendant is able to show actual vindictiveness on the part of the second judge, he or she may still prevail on a claim of judicial vindictiveness. See Smith, 490 U.S. at 799-800, 109 S.Ct. at 2205, 104 L.Ed.2d at 873; Connelly, 780 A.2d at 898; Robbins, 850 P.2d at 181; Colwell, 908 P.2d at 161-62; Forsyth, 761 P.2d at 384; Best, 511 N.Y.S.2d at 898; Mikesell, 537 A.2d at 1381.
We believe that the standards elucidated by the Supreme Court and other state appellate courts for cases in which two different judges sentence a defendant accurately balance the due process interests of the criminal defendant and the systemic realities of our court system. Although a defendant must still be protected from vindictiveness in sentencinga goal achieved by assuring the absence of actual vindictivenessthe type of concerns first identified *425 in Pearce are simply less likely to arise when a different judge sentences a defendant at each stage. To conclude otherwise casts unwarranted opprobrium over our judicial system and implies that a common goal within the judicial ranks is to "save face" at all costs. See McCullough, 475 U.S. at 139, 106 S.Ct. at 979, 89 L.Ed.2d at 111. Although we reserve the right to check the sentencing power of our district courts, we refuse to undermine that power in a case of this type absent the presentation of evidence that actual vindictiveness has already done so.
Mitchell alleged vindictiveness in his sentencing based on the increase between his first and second sentence. As we have already noted, in a case such as this one, in which two different judges have produced the disparity in sentencing, a presumption of vindictiveness does not apply. For that reason, we must further consider whether his second sentence was tainted by actual vindictiveness. Mitchell does little to advance such an argument, but even if he did, we believe the record contains no indication of actual vindictiveness. Instead, the judge posited logical, non-vindictive reasons for his sentence and acted well within the discretion normally accorded the court in sentencing. Connelly, 780 A.2d at 901. The mere fact that two judges viewed the situation differently and ordered different sentences does not indicate actual vindictiveness. See id. at 900-01. Thus, Mitchell's claim of vindictiveness in sentencing fails.
V. Conclusion.
We affirm the decisions of the district court on all challenged issues and therefore affirm its judgment and sentence.
AFFIRMED.
NOTES
[1] As in State v. Mitchell, 633 N.W.2d 295 (Iowa 2001), we have chosen to not use the true names of the victims and instead adopt the aliases used in that opinion.
[2] That is what the State is doing here today, and I intend to prove that the police officer, Dawn Sturms [(the social worker in whom Amy confided)], Dr. Ozaki [(the doctor who examined Amy for abuse)], and the investigator all knew that this never happened, but because Department of Human Services job is to keep the family together, what they would do, get me out of the way.
Well, it still didn't happen because [Amy's mother] still didn't go back, but I got to pay for her leaving her husband. That's what's going on here today, and I'm still paying for it and ain't did nothing....
[3] Q. Well, your dad was accused, right? A. Yeah.
Q. And now I'm accused, right? Now, could it be that y'all flipped the tables but now they know the truth anyway so you stay with anybody else? A. No. It has nothing to do with this that I don't live with my dad.
Q. Get John out of the picture, revenge for your dad. Is that right, [Amy]? A. No. It has nothing to do with any of this that I don't live with my dad.
Q. It doesn't? A. No. None of this has to do with the reason I don't live with my dad.
Q. Why the dad was so fussy about getting you to stay with him and now you don't? A. Because I'm his daughter and I was ten years old and he didn't want me living [with you and my mother] in a crack house.
Q. To get you away so he could clear his name and you could point the finger at me. Is that right? A. No. I told the truth....
[4] Q. Okay. And I could tell by this document here that it seems to me that the department goal wasthe whole purpose of working with her was to clear the father's name and then close the case and then reopen the case and put it on Mom's boyfriend about a year and a half later when everybody would possibly done forgot about, oh, this happened and that happened, so if we open the case and just go straight at him, okay, possibly he would be done forgot about all the information that was done earlier. That's the purpose, wasn't it? A. No, that was not the purpose. The information that came out regarding that you had sexually abused her was not a year and a half later. It was one month after we began services....
[5] Q. Would you say that if DHS was involved in this thing here, which is the way it look to meI can't give statements, but I can ask, but wouldn't you say DHS was involved and they prepared this case and left it there for you to come pick up as if you got some new information and [Amy] was your prime suspect to go check it out because of John Mitchell and the mother had disagreements with the father, his name had come up, now to clear him, they got to go all out? A. I didn't hear a question in there anywhere. You said you had a question, and I didn't hear one.
Q. Well, my question is, is that did DHS leave thisdid DHS leave things unsolved so you could come in and make this look liketo preparebasically what I'm getting at is, wouldn't you say that [Amy]did [Amy] ever tell you that she had been to DHS, the Court had did anything? She never informed you of that? A. No, I had no knowledge of any previous investigation from any person....
[6] [Detective Venema] talked to [Amy] on the 12th. He talked to [her mother] on the 8th, so I'm quite sure she gave him some rundown that possibly maybe if he was messing with [Amy], he used a condom or something. If [her mother] had have said yeah, well, we kept condoms in the house, that would have helped him.
You understand what I'm saying? But he know that I was gonna defend myself and say, hey, you know what I'm saying? I don't mess with no condoms, so what he did, he told [Amy], say he didn't use no condoms. Say some white stuff came out. Okay? Exactly. [Amy's mother] got up there and said, no, no condoms.
She know about that tape [of Amy's conversation with Detective Venema] there, but [the prosecutor] will tell you she never seen it, but she knows what's on that tape. That's why she was so smiley when she say no, no condoms. Believe what [Amy] said on the tape. That's what she getting at. That's exactly what she getting at.... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577993/ | 670 N.W.2d 647 (2003)
STATE of Iowa, Appellee,
v.
Brandon Dean ECKRICH, Appellant.
No. 02-1508.
Court of Appeals of Iowa.
August 27, 2003.
*648 Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, J. Patrick White, County Attorney, and David Tiffany, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and VOGEL, JJ.
VOGEL, J.
Brandon Eckrich appeals his convictions and sentences for felony eluding under Iowa Code section 321.279(3) (1999) and possession of controlled substance under section 124.401, claiming a double jeopardy violation as he had previously been convicted for operating while intoxicated (OWI) under section 321J.2 for the same conduct. Without deciding whether OWI and possession are lesser-included offenses of felony eluding, we conclude the legislature intended separate punishments for the proscribed conduct; therefore, Eckrich suffered no double jeopardy violation. His separate convictions shall stand.
Background Facts. In July 2000, Eckrich pled guilty to eluding a pursuing law enforcement vehicle while violating Iowa Code section 321J.2 or 124.401 (operating while under the influence of alcohol or drug and possession of a controlled substance, respectively) pursuant to Iowa Code section 321.279(3), OWI pursuant to section 321J.2, and possession of a controlled substance, to-wit marijuana pursuant to section 124.401. Eckrich then filed a motion to adjudicate law points asking the court to determine that the OWI and possession charges were lesser included offenses of the felony eluding charge, thereby requiring merger. The district court stated it could address the motion, and if he were successful Eckrich would be sentenced on the felony charge, with the lesser charges merged into the eluding conviction. In the alternative, Eckrich could withdraw the motion and the court would enter deferred judgments, as recommended, on the felony eluding and possession charges and enter a conviction on the OWI charge. Electing the deferred judgments to avoid a felony conviction, Eckrich withdrew the motion to adjudicate law points. The court then sentenced Eckrich on the OWI charge, but deferred judgment on both the eluding and possession charges.
Subsequently, Eckrich violated his probation which prompted the State to file an application for adjudication of guilt and sentencing for the felony eluding and possession of marijuana charges. Eckrich filed a motion to dismiss asserting both merger and double jeopardy violations. The motion was denied. His deferred judgments were revoked; and convictions and sentences were entered. On appeal, Eckrich claims the district court erred in convicting and punishing him on the felony eluding and possession charges after he had already been convicted and punished for the lesser included offense of OWI.
Scope of Review. We review constitutional claims concerning the double jeopardy clause de novo. State v. Henry, 483 N.W.2d 2, 3 (Iowa Ct.App.1992) (citing State v. Davis, 446 N.W.2d 785, 787 (Iowa 1989)). Questions of statutory interpretation are reviewed for correction of errors at law. In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998).
*649 Double Jeopardy and Merger. Eckrich claims the OWI charge was a lesser included offense of felony eluding; as such, his OWI conviction bars any further prosecution on the felony eluding and possession of marijuana charges. The State, however, argues Eckrich chose to withdraw his motion for adjudication of law points regarding multiple prosecutions prior to sentencing in order to receive deferred judgments on the eluding and possession charges and therefore has not preserved error on this claim. We agree this issue was not preserved. See State v. Johnson, 272 N.W.2d 480, 484 (Iowa 1978) ("constitutional questions must be preserved in the same manner as any other issue") (citations omitted).[1] Therefore our discussion will be limited to the asserted double jeopardy violation as it relates to the imposition of multiple punishments and merger of sentences.
Under Iowa Code section 321.279(1) a person can be prosecuted for eluding as a serious misdemeanor for failing to appropriately yield to a pursuing law enforcement vehicle. Under section 321.279(2), the level of crime increases to an aggravated misdemeanor if the person, while failing to yield, is also exceeding the speed limit by twenty-five miles per hour. Finally, under section 321.279(3), the crime of eluding becomes a class "D" felony if a person, while both failing to yield and exceeding the speed limit by twenty-five miles per hour, also commits a felony or violates Iowa Code section 321J.2 or 124.401 or if bodily injury results to another. In this case, because Eckrich's conduct fell under section 321.279(3), his act of "eluding" rose from a serious misdemeanor to a class "D" felony.
Earlier this year, in a factually similar case, we addressed the issue of whether OWI is a lesser-included offense of felony eluding. See State v. Rice, 661 N.W.2d 550 (Iowa Ct.App.2003). In Rice, we stated:
If a violation of section 321J.2 is an element of `felony' eluding under section 321.279(3), then we would agree one could not commit that alternative of eluding without also necessarily violating 321J.2.... If that were the case, barring legislative intent to the contrary, the offenses should have been merged. In contrast, if a violation of 321J.2 is only one of several possible sentencing enhancements for the crime of eluding, merger was not authorized.
Id. at 551 (internal citations omitted). While the Rice court stated it was inclined to find OWI was a sentencing enhancement rather than a lesser-included offense, Rice did not decide definitively whether OWI was a lesser-included offense of felony eluding. Id. The Rice court continued its analysis and found that even if OWI were a lesser-included offense of felony eluding, the crimes could be punished separately due to the clear legislative intent to impose cumulative punishments. Id. We follow a similar analysis here.
As the district court noted, the punishment for eluding under section 321.279(3)(b) does not include several of the punishments for operating while intoxicated *650 under section 321J.2(2)(a)(3), and (4) which include driver's license revocation, substance abuse evaluation and treatment, attending a drinking driver's course, and, when available and appropriate, attending a reality education substance abuse prevention program. Iowa Code section 901.5(10) also requires license revocation of any person convicted under section 124.401 where section 321J.2(2)(a)(3) does not. It does not appear the legislature set out to insulate a person from the specific sentencing mandates of section 321J.2(2)(a)(3) and section 124.401, just because that person was also "eluding" as proscribed under 321.279(3)(b). Rather it appears quite evident that each statute was designed to address a separate form of illegal conduct and the punishments designed accordingly. See generally State v. Reed, 618 N.W.2d 327, 336 (Iowa 2000) (finding legislative intent for cumulative punishment to deter illegal activity under separate code sections). Where we find legislative intent for multiple punishments involving the same conduct, we will uphold the separate convictions and punishments. State v. Hickman, 623 N.W.2d 847, 852 (Iowa 2001). Because there is clear legislative intent to authorize multiple punishments under sections 321.J2(2)(a)(3), 124.401(5) and 321.279(3)(b), Eckrich's claim as to a double jeopardy violation would fail, even with his assertion that OWI and possession are lesser-included offenses of felony eluding. We therefore affirm Eckrich's punishments for felony eluding and possession of marijuana.
Credit for Time Served. Eckrich was sentenced to an indeterminate term not to exceed five years on the eluding charge under Iowa Code section 321.279(3)(b) and was given credit for time served. The sentence was suspended. In addition, Eckrich was sentenced to serve ten days in the custody of the county sheriff for possession of marijuana, under Iowa Code section 124.401(5). In its sentencing order, the court specifically stated Eckrich was not to be given credit for time served on the possession sentence. Eckrich claims the court failed to follow Iowa Code section 903A.5 by denying him credit for two days of time served following his initial arrest. The State responds that, section 903A.5 simply does not apply. We agree with the State. Iowa Code section 901.6 states, "In every case in which judgment is entered ... a statement of the days credited pursuant to section 903A.5 shall be incorporated into the sentence." Chapter 903A, "Reduction of Sentences," pertains solely to inmates in the custody of the director of the department of corrections, and not to those confined in county facilities. Therefore, the code section Eckrich relies on has no bearing on his ten-day determinate sentence in the custody of the county sheriff. Absent a specific code section which would require credit for time served in a county facility, Eckrich's claim has no basis. Iowa Code § 321J.2(2)(a)(1) (authorizing credit for time served in a jail or detention facility following arrest).
AFFIRMED.
NOTES
[1] In the alternative, Eckrich claims ineffective assistance of counsel for failing to preserve the issue of multiple prosecutions. It is obvious from the record, after a lengthy dialog with the court, counsel made a tactical choice to withdraw the motion in order to proceed with favorable sentencing. We therefore reject Eckrich's claim of ineffective assistance of counsel. See State v. Lange, 495 N.W.2d 105, 108 (Iowa 1992) (holding defendant may by his own defense tactics waive subsequent assertions of double jeopardy violations) (citing Jeffers v. United States, 432 U.S. 137, 154, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168, 182 (1977)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/63376/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2008
No. 07-20766 Charles R. Fulbruge III
Summary Calendar Clerk
ERNEST S ZIMMERMAN
Plaintiff-Appellant
v.
MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-07-00345
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Ernest Zimmerman (“Zimmerman”) appeals from the
district court’s approval of the decision of an administrative law judge (“ALJ”)
that he is not disabled within the meaning of the Social Security Act. We
AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-20766
I. FACTUAL AND PROCEDURAL BACKGROUND
Zimmerman asserts that he became disabled and unable to work in
December 2003 due to chronic pain, obesity, and depression. He applied for
disability insurance benefits and supplemental security income payments under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382 (“the Act”).
After the Social Security Administration denied his claim, Zimmerman obtained
a hearing before an ALJ. At the hearing, evidence showed that Zimmerman’s
weight was between 370 and 500 pounds; he had chronic back and joint pain
related to his obesity; he sought treatment for pain on several occasions in 2004,
2005, and 2006; his pain improved with medication; and he was depressed and
had attempted suicide in February 2004. Scans of his back in 2004 showed
slight but not severe disc problems. There was conflicting evidence from several
sources—including treating physicians, examining physicians, non-examining
experts, medical records, and Zimmerman’s own testimony—concerning the
degree to which Zimmerman’s pain and depression limited his ability to move,
perform daily activities, and interact with others.
After considering the evidence, the ALJ found that Zimmerman’s
impairments, though severe, did not render him disabled within the meaning of
the Act because a significant number of jobs existed that Zimmerman could still
perform. A district court accepted a magistrate judge’s ruling affirming the
ALJ’s decision, and Zimmerman appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
Our review is limited to determining (1) whether the ALJ’s decision was
supported by substantial evidence in the record, and (2) whether the ALJ used
proper legal standards to evaluate the evidence. Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999). Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
2
No. 07-20766
(internal quotation marks omitted). This court may not “reweigh the evidence
in the record, nor try the issues de novo, nor substitute our judgment for that of
the [ALJ], even if the evidence preponderates against the [ALJ’s] decision.” Id.
(internal quotation marks omitted).
III. DISCUSSION
To be entitled to Social Security benefits, a claimant must show that he is
disabled within the meaning of the Act. Villa v. Strickland, 895 F.2d 1019, 1022
(5th Cir. 1990). Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The
ALJ must conduct a five-step process when examining a claim of disability:
(1) a claimant who is working, engaging in a substantial gainful
activity, will not be found to be disabled no matter what the medical
findings are; (2) a claimant will not be found to be disabled unless
he has a “severe impairment”; (3) a claimant whose impairment
meets or is equivalent to an impairment listed in Appendix 1 of the
regulations will be considered disabled without the need to consider
vocational factors; (4) a claimant who is capable of performing work
that he has done in the past must be found “not disabled”; and (5)
if the claimant is unable to perform his previous work as a result of
his impairment, then factors such as his age, education, past work
experience, and residual functional capacity must be considered to
determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R.
§ 404.1520(a)-(e) (describing the five steps). “A finding that a claimant is
disabled or not disabled at any point in the five-step process is conclusive and
terminates the . . . analysis.” Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988).
Here, at steps one and two, the ALJ found that Zimmerman was not
engaging in a substantial gainful activity and that Zimmerman had several
severe impairments: sleep apnea, degenerative disc disease, obesity, depression,
3
No. 07-20766
and personality disorder. At step three, the ALJ found that these impairments
did not meet or equal the severity of any impairment in the Appendix 1 listings
in the regulations. See 20 C.F.R. Pt. 404, Subpt. P. App. 1. At step four, the ALJ
found that Zimmerman could not perform his past relevant work. However, at
step five, the ALJ determined that Zimmerman’s residual functional capacity
(“RFC”) included the ability to do low-stress, unskilled work and that jobs
consistent with his RFC existed in significant numbers in the local and national
economies. On appeal, Zimmerman claims that the ALJ’s analysis was deficient
in several respects.
A. Obesity and obesity-related complications
Zimmerman first argues that in determining his RFC at step five, the ALJ
failed to properly consider Zimmerman’s obesity and obesity-related
complications, as required by Social Security Ruling 02-01p (2002). This
argument is without merit. The ALJ acknowledged that Zimmerman was obese
and that his obesity was a severe impairment. The ALJ also emphasized the
importance of considering Zimmerman’s obesity, stating that Zimmerman’s back
pain was likely secondary to his obesity and that “the combined effects of obesity
with musculoskeletal impairments can be greater than the effects of each of the
impairments considered separately.” In addition, the ALJ discussed
Zimmerman’s allegations that he could not stand, sit, or walk for long periods
of time, and the opinion of Zimmerman’s treating physician, Dr. Michael Taylor,
that Zimmerman had severe limitations. Based on these considerations, many
of which were related to Zimmerman’s obesity, the ALJ found that Zimmerman’s
RFC was significantly limited. He found that Zimmerman could perform light
work but not medium or heavy work; would be “precluded from climbing,
working at unprotected heights and on or about moving or dangerous equipment
or machinery”; could lift no more than twenty pounds; and could stand or walk
4
No. 07-20766
for six hours in a work day and sit for at least two hours, “compromised by the
need to alternate with sitting/standing at will in an 8 hour workday.”
The ALJ’s conclusion that Zimmerman’s obesity was not completely
debilitating was supported by several pieces of evidence in the record. For
example, the State Agency Medical Consultant, Dr. Bonnie Blacklock, concluded
based on Zimmerman’s medical records that Zimmerman could occasionally
carry fifty pounds and could sit or stand for six hours in an eight-hour workday.
In addition, Dr. Hanley examined Zimmerman and reported that Zimmerman
had full motor strength in all his muscle groups. Moreover, a July 2004 MRI
revealed only slight disc degeneration, and a November 2004 computed
tomography scan of Zimmerman’s spine showed early disc degeneration but no
bulge or herniation. Also, records showed that Zimmerman’s pain had improved
with medication on several occasions. Finally, Zimmerman testified that he was
able to perform daily tasks such as shopping and carving ornate wooden canes.
Zimmerman contends that the ALJ should have considered the fact that
Zimmerman walks with a cane. However, a vocational expert testified that the
use of a cane would not have prevented Zimmerman from performing the types
of jobs he identified as consistent with Zimmerman’s RFC. Zimmerman also
maintains that the ALJ should have identified precisely which of the
Zimmerman’s limitations were caused by Zimmerman’s obesity. However,
Zimmerman cites no authority suggesting that when considering a claimant’s
limitations, the ALJ must describe precisely which medical condition triggered
each limitation. Zimmerman further contends that the ALJ improperly relied
on Zimmerman’s failure to lose weight. However, even assuming that such
reliance would have been improper, there is no evidence that the ALJ actually
relied on Zimmerman’s failure to lose weight to find that obesity-related
impairments should not be considered; to the contrary, the record shows that the
ALJ did consider Zimmerman’s obesity-related impairments.
5
No. 07-20766
In sum, the ALJ properly considered Zimmerman’s obesity in his RFC
analysis.
B. Opinion of Zimmerman’s treating physician
Zimmerman’s second argument is that the ALJ improperly disregarded the
opinion of Dr. Taylor, his treating physician, without sufficient justification.
Dr. Taylor opined that Zimmerman was unable to lift or carry more than ten
pounds; could stand, walk, or sit less than two hours during an eight-hour work
day; and could not twist, stoop, bend, crouch, squat, or climb ladders or stairs.
Dr. Taylor also stated that Zimmerman’s pain was sufficiently severe to prevent
Zimmerman from performing even low-stress jobs. The ALJ found Dr. Taylor’s
opinion was “unsupported by the objective clinical evidence” and was
“inconsistent with the evidence considered as a whole,” and he gave it little
weight.
Zimmerman bases his argument on Newton v. Apfel, in which we reversed
an ALJ’s decision where the ALJ rejected the opinion of a treating physician
without performing an analysis based on the six factors listed in 20 C.F.R.
§ 404.1527(d)(2).1 209 F.3d 453, 458 (5th Cir. 2000). However, Newton is
distinguishable. In Newton, the ALJ “summarily rejected the opinions of
Newton’s treating physician, based only on the testimony of a non-specialty
medical expert who had not examined the claimant.” Id. at 458. We emphasized
that Newton did not involve “competing first-hand medical evidence,” nor did it
involve “the medical opinion of other physicians who have treated or examined
the claimant and have specific medical bases for a contrary opinion.” Id. Here,
in contrast to Newton, competing first-hand medical evidence was present that
1
These factors are (1) the length of the treatment relationship and frequency of
examination, (2) the nature and extent of the treatment relationship, (3) the relevant evidence
supporting the opinion, (4) the consistency of the treating physician’s opinion with the record
as a whole, (5) whether the opinion is that of a specialist, and (6) “other factors which tend to
support or contradict the opinion.” 20 C.F.R. § 404.1527(d)(2).
6
No. 07-20766
contradicted Dr. Taylor’s testimony. That evidence, discussed in detail above,
included Dr. Hanley’s examination of Zimmerman that revealed full motor
strength, MRIs indicating only mild problems, records indicating that pain
medication was effective, and Zimmerman’s own testimony about his everyday
activities. Moreover, we note that the ALJ did cite and list the six factors, and
his discussion demonstrates that he considered several of the factors—he noted
the evidence supporting and opposing the opinion, the inconsistency of the
opinion with the record as a whole, and the fact that Dr. Taylor had no
vocational expertise. Thus, we find no error in the ALJ’s decision not to credit
Dr. Taylor’s opinion. Cf. Spellman v. Shalala, 1 F.3d 357, 364-65 (5th Cir. 1993)
(holding that it was proper to reject a treating physician’s opinion that the
claimant could not perform sedentary work, because the opinion was
inconsistent with evidence of the claimant’s everyday activities and with medical
records).
C. Zimmerman’s credibility
Zimmerman argues that the ALJ’s finding that Zimmerman’s allegations
about his impairments were “not totally credible” was unsupported. He cites as
evidence of his credibility numerous pieces of evidence in the record suggesting
that he did have significant pain and decreased range of motion, as well as Dr.
Taylor’s opinion.
We have previously noted that “[w]hile an ALJ must consider an
applicant’s subjective complaints of pain, he is permitted to examine objective
medical evidence in testing the applicant’s credibility. He may find, from the
medical evidence, that an applicant’s complaints of pain are not to be credited
or are exaggerated.” Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir. 1985).
Here, the ALJ explained why the objective evidence discussed
above—Zimmerman’s testimony about his daily activities, combined with
medical evidence concerning his strength, the severity of his spinal problems,
7
No. 07-20766
and the effectiveness of his medications—undermined the credibility of
Zimmerman’s contention that his pain was completely debilitating. In addition,
as the district court noted, two State Agency Medical Consultants opined that
Zimmerman was not “fully credible.” Thus, we find the ALJ’s credibility
determination was supported by substantial evidence.2
D. Mental impairments
Zimmerman next asserts that the ALJ failed to evaluate Zimmerman’s
mental impairments in making the RFC determination. The ALJ determined
that Zimmerman suffered from depression that caused mild difficulties with
daily activities, social functioning, concentration, and persistence. The ALJ also
discussed Zimmerman’s February 2004 suicide attempt but noted that in March
2004, a treatment note indicated that Zimmerman was feeling better and denied
any suicide ideation. The ALJ took these limitations into account in determining
that Zimmerman’s RFC was limited to work requiring “limited public contact
and low stress unskilled tasks due to depression.”
Zimmerman asserts that the ALJ failed to properly consider the report of
Dr. Erick Lenert, a psychologist who diagnosed Zimmerman with depression and
antisocial personality disorder and assigned him a low global assessment of
functioning (“GAF”) score. Dr. Lenert noted that Zimmerman had a somewhat
depressed mood, a flat affect, marginal judgment, fair insight, and adequate
abstract thinking. The ALJ noted Dr. Lenert’s diagnoses and GAF score but
found them inconsistent with Dr. Lenert’s mild description of Zimmerman’s
impairments. The ALJ’s conclusion was supported both by Dr. Lenert’s
description of Zimmerman and by the testimony of a non-examining medical
expert, Dr. Ashok Khushalani. Dr. Khushalani testified that Zimmerman was
2
We also reject Zimmerman’s argument that the ALJ impermissibly relied on
Zimmerman’s history of substance abuse in making his credibility determination because we
see no evidence of such reliance.
8
No. 07-20766
“reasonably well stabilized” by his medication, did not have major depression,
and had only mild restrictions on daily living, social functioning, and
concentration due to his depression. He also opined that Zimmerman had no
limitations in his ability to understand and carry out short, simple instructions.
In sum, although there was some conflicting evidence, the ALJ’s
conclusions about Zimmerman’s mental impairments was supported by the
substantial evidence provided by Dr. Khushalani and by Dr. Lenert’s specific
findings. Moreover, the ALJ’s RFC determination took into account those
impairments. Thus, we find no error here.
E. Determination that Zimmerman’s obesity did not meet or equal
Listing 1.04
Zimmerman’s next argument is that the ALJ erred in finding that
Zimmerman’s impairments did not meet or equal the requirements of Listing
1.04, which describes disorders of the spine:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising
test (sitting and supine) [or two other sets of symptoms not relevant
here].
20 C.F.R. Pt. 404, Subpt. P. App. 1 § 1.04. “For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Zimmerman argues that his
impairment met or equaled this listing because there was evidence that his pain
radiated from his back to his left hip and leg, he had limited range of motion in
9
No. 07-20766
his spine, and he had a positive straight leg raising test. As to the requirement
of evidence of nerve root compression, he notes that although his MRIs did not
reveal this, a treating physician noted that his MRIs were blurred and MRI
studies were limited due to his size.
We acknowledge that Zimmerman provided some evidence that his
impairments might meet the Listing 1.04 requirements. However, we find that
substantial evidence supports the ALJ’s contrary conclusion that Zimmerman’s
impairment failed to meet or equal the criteria in the listing. First, Dr. Hanley
reported in June 2004 that “[e]xamination of [Zimmerman’s] lower extremities
shows sensory intact,” suggesting that the “sensory or reflex loss” requirement
was not met. In addition, Dr. Hanley found that Zimmerman’s motor strength
was “5/5 in all muscle groups,” suggesting no motor loss. Finally, there was no
direct indication of nerve root compression. In light of this evidence, we may not
substitute our judgment for that of the ALJ.
F. Determination that Zimmerman retained ability to perform work
existing in significant numbers in the national economy
Zimmerman’s final argument is that the ALJ erred in concluding that
Zimmerman retains the ability to perform work existing in significant numbers
in the national economy. To make this determination, the ALJ posed
hypothetical questions to the vocational expert about what jobs a person with
Zimmerman’s limitations would be able to perform. See Bowling, 36 F.3d at 436
(holding that vocational expert testimony must be based on a hypothetical
question that includes all limitations supported by the record). His questions
included all limitations supported by the record, including the need to alternate
sitting and standing at will; the need to avoid lifting more than twenty pounds
at a time; the need to avoid heights and climbing; and the need for low stress
and limited public contact. Zimmerman’s suggestion that the hypothetical
questions were insufficient is essentially a restatement of his earlier arguments
10
No. 07-20766
that the ALJ did not adequately consider his obesity-related and mental
impairments, arguments we have already rejected.
The vocational expert testified that based on these limitations,
Zimmerman could perform three jobs existing in significant numbers: small
products assembler (200,000 jobs nationally and 1000 locally), hardware
assembler (40,000 jobs nationally and 300 locally), and “assembler/bench
assembler/lawn and garden equipment” (20,000 jobs nationally and 150 locally).
Zimmerman argues that this case must be remanded because (1) “bench
assembler/lawn and garden machinery assembler” is a skilled position and
therefore outside Zimmerman’s RFC and (2) “bench assembler” and “small
products assembler” are actually the same job. These arguments are without
merit: even if we disregarded the availability of the job of bench assembler, there
are 240,000 jobs remaining for Zimmerman in the national economy.3 Thus,
there is no reason to remand on this ground.
IV. CONCLUSION
Because Zimmerman has failed to show that the ALJ’s findings were
either unsupported by substantial evidence or not compatible with the
appropriate legal standards, we AFFIRM the ALJ’s ruling.
AFFIRMED.
3
Zimmerman’s citation to Bagwell v. Barnhart, 338 F. Supp. 2d 723, 738 (S.D. Tex.
2004), does not aid his argument. In Bagwell, the court remanded a case to an ALJ for further
findings where one of three jobs the vocational expert identified was outside the claimant’s
RFC because the expert had not testified about whether the two other jobs existed in
significant numbers in the national economy. Id. Here, in contrast, the vocational expert gave
specific numbers for each of the three jobs he identified.
11 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3070871/ | THE THIRTEENTH COURT OF APPEALS
13-15-00131-CR
Jesse Garcia
v.
The State of Texas
On appeal from the
319th District Court of Nueces County, Texas
Trial Cause No. 13-CR-2681-G
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the appeal should be dismissed. The Court orders the appeal
DISMISSED in accordance with its opinion.
We further order this decision certified below for observance.
May 21, 2015. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1575371/ | 743 N.W.2d 360 (2008)
274 Neb. 768
STATE of Nebraska, Appellee,
v.
John PIEPER, Appellant.
No. S-07-057.
Supreme Court of Nebraska.
January 4, 2008.
*363 Jessica L. Milburn, Omaha, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
MILLER-LERMAN, J.
NATURE OF CASE
John Pieper was convicted in the district court for Lancaster County of first degree assault and false imprisonment in the first degree. Pieper appeals his convictions and his sentencing as a habitual criminal. We affirm.
STATEMENT OF FACTS
The State charged Pieper with first degree assault, first degree sexual assault, and false imprisonment in the first degree. The State amended the information to charge Pieper as a habitual criminal. The charges arose out of incidents that occurred on July 11 and 12, 2004, and involved Pieper; a codefendant, Jeremiah Croghan; and the victims, Vernon French and A.N. Pieper, Croghan, French, and A.N. testified at trial and gave accounts of the incidents which varied in certain respects. There is no claim that the evidence is insufficient, and taking the evidence favorably to the State, we summarize the evidence as follows.
In July 2004, French was living with his girlfriend, A.N. They were in their apartment on the night of July 11, listening to music. Late that night, Croghan and Pieper came to the door of the apartment and told French and A.N. that they had heard the music and wanted to introduce themselves. Croghan had recently moved into an apartment down the hall.
Accounts vary regarding which persons drank whiskey or beer, took Xanax, or smoked marijuana that night. At some point in the evening, arguments ensued and French was beaten. French was hospitalized for 5 to 7 days with injuries from the assault. Pieper was convicted of the assault in this case. There was testimony that at one point, Pieper held a knife to A.N.'s throat and took her to Croghan's *364 apartment. Pieper was convicted of false imprisonment with respect to A.N. There was also testimony that A.N. was sexually assaulted. Pieper was found not guilty of this charge.
A tape recording of an interview French gave to a police officer was entered into evidence during the officer's testimony, but no portion of the tape recording was played to the jury. A transcription of the tape recording of another police officer's interview with French was also entered into evidence during that police officer's testimony, but no part of the transcription was read to the jury. Pieper's counsel did not object to admission of the tape or the transcription.
A tape recording of an interview A.N. gave to a police officer was marked as an exhibit, but there is no indication in the record that the tape was offered or admitted into evidence. No portion of the tape recording was played to the jury.
Croghan testified at Pieper's trial in a manner which was generally unfavorable to Pieper. Included in that testimony was a description of Pieper's hitting French and threatening French with a knife. In his initial statements to police on July 14, 2004, Croghan's recounting of events was generally similar to his trial testimony. In contrast to the trial testimony, on May 2, 2005, Croghan gave a deposition which was more favorable to Pieper and painted a picture in which French had been an aggressor and Croghan had kicked French. Weeks before Pieper's trial, on February 22, 2006, the prosecutor in this case asked a police officer to contact Croghan to ask how he would testify at trial. Prior to the conversation, the officer thought that Croghan "was going to claim all responsibility of wrong doing [sic] in this case." However, Croghan told the officer that he had lied in his deposition because he was being threatened by Pieper's associates. Croghan told the officer that at trial, he planned to tell the truth, which more closely tracked his original statement to police in which Croghan stated that Pieper had assaulted French. The officer called the prosecutor on February 22 to orally report on the conversation, but the officer did not prepare a written report of the conversation until April 11, after Pieper's trial had begun. On April 12, the third day of Pieper's trial, and prior to Croghan's testimony, Pieper moved to dismiss based on prosecutorial misconduct because he had not been provided a copy of the officer's report of the February 22 conversation with Croghan until that day. The court overruled the motion to dismiss. Pieper then made a motion for mistrial, which the court also overruled.
Pieper testified in his own defense. In his testimony, Pieper stated that French had been an aggressor and that it was Croghan who had hit French. Pieper denied that he ever punched, kicked, or stomped on French.
The jury returned a verdict on April 18, 2006, finding Pieper guilty of first degree assault and false imprisonment but not guilty of sexual assault. On April 21, Pieper filed a motion for new trial based on general allegations of irregularities and misconduct. On May 3, Pieper filed a pro se amended motion for new trial in which he made more specific allegations, including allegations of prosecutorial misconduct and ineffective assistance of counsel. Pieper also filed a pro se motion to dismiss counsel and appoint new counsel. The court sustained Pieper's motion for new counsel and appointed new counsel on May 12. On May 25, Pieper filed a third amended motion for new trial, asserting irregularities, misconduct, and ineffective assistance of counsel. Hearings were held, and on November 27, the court overruled the motion for new trial.
*365 An enhancement hearing based on the habitual criminal allegation was held December 12, 2006. At the enhancement hearing, Pieper objected on the basis that "notwithstanding Nebraska Supreme Court precedent," enhancement pursuant to the habitual criminal statute, Neb.Rev. Stat. § 29-2221 (Cum.Supp.2006), violated the Double Jeopardy Clauses of the Nebraska and federal Constitutions. The court overruled the objection and found Pieper to be a habitual criminal. The court sentenced Pieper to imprisonment for 10 to 20 years on each of the two convictions, with the sentences to be served consecutive to one another.
Pieper appeals.
ASSIGNMENTS OF ERROR
Pieper asserts that the district court erred in (1) failing to grant his motion for new trial on the basis that the State failed to timely disclose to the defense Croghan's statement on February 22, 2006, that his testimony at trial would be consistent with his original statement to the police and contrary to his deposition, (2) admitting tape recordings and transcriptions of the victims' statements into evidence without playing the tapes during trial and without restricting jury access to the tapes and transcriptions during deliberations, (3) failing to grant his motion for new trial on the basis that he received ineffective assistance of trial counsel, (4) failing to conclude that the habitual criminal statute violates the Double Jeopardy Clause, and (5) imposing excessive sentences.
STANDARDS OF REVIEW
In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
The constitutionality of a statute is a question of law, regarding which the Nebraska Supreme Court is obligated to reach a conclusion independent of the determination reached by the trial court. State v. Archie, supra.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Archie, supra.
ANALYSIS
The District Court Did Not Err in Overruling Pieper's Motion for New Trial Because the Prosecution Did Not Have an Obligation to Disclose a Nonexculpatory Pretrial Conversation With a Witness.
As his first assignment of error, Pieper asserts that the trial court erred when it overruled his motion for new trial in which he claimed that the State failed to timely disclose to the defense the officer's February 22, 2006, conversation with Croghan. We determine that the State had no obligation to disclose the conversation in this case and that therefore, the court did not abuse its discretion when it did not grant a new trial on such basis.
We note initially that under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), due process requires the State to disclose exculpatory evidence to a defendant. See State v. Lykens, 271 Neb. 240, 710 N.W.2d 844 (2006). However, the State is not under a constitutional *366 duty to disclose all information that might affect the jury's verdict, State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992), and discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or a court rule, id. At issue here is Croghan's verbal statement to a police officer that he intended to testify in a manner unfavorable to Pieper. Such statement was not exculpatory to Pieper. Nevertheless, Pieper claims that the State had an obligation to disclose its knowledge regarding Croghan's intentions and that such obligation stemmed from discovery statutes and the court's discovery order. We determine that neither the statute nor the court's discovery order support Pieper's claim.
Pieper filed a motion for discovery on December 23, 2004. It did not specifically request the type of police witness inquiry at issue here. The court granted the motion in an order in which it stated, "Discovery is granted to all parties to [the] extent allowed by statute." Discovery statute Neb.Rev.Stat. § 29-1912 (Reissue 1995) controls our analysis. Section 29-1912 provides in part:
(1) When a defendant is charged with a felony or when a defendant is charged with a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, he or she may request the court where the case is to be tried, at any time after the filing of the indictment, information, or complaint to order the prosecuting attorney to permit the defendant to inspect and copy or photograph:
(a) The defendant's statement, if any. . . .
(b) The defendant's prior criminal record, if any;
(c) The defendant's recorded testimony before a grand jury;
(d) The names and addresses of witnesses on whose evidence the charge is based;
(e) The results and reports of physical or mental examinations, and of scientific tests, or experiments made in connection with the particular case, or copies thereof; and
(f) Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or nature which could be used as evidence by the prosecuting authority.
Pieper does not claim that the February 22, 2006, interview of Croghan fits any particular category listed in § 29-1912, although he does suggest knowledge of it would have been "useful" to the defense. Brief for appellant at 36. He further suggests that the reference to "information within the possession, custody, or control of the state" found in another discovery statute, Neb.Rev.Stat. § 29-1914 (Reissue 1995), expands the listings found in § 29-1912 to include "information" in general. We reject this argument. By its terms, § 29-1914 limits rather than expands the scope of discovery orders issued under § 29-1912 to "items or information within the possession, custody, or control of the state." Section 29-1914 does not add a new category, to wit "information," subject to discovery but instead serves to circumscribe the discovery obligation of the State. Given the discovery request and the court's discovery order in this case, which granted discovery to the extent allowed by statute, the State was not obligated to disclose its conversation with a witness in preparation for trial.
Pieper moved for a new trial on the additional basis that the State's providing the report of the February 22, 2006, conversation on the third day of trial was untimely. We conclude that the court did *367 not abuse its discretion in overruling the new trial motion on such basis. With respect to the timeliness of the production of the officer's report, we note that the written report was not prepared until the second day of trial and that the State provided the report to the defense the next day, prior to Croghan's testimony at trial. After receiving the report, Pieper moved to dismiss and for a mistrial. When the motions were overruled, Pieper did not move for a continuance.
It is apparent from the record that prior to trial, Pieper was aware that Croghan had given conflicting accounts of the events at issue and that one version was more favorable than the other. Given this knowledge of disparate versions, the possibility that Croghan's trial testimony could be consistent with his original statement was apparent to defense counsel.
We determine that given the discovery request, the discovery order, the discovery statutes, and Pieper's knowledge that Croghan had already given conflicting versions of events, the State was not obligated to provide to the defense its understanding of the officer's February 22, 2006, conversation with Croghan. We therefore conclude that the court did not abuse its discretion by overruling Pieper's motion for new trial on this basis.
Pieper Did Not Object to the Admission of Tape Recordings and Transcriptions of the Victims' Statements to Police and Did Not Preserve the Issue for Appeal.
As his second assignment of error, Pieper asserts that the court erred in admitting tape recordings and transcriptions of tape recordings of police interviews with the victims, French and A.N. We conclude that because Pieper failed to object to admission of these items, he has failed to preserve this issue for appeal.
A tape recording of a police interview with French and the transcription of a tape recording of another police interview with French were admitted into evidence. The tape recording was not played to the jury, and the transcription was not read to the jury. Although there is no indication in the record that the jury listened to the tape recording or read the transcription during deliberations, it appears that both pieces of evidence were available to the jury. For completeness, we note that in his appellate argument, Pieper also references a tape recording of a police interview of A.N. that was marked as an exhibit; however, there is no indication in the record that the A.N. tape recording was offered or admitted into evidence.
A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003). When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007). Pieper did not object to the admission of the tape recording and the transcription and did not present the issue to the trial court. We therefore reject Pieper's second assignment of error.
Claims of Ineffective Assistance of Counsel May Not Be Raised in a Motion for New Trial.
As his third assignment of error, Pieper asserts that the court erred in overruling his motion for new trial in which, through substitute counsel, Pieper claimed his initial trial counsel had provided ineffective assistance. The State argues that ineffective assistance of counsel is not a proper statutory ground for a motion for new *368 trial. We agree with the State and conclude that the court did not err in overruling the motion for new trial on such basis.
The statute governing motions for new trial, Neb.Rev.Stat. § 29-2101 (Cum.Supp. 2006), provides as follows:
A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following grounds affecting materially his or her substantial rights: (1) Irregularity in the proceedings of the court, of the prosecuting attorney, or of the witnesses for the state or in any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial; (2) misconduct of the jury, of the prosecuting attorney, or of the witnesses for the state; (3) accident or surprise which ordinary prudence could not have guarded against; (4) the verdict is not sustained by sufficient evidence or is contrary to law; (5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial; (6) newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act; or (7) error of law occurring at the trial.
We note that ineffective assistance of counsel is not one of the enumerated grounds upon which a defendant may move for a new trial under § 29-2101.
Pieper argues on appeal that the procedure of raising claims of ineffective assistance of counsel in a motion for new trial was "allowed" by this court in earlier cases and should be permitted in the instant case. Reply brief for appellant at 3. Pieper cites Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136 (1946), and State v. Whiteley, 234 Neb. 693, 452 N.W.2d 290 (1990). In Hawk, this court held that due process issues, including a claim that the defendant had been deprived of effective assistance of counsel, were "issues which are not justiciable in a habeas corpus proceeding in this state." 146 Neb. at 881, 22 N.W.2d at 140. In reaching such conclusion, this court stated in dicta that the issues "could have been presented and determined by the trial court, in the first instance, on a motion for a new trial." Id. In Whiteley, this court held that the trial court did not abuse its discretion in overruling a motion for new trial which raised issues of ineffective assistance of counsel. However, this court did not, in either Hawk or Whiteley, cite to § 29-2101 or analyze the propriety or prudence of raising a claim of ineffective assistance in a motion for new trial made under § 29-2101. Because we conclude that ineffective assistance of counsel is not a ground upon which a defendant may move for new trial under § 29-2101, to the extent that Hawk and Whiteley imply that an ineffective counsel claim can be raised on a motion for new trial, they are disapproved.
We believe that in addition to the fact that a claim of ineffective counsel is not an enumerated basis for a new trial motion under § 29-2101, such claim is not suited to a motion for new trial. Due to the absence of a record relating to issues such as defense counsel's trial strategy, a separate evidentiary hearing would be required on the ineffectiveness claim, thus postponing entry of judgment. A defendant exploring ineffectiveness of trial counsel immediately after the trial could run the risk of a procedural bar if not all ineffectiveness claims were raised and developed. Defendants are not without remedies. Claims of ineffective assistance of counsel are available on direct appeal and in postconviction proceedings. See, State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007); Neb.Rev.Stat. § 29-3001 (Reissue 1995). However, they are neither authorized *369 nor suited to the immediate aftermath of a trial in a motion for new trial.
Because ineffective assistance of counsel is not a proper ground for a motion for new trial under § 29-2101, we conclude that the court did not abuse its discretion by overruling the motion for new trial on such basis.
Nebraska's Habitual Criminal Statute Does Not Violate the Double Jeopardy Clause.
As his fourth assignment of error, Pieper asserts that the court erred in rejecting his assertion that the habitual criminal statute, § 29-2221, violates the Double Jeopardy Clauses of the federal and Nebraska Constitutions. We conclude that the court did not err in rejecting such assertion.
In raising the constitutional challenge to the habitual criminal statute at the enhancement hearing, Pieper's counsel acknowledged mat the challenge was made "notwithstanding Nebraska Supreme Court precedent stating double jeopardy principles do not apply." This court has previously rejected double jeopardy challenges to Nebraska's habitual criminal statute and has long held that the statute does not violate the Double Jeopardy Clause because "an enhanced sentence under the provisions of the habitual criminal laws is not a new jeopardy or additional penalty for the same crime. It is simply a stiffened penalty for the latest crime which is considered to be an aggravated offense because it is a repetitive one." Addison v. Parratt, 208 Neb. 459, 462, 303 N.W.2d 785, 787 (1981). See, also, State v. Goodloe, 197 Neb. 632, 250 N.W.2d 606 (1977), disapproved on other grounds, State v. Clifford, 204 Neb. 41, 281 N.W.2d 223 (1979).
Pieper makes no new argument that would cause us to reconsider such precedent. The district court therefore did not err in rejecting Pieper's constitutional challenge to the habitual criminal statute.
District Court Did Not Impose Excessive Sentences.
As his final assignment of error, Pieper asserts that the court imposed excessive sentences. The sentences were within statutory limits, and we conclude that the court did not abuse its discretion in the sentences it imposed.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007). Pieper was convicted of first degree assault under Neb.Rev.Stat. § 28-308 (Reissue 1995) and false imprisonment in the first degree under Neb.Rev. Stat. § 28-314 (Cum.Supp.2006). First degree assault is a Class III felony, § 28-308(2), and false imprisonment is a Class IIIA felony, § 28-314(2). The maximum sentence of imprisonment is 20 years for a Class III felony and 5 years for a Class IIIA felony. Neb.Rev.Stat. § 28-105(1) (Cum.Supp.2006). However, due to prior felony convictions, Pieper was found to be a habitual criminal, and under § 29-2221, one found to be a habitual criminal is to be punished by imprisonment for a mandatory minimum term of 10 years and a maximum term of not more than 60 years for each felony conviction. Pieper was sentenced to imprisonment for 10 to 20 years on each count with the sentences to be served consecutive to one another. Therefore, Pieper's sentences were within statutory limits.
Pieper's main argument is that the court erroneously ordered that his sentences be served consecutive to one another because the court mistakenly thought it was required to do so. Pieper notes that when defense counsel urged that the sentences be ordered to be served concurrently, the *370 court stated, "while some might think that I have a lot of discretion in this matter, I really don't think I do." We do not read the court's comments to indicate that the court thought it was mandatory that the sentences be served consecutive to one another. The court continued by stating, "while it would be tempting to make the sentences concurrent, because they do arise perhaps out of the same event, what I have are two separate victims and really two very separate crimes, at least as the jury determined them." The court then "decline[d] that invitation" to order the sentences to be served concurrently. We read the court's comments to indicate that the court knew it had discretion to order the sentences to be served concurrently but decided that consecutive sentences were appropriate under the circumstances.
Although Pieper argues that he did not have a history of violence, we note that Pieper had a significant criminal history, including felony convictions for burglary and theft. We also note that the victims in this case suffered severe physical and emotional injuries as a result of the crimes and that French's injuries in particular were life threatening. We finally note that the sentences were at the lower end of the range mandated by the habitual criminal statute. We therefore conclude that the court did not abuse its discretion in imposing consecutive sentences of 10 to 20 years' imprisonment on each count.
CONCLUSION
Having considered and rejected each of Pieper's assignments of error, we affirm his convictions and sentences for first degree assault and false imprisonment in the first degree.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575384/ | 458 S.W.2d 903 (1970)
Steve THOMPSON, Plaintiff-Respondent,
v.
BI-STATE TRANSIT SYSTEM, INC., a Corporation, Defendant-Appellant.
No. 33342.
St. Louis Court of Appeals, Missouri.
July 28, 1970.
Motion for Rehearing or to Transfer Denied October 19, 1970.
*904 John A. Walsh, Jr., St. Louis, for defendant-appellant.
William R. Gartenberg, Theodore D. Ponfil, St. Louis, for plaintiff-respondent.
Motion for Rehearing or to Transfer to Supreme Court Denied October 19, 1970.
DOERNER, Commissioner.
Defendant appeals from a verdict and judgment for plaintiff in the amount of $2500 in this action for damages which arose out of a collision between defendant's motor bus and an automobile owned and operated by plaintiff.
No claim is made by defendant that plaintiff failed to make a submissible case, and in view of the points relied on an extended statement of the facts is unnecessary. Plaintiff's version of the occurrence, obviously accepted as true by the jury, was that on October 8, 1966, he drove his car northwardly in the middle of the three northbound lanes on Kingshighway Boulevard, in the City of St. Louis, Missouri; that defendant's motor bus was stopped in the curb lane at a loading zone located just south of Maple Avenue; and that plaintiff's automobile was almost past the motor bus when the bus was started up and struck the right rear bumper and fender of plaintiff's vehicle, resulting in the injuries to plaintiff of which he complained.
Defendant's first point involves an evidentiary ruling by the court. In the course of outlining in his opening statement what he expected his evidence to be, plaintiff's counsel stated, without any objection being made, that it would show that when the police came to the scene of the accident the operator of the motor bus refused to make a statement. However, no reference of *905 any kind was made to that subject during the presentation of plaintiff's evidence. Thereafter defendant called its bus driver, John Black, as a witness and in the course of his direct examination defendant's counsel asked Black whether he had made a statement to the police about what had happened. Black answered that he had not. Defendant's counsel next inquired, "Why is that, sir?" whereupon plaintiff objected that Black's reason for not making a statement to the police would be self-serving. The court sustained the objection, and defendant's counsel then made an offer of proof that, if permitted, Black would testify that the reason he did not make a statement to the police was because of the defendant's policy which forbade a bus operator from making any statement to anyone, including the police, at the scene of an accident. Defendant now maintains that the court erred in sustaining the plaintiff's objection.
The primary purpose of an opening statement is to inform the judge and the jury in a general way of the nature of the action so as to enable them to understand the case and to appreciate the significance of the evidence as it is presented. Hays v. Missouri Pacific R.R. Co., Mo., 304 S.W.2d 800; Eddings v. Keller, Mo., 400 S.W.2d 165. But unsworn statements made by counsel, in voir dire examination or opening statement, where they do not constitute judicial admissions, are not evidence of the facts asserted. Davis v. City of Independence, Mo., 404 S.W.2d 718; Hardwick v. Kansas City Gas Co., 352 Mo. 986, 180 S.W.2d 670; State of Missouri ex rel. Horn v. Randall, Mo.App., 275 S.W.2d 758. The record shows that after the jury had been impaneled and sworn the court, in compliance with MAI 2.01, properly instructed the jury that, "Opening statements * * * are not evidence" and that "`The evidence which you are to consider consists of the testimony of witnesses and the exhibits admitted in evidence. * * *'" As stated, during the presentation of plaintiff's evidence no reference of any kind was made to Black's refusal to make a statement to the police. Had the matter been allowed to remain in that posture any reference by plaintiff to the subject in his closing argument would have been improper, Davis v. City of Independence, supra, and defendant would have been entitled to point out in its closing argument, if it was so inclined, that plaintiff in that respect had failed to prove what plaintiff had stated he expected to prove. Or, had defendant waited until plaintiff cross-examined Black, and plaintiff had taxed Black with his refusal to make a statement to the police, defendant would then have been entitled to develop from Black the latter's reason for his refusal. That was precisely the situation which arose in Conley v. Lafayette Motor Car Co., 204 Mo.App. 37, 221 S.W. 165, upon which defendant relies. Here, however, defendant voluntarily introduced such evidence, which after all was neither material or relevant to the issues in the case. Whether Black refused to make a statement, and his reason therefor, was a collateral matter in which the trial court has a large discretion, Boehmer v. Boggiano, Mo., 412 S.W.2d 103, and under the peculiar circumstances of this case we cannot say that the trial court abused its discretion. Defendant also complains as to the grounds of plaintiff's objection, but since the evidence was properly excluded as irrelevant the form of the objection is not grounds for relief. Sorrell v. Hudson, Mo., 335 S.W.2d 1; Eller v. Crowell, Mo., 238 S.W.2d 310.
Defendant next asserts that the court erred in admitting plaintiff's evidence as to what he paid for his automobile when he bought it, seven months prior to the accident, and what he realized for it when he sold it, about four months after the accident. In the first place, an examination of the transcript shows that no formal objection or motion to strike was made by defendant; and in the second, if error was committed it was not prejudicial, because by its verdict the jury did not award plaintiff any amount for damage to his automobile (see Civil Rule 71.06, V.A.M.R.), and error without prejudice is no ground for reversal. Civil Rule 83.13(b); Neavill v. *906 Klemp, Mo., 427 S.W.2d 446. Defendant also argues that such evidence was prejudicial because it indicated "* * * a force of impact in excess of that justified by the facts." That argument is obviously an afterthought, inasmuch as it was not alluded to in defendant's post-trial motions. Nor is it persuasive. As a matter of fact, no reference was made to the damage to the automobile in plaintiff's argument to the jury.
Defendant's final point is that in closing argument plaintiff on three occasions was permitted to argue outside the record. The first instance concerns plaintiff's comment that if a record of the days in which plaintiff had worked between October and April existed defendant undoubtedly would have brought them in. The second instance concerned plaintiff's recollection of what one of defendant's witnesses had stated regarding the passing of automobiles while defendant's motor bus was pulling out from the curb. The third instance concerned plaintiff's comment that although he had tried to find him, plaintiff did not know who the police officer was who had appeared on the scene. As to the first, contrary to defendant's argument plaintiff did not assume as a fact that such records existed, nor did he place the duty upon defendant to produce such records. As to the second, the court did not expressly sustain or overrule defendant's objection, nor did defendant insist upon such a ruling, but the court did admonish the jury that it had heard the evidence and that statements of counsel were not to be considered as evidence. As to the third instance, in defendant's argument its counsel had commented on plaintiff's failure to bring in the police officer, and plaintiff's remarks were clearly in retaliation to the comment made by defendant's counsel. In support of its argument that prejudicial error was committed during plaintiff's closing argument defendant cites Hancock v. Crouch, Mo. App., 267 S.W.2d 36, in which the argument under consideration was not only improper, but inflammatory and an obvious appeal to bias and prejudice, as the court determined. Nevertheless, as the court held, it did not follow as a matter of course that the judgment should be reversed, absent a finding that the error committed materially affected the merits of the action. What was there said (267 S.W.2d 46) regarding the court's discretion regarding improprieties during closing argument is equally applicable here:
"We also are mindful of the fact that, in the heat of trial, zealous counsel may overstep the bounds of propriety inadvertently; that the trial court has considerable discretion as to what action should be taken with respect to matters of this character [McGinley v. St. Louis Public Service Co., Mo.Sup., 239 S.W.2d 321, 324(6); Beeler v. Miller, Mo.App., 254 S.W.2d 986, 991(8); Plannett v. McFall, Mo.App., 284 S.W. 850, 854(11); Allen v. Autenrieth, Mo.App., 280 S.W. 79, 81(4)]; that defendants' complaints about the argument of plaintiff's counsel were presented to the trial court in the motion for new trial; and, that where, as here, an able trial judge does not consider the transgression of counsel as of sufficient importance to require a new trial, the appellate court is inclined to defer to the opinion of the trial judge [Schwinegruber v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 782, 786-787; Aly v. Terminal Ry. Ass'n of St. Louis, 342 Mo. 1116, 119 S.W.2d 363, 368(10); Hancock v. Kansas City Terminal Ry. Co., 339 Mo. 1237, 100 S.W.2d 570, 582]."
And see Helfrick v. Taylor, Mo., 440 S.W.2d 940.
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly judgment affirmed.
WOLFE, P. J., and BRADY and DOWD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574215/ | RONA YOUNG KEMP, ROXANN YOUNG AND CARL YOUNG, INDIVIDUALLY AND AS LEGAL HEIRS OF MARTIN YOUNG
v.
CTL DISTRIBUTION, INC., ROGER A. MCLELLAND, AND JOHN DOE
No. 2009 CA 0061
Court of Appeals of Louisiana, First Circuit
September 11, 2009
Not Designated for Publication
ROBERT E. KLEINPETER, JAY G. McMAINS, Counsel for Plaintiffs/Appellees Rona Young Kemp, Roxann Young, and Carl Young, individually and as legal heirs of Martin Young
JAMES M. DILL, JOHN P. GUILLORY, Counsel for Defendants/Appellants CTL Distribution, Inc. and Roger McLelland
BEFORE: WHIPPLE, HUGHES, AND WELCH, JJ.
HUGHES, J.
This is an appeal of an April 13, 2008 judgment of the 18th Judicial District Court that granted a motion to compel and ordered sanctions against defendant, CTL Distribution, Inc. (CTL). The judgment was designated as final, pursuant to LSA-C.C.P. arts. 1915A(6) and 1915B(1). For the following reasons, we vacate the judgment and remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
Defendant CTL is in the business of transporting hazardous chemicals between Baton Rouge and New Orleans. CTL leases space to Delta Trailer, Inc. (DTI), a maintenance company with which CTL contracts to service and maintain CTL's trucks and trailers. The instant suit arose when an employee of DTI, Martin "Rock" Young, died while servicing CTL's trailer. The plaintiffs are the children of the deceased employee of DTI.
Plaintiffs (the Youngs) forwarded discovery requests to CTL on November 3, 2006; June 11, 2007; and July 2, 2007 (which included requests for admissions of fact). Claiming that CTL was not responsive to their discovery requests, on August 8, 2007, the Youngs filed "Petitioners' Motion to Compel Discovery Responses and to Determine Sufficiency of the Answers and Objections," praying that CTL be ordered to fully respond to the propounded discovery and that plaintiffs be awarded attorney's fees and costs, pursuant to LSA-C.C.P. art. 1469(4). According to the judgment on appeal, "Petitioners' Motion to Compel Discovery Responses was tried to the Court on January 14, 2008 and then continued for further trial on February 11, 2008 and April 7, 2008." The judgment states that "[p]etitioners' [m]otion to [c]ompel and for sanctions is granted." The judgment then imposes sanctions against CTL including all fees and costs associated with the motion. The judgment further orders that "the Jury at the trial on the merits of this matter will not be allowed to assess fault against Delta Trailer, Inc."
CTL appeals the sanction in the judgment that forbids the jury from considering the fault of DTI and, in eight separate assignments of error, alleges the following:
1. The trial court erred in imposing sanctions pursuant to LSA-C.C.P. art. 1471 as no order had been previously issued.
2. The trial court erred in striking DTI from the jury verdict form since such a sanction amounts to a dismissal of its claim against DTI and would require a showing of willful bad faith on the part of CTL.
3. The trial court erred in striking DTI from the jury verdict form because such a sanction is not permissible under LSA-C.C. art. 2323 insofar as LSA-C.C. art. 2323 requires that the fault of all persons be quantified.
LAW AND ARGUMENT
The trial court has much discretion in imposing sanctions for the failure of a party to comply with discovery orders and its ruling will not be reversed absent an abuse of that discretion. Lirette v. Babin Farm, Inc., XXXX-XXXX, p.3 (La. App. 1 Cir. 4/2/03), 843 So. 2d 1141, 1142; Moody v. Moody, 622 So. 2d 1376, 1380-81 (La. App. 1 Cir.), writs denied, 629 So. 2d 1168 (La. 1993). However, appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court's decision was based on its erroneous interpretation or application of law, rather than a valid exercise of discretion, an incorrect decision is not entitled to deference by the reviewing court. Mitchell v. Gaylord Container, 2003-2762, p.3 (La. App. 1 Cir. 10/29/04), 889 So. 2d 300, 302, writ denied, XXXX-XXXX (La. 4/1/05), 897 So. 2d 608.
THE APPLICABLE LAW
Louisiana Code of Civil Procedure article 1469, prior to amendment by Acts 2008, No. 374 Section 1, provided:
A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) An application for an order to a party or a deponent who is not a party may be made to the court in which the action is pending.
(2) If a deponent fails to answer a question propounded or submitted under Articles 1437 or 1448, or a corporation or other entity fails to make a designation under Articles 1442 or 1448, or a party fails to answer an interrogatory submitted under Article 1457, or if a party, in response to a request for inspection submitted under Article 1461, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If a court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Article 1426.
(3) For purposes of this Subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
(5) An application for an order compelling discovery to a member of the legislature in his capacity as a state lawmaker when the legislature or either body thereof is not a party to the proceeding may be made to the court in which the action is pending, but no order compelling discovery shall issue except in strict conformity with the provisions of R.S. 13:3667.3(B). (Emphasis added.)
Louisiana Code of Civil Procedure article 1471, prior to amendment by Acts 2008, No. 824, section 3, provided:
If a party or an officer, director, or managing agent of a party or person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Paragraphs (1), (2), and (3) of this Article, unless the party failing to comply shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (Emphasis added.)
Plaintiffs' motion to compel, which makes reference to article 1469(4) and prays for attorney's fees and costs, was granted by the trial court. However, in the same judgment the court ordered the particular sanction now on appeal, which goes well beyond the authorization of article 1469(4) and the relief prayed for by plaintiffs.
It appears from the transcripts of the hearings on the motion to compel that plaintiff was seeking sanctions pursuant to LSA-C.C.P. art. 1471 for failure to comply with an order compelling discovery. But obviously an order to compel discovery cannot be found to have been violated and sanctions therefore ordered in the very same order so compelling.[1] The Code of Civil Procedure anticipates that there must first be a motion to compel. If the motion is granted, there should be an order compelling the discovery sought. If this order is then violated, the court may then make a subsequent order with sanctions pursuant to LSA-C.C.P. art. 1471. But in the original order granting the motion to compel, only the sanctions enumerated in LSA-C.C.P. 1469 are available. The sanctions pursuant to article 1471 are not available in response to the original motion to compel, but rather come into play only after an order compelling discovery is granted and then subsequently violated. We therefore find merit to defendant's argument that sanctions pursuant to LSA-C.C.P. art. 1471 were not appropriate at this stage of the proceedings, and pretermit discussion of the other errors assigned.
CONCLUSION
The judgment of the trial court forbidding the jury from considering the fault of DTI is vacated and this matter is remanded for further proceedings consistent herewith. All costs of this appeal are assessed against plaintiffs.
VACATED, AND REMANDED.
NOTES
[1] While we doubt that LSA-C.C.P. art. 1471(2) or (3) would support the sanction of prohibiting the jury from assessing the fault of DTI, we need not reach that issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1319248/ | 133 Ariz. 106 (1982)
649 P.2d 985
CAREFREE IMPROVEMENT ASSOCIATION, an Arizona corporation; Clifford N. Parsells; Edward Rowley; Rawhide Capital Co., an Arizona limited partnership; the Boulders Carefree Corp., an Arizona corporation; Scottsdale-Carefree Properties, an Arizona general partnership; Daniel J. Donahoe, III, trustee of the Helen Clark Donahoe Irrevocable Trusts; Desert Ranch, Inc., an Arizona corporation; Lyle Anderson Corp., an Arizona corporation, Plaintiffs-Appellees Cross-Appellants,
v.
CITY OF SCOTTSDALE, a municipal corporation; Herbert Drinkwater; James Bruner; Diane Cusack; Billie Gentry; Dr. Heinz Hink; Jeff Schubert and Charlie Smith, in their capacity as elected Mayor and members of the Council of the City of Scottsdale, and not individually, Defendants-Appellants Cross-Appellees.
No. 1 CA-CIV 5902.
Court of Appeals of Arizona, Division 1.
January 19, 1982.
Rehearing Denied March 4, 1982.
Review Denied July 16, 1982.
*107 Campana & Horne, P.C. by Thomas C. Horne, Martha B. Kaplan, Phoenix, for defendants-appellants cross-appellees City of Scottsdale, Mayor and members of City Council.
Streich, Lang, Weeks & Cardon, P.A. by William S. Hawgood, II, Michael P. West, Phoenix, for plaintiff-appellee cross-appellant Rawhide Capital Co.
Jennings, Strouss & Salmon by Jay C. Stuckey, Jr., Neil Vincent Wake, Phoenix, for plaintiffs-appellees cross-appellants Boulders Carefree Corp., Scottsdale-Carefree Properties, Donahoe, Desert Ranch, Inc., and Lyle Anderson Corp.
Thur & Preston by Richard R. Zielinski, Scottsdale, for plaintiffs-appellees cross-appellants Carefree Imp. Ass'n, Parsells and Rowley.
OPINION
CORCORAN, Judge.
The appellees commenced this litigation to invalidate an annexation ordinance passed by the appellant City of Scottsdale (Scottsdale). Appellees moved for summary judgment on the ground that Scottsdale had failed to comply with the notice provisions of Arizona's open meeting law, A.R.S. §§ 38-431.01 to .09. The trial court granted summary judgment. We affirm its decision.
Although the action taken by the city council of Scottsdale involves annexation, this is not a "strip annexation" case. This is an open meeting law case. The open meeting law was first adopted in 1962. Laws 1962, Ch. 138. In 1978, the legislature adopted a declaration of public policy for the guidance of those charged with the interpretation of the open meeting law by adding A.R.S. § 38-431.09:
Declaration of Public Policy.
It is the public policy of this state, reflected in this article [3.1], that meetings of public bodies be conducted openly. Toward this end, any person or entity charged with the interpretations of this article shall take into account the policy of this article and shall construe any provision of this article in favor of open and public meetings.
Laws 1978, Ch. 86, § 7. In construing the open meeting law and the declaration of policy, the language must "be liberally construed to effect their objects and to promote justice." A.R.S. § 1-211(B). This construction must be followed "unless such construction would be inconsistent with the manifest intent of the legislature." A.R.S. § 1-211(A).
The proceedings which led to this litigation were occasioned by the demise of the legislatively sanctioned practice of "strip annexation." Prior to July 1, 1980, Arizona law permitted this species of municipal enlargement, by which an incorporated municipality could annex a strip as little as ten feet wide encircling a broad expanse of unannexed land contiguous to the municipality. This action had the effect of depriving the owners of land within the encircled strip of the right to be annexed by any other municipality. See A.R.S. § 9-471(A)(1). It could also in effect confer a veto power over the incorporation of any other municipality within a six mile radius. See A.R.S. § 9-101.01.
In the spring of 1980, the legislature amended A.R.S. § 9-471 to eliminate the practice of strip annexation. This legislation, Laws 1980, Ch. 226, § 1, took effect on July 1, 1980.
In late June, 1980, certain Scottsdale city officials and members of the city council became convinced of the desirability of annexing a 10 to 25 foot strip of land encircling some 86 square miles north and west of the existing city limits.[1] They were professedly motivated in some part by the thought or fear that the City of Phoenix *108 (Phoenix), which was likewise adjacent to the area in question, might conceivably attempt a similar "strip annexation" of the same land. Scottsdale considered strip annexation important because Scottsdale had more rigorous zoning and development standards than Phoenix and the area lay within the projected growth pattern of Scottsdale. If Scottsdale was successful in the strip annexation, it could exercise a strong degree of control over zoning and development in the 86 mile area. It is not disputed that the annexation would also have taken Scottsdale to within six miles of the unincorporated communities of Carefree and Cave Creek, thus requiring citizens in those areas to first offer to be annexed to Scottsdale as a condition precedent to incorporation as a municipality. A.R.S. § 9-101.01.
On Friday morning, June 27, at 8:00 a.m., the Scottsdale city council convened in a duly noticed session to consider annexation petitions to effectuate the strip annexation described above. One of the annexation petitions, rejected by the council because it contained conditions, was submitted by the appellee Rawhide Capital Company (Rawhide Capital). Questions were raised as to whether the annexation petitions acceptable to the council were sufficient in terms of the value of land represented, and one council member moved to postpone consideration of the proposed Ordinance 1304 until the next regular meeting of the council on Monday, June 30, at 5:00 p.m. This motion carried, and it thus became a matter of orally announced public record that the next consideration of the proposed strip annexation ordinance would be on Monday at 5:00 p.m. The proposed annexation had been the subject of some public attention, and members of the press were present at the meeting to observe the council's actions.[2]
Among the persons present at the Friday morning meeting of the council was James Paul, general partner of the appellee Rawhide Capital. Rawhide Capital owns Rawhide, a large tourist attraction within the area encircled by the proposed annexation.
After the meeting on Friday morning some city officials became convinced that it was strategically necessary for the city council to consider the proposed annexation ordinance on Monday morning, if possible. They were concerned that news media reports of the unsuccessful Friday morning meeting would prompt an attempt by Phoenix to annex the area before the regular council meeting late Monday afternoon. If Phoenix were successful in such an attempt, Scottsdale would be ousted from jurisdiction in the matter. The record indicates that Scottsdale city officials were making tentative plans before the close of business on Friday, June 27, to hold a council meeting the following Monday morning. Inasmuch as the mayor was not willing to call an early morning meeting to preempt annexation jurisdiction, the affirmative votes of four council members were necessary for the special meeting. By Saturday, June 28, city officials had received the express affirmative votes of three members, James Bruner, Jeff Schubert and Charlie Smith, and were confident enough of receiving the affirmative vote of a fourth council member, Diane Cusack, that they proceeded to give official notice of a special meeting to take place in city hall at 7:00 a.m. on Monday morning. Mayor Herbert Drinkwater and council members Billie Gentry and Dr. Heinz Hink opposed the calling of this special meeting.
The Arizona open meeting law requires that public notice be given of meetings of public bodies where public issues will be decided. The relevant notice provisions read as follows:
Notice of meetings.
A. Public notice of all meetings of public bodies shall be given as follows: ....
*109 3. The public bodies of the cities and towns shall file a statement with the city clerk or mayor's office stating where all public notices of their meetings will be posted and shall give such additional public notice as is reasonable and practicable as to all meetings.
....
C. Except as provided in subsections D and E, meetings shall not be held without at least twenty-four hours' notice to the members of the public body and to the general public.
D. In case of an actual emergency, a meeting may be held upon such notice as is appropriate to the circumstances.
E. A meeting may be recessed and resumed with less than twenty-four hours' notice if public notice of the initial session of the meeting is given as required in subsection A, and if, prior to recessing, notice is publicly given as to the time and place of the resumption of the meeting or the method by which notice shall be publicly given.
A.R.S. § 38-431.02. Pursuant to subsection (A)(3) of the statute, the Scottsdale city council had by Resolution 1290[3] designated the city hall, police department headquarters and Eldorado Park as the places for posting "public notices." No claim has been made that these locations were not suitable for posting public notices. Cf. Valley National Bank v. Brooks, 3 Ariz. App. 340, 414 P.2d 189 (1966) (which deals with "public places").
After Scottsdale city officials determined on Saturday to hold the meeting regarding proposed Ordinance 1304 on Monday morning at 7:00 a.m., they proceeded to post notices[4] of the newly scheduled meeting and copies of the proposed ordinance and map in city hall, in the police department headquarters, and in a building at Eldorado Park. They also posted notices in the Scottsdale Center for the Arts, inside a building at Indian School Park, and in the municipal library. All notices were posted by 7:00 p.m. on Saturday evening. However, neither city hall nor the municipal library was open to the public between Saturday evening and 7:00 a.m. on Monday morning. Police headquarters were open to the public only if one were to press a buzzer and ask for admittance. The Arts building was open between the hours of 10:00 a.m. and 5:00 p.m. on Sunday and the buildings in the two parks were open to the public between 6:00 a.m. and 10:30 p.m. on Sunday. Nothing was posted on the property described in the proposed ordinance.
The city officials involved in the decision to hold the meeting and to post notices thereof conferred with the Scottsdale city attorney in regard to complying with the provisions of A.R.S. §§ 38-431.02(A)(3) and (C). It was determined that extra postings were necessary and that the three indicated extra postings would be sufficient. It was decided by city officials not to inform the news media until council member Diane Cusack had returned to the city on Sunday and given her express approval to the early Monday morning meeting. A member of *110 the media called a city official on Saturday and inquired whether "there was anything new" in regard to the proposed ordinance. He was answered in the negative. One city official testified that he made attempts to reach James Paul by telephone, without success. After city officials contacted Diane Cusack on Sunday afternoon, certain members of the media were contacted and informed that there would be a meeting early Monday morning. This was too late for any media publication prior to the meeting.
The special meeting was held as scheduled on Monday morning at 7:00 a.m. City hall ordinarily opens at 8:00 a.m., and this was the first council meeting in the memory of any witness to take place at 7:00 a.m. The council considered and passed Ordinance 1304. Aside from the members of the council and staff, the only person in attendance at the special meeting was an individual from the media. The meeting adjourned at 7:15 a.m. When the council convened for its regular weekly session at 5:00 p.m., the audience was informed that Ordinance 1304 had already been considered and passed by the council.
The position of appellee Rawhide Capital in this matter has been described. The strip annexed by the city pursuant to Ordinance 1304 runs through a parcel of land owned by the appellee Boulders Carefree Corporation. Boulders Carefree Corporation intends to develop a resort on this property and will be faced with conflicting zoning and development requirements. The appellee Carefree Improvement Association is a corporation whose members include citizens of the unincorporated communities of Carefree and the surrounding area.
Scottsdale raises two principal issues. Both are predicated upon the stringent standards applied in this jurisdiction as a prerequisite to the granting of a summary judgment. Rule 56, Rules of Civil Procedure. First, Scottsdale contends that it made a good faith effort to comply with the notice provisions of the open meeting law and that if it is given the benefit of all inferences which might be favorably drawn in support of its position, the reasonableness and practicality of the notice it gave should be an issue for determination by the trier of fact, not susceptible to summary judgment. The second issue advanced by Scottsdale on appeal is that the subject matter of the special meeting on Monday morning, June 30 was such that circumstances of an "actual emergency" existed, so that the adequacy of its notice should be judged under the less stringent standards of A.R.S. § 38-431.02(D).
The office of the procedural device of summary judgment is to determine without the necessity of a superfluous trial a claim which upon the established facts and the law can only be determined in favor of the moving party. See 6 Moore's Federal Practice § 56.02 (2nd ed. 1981). But summary judgment may be granted only when there is no genuine issue of material fact, or issue raised by conflicting inferences which may be drawn from an uncontroverted material fact. Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979); Rondelli v. County of Pima, 120 Ariz. 483, 586 P.2d 1295 (App. 1978).
Thus, the critical issue in the context of the summary judgment on appeal is whether a reasonable finder of fact might conclude that the notice given complied with the requirements of the open meeting law. See, e.g., Moore v. Maricopa County, 11 Ariz. App. 505, 466 P.2d 56 (1970). If a reasonable finder of fact might so conclude, summary judgment would have to be reversed and the issue determined by trial in the usual manner.
While we agree with Scottsdale that what is "reasonable," "practicable," and "appropriate" would generally be a matter for determination at trial, that determination must be made in the present case based upon the legislative policy set forth in the open meeting law. In other words, the notice given, in order to come into at least the lower end of the spectrum of what might be considered "reasonable," "practicable," and "appropriate" must accord with the basic policy of the statute, which the courts are required to enforce by the mandate set forth in A.R.S. § 38-431.09.
*111 If the open meeting law has a "core" provision, it is found in § 38-431.01(A). That subsection of the law provides:
Meetings shall be open to the public.
All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings.
A.R.S. § 38-431.01(A) (emphasis added). The notice provisions in the open meeting law are obviously designed to give meaningful effect to provisions such as A.R.S. §§ 38-431.01(A) and 38-431.09. The goal of exposing the public decision-making process to the public itself could be significantly, if not totally thwarted, in the absence of mandatory notice provisions and their enforcement. See Government in the Sunshine Act: Opening Federal Agency Meetings, 26 Am.U.L.Rev. 154, 196 (1976). See also Town of Paradise Valley v. Acker, 100 Ariz. 62, 411 P.2d 168 (1966).
The meeting in question was held in unique circumstances. It was the first Scottsdale council meeting ever held at 7:00 in the morning, before the usual opening of city hall. The notices were posted during the weekend regarding a special meeting to commence before the opening of the city hall on the next regular day of business. These circumstances made it virtually impossible for any person to file a suit in the superior court before the meeting to challenge the adequacy of the notice. A.R.S. § 38-431.07; Rule 1.1., Superior Court Local Rules-Maricopa County. Far more importantly, however, it was convened to consider a proposed ordinance which as a matter of the declared public record had been scheduled for reconsideration on Monday afternoon at 5:00 p.m., the regular meeting time of the council. It is clear upon the record before us that there were "persons so desiring" to attend the council meeting at which proposed Ordinance 1304 was to be considered. It is equally clear that city officials and council members knew or had good reason to know that there were persons who desired to attend the meeting and who were not apt to become aware of the newly scheduled meeting by reason of notices posted on Saturday night and available for viewing on Sunday, only, at the places we have described. The council's actions and the manner in which it proceeded in this case are precisely the public actions contemplated by the legislature when it enacted the open meeting law. The supreme court interpreted the legislative intent as follows:
The intent of the open-meeting law is that legal actions proceedings which constitute a "decision, commitment or promise made by a majority of the members of a public body," A.R.S. § 38-431(2) "be conducted openly."
Karol v. Board of Education Trustees, 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979). However, the supreme court has also indicated that "a minor deviation" from the requirements of the statute does not require that all actions of a public body be declared null and void "because equitable principles require a balancing of the rights of those involved." 122 Ariz. at 97, 593 P.2d at 651.
Although the open meeting law does not prescribe the hours during which those places where public notice will be posted must be open, the connotation of the words "public notice," would indicate that it must be posted in a place where members of the public have reasonable access. The city council had designated city hall, police department headquarters, and Eldorado Park as the places where the public notices would be posted. However, during the time the notices were posted for the Monday morning meeting there was no access at all to city hall, and there was very limited access to police department headquarters. Although the notices were posted at the places required by A.R.S. § 38-431.02(A)(3) and Resolution 1290, they were not effective "public notices" because of the public's lack of access to them. Scottsdale did post additional notices of the Monday morning meeting but these notices cannot be considered as substitutes for those required by statute and Resolution 1290. They can be considered only as "such additional public notice as is reasonable and practicable as to all meetings." A.R.S. § 38-431.02(A)(3).
*112 Generally, whenever a statute requires that notice be given and does not specify the manner in which the notice is to be given, personal notice is required. Cameron v. Shuttleworth, 75 Ariz. 61, 251 P.2d 659 (1953); Valley National Bank v. Stewart, 53 Ariz. 328, 89 P.2d 493 (1939). When the statute directs the manner of giving notice affecting property rights, there must be strict compliance with the statute. Lewis v. Ehrlich, 20 Ariz. App. 363, 513 P.2d 153 (1973). See also Mason v. Wilson, 116 Ariz. 255, 568 P.2d 1153 (App. 1977). When "jurisdictional notice" is mandated in a certain manner, any means of notice other than that prescribed is ineffective, Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959), and failure to comply with the mandated notice will render any action void. Yuma County v. Arizona Edison Co., 65 Ariz. 332, 180 P.2d 868 (1947).
The first time the posted notices would have become "public" would have been at 8:00 a.m. on Monday morning when city hall and the police department headquarters opened for business. That is when they would have become available for public inspection which was one hour after the noticed meeting was held. By emphasizing this time sequence, we do not mean to express any opinion as to the exact time when the 24 hours commences to run. A.R.S. § 38-431.02(C). See Microwave Communications, Inc. v. FCC, 515 F.2d 385, 390-97 (D.C. Cir.1974).
We agree with Scottsdale that technical violations and minor deviations from the requirements of the open meeting law should not render action by a public body null and void, so long as there is substantial compliance with the open meeting law. Karol v. Board of Education Trustees, supra; City of Flagstaff v. Bleeker, 123 Ariz. 436, 600 P.2d 49 (App. 1970). However, this court must determine whether there has been substantial compliance by reviewing the whole of the proceeding, rather than its several parts. City of Flagstaff v. Bleeker, 123 Ariz. at 438, 600 P.2d at 51. In doing so, we must conclude that there was a misleading element inherent in the circumstances since the very persons desiring to attend the city council meeting had already been informed that it would be held at a later time. While good faith may be of some relevance in determining in some cases that there had been only a technical violation or a minor deviation from the requirements of the open meeting law, we are unable to conclude that good faith together with all of the other circumstances in this case suffices to make an issue of fact. And while the appellees have characterized the actions of Scottsdale's officials as evidencing an intent to withhold notice from the public, the absence of any such intent is plainly insufficient in and of itself to create an issue of fact.
Conceding every permissible inference to Scottsdale, we are unable to conclude in view of the specific circumstances in question here that the notice given by Scottsdale satisfied the requirement that "public notices" be posted in designated public places. A.R.S. § 38-431.02(A)(3) and Resolution 1290.
Scottsdale concedes that the Scottsdale City Charter defines "emergency" and the facts of this case admittedly do not fall within that definition. However, Scottsdale argues for the first time on appeal that the matter of the proposed strip annexation presented a "case of an actual emergency" and that, accordingly, the notice it gave must be judged or might be judged by a trier of fact to have been "appropriate" under such exigent conditions. See A.R.S. § 38-431.02(D), quoted above.
Appellees initially meet this argument with the proposition that Scottsdale may not urge a contention on appeal that it has not presented to the trial court. This is true, even on review of a summary judgment. Crook v. Anderson, 115 Ariz. 402, 565 P.2d 908 (App. 1977); Sullins v. Third and Catalina Construction Partnership, 124 Ariz. 114, 602 P.2d 495 (App. 1979). Scottsdale argues that it is incumbent upon this court as well as the trial court to review the entire record and, in effect, determine appellees' motion anew. This is not conformable with the concept of this court as an *113 appellate court sitting in review of determinations made by the trial court. Scottsdale does not get a hearing de novo upon appellees' motions. The rule of Crook v. Anderson applies, and we may consider only those contentions which were advanced in the trial court.
Apart from the foregoing, however, we do not perceive that the circumstances presented here could be fairly characterized as an "actual emergency" within the meaning of the statute. The word "actual" means "real" as opposed to "nominal" and "existing in fact" as opposed to "constructive" or merely "possible" or "conceivable." See Mason v. Hart, 140 Cal. App. 2d 349, 295 P.2d 28 (1956). And "emergency" is generally defined as an unforeseen combination of circumstances which call for immediate action. State v. Unosawa, 48 Wash.2d 616, 296 P.2d 315 (1956).
The statute permitting strip annexations was on the books for many years. The subject was legislatively debated and the statute amended in the spring of 1980, months prior to the proceedings in question. Officials of Scottsdale wished to exercise "influence" or hegemony over the part of Maricopa County north and west of the city so that its zoning and other activities subject to regulation under the police power might be in conformity with that of Scottsdale rather than the ordinances of Phoenix in the event that Scottsdale eventually annexed the whole area encircled within the strip.
Even if it were clear that Phoenix was preparing a competing annexation proposal, and there is no evidence of such a competing proposal in the record, such circumstances do not in our view create an "actual emergency" within the meaning of the open meeting law. Compare Mead School District No. 354 v. Mead Education Association, 85 Wash.2d 140, 530 P.2d 302 (1975). To hold otherwise would dilute language of the legislature which it has apparently chosen with care.
The appellees sought to recover their attorney's fees in the superior court. The trial judge denied recovery, and appellees have cross-appealed the issue.
Initially it should be observed that the statutory scheme of the open meeting law provides for a limited number of sanctions. Any business transacted in violation of the open meeting law is null and void. A.R.S. § 38-431.05. Any person violating the open meeting law is guilty of a class 3 misdemeanor. A.R.S. § 38-431.06. A person convicted of a class 3 misdemeanor can be incarcerated for a fixed time not exceeding 30 days, A.R.S. § 13-707(3), and be fined not more than $500.00. A.R.S. § 13-802(C). The court may also order that a successful plaintiff recover his reasonable attorney's fees from "the defendant state, political subdivision of the state or the incorporated city or town...." A.R.S. § 38-431.07.[5]
A.R.S. § 38-431.07 provides:
Equitable relief.
Any person affected by a legal action of a public body may commence a suit in the superior court for the county in which the public body ordinarily meets, for the purpose of requiring compliance with, or the prevention of violations of this article, by members of the public body, or to determine the applicability of this article to matters or legal actions of the public body. The court may order such equitable relief as it deems appropriate in the circumstances. The court may also order payment to a successful plaintiff in a suit brought under this section of his reasonable attorney's fees, by the defendant state, political subdivision of the state or the incorporated city or town of which the public body is a part or to which it reports.
*114 (emphasis added.) The emphasized provision in regard to attorney's fees has not previously been the subject of any extensive judicial discussion. Cf. Ahnert v. Sunnyside Unified School District, 126 Ariz. 473, 616 P.2d 933 (App. 1980).[6]
All of the appellees contend that A.R.S. § 38-431.07 should be construed as creating a presumption that attorney's fees are to be awarded to a successful plaintiff in a suit seeking to enforce the provisions of the open meeting law in the absence of particular reasons which would make such an award unjust. Appellees prominently cite in this regard Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968), involving Title II of the Civil Rights Act, and Common Cause v. Stirling, 119 Cal. App. 3d 658, 174 Cal. Rptr. 200 (1981), decided under California's Brown Act, a "sunshine" or open meeting law.
We do not perceive either the compelling necessity or desirability of creating a presumption in this area. The legislature has employed the simple word "may" as an indicator of the extent of judicial authority. This is the classic language of discretion. The Karol case, cited above, indicates that substantial compliance with the provisions of the open meeting law may be sufficient. This suggests to us a recognition by our supreme court that our open meeting law, which imposed substantial changes in public meeting procedures, may not always yield clear black and white answers to persons seeking the most efficient lawful procedures. In sum, we perceive no indication that the legislature intended to establish a formal or informal presumption in regard to the recovery of attorney's fees, and we decline to create one.
This takes us to appellees' baseline contention that the trial court abused its discretion in failing to award attorney's fees in this case.
Certainly, the fact that the corporate appellees are substantial corporations able to finance litigation cannot, of itself, be controlling. No authority is cited to the contrary. Furthermore, the third group of appellees, incorporated as the Carefree Improvement Association, is simply a group of residents in the Carefree area whose rights were significantly affected by Scottsdale's actions.
One of the appellees has argued that Scottsdale's action was prompted by "imperialistic" motives. While this characterization does not significantly advance analysis, it serves to focus upon the fact that Scottsdale was intent upon expanding its influence into an unincorporated area, at the expense of a similar potential quest, real or imagined, by Phoenix. Courts, of course, can accord no respect to any particular municipal "life style," or choose among the various lawful manners by which one municipality exercises its police powers as opposed to the manner chosen by another nearby municipality. We cannot, therefore, share any particular sympathy for Scottsdale's objectives in attempting to rush through a strip annexation ordinance. Cf. State ex rel. DeConcini v. City of Phoenix, 74 Ariz. 46, 243 P.2d 766 (1952).
What Scottsdale undertook was concededly lawful when it was undertaken, and accordingly our focus under A.R.S. § 38-431.07 must be upon the extent of its attempted compliance with the open meeting law, and the extent to which the appellees' successful action was beneficial to others as well as themselves.
In the final analysis, the same factors which compel judgment for appellees lead us to conclude that a denial of attorney's fees was inappropriate in this case. While we are impressed on the one hand that Scottsdale officials consulted with the city's legal counsel, we cannot close our eyes to the fact that its officials chose to withhold any hint of its planned Monday morning meeting from persons who concededly desired to attend the meeting and from news media until it was too late for any *115 meaningful dissemination. That fact must be viewed against the background of a publicly announced postponement of consideration of the controversial ordinance until 5:00 p.m. on Monday afternoon. Even though council member Cusack was unavailable, plans for the early morning meeting proceeded apace, and the established facts and circumstances disclose an attempt to give only the minimum notice required by the open meeting law. We have determined that the notice did not meet the required standard. It violated the express intent and declaration of public policy of the open meeting law. A.R.S. § 38-431.09.
It is of course true that the appellee for-profit corporations had their own substantial interests to protect. But presumably there are other properties within the vast expanse encircled by the strip annexation whose owners will be free of the narrowing of their options which the strip annexation imposed.
Under all the circumstances, we are of the opinion that the situation calls for the imposition of attorney's fees against Scottsdale in favor of the successful appellees. We believe that our decision in this regard gives effect to the intent that the legislature has expressed in the open meeting law and which is set forth in the declaration of public policy.
Summary judgment for the appellees is affirmed. The cause is remanded to the superior court for ascertainment of the proper amounts to be awarded to appellees for attorney's fees in connection with the litigation in the superior court.
The appellees have requested attorney's fees for defending the appeal. Our decision indicates the propriety of such an award, and the appellees may particularize their requests in their statement of costs. Rule 21(c), Rules of Civil Appellate Procedure.
The cause is remanded for further proceedings in conformity herewith.
CONTRERAS, V.C.J., and OGG, J., concur.
NOTES
[1] At the time the City of Scottsdale encompassed approximately 89 square miles of land.
[2] We do not express any opinion as to whether the procedure followed by the city council in recessing the meeting which commenced at 8:00 a.m. on Friday to be resumed on Monday at 5:00 p.m. would comply with the requirements of the open meeting law in the absence of other notice. See A.R.S. § 38-431.02(E).
[3] Resolution 1290, adopted by the city council on August 20, 1974, provides:
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Scottsdale as follows:
Section 1: That in accordance with the provisions of Subsection 3 of Section 38-431.02, Arizona Revised Statutes, notices of all regular, special and other meetings of the City Council and all agencies, boards and commissions of the City of Scottsdale and their committees and subcommittees shall be posted at City Hall, Police Department Headquarters and Eldorado Park, at least twenty-four (24) hours prior to the commencement time of said meeting and shall also set forth the time and place of all such meetings.
[4] The notices read as follows:
NOTICE IS HEREBY GIVEN that the Mayor and City Council of the City of Scottsdale, Arizona, will hold a special meeting at 7:00 a.m., on Monday, June 30, 1980, in the Kiva, City Hall, 3939 Civic Center Plaza, Scottsdale, Arizona, for the purpose of considering revised Ordinance No. 1304, annexing certain territory contiguous to the existing limits of the City of Scottsdale.
The "revised Ordinance" related to a change in the property description of the strip to be annexed which was different from the description considered at the Friday morning meeting.
[5] The open meeting law does not by its terms provide that the defendant can in turn recover those attorney's fees from the responsible persons who actually violated the provisions of the open meeting law. Also, the open meeting law does not by its terms provide for any civil sanctions or penalties to be imposed against persons who violate it. In this case, the individual parties defendant are joined "in their capacity as elected Mayor and members of the Council of the City of Scottsdale, and not individually." (Emphasis added.)
[6] Ahnert interpreted the open meeting law as it existed before its amendment in 1978. 126 Ariz. at 475 n. 1, 616 P.2d at 935 n. 1. The amendment in 1978 contains the "declaration of public policy" previously quoted, A.R.S. § 38-431.09. Laws 1978, Ch. 86, § 7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574230/ | 17 So. 3d 241 (2009)
WATER AND WASTEWATER BOARD OF THE CITY OF MADISON
v.
CITY OF ATHENS.
2070764.
Court of Civil Appeals of Alabama.
February 20, 2009.
*242 L. Ann Grace and Gary K. Grace of Grace, Matthews, Grimes & Debro, LLC, Huntsville, for appellant.
J. Jeffery Rich and Matthew B. Reeves of Sirote & Permutt, P.C., Huntsville, for appellee.
THOMAS, Judge.
In December 2000, the City of Athens ("the City") hired Shaun Chandler as a service installer for the City's water-distribution system. At the time Chandler was hired, he was not yet certified as a Grade I Distribution System Operator ("Grade I operator"). In fact, when Chandler was hired, the City intended to train Chandler for certification as a Grade I operator. Chandler was certified as a Grade I operator on or about November 1, 2002, and he was promoted to the position of construction technician later that month. On December 3, 2003, Chandler resigned his position with the City and became employed by the Water and Wastewater Board of the City of Madison ("the Board") as a pipe fitter.
The City notified the Board by letter in March 2004 that it claimed an entitlement to reimbursement under Ala.Code 1975, § 22-25-16, which permits the State, a municipality, a municipal utility board, or a county to seek reimbursement for the total amount that that entity expended to enable a water operator or wastewater operator to become certified from another state, municipality, municipal utility board, or county who employs that operator within 24 months of his or her certification. The statute reads, in its entirety:
*243 "In those instances in which a water or wastewater operator of any municipality, municipal utility board, county, or the state is employed by the State of Alabama, any county, municipality, or another municipal utility board, within 24 months after completing the certification requirements mandated by this chapter, the total expense paid by the water or wastewater operator's governmental employer to enable the operator to become certified, including, but not limited to, salary paid during training, transportation costs paid to the trainee for travel to and from the training facility, room, board, tuition, overtime paid to other employees who fill in for the trainee during his or her absence, and any other related training expenses, shall be reimbursed to the municipality, municipal utility board, county, or the state which paid for the training. The municipality, municipal utility board, county, or the state which paid for the training shall submit an itemized sworn statement to the new employer of the water or wastewater operator, as the case may be, shall demand payment thereof, and may enforce collection of the obligation through civil remedies and procedures. The terms `water operator' and `wastewater operator' shall have the same meanings as in Section 22-25-1."
§ 22-25-16. Although the City provided the required itemized statement, the Board refused to pay the City.
On March 10, 2005, the City sued the Board, seeking a judgment declaring that the City was entitled to reimbursement from the Board for the expenses associated with Chandler's training and certification as a Grade I operator, pursuant to § 22-25-16. The City further sought reimbursement from the Board of the $62,594.53 the City claimed it had expended in training Chandler to be certified as a Grade I operator. After answering the complaint, the Board sought a summary judgment in May 2006, which was denied. In January 2008, the City moved for a summary judgment, which the Board opposed. After considering the materials submitted by both parties, the trial court entered a summary judgment in favor of the City and ordered the Board to reimburse the City $62,298.15. The Board appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).
We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So. 2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. *244 2000); and Fuqua v. Ingersoll-Rand Co., 591 So. 2d 486, 487 (Ala.1991).
On appeal, the Board makes three arguments for reversal. The Board first argues that, based on Limestone County Water and Sewer Authority v. City of Athens, 896 So. 2d 531 (Ala.Civ.App.2004), § 22-25-16 does not apply to it because it is a public corporation, having been incorporated pursuant to Ala.Code 1975, § 11-50-310 et seq. Secondly, the Board asserts that Chandler was not a water "operator" as that term is defined in Ala.Code 1975, § 22-25-1. Finally, the Board argues that, if we conclude that it is subject to § 22-25-16 and that Chandler is a water operator as defined in § 22-25-1, the City was not entitled to the amount that the trial court ordered reimbursed because of the specific language pertaining to the training expenses to be reimbursed in § 22-25-16. We will consider each argument in turn.
I. Whether § 22-25-16 Applies to the Board
The Board argues that it is not "the State of Alabama, any county, municipality, or another municipal utility board," Board's brief at § 22-25-16, and, therefore, that the City may not seek reimbursement under § 22-25-16 for Chandler's training expenses. According to the Board, it is a public corporation incorporated pursuant to § 11-50-310 et seq. and, thus, is a distinct legal entity from the municipality it serves. See Water Works Bd. of Leeds v. Huffstutler, 292 Ala. 669, 677, 299 So. 2d 268, 276 (1974) (adopting the order of the trial court, which stated that a water board was "`an entity separate and independent from the city which it serves'"); City of Mobile v. Cochran, 276 Ala. 530, 532, 165 So. 2d 81, 83 (1964) (stating that a municipal corporation and a public corporation like a water-works board are "distinct, separate and independent corporations"). Because of its independence and status as a public corporation, the Board contends, it cannot be considered to be within the class of entities to which § 22-25-16 applies.
Although it is without question that the Board is not the State or a county, the question whether it qualifies as a municipality or municipal utility board is more challenging to answer. As our supreme court has recognized, "`[t]here has been considerable confusion over the existence and legal status of public corporation utilities, primarily because the reported cases are inconsistent in their analysis. It is possible to find a public corporation utility case to support almost any proposition....'" Water Works & Sewer Bd. of Talladega v. Consolidated Publ'g, Inc., 892 So. 2d 859, 862 (Ala.2004) (quoting the amicus curiae brief of the State of Alabama). This is indeed the case.
The Board is a public corporation organized for the purpose of operating a water system for the City of Madison. See § 11-50-311 (explaining the procedure by which a public corporation is created, including the filing of an application with the governing body of the municipality and the adoption of a resolution approving the incorporation by the municipality) and § 11-50-312(a)(1) (indicating that the articles of incorporation of the corporation should "indicat[e] the system or systems for the operation of which the corporation is organized (e.g., `the waterworks and electric board of the City (or Town) of........,' or `the utilities board of the City (or Town) of.......'")). As noted, the Board maintains that, as a public corporation that is separate and independent from the municipality it serves, it is not an agency of the municipality and is therefore not required to reimburse the City pursuant to § 22-25-16 because it does not fall into the class *245 of entities to which that statute applies, i.e., it is not a municipality or a municipal utility board.
However, despite the language in cases like Huffstutler and Cochran regarding the separate and independent nature of public corporations, our supreme court has also long held that, in at least some respects, a public corporation like the Board is an agency of the municipality it serves, Cochran, 276 Ala. at 532, 165 So.2d at 83; Jackson v. Hubbard, 256 Ala. 114, 120, 53 So. 2d 723, 728 (1951), or acts as an agent of the municipality. Marshall Durbin & Co. v. Jasper Utils. Bd., 437 So. 2d 1014, 1019 (Ala.1983), overruled on other grounds by Ex parte Waterjet Sys., Inc., 758 So. 2d 505, 511 (Ala.1999). In more recent cases, the supreme court has referred to a public corporation like the Board as "an administrative agency that performs city functions" and has noted that such a public corporation "is so organized to perform its functions as an agency of the City." City of Montgomery v. Water Works & Sanitary Sewer Bd. of Montgomery, 660 So. 2d 588, 594 (Ala.1995).
Based on these conclusions, the supreme court has determined that the phrase "municipal board, committee, or like body" used in Act No. 93-704, Ala. Acts 1993, encompassed an entity like the Board in the present case, "irrespective of the fact that the ... Board is a public corporation." City of Montgomery, 660 So.2d at 594. At issue in City of Montgomery was whether the phrase "municipal board, committee, or like body" in Act No. 93-704, which was applicable to Class 3 municipalities like the City of Montgomery, would include a water and sewer board. Id. at 590. Act No. 93-704 permits a Class 3 municipality to change the number of members of a "municipal board, committee, or like body" to be equal with the number of members on the governing body of the municipality. Id. The Water Works and Sanitary Sewer Board of Montgomery sought, among other things, a judgment declaring that Act No. 93-704 did not apply to it because it was a public corporation and, therefore, independent from the City of Montgomery. Id. at 593. The City of Montgomery, however, contended that, because the board was appointed by the governing body of the municipality, it should logically be considered a "municipal board." Id. at 592.
The supreme court considered persuasive the fact that the language used by the legislature in Act No. 93-704"municipal board, committee, or like body"was broad and indicated its intent to legislate broadly. Id. at 594. As noted above, the court commented that boards like the Water Works and Sanitary Sewer Board of Montgomery had been considered agencies of the municipalities they served and that they were organized to perform functions as agencies of the municipalities. Id. at 594. The court further noted that the fact that an agency is organized as a corporation would not impact its qualities as a government agency. Id. In conclusion, the court stated that the language used in Act No. 93-704 compelled a conclusion that the legislature meant to include "any instrumentality by which a city performs its governmental functions." Id. Thus, the court held that Act No. 93-704 did permit the City of Montgomery to change the number of members on the Water Works and Sanitary Sewer Board of Montgomery. Id.
The Board argues that the language in § 22-25-16 is not as broad as the language in Act No. 93-704. Although the language in § 22-25-16 regarding the entities to which that statute applies does not include a phrase indicating a broad scope like the phrase "or like body" in Act No. 93-704, we cannot agree that the failure of the legislature to include that phrase or a similar *246 phrase in § 22-25-16 is conclusive as to whether the Board in the present case falls within the ambit of § 22-25-16.
Likewise, the conclusion of this court in Limestone County Water & Sewer Authority does not conclusively resolve the issue in favor of the Board. Although we determined in Limestone County Water & Sewer Authority that a county water authority incorporated pursuant to Ala.Code 1975, § 11-88-1, was not required to reimburse the City of Athens because § 22-25-16 did not apply to the county water authority, we did so in large part because the county water authority, as a public corporation, was not a part of the State. Limestone County Water & Sewer Auth., 896 So.2d at 534. The precise question presented herewhether the Board is a "municipal utility board" as that term is used in § 22-25-16was not answered by Limestone County Water & Sewer Authority. Using the myriad of cases reflecting the seemingly opposed views on the character of public corporations, we will endeavor to determine whether the Board is a "municipal utility board" and, therefore, falls within the purview of the § 22-25-16.
This task would be much easier if § 22-25-16, or for that matter, any statute, defined the term "municipal utility board." However, no statute defines that term. Instead, the City argues that the Board is indeed a municipal utility board based on certain language in one Alabama Supreme Court case, Marshall Durbin & Co., 437 So.2d at 1018, and the use of the term in the title of H.B. 36, a 2001 bill proposing to amend Ala.Code 1975, § 11-50-313.[1] The Board argues that the use of the term "municipal utility board" in the title of H.B. 36 is an "inadvertent use" of the term and points out that the language in § 11-50-313 refers to the entities created under § 11-50-310 et seq. consistently as "corporations."
Although the article pursuant to which the Board was createdTitle 11, Chapter 50, Article 9 (§ 11-50-310 et seq.)refers to the creation of public corporations and uses the term "corporation" to refer to the entities created pursuant to that article, we note that the statutes composing the article seem to indicate that the public corporations created thereby are, in fact, boards that provide utility services to a municipality. Notably, § 11-50-312(a)(1) requires that the name of the public corporation "indicat[e] the system or systems for the operation of which the corporation is organized," i.e., the wastewater board or the water and gas board, and the examples listed in that section show that the name of the corporation should include the term "board" and specify the particular city or town the corporation serves. Id. As already noted earlier in this opinion, in order to incorporate, the public corporation must secure a resolution from the governing body of the municipality it intends to serve. § 11-50-311. In addition, any amendment to the certificate of incorporation of the public corporation must also be approved by the municipality's governing body via a resolution consenting to the proposed amendment. § 11-50-312(b).
Despite the City's argument, we do not find the use of the term "municipal utility board" by our supreme court in Marshall Durbin & Co., 437 So.2d at 1018, to be authority for concluding that entities like the Board are "municipal utility boards." Although the City characterizes that opinion as "acknowledging" that the Jasper *247 Utilities Board was a municipal utility board, that characterization appears to be a bit strong. The supreme court did use the term "municipal utility board" in explaining the arguments of the parties, but it appears that the parties were not disputing whether the Jasper Utilities Board was a municipal utility board; the opinion does not go so far as to define that term, so the use of that term in that opinion is of little help to us in determining whether the Board in the present case is a "municipal utility board" as that term is used in § 22-25-16. However, Marshall Durbin & Co. does indicate that a board in the position of the Board in the present case is an agent of the municipality it serves, id. at 1019, and the opinion further notes the uniqueness of a public corporation incorporated under § 11-50-310 et seq., including the fact that the governing body of the municipality has some control over those appointed to be members or directors of the board. Id.
More recent cases considering the characterization of a public corporation like the Board appear to focus on the role of the public corporation created under § 11-50-310 et seq.to serve the municipality that created it. Consolidated Publ'g, 892 So.2d at 863.
"Public corporations were initially authorized by the Legislature as a means for municipalities to finance improvements to their utilities infrastructure without running afoul of constitutional and statutory debt limitations, as well as to shield municipalities from the large financial obligations that often accompany such utilities projects. Coxe v. Water Works Bd. of Birmingham, 288 Ala. 332, 337, 261 So. 2d 12, 15-16 (1972). Yet public corporations have typically maintained close relationships with the municipalities that create them."
Id. at 861. The Consolidated Publishing court considered whether the records of the Water Works and Sewer Board of the City of Talladega ("the Talladega Board") were subject to Ala.Code 1975, § 36-12-40, a part of the Open Records Act. Id. Like the Board in the present case, the Talladega Board was organized under § 11-50-310 et seq. Id. The court focused its analysis on whether the Talladega Board's employees were officers or servants of a municipality. Id. at 863. The court first noted that the Talladega Board's members were appointed by the Talladega City Council. Id. The court further noted that the Talladega Board "performs a municipal function, namely, supplying water and sewer services to the residents of Talladega." Id. The supreme court then stated that, based on their performance of municipal functions, public corporations "have long been held to be agencies of the municipality they serve, regardless of their organizational structure." Id. Based on its determination that the Talladega Board "has the qualities of an agency of the City of Talladega," the court determined that the employees of the Talladega Board were public employees. Id. Although the court did not construe the term "municipal utility board" and was not construing § 22-25-16, the court's view of public corporations like the Board is enlightening.
Finally, we note that the Court of Criminal Appeals has held that the Prichard Water Works and Sewer Board ("the Prichard Board") is a "utility board." Langham v. State, 662 So. 2d 1201, 1205 (Ala.Crim.App.1994). The Langham court was examining whether members of the Prichard Board were public officials under the state ethics laws. Langham, 662 So.2d at 1203. As part of its analysis, the court considered a former version of § 36-25-1(11), which had defined "public official" to include "members of ... utility boards." *248 The court concluded, therefore, that the members of the Prichard Board were public officials subject to the state ethics laws, stating:
"After examining the `original' definition of `public official,' we hold that the Prichard Water Works and Sewer Board, regardless of whether it is a creature of incorporation or whether it was established by city ordinance, is a `utility board' and, thus, subject to the state ethics law.
"Because both enactments, § 11-50-310 et seq. and § 11-50-340 et seq., are codified within the `public utilities' Chapter of the Alabama Code, and because the legislature clearly expressed its intent that `utility boards' be subject to the ethics law, no error occurred here."
Id. at 1205.
Although we agree that the Board is a public corporation and although we cannot escape the conclusion that it is a corporation separate and independent from the municipal corporation that is the City of Madison, our analysis of the caselaw leads us to conclude that the Board is a "municipal utility board" as that term is used in § 22-25-16. The Board was incorporated under § 11-50-310 et seq., which required it to be created by a resolution of the governing body of the City of Madison. Its purpose, as revealed by its full name the Water and Wastewater Board of the City of Madisonis to provide a water and wastewater system for the City of Madison. Because our caselaw has long held that public corporations like the Board are "agencies of the municipality they serve, regardless of their organizational structure," Consolidated Publ'g, 892 So.2d at 863, we agree with the City and the trial court that the Board is subject to § 22-25-16.
II. Whether Chandler Is an Operator as Defined in § 22-25-1
The Board next challenges the application of § 22-25-16 to it because, it argues, Chandler is not an "operator" as defined in § 22-25-1. Section 22-25-1(4) defines an "operator" as "[t]he person on duty who has direct responsibility for the operation of a water treatment plant, water distribution system, public wastewater collection system, or wastewater treatment plant." The Board argues that this definition was intended to apply only to those employees employed in a supervisory capacity. The City, however, argues that the statutory definition does not require that Chandler be considered a supervisor, only that he have the ability to be responsible for the operation of the water-distribution system, which, the City says, his Grade I operator certificate permits him to do at those times when he is "on call" or when he is the most senior person on his crew.
To further bolster its argument that Chandler is not an "operator" under § 22-25-1, the Board quotes Ala. Admin. Code (Dep't of Envtl. Mgmt.), Rule 335-10-1-.02, which gives a more comprehensive definition of an "operator":
"(h) `Operator' means the person on duty who has direct responsibility for the operation of a water treatment plant, water distribution system, public wastewater collection system or wastewater treatment plant. A person shall be deemed to have direct responsibility for the operation of a water treatment plant, water distribution system or wastewater treatment plant if he in fact supervises or directs the operation of a water treatment plant, water distribution system or wastewater treatment plant, or makes process control decisions."
Although the Board does not include the definition of "process control decision" in its brief, we find that definition to be pertinent *249 to the decision whether Chandler is, in fact, an operator so as to require the Board to pay the City for the cost of his certification.
"(k) Process control decision means a decision regarding the daily operational activities of a water system or wastewater system that will directly impact the quality and/or quantity of drinking water or treated wastewater."
Rule 335-10-1-.02.
The parties do not dispute the fact that Chandler was not, at any time during his employment, a supervisor in the ordinary sense, i.e., he did not supervise other employees. The deposition testimony of John Stockton and the deposition testimony of Howard Hopkins offered in support of the City's motion for a summary judgment explained the process by which an employee working in the City's water-distribution system becomes certified as a Grade I operator. According to Stockton, the manager of Water Services for the City, each person employed by the City to work in its water-distribution system is hired with the expectation that they will complete the training necessary to become a Grade I operator. Without a Grade I operator certification, Stockton explained, an employee of the City working in its water-distribution system cannot "function in any kind of useful responsible position." Before an employee is certified, he or she can work with a crew; however, Stockton explained, he or she cannot "operate the system" without the supervision of a certified coworker.
According to Stockton, certification as a Grade I operator permits an employee to:
"Operate the system. Perform what we call operating the system. The critical operative word is `breaching' the system. A potable water system is pressurized and it is protected by that pressure....
"....
"The system is pressurized. Every time you open a valve, open the spigot in your house, you breach the system. You can do that because we are not accountable after it goes through the meter into your house. But until it passes through that meter, we are accountable for what goes on and the State requires us to have certified operators on that system to breach it.... [I]f they are closing or opening a valve for any reason, if they are working on a leak, if they are making a tap, if they are replacing a meter they are breaching the system."
Stockton further explained the change in an employee's status after the employee's certification as a Grade I operator, stating that the employee is then able to be "on call" to handle, without supervision, any after-hours emergencies that might occur. As Stockton explained:
"[W]e have someone in responsible charge 24 hours a day, 366[sic] days a year. [A certified Grade I operator] can join that group of people [that can be `on call' or on `standby'] because prior to certification, he comes in every day, he gets in the truck and goes out with his leader and he does what he is told to do."
The deposition testimony of Hopkins, who is the superintendent of the City's water-distribution system, was similar to Stockton's testimony. He testified that an employee was not permitted to "breach the system" unless the employee was certified as a Grade I operator. He further explained that, after Chandler's certification, during the times that Chandler was "on call," Chandler would be considered the operator of the water-distribution system.
*250 The evidence indicates that, in order to breach the water system, an employee must be a certified Grade I operator. Chandler was permitted to breach the system without supervision because he had acquired the necessary certification. The responsibility of making decisions regarding after-hours emergencies that would require breaching the system fell to Chandler on those days when he was "on call." Those type of decisions are "process control decisions." Rule 335-10-1-.02(k) ("a decision regarding the daily operational activities of a water system or wastewater system that will directly impact the quality and/or quantity of drinking water or treated wastewater"). We conclude, therefore, that Chandler was an "operator" under § 22-25-1(4) and Ala. Admin. Code, Rule 335-10-1-.02(h).
III. Whether the Board Must Reimburse All the Expenses Associated with Chandler's Grade I Operator Certification
The Board's final argument concerns the scope of the reimbursement permitted under § 22-25-16. According to the Board, that statute requires reimbursement of only those expenses related to formal or classroom training provided by the City during Chandler's certification process, or, at most, $938.74. The Board bases its position, in part, on what we perceive to be a rather disingenuous argument regarding the 2002 amendment to § 22-25-16.
The version of § 22-25-16 in effect before the 2002 amendment read as follows:
"In those instances in which a water or wastewater operator of any municipality, municipal utility board, county, or the state is employed by the State of Alabama, any county, municipality, or another municipal utility board, within 24 months after completing the certification requirements mandated by this chapter, the total expense paid by the water or wastewater operator's governmental employer to enable the operator to become certified, including salary paid during training, shall be reimbursed to the municipality, municipal utility board, county, or the state which paid for the training. The municipality, municipal utility board, county, or the state which paid for the training shall submit an itemized sworn statement to the new employer of the water or wastewater operator, as the case may be, shall demand payment thereof, and may enforce collection of the obligation through civil remedies and procedures. The terms `water operator' and `wastewater operator' shall have the same meanings as in Section 22-25-1."
(Emphasis added.)
The 2002 amendment to § 22-25-16 added the words "but not limited to" before the phrase "salary paid during training" and added "transportation costs paid to the trainee for travel to and from the training facility, room, board, tuition, overtime paid to other employees who fill in for the trainee during his or her absence, and any other related training expenses" after that phrase. Based on those changes, the Board inexplicably argues that the legislature intended to restrict the expenses to be reimbursed under § 22-25-16 to only those expenses related to "specific formal training outside the regular course of employment." Board's brief at 35-36. We cannot understand how insertion of the phrase "but not limited to" can be construed to limit the amount of reimbursement to only those items in the statute that follow that phrase. See, e.g., McCulloch v. State Dep't of Human Res., 536 So. 2d 68, 70 (Ala.Civ.App.1988) (referring to the legislature's provision of a "nonexclusive list" in Ala.Code 1975, § 26-18-7, which contains the phrase "may consider, *251 but not be limited to"). The Board's proposed interpretation is, in fact, contrary to the principles of statutory construction, which require us to give each word in a statute its "natural, plain, ordinary, and commonly understood meaning." Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So. 2d 687, 689 (Ala.1991).
Be that as it may, we can certainly understand the remainder of the Board's argumentthat it should not be required to pay Chandler's salary, including all applicable taxes, from December 2000 to November 2002, the two years immediately preceding his certification as a Grade I operator. The City, however, contends that the language of § 22-25-16 clearly mandates payment of the "total expense" it incurred to "enable" Chandler to become certified over the two-year period during which he trained on-the-job before his certification. The phrase "salary paid during training" is capable of either construction urged by the parties; however, we are required, as best we can, "to ascertain the intent of the legislature as expressed and to effectuate that intent." Tuscaloosa County Comm'n, 589 So.2d at 689. To determine the legislative intent behind a statute, a court may consider "the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage." Id.
The act that was initially codified as § 22-25-16, Act No. 96-626, Ala. Acts 1996, contains little in the way of explanation of the impetus behind the act other than that it its purpose is to provide reimbursement of "training costs." The title to Act No. 96-626 reads:
"To amend Section 36-21-7, Code of Alabama 1975, relating to the reimbursement of mandated training costs when one governmental entity employs certain employees from another governmental entity within a certain period, and to provide similar requirements for the reimbursement of training expenses for certain governmental employees."
Section 36-21-7, to which Act No. 96-626 refers, was apparently the first of the reimbursement statutes; it was enacted in 1980 by Act No. 80-729, Ala. Acts 1980, to provide for the reimbursement to the original employing entity of expenses associated with training a law-enforcement officer when the officer was employed by a different municipality or county or by the State after completing his or her training requirements. We have reviewed the title to Act No. 80-729, hoping to glean additional information regarding the legislative intent behind the acts requiring reimbursement of training expenses; it reads, in pertinent part: "To require reimbursement to the municipality, county and state which expended public funds for the training of law enforcement officers if such officers are employed by another state, county or municipal agency within twelve months after completion of the training." Thus, the focus of the reimbursement acts appears to be to replace public funds expended by one entity when another entity reaps the benefits of the employee's training.
The title to the 2002 act amending § 22-25-16, Act No. 2002-424, Ala. Acts 2002, contains wording similar to the wording in the title to Act No. 96-626, while also noting that the amendment intended "to further provide what expenses are reimbursable." We can reason from the language used in the titles to all three acts that the legislature recognized that training, whether it be of law-enforcement officers or water operators, required the original employing entity to invest a significant amount of time and money in an employee as he or she trained to become certified or qualified for his or her position. Thus, by enacting § 22-25-16 the legislature appears *252 to have intended to provide reimbursement of that significant expense to the training employer on those occasions when a water operator moves to another specified employer within 24 months of his or her certification.
The key portion of the statute requires reimbursement of the following:
"the total expense paid by the water or wastewater operator's governmental employer to enable the operator to become certified, including, but not limited to, salary paid during training, transportation costs paid to the trainee for travel to and from the training facility, room, board, tuition, overtime paid to other employees who fill in for the trainee during his or her absence, and any other related training expenses."
§ 22-25-16. The City relies on the following emphasized portions of the statute: "the total expense paid by the water ... operator's governmental employer to enable the operator to become certified, including, but not limited to ...." Based on those emphasized portions, the City reasons that the "total expense ... to enable the operator to become certified" would include every single expense, including the salary of the employee while the employee was seeking his or her certification. In making its argument that the operator's salary is part of the amount that is to be reimbursed under § 22-25-16, the City relies in large part on the regulations that require an operator to have "at least twelve months working experience" in a water system before he or she can submit an application for certification as an operator. Ala. Admin. Code (Dep't of Envtl. Mgmt.), Rule 335-10-1-.08(a). Thus, the City reasons, the salary paid to an employee who is seeking certification is part of the expense paid to enable that employee to become certified.
The Board, however, counters with the above-described argument that the legislature intended to restrict the amount subject to reimbursement by adding to the term "salary paid during training" the other items enumerated in the amended statute: "transportation costs paid to the trainee for travel to and from the training facility, room, board, tuition, overtime paid to other employees who fill in for the trainee during his or her absence, and any other related training expenses." Those terms and the language used in § 22-25-16, contends the Board, indicate that the amount of reimbursement should be related to actual formal or classroom training away from the job site, which both parties agree amount to approximately 45 hours in this case. The Board also argues that, had the legislature intended that all compensation paid to an employee be reimbursed, it could have used language to that effect in § 22-25-16.
However, in our view, the language in § 22-25-16 is not so limited as to require reimbursement of only those expenses related to formal or classroom training, because the statute also includes as reimbursable the "total expense paid by the... employer to enable the operator to become certified ...." We must give effect to all the language used within the statute. Ex parte Uniroyal Tire Co., 779 So. 2d 227, 236 (Ala.2000) (quoting Sheffield v. State, 708 So. 2d 899, 909 (Ala.Crim.App. 1997)) ("`"There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used."'"). In addition, we note that, as the City argues, the legislature could well have used more specific and limiting language in § 22-25-16 had it intended that only salary and training expenses attributable to actual formal or classroom training be reimbursed.
*253 We note that neither party refers in its argument to the definition of the term "trainee," which appears in § 22-25-1(6). That section defines "trainee" as "[t]he person on duty who has direct responsibility for the operation of a water treatment plant, water distribution system, public wastewater collection system, or wastewater treatment plant and is serving in a training capacity for a maximum of one year without a certificate." (Emphasis added.) This section appears consistent with the language used in Ala. Admin. Code, Rule 335-10-1-.08(a), which requires an employee to have 12 months of on-the-job experience before he or she can seek certification as an operator. Section 22-25-1(6), then, appears to limit the time an employee may be a trainee, i.e., perform the functions of an operator without certification, to a 12-month period.
Section 22-25-16 allows reimbursement for the expenses related to training an employee to become an operator; that statute refers to the training of the employee and uses the term "trainee" when describing certain items paid to the employee that are reimbursable expenses. Based on our consideration of the definition of "trainee" in § 22-25-1(6) and the language of § 22-25-16, see Ex parte Jackson, 614 So. 2d 405, 406 (Ala.1993) (quoting McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala.1986) ("Subsections of a statute are in pari materia and `should be construed together to ascertain the meaning and intent of each.'")), a logical reading of § 22-25-16 leads to the conclusion that reimbursement of the operator's salary and related training expenses under § 22-25-16 is restricted to the period of one year, during which the employee is considered a trainee. We have concluded therefore that, pursuant to § 22-25-16, the City is due to be reimbursed Chandler's salary and training expenses for only one year of the two years that he was employed by the City before his certification as a Grade I operatori.e., only for the period during which he was a trainee. Accordingly, we reverse the summary judgment insofar as it orders the Board to reimburse the City $62,298.15.
IV. Conclusion
In conclusion, we have determined that the Board is a municipal utility board and that Chandler is an operator under § 22-25-1(4). Therefore, the Board is subject to § 22-25-16 and is required to reimburse the City for its expenses relating to Chandler's training and certification. We affirm the trial court's judgment insofar as it reached the same conclusion. However, because the language of § 22-25-16, when read in conjunction with § 22-25-1(6), does not support the City's argument that the Board is required to reimburse it for two years of Chandler's salary, we must reverse the summary judgment awarding the City $62,298.15 on its claim for reimbursement under § 22-25-16.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Although § 11-50-313 was amended in 2001, it was not amended by H.B. 36; instead, the legislature enacted Act. No. 2001-1094, Ala. Acts 2001, which originated as S.B. 6. Notably, the title to Act. No. 2001-1094 does not contain the term "municipal utility board." | 01-03-2023 | 10-30-2013 |
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