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https://www.courtlistener.com/api/rest/v3/opinions/1574263/ | 17 So. 3d 385 (2009)
STATE of Louisiana
v.
George ASHBY.
No. 2008-KO-2910.
Supreme Court of Louisiana.
September 18, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574291/ | 224 S.W.3d 154 (2006)
In re ESTATE OF Eva Friedman WEISBERGER.
Philip J. Cooper
v.
Estate of Eva Friedman Weisberger.
Court of Appeals of Tennessee, Western Section, at Jackson.
April 20, 2006 Session.
November 28, 2006.
Permission to Appeal Denied April 16, 2007.
*155 Edward T. Autry and Michael R. Parham, Memphis, Tennessee, for the appellant, Estate of Eva Friedman Weisberger.
Joe M. Duncan, Memphis, Tennessee, for the appellee, Philip J. Cooper.
Permission to Appeal Denied by Supreme Court April 16, 2007.
OPINION
HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID R. FARMER, J., joined.
This is a petition for attorney's fees in probate. The petitioner attorney was retained to represent the estate in the underlying probate action. After his duties were essentially completed, the representatives of the estate hired new counsel for the estate. The petitioner attorney then filed a petition for attorney's fees, asserting that there had been an oral contract for 3% of the estate's assets. The estate's representatives objected, contending that there had been no agreement on attorney's fees, and that the amount of the fee requested was excessive. After a hearing, the trial court determined that the parties had entered into the agreement as asserted by the attorney, and that the fee agreement was reasonable at the time it was made. Therefore, the trial court enforced the fee agreement and entered a judgment in favor of the petitioner. The estate now appeals. We affirm, concluding that the evidence does not preponderate against the trial court's decision.
Eva Friedman Weisberger ("decedent") died on September 14, 2001, leaving a Last Will and Testament ("the will"). Her children, Irving Weisberger ("Weisberger") and Arlene Weisberger Kleiman *156 ("Ms.Kleiman"), sought to probate her will. To that end, in December 2001, Weisberger, Ms. Kleiman, and Ms. Kleiman's husband, Alan Kleiman ("Mr.Kleiman"), an attorney, met with Petitioner/Appellee attorney Philip J. Cooper ("Cooper") to discuss retaining Cooper to administer the estate of the decedent.
The meeting lasted about an hour. During the meeting, the parties discussed the nature of the decedent's assets, valued at approximately $1 million, not including real estate. It is undisputed that, at that meeting, Weisberger and Ms. Kleiman agreed to retain Cooper to administer the estate of the decedent. However, the terms of Cooper's engagement were not put into a written agreement. The existence and terms of a fee agreement are at issue in this appeal. Cooper claims that he told Weisberger, Ms. Kleiman, and Mr. Kleiman in this meeting that his fee would be 3% of the probate estate, not including real estate.
Following this meeting, Cooper undertook to provide services on behalf of the estate. He drafted and filed a petition to probate the decedent's will. The will was admitted to probate, and Weisberger and Ms. Kleiman (collectively, "Administrators") were appointed as co-administrators of the estate. Cooper provided the services required to administer the estate, such as appearing in court, meeting with the Administrators, dealing with lease issues, and preparing the necessary documents.
The Administrators later hired a certified public accountant, Terry Polsgrove ("Polsgrove"), to prepare the tax documents for the estate, including the federal estate tax return. On Schedule J of the return, Polsgrove listed the attorney's fees paid on behalf of the estate as $30,100. In the course of preparing the tax return, Polsgrove met with Weisberger three times and reviewed the return with him each time. On the tax form, the attorney's fees could be characterized as either "estimated" or "agreed upon." Because Weisberger never told Polsgrove that he objected to the amount of attorney's fees listed on the return, Polsgrove prepared the return to reflect that the $30,100 in attorney's fees were "agreed upon." Weisberger signed the return prepared in this manner. Ms. Kleiman also signed the return, but did so without having reviewed the details of the return with Polsgrove. The estate tax return was filed on June 14, 2002.
Seven months later, on February 24, 2003, Cooper wrote a letter to the Administrators requesting payment of his fee of $30,000, which was 3% of the value of the estate's assets. On March 13, 2003, Weisberger sent Cooper a letter in response. In the letter, Weisberger offered to make an initial payment of $5,000, and told Cooper that he did not want to pay his full fee until the legal work had been completed.[1]
In April 2003, the Administrators hired another attorney to administer the estate matter. Subsequently, they filed a petition in the trial court to substitute the new attorney for Cooper. Cooper was not told the reasons why he was replaced.
On April 23, 2003, Cooper filed a petition in the probate court for his fees. In his petition, he asked the probate court to order the Administrators to pay him $30,000 in fees, which represented the 3% fee upon which he contended the parties agreed. In response, the Administrators asserted that the parties had not entered into a fee agreement, that Cooper had expended neither the time nor the labor necessary to justify a fee of $30,000, and *157 that such a fee was not reasonable under the circumstances.
A trial was conducted in the matter on July 18, 2005. Cooper testified on his own behalf. At the outset, he outlined his background and practices. Cooper said that he has been practicing law for forty-four years, and that 95% of his practice was in probate. He said that his normal practice in representing an estate was to charge 3% of the assets that pass through the probate estate. He testified that this fee arrangement was originally recommended to him by long-time Probate Court Clerk Bob Dunavant, and that the rate was within the parameters set forth in the guidelines published by the probate court and was routinely approved by the probate court judges.
Cooper then testified about his dealings with the parties in this matter. He said that Mr. Kleiman contacted him in December 2001 about representing the decedent's estate. When the parties met, they discussed what generally would be involved in the case, and he was told that the decedent had about $1,000,000 in personal assets and about $500,000 worth of real estate. Cooper told the decedent's family that he would represent the estate for 3% of the probatable assets, his standard rate. He then left the room for about ten to fifteen minutes so that they could discuss the matter. When he returned, the family gave Cooper the decedent's will and agreed to retain him to represent the estate, with no further discussion of his fee arrangement.
Cooper testified about the work he performed for the estate, but said that he did not keep a record of his time because he had agreed to the fee in exchange for doing whatever needed to be done. Cooper stated that he prepared the petition and order, appeared in probate court and had the Administrators appointed as administrators, assisted in inventorying assets and valuing assets for tax purposes, obtained a tax ID number, appeared in court to obtain an extension of time, prepared receipts and waivers, and filed a claim against the estate on behalf of Weisberger. He said that he was prepared to do anything else that was either necessary or requested by the Administrators. Cooper estimated that the tasks he performed for the estate took a little more than seven hours.
Cooper testified that he was willing and available to prepare the tax returns for the estate, but instead Weisberger asked Polsgrove to prepare them, because Polsgrove had done accounting for the family for a long time. Cooper said that he never spoke to Polsgrove or anyone in Polsgrove's office to tell them the amount of his attorney's fees. Nevertheless, the Administrators signed the return reflecting that the attorney's fees would be $30,100, and that the executor's fee would also be $30,100. Cooper testified that he "had always talked to Mr. Weisberger about $30,000." Cooper stated that, because the estate claimed this amount in attorney's fees, the estate received a deduction of $16,000 from its tax liability.
Cooper testified that when he sent the Administrators the letter requesting his $30,000 fee, they did not respond by telling him that they would not pay his full fee, and likewise they did not indicate that it was excessive. Cooper said that he intended to enforce the contract for his fee, because with an agreed fee such as this, he bore the risk that unanticipated problems would arise and that more work would have been required of him. He noted that he would not have asked for additional fees had the case turned out to be more complicated, commenting "you can't anticipate how convoluted an estate might get." He *158 added that, "[i]n this case, it didn't get that way."
William Walsh ("Walsh"), an attorney who had practiced for fifty-five years, testified as an expert on behalf of Cooper. He stated that, in probate matters, he represents estates for an amount within the probate court guidelines, and usually agrees to a dollar amount, if possible. Walsh stated that the $30,000 fee charged by Cooper, if agreed upon, was fair and reasonable and consistent with the probate court guidelines.
The Administrators testified as well. Weisberger, who was sixty-one years old at the time of trial, testified that he was not employed but manages his own investments and lives off of the income from them.[2] He graduated from college with a degree in business administration and has a master's degree in marketing. He lived with the decedent for the entirety of his life until the time of her death.
Weisberger testified that, at his initial meeting with Cooper, also attended by his sister and her husband, Cooper talked in general about estate business. Weisberger told Cooper that the estate was worth about $1 million, and he said that Cooper told the Administrators that he would charge the "the going rate" for his services. Weisberger maintained that Cooper did not state an exact figure or percentage.
Weisberger testified about the federal tax return, asserting that he was unaware of where Polsgrove obtained the $30,100 attorney's fee amount. However, in his deposition, Weisberger testified that Polsgrove had gotten the figure from Cooper. Weisberger signed the tax return on the date it was due, and he said that he did not go over every item with Polsgrove because he trusted him. Weisberger said that he did not file an amended federal tax return to change the fee agreed upon.
Arlene Kleiman also testified at trial. She graduated from college with a degree in pre-med psychology, is the director of Mid-South Chess Company, and owns her own business. In the initial meeting with Cooper, Ms. Kleiman testified, Cooper did not say what his fee would be, but only that it would be within the probate court guidelines and that it would be fair. She maintained that Cooper did not mention anything about a $30,000 fee. Ms. Kleiman said that, at the time of the meeting, she was still upset about the death of her mother, with whom she was very close. She said that her involvement in the administration of the estate was minimal, and Weisberger handled the estate matters. She signed the federal tax return at the last hour, and did not go over the details with anyone.
Polsgrove also testified at trial. Polsgrove said that he had included the $30,100 attorney's fee in the federal tax return based on a telephone discussion he had with Cooper, in which Cooper told him that his fee would be 3% of the estate's assets. Polsgrove said that he met with Weisberger on June 3 and June 7, 2002 regarding the return, and that Weisberger never objected to the attorney's fee amount. Polsgrove stated, "I indicated to [Weisberger] the amount of the fee and he did not disagree with it. . . ." For this reason, on the tax form, Polsgrove struck "estimated" and left "agreed upon" beside the fee amount. On June 14, 2002, before the return was filed, Polsgrove met with Weisberger for two hours explaining the details of the return, and Weisberger made no objection to the attorney's fee stated. He did not review the details of the return with Ms. Kleiman. Polsgrove stated that, as a result of claiming the *159 attorney's fee, the estate received a total of about $15,000 to $16,000 in deductions.
John Smith ("Smith"), an attorney, testified as an expert on behalf of the Administrators. Smith said that from his review of the case, at most he could have performed twenty-five (25) hours of work on it. He said that he charges an hourly rate to probate estates, had never represented an estate on a percentage-of-assets basis, and was not aware of any other attorney whose standard practice was to charge based on a percentage. Reviewing the factors of DR 2-106, Smith concluded that the $30,000 fee charged by Cooper was not reasonable in light of the time spent on the case. Smith conceded, however, that Cooper's fee was within the local probate court guidelines, and was actually less than the maximum allowable under those guidelines.
On July 19, 2005, the trial court issued an oral ruling in favor of Cooper. The trial court found that the parties had entered into a fee agreement under which the Administrators agreed to pay Cooper 3% of estate's assets in exchange for his services. The trial court commented that, in hindsight, $30,000 was "grossly excessive for the services rendered in this matter." However, the fee agreed upon was reasonable at the time the parties entered into the agreement because, at that time, the extent of the services that would be required of Cooper was unknown. The trial court reasoned:
Now, if we were operating in hindsight, which we are not, 30,000 dollars is grossly excessive for the services rendered in this matter. And the question in this Court's mind is to that effect, but that's not what the Court can look at.
What the Court has to look at is what the status was in December of 2001, when the parties were discussing the fees. And at that time, Mr. Cooper told [the Administrators and Mr. Kleiman] that his fee would be 3 percent and that would include anything that could come up.
It was a two-way sword at that point in time. There could have been a lot of litigation. Mr. Cooper could have been charged with filing all those tax returns. Subsequently the parties did not have him do that. He didn't know what type of Pandora's Box he was getting into, and the parties didn't question it.
The parties even took credit for it on later tax returns. The parties had the availability of separate counsel. And while Ms. Kleiman was very distraught, Mr. Weisberger not only has a bachelor's degree, but he has a master's degree. And Mr. Weisberger, while he may have only worked one year, the Court finds to be sophisticated in money matters by his own testimony.
* * *
There are many factors in the hindsight of the setting of fees. And we have many cases that say the Courts [sic] considers the amount and character of the services rendered, the complexity of the estate, time and effort involved, character, the Courtlitigation, the amount of money or the value of the property involved, the professional skill and experience required and the experience and standing of the attorneys.
The cases are eachon all these points. These are hindsight cases. That's not what we had here. What we have here is on the front end Pandora's Box is sitting there. None of the parties know what is going to have to be done, and the parties, the Court finds, reached an agreement. The agreement being 3 percent.
The Court does not find that, at that point in time, the 3 percent was unreasonable. *160 There arefor many years, I should say, fees in probate were a percentage of the assets. Then the Courts told us that's not the way to do it.
* * *
The Court feels that, at the time it was entered into, [the contract] was reasonable. Hence, the Court is going to award a judgment to Mr. Cooper for the 30,000 dollars. I will not award any interest.
On July 26, 2005, the trial court entered an order consistent with its oral ruling, holding that Cooper had carried his burden of proof and was entitled to a judgment of $30,000. From that order, the Administrators now appeal.
On appeal, the Administrators argue that the trial court erred in (1) failing to grant the estate a directed verdict at the close of Cooper's proof,[3] (2) finding that the parties had entered into an agreement, (3) determining that the parties' agreement was entered into in good faith and was fair and reasonable at the time the agreement was formed, (4) failing to hold that Cooper was not entitled to the fee because it was clearly excessive under DR 2-106 (now Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5 ("RPC 1.5")), and (5) holding that the only inquiries to be made were whether a valid contract existed and whether the contract was reasonable when it was formed. The Administrators emphasize that the trial court erred in approving Cooper's fee without engaging in an analysis of the appropriate factors set out in Connors v. Connors, 594 S.W.2d 672 (Tenn.1980) and DR 2-106, particularly after commenting that the fee was "clearly excessive" in light of the hours worked. In response, Cooper argues that, because he was terminated without cause, he is entitled to recover the amount agreed upon in his contract, so long as the contract was fair and reasonable at the time the parties entered into it.
We review the trial court's findings of fact de novo on the record, presuming those findings to be correct unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Alexander v. Inman, 974 S.W.2d 689, 692 (Tenn.1998). We review questions of law de novo, with no presumption of correctness. T.R.A.P. 13(d); Alexander, 974 S.W.2d at 692. The trial court's credibility determinations must be upheld on appeal unless there is clear and convincing evidence to the contrary. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).
We first address the Administrators' challenge to the trial court's factual finding that a contract existed, under which the Administrators agreed to pay Cooper 3% of the value of the estate's assets. Cooper testified that the parties had such an agreement, and the estate's administrators denied it. To some extent, the trial court's conclusion hinged on its credibility determination in favor of Cooper. Of course, we are required on appeal to defer to the trial court's assessment of the credibility of the witnesses. Id. In addition, however, Cooper's assertion on the alleged fee agreement is corroborated by other evidence. The federal estate tax return reflected a deduction of $30,100 in administrative expense for attorney's fees that were "agreed upon." Both Administrators signed this return under penalty of perjury. Polsgrove testified that he mentioned the amount of Cooper's fee to Weisberger, *161 and Weisberger did not disagree with it. Moreover, after Cooper wrote the letter to the Administrators requesting his fee, in their response, the Administrators did not challenge the amount requested. Under all of these circumstances, giving due deference to the trial court's credibility determinations, we find that the evidence does not preponderate against the trial court's finding that the parties entered into a fee agreement under which the Administrators agreed to pay Cooper 3% of the value of the assets of the estate for his services.
We must now consider the issue of whether Cooper is entitled to the contracted fee. Cooper was discharged by the Administrators after most of the legal work for the estate had been completed. For purposes of this appeal, the Administrators concede that the discharge was "without cause." When an attorney is discharged without cause, he may collect his fee either on the basis of quantum meruit or based on contract, whichever is greater. See Adams v. Mellen, 618 S.W.2d 485, 488 (Tenn.Ct.App.1981); see also Sowell v. Christy, No. M2004-02186-COA-R3-CV, 2006 WL 568238, at *2 (Tenn.Ct.App. Mar.8, 2006). In order to recover on the contract, however, the fee contract must be enforceable.
The Tennessee Supreme Court "has long held that an attorney is entitled to compensation in the amount agreed upon by contract, provided that the contract is fair at its inception and entered into in good faith." Alexander, 974 S.W.2d at 694 (citing Peoples Nat'l Bank of Wash. v. King, 697 S.W.2d 344, 346 (Tenn.1985)). To prove the requisite "good faith and fairness," the attorney seeking to enforce the fee agreement must show:
(1) the client fully understood the contract's meaning and effect,
(2) the attorney and client shared the same understanding of the contract, and
(3) the terms of the contract are just and reasonable
Id. (citing Cooper & Keys v. Bell, 127 Tenn. 142, 153 S.W. 844, 846 (Tenn.1913)). The first two factors, that the client fully understood the contract and that the attorney and client shared the same understanding of the contract, reflect "the obligation of an attorney to act in the utmost good faith in any transaction with his or her client. This principle is long-standing." Silva v. Buckley, No. M2002-00045-COA-R3-CV, 2003 WL 23099681, at *7 (Tenn.Ct.App. Dec.31, 2003) (Cottrell, J., dissenting). Placing these burdens on the attorney acknowledges general contract law, "but places it in the context of the fiduciary obligation of the attorney, whose duty it is to ensure that such a mutual understanding exists." Id. at *7.
In this case, the trial court held that, at the parties' initial meeting, "Mr. Cooper told [the Administrators and Mr. Kleiman] that his fee would be 3 percent and that would include anything that could come up." The Administrators argue that the preponderance of the evidence does not support this finding, because Cooper only met with them a short time, and he discussed only "estate business." They claim that the trial court ignored their testimony that Cooper told them that he would charge them the "going rate" that was "within the court's guidelines," without specifying a percentage. Furthermore, they argue, they were in a disproportionate bargaining position, because Cooper was an expert in probate matters and they were not.
We disagree. The trial court did not ignore the Administrators' testimony regarding their understanding of the fee agreement; rather, the trial court did not *162 find the testimony credible. Such credibility determinations are uniquely within the province of the trial court and will not be reversed absent clear and convincing evidence to the contrary. Furthermore, the Administrators' signed tax return reflecting the $30,100 attorney's fee and their failure to object to Cooper's letter requesting payment of the $30,000 fee clearly indicate that the Administrators understood that Cooper intended to charge the estate 3% of the value of its assets for his services. As the trial court noted, the Administrators are well educated and Mr. Kleiman, present at the initial meeting, is an attorney. Under these circumstances, the evidence does not preponderate against the trial court's conclusion that the Administrators understood the terms of the fee agreement, and that they shared the same understanding as Cooper.
Under the third criterion for establishing good faith and fairness, Cooper was required to show that the terms of the contract were just and reasonable at the time the contract was made. The Administrators argue that it was improper for the trial court to enforce the terms of the contract without consideration of whether the $30,000 fee was reasonable in light of the factors in Connors or in DR 2-106/ RPC 1.5.[4] The trial court correctly found that the fee ultimately charged was clearly excessive, the Administrators argue, because the evidence showed that Cooper spent a little over seven hours on the case, which would make his rate approximately $4,138 per hour, a rate that is clearly excessive. Even if Cooper had spent twenty-five hours on the case, the maximum hours estimated by the Administrators' expert witness, John Smith, his rate would have been $1,200 per hour, also clearly excessive.
In support, the Administrators rely on the Supreme Court decision in Alexander v. Inman, 974 S.W.2d 689 (Tenn.1998). In Alexander, the Court scrutinized a written fee agreement in a divorce case in which the client agreed to pay her attorneys "a reasonable amount taking into consideration [certain Connors factors]. Said final fee shall not exceed 15% of the total sum . . . awarded to Client." Alexander, 974 S.W.2d at 691. The agreement was *163 deemed enforceable so long as it was entered into in good faith at the time the contract was formed. Id. at 693-94. The Court stressed that "[t]he relationship of attorney and client is `extremely delicate and fiduciary'; therefore, attorneys must deal with their clients in utmost good faith." Alexander, 974 S.W.2d at 693-94. Because the contract, on its face, required a "reasonable" fee with consideration of certain Connors factors, the Alexander Court applied the Connors factors and found that the fee sought by the attorney was reasonable, in part because the fee was capped at 15% of the amount recovered.
The Administrators also cite White v. McBride, 937 S.W.2d 796 (Tenn.1996). In White, the Court addressed whether an attorney could recover on a contract in which he agreed to represent an estate for a $2,500 retainer plus "one-third of gross recovery above and in excess of retainer." White, 937 S.W.2d at 797. The circumstances of that case were unusual. The decedent and her husband were estranged at the time of the decedent's death. During the decedent's illness preceding her death, some of her relatives took an inventory of the assets in her personal safe, which included a holographic will that made no provision for the estranged husband. The relatives made a list of the assets and gave the list to the husband and his attorney, White. The relatives then took the assets and the will with them to their home in Texas. The estranged husband hired White to force the probate of the decedent's estate in Shelby County so as to recover the one-third elective share to which he was entitled. Id. at 797. Before the decedent's estate could be settled, the estranged husband died. After that, the beneficiary of the husband's estate discharged White and hired new counsel. White thereafter filed a claim against the decedent's estate for $108,291, which was approximately one-third of $349,000, the husband's elective share of the estate.
The trial court in White determined that the fee requested was clearly excessive. Nevertheless, it allowed White to recover his fees on a quantum meruit basis, multiplying the 114 hours he spent on the case by $150 per hour. The court of appeals affirmed. The Supreme Court accepted certiorari to determine "whether the fee contract violated DR 2-106." Id. at 800. White argued that the one-third fee was reasonable because, at the time he entered into the fee agreement, (1) the size of the decedent's estate was unknown and he bore the risk that it would be smaller; and (2) there was a substantial risk of non-recovery because the decedent's relatives had taken the decedent's assets to Texas. The Court rejected White's claims. It noted first that, at the time of the contract, White had a copy of the inventory of the decedent's assets and knew that he was dealing with a sizable estate. Furthermore, the estranged husband's entitlement to his one-third elective share of those assets was beyond dispute. The Court acknowledged that there was a risk of non-recovery of the assets, but observed that, at the time White entered into the fee agreement with the estranged husband, White was unaware of this risk because he did not know at that time that the assets had been taken to Texas. Having rejected White's justifications for the contingency fee contract, the Court determined that the contract was unreasonable considering the other factors listed in DR 2-106. The Court found that the case was not complicated or novel, White was not a probate specialist, he was not prohibited from taking other employment, and the fee requested would have resulted in a rate of $950 per hour, which was grossly in excess of "the fee customarily charged in the locality for similar *164 legal services." Id. at 801 (quoting DR 2-106(B)(3)).
As noted in Alexander, a contract for attorney's fee is generally enforceable so long as the contract was understood by the parties and the attorney entered into the contract in good faith. In determining whether the terms of a contract are fair and reasonable, the Court in White emphasized that the relevant inquiry focused on the facts as they existed at the time the contract was made and what the parties knew at the time of the contract. Id. Once it determined that the risks at the time the contract was made were insufficient to justify the one-third fee, the White Court then went on to apply the factors in DR 2-106, and ultimately concluded that the fee was not justified. Id.
In this case, the trial court rejected the Administrators' analysis, as relying on a "hindsight" view of the situation; the trial court rightly focused on the facts and circumstances as they existed at the time the parties entered into the fee agreement. The trial court found it significant that, at the time the contract with made, Cooper agreed to render services on "anything that would come up." The extent of such services was unknown when the parties were discussing Cooper's fees, and the trial court characterized the fee agreement as a "two-way sword" that could have benefited either party, depending on the extent of the services required. The trial court opined that "[t]here could have been a lot of litigation. Mr. Cooper could have been charged with filing all those tax returns. Subsequently the parties did not have him do that. He didn't know what type of Pandora's Box he was getting into, and the parties didn't even question it." Thus, the trial court found that, at the time the contract was entered into, the 3% fee was reasonable.
We agree with the trial court's analysis. The contract at issue was not a contingency fee contract, because Cooper was certain to be paid, but the amount of his fee was uncertain at the outset because the ultimate value of the estate's assets were unknown. See Alexander, 974 S.W.2d at 693. The agreement was more of a flat-fee arrangement in which the percentage was certain, the value of the assets was believed to be approximately $1 million, but the amount of work that would be required of Cooper was unknown at the time the contract was signed. By agreeing to charge a small percentage of the estate's assets at the outset of the case, Cooper bore the risk of these unforeseen circumstances. As it turned out, however, less work was required of him. However, had a great deal of work been required of Cooper, he likewise would be bound by the bargain he struck.
The evidence at trial showed that the 3% fee charged by Cooper was generally reasonable at the time the contract was made. Cooper, a lawyer for forty-four years and an expert in probate matters, testified that he charges 3% of the probatable assets for all of his probate cases based on the probate court guidelines. The reasonableness of the percentage was corroborated by Cooper's expert witness, apparently credited by the trial court, and the guidelines themselves.[5]
*165 Under all of these circumstances, we must conclude that the evidence does not preponderate against the trial court's decision to enforce the fee agreement between the parties.
The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant Estate of Eva Friedman Weisberger, and its surety, for which execution may issue, if necessary.
NOTES
[1] No monies were paid to Cooper at that time.
[2] Weisberger stated that, after college, he worked one year in retail sales.
[3] The Administrators argue that the trial court erred in failing to enter a directed verdict. However, because this was a bench trial, we consider their contention to be that the trial court erred in failing to grant a judgment in their favor at the close of the plaintiff's proof.
[4] The Connors factors include: the time devoted to performing the legal service; the time limitations imposed by the circumstances; the novelty and difficulty of the questions involved; the skill requisite to perform the legal service properly; the fee customarily charged in the locality for similar services; the amount involved and the results obtained; and the experience, reputation, and ability of the lawyer performing the legal service. Connors, 594 S.W.2d at 676. Supreme Court Rule 1.5 lists similar, but not identical, criteria:
(a) A lawyer's fee and charges for expenses shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) Whether the fee is fixed or contingent;
(9) Prior advertisements or statements by the lawyer with respect to the fees the lawyer charges; and
(10) Whether the fee agreement is in writing.
Tenn. Sup.Ct. R. 8, RPC 1.5 (2005).
[5] The Probate Court Guidelines provide that a court may award a percentage of the estate as attorney's fees according to the following scale:
VALUE OF ESTATE FEE
First $ 100,000 3% to 5%
Next $ 900,000 2% to 4%
Over $1,000,000 1% to 3%
These guidelines reflect what may be considered to be reasonable but are not binding on the Court, the parties, or the attorneys. Fees should be reasonable and otherwise in accordance with Rule 1.5 of the Tennessee Rules of Professional Conduct as set forth in Tennessee Supreme Court Rule 8.
Probate Court Rule XIII.A.5 (2005). Though the rule was amended effective March 2005, this portion of the rule is substantially the same as it was prior to the amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574298/ | 224 S.W.3d 263 (2005)
Alan FOXX, Individually and d/b/a Ultimate Rides and/or PMI and Ultimate Rides Co., Appellant,
v.
Ray DeROBBIO, Appellee.
No. 08-03-00522-CV.
Court of Appeals of Texas, El Paso.
June 16, 2005.
Rehearing Overruled July 27, 2005.
*264 John P. Mobbs, El Paso, for appellant.
Mark T. Davis, El Paso, for appellee.
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
ANN CRAWFORD McCLURE, Justice.
This is a dispute arising from the restoration of a 1971 Barracuda. In his suit for breach of contract, Ray DeRobbio was awarded a judgment for $66,083 plus attorney's fees and interest. In two points of *265 error, Alan Foxx complains of the sufficiency of the evidence to support the damage award and challenges DeRobbio's qualifications to offer an opinion that the repair expenses he incurred were reasonable. Finding no error, we affirm.
FACTUAL SUMMARY
Ray DeRobbio is a car enthusiast from Atlantic Highlands, New Jersey. In the late 1990s, he became interested in finding a 1971 Barracuda. After scouring local newspapers, DeRobbio found a copy of Hemmings Motor News, a national publication featuring a section on Barracudas. An advertisement by Ultimate Rides Company indicated that the company had four Hemicudas in stock. In August 1998, DeRobbio called the number in the ad and spoke to Alan Foxx about the restoration of a Barracuda. DeRobbio told Foxx that he wanted the car to have a nostalgic look to it but he wanted it equipped with all the modern upgrades. Foxx faxed DeRobbio a bill sheet reflecting various upgrades together with two magazine articles mentioning Foxx's work on engine power, brake power, and paint jobs. DeRobbio later received a magazine containing an article entitled, "Hemicuda Done" describing flawless car crafting efforts by Ultimate Rides.
DeRobbio entered into a purchase contract for a 1971 Barracuda convertible to be restored in accordance with buyer specifications and to be completed within five months at a cost of $57,172. The base price for the ground-up turnkey car restoration was $24,500. On the option list, DeRobbio chose a 440 cubic inch 500 horsepower engine for $850, a Richmond 6-speed transmission for $4,850, a handling package and quick ratio for the steering box, Baer 4-wheel disc brakes for $2,250, a 1971 standard color called plum crazy, a shaker hood for $3,800, custom rims, and mirrors painted to match the car. The terms of the contract required a down payment of $34,000 with the balance due upon completion. DeRobbio was to pay for shipping.
Two months later, DeRobbio traveled to El Paso to see the company facilities and Foxx's own restored car. He met with Foxx and Brett Danberry, an employee of Ultimate Rides, and learned that restoration of his car had not yet begun. After seeing the options on Foxx's car, DeRobbio prepared an ancillary list of options costing $1,751.99.
DeRobbio did not receive the car until fifteen months after he signed the contract. When it was delivered, it could not be removed from the trailer. DeRobbio sought help from Keith Mitterman, the owner of a repair shop in Atlantic Highlands, in order to get the car off the trailer. When DeRobbio inspected the car, he noticed it had a thirty-year old convertible top with rusted staples. The paint on the back looked like it had sand in it. The front fender had an indentation. One of the headlights was missing its molding. The hood was off center and had gouged the fiberglass. Inside the car, the heater box was completely split open and the fuse box was dangling. The wing of the car was not properly secured. DeRobbio also had difficulty in opening the trunk and then found it full of sand.
DeRobbio took the car to Mitterman's repair shop two or three days later. The car smelled like gasoline and there were problems with the brakes. The driver's seat felt funny since it was turned at an angle. Although the steering wheel was painted black, orange or reddish paint was peeking through. A spring bulged through the passenger seat. The motor for the convertible top was not connected and the back window was foggy, scratched, and in poor condition. The headers were *266 approximately two inches from the ground and the exhaust was two to three and a half inches from the ground. When DeRobbio turned off the engine, the fan was blowing on high and could not be turned off.
DeRobbio contacted Foxx and was told that Danberry would discuss the problems with him when he returned from a car show. DeRobbio tried to discuss individual items with Foxx, but Foxx accused him of nitpicking. When he didn't get a return call from Danberry, DeRobbio contacted an attorney friend who wrote a letter giving Foxx the option of repairing the vehicle, having DeRobbio return the vehicle for a full refund, or paying for the repairs at Mitterman's shop. The company agreed to make the repairs. The car was to be picked up no later then January 15, 2000 and returned no later than April 15, 2000. DeRobbio sent Danberry a checklist of items needing repair, including rusted frame rails.
The car was picked up for repairs and returned on July 18. DeRobbio was happier with the cosmetic appearance since the problems with the paint had been corrected, a new headlight had been installed, and the car sported a new convertible top. However, the brakes were still not working. The delivery driver called Foxx, and DeRobbio told him that the brakes were not working. An agreement was ultimately reached whereby Mitterman would try to fix the brakes to avoid the expense of trucking the car back to El Paso. Mitterman would coordinate the repairs with Foxx and Foxx would pay for the repairs.
Mitterman repaired the brakes using a vacuum canister. He replaced the fuel filter, line, and ends since the car smelled of gasoline. Mitterman saw that the gas tank tabs had been blown off and gas was coming out of the back of the car. Since the back of the car was lower than the front, Mitterman sent the springs to be rearched, which temporarily addressed the problem. The lug nuts were replaced along with weatherstripping, and the studs holding the adaptor in place were ground down so they would not scrape the bottom of the hood. Finally, Mitterman repaired the transmission. The repairs totaled $5,244.03. Foxx refused to pay, claiming that he could have gotten the work done for $10 an hour rather than $60 an hour.
Mitterman worked on the car again in August 2000. He replaced the thermostat, charged the bad battery, cleaned overspray, repaired the lighter, checked the fuel system, and corrected the aim of the headlights. The total cost of repairs was $180.29. At that point, DeRobbio was still not driving the vehicle due to the gas smell and the erratic running of the engine. He tried to get in touch with Ultimate Rides, but his calls were not returned. During that time, DeRobbio also had problems with the steering. After reading an article in Mopar Magazine, he learned what the problem was and ordered the corrective part. DeRobbio called Foxx to let him know about the part, and Foxx had experienced the same problem with his own car. Nevertheless, he was upset that DeRobbio had paid retail when Foxx could have gotten the part at wholesale.
For a while, DeRobbio held off until he could get the funds together for repairs. But as he pulled the car out of the garage one day to reach the lawnmower, the engine started making a crazy noise and the back wheels chirped. It was like someone pulled the wheels off the driver's seat, and DeRobbio hit the floor. The center of the car went down and started sliding forward, and DeRobbio had no control over the steering. The car collapsed in the middle. DeRobbio hit his wife's car in the driveway and almost hit his daughter.
*267 After the collapse, the car was taken to Mitterman's. DeRobbio had more work done on the engine at a cost of $3,000. He also received an estimate of $10,496.54 for repairs needed to put the car back together. The work had not been done, but DeRobbio had given Mitterman a $5,000 down payment on the repairs.
Pieces of the rusty frame of the car were examined at trial. Danberry had told DeRobbio that the rails were replaced when the car was sent back to Ultimate Rides for the initial repairs. By the time of trial, Foxx had not paid Mitterman for any of the repairs nor had they reimbursed DeRobbio for any expenses. DeRobbio paid Ultimate Rides $60,807.99, which included the $58,857.99 for the car and restoration and $1,950 for extra options. He had also paid $619 for a steering box, $30 for a tire, $180 in repairs by Finelines, $5,244.03 in repairs by Mitterman, $13 for a radio manual, $1,104 for items not received and not reimbursed, the $5,000 deposit to Mitterman, $1,500 for engine repair, $246.98 in shipping for the rails, $1,556.96 to JTL Motor Company, and $12,021 in attorney's fees and costs of court for a total of $88,568.
The jury found that Foxx had breached the contract and awarded past damages of $60,587.77 and future damages of $5,496.54. The trial court entered judgment in the amount of $66,083.
SUFFICIENCY AS TO DAMAGES
In Point of Error One, Foxx complains that the damages are not supported by legally and factually sufficient evidence. While he does not challenge the award of future damages, he argues that the past damage award of $60,587.77 was excessive by at least $46,500.14. We must regrettably conclude that error has been waived.
In order to preserve a challenge to the legal sufficiency of the evidence to support a jury's award of damages, a party must do one of the following: (1) file a motion for instructed verdict; (2) object to the submission of a jury question; (3) file a motion for judgment notwithstanding the verdict; or (4) file a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991); Salinas v. Fort Worth Cab & Baggage Co., Inc., 725 S.W.2d 701 (Tex. 1987); Aero Energy, Inc. v. Circle C Drilling Company, 699 S.W.2d 821 (Tex.1985). In order to preserve a factual sufficiency challenge to a jury's damage award, a party must file a motion for new trial. Tex. R.Civ.P. 324(b)(2), (4); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ).
Foxx did not file a motion for instructed verdict or a motion for judgment notwithstanding the verdict, nor did he object to submission of a jury question. While he did file a motion for new trial, the motion addressed only the violation of a motion in limine, not the insufficiency of the evidence. Because Foxx has failed to preserve error for our review, we overrule Point of Error One.
TESTIMONY REGARDING REPAIR EXPENSES
In Point of Error Two, Foxx complains that the trial court erred by permitting DeRobbio to testify that various repair expenses were reasonable because he was not qualified to give that opinion.
Standard of Review
We review evidentiary complaints regarding admission of opinion testimony under an abuse of discretion standard. See Syndex Corp. v. Dean, 820 S.W.2d 869, 873 (Tex.App.-Austin 1991, writ denied). The test for abuse of discretion is whether the trial court acted without reference to guiding rules or principles. *268 See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).
Preservation of Error
Foxx did not object during DeRobbio's direct examination concerning repair expenses he incurred. On redirect, DeRobbio was asked whether the expenses he incurred were reasonable. Foxx objected, arguing that DeRobbio was not qualified to testify as to reasonableness. The court sustained the objection and asked that the question be rephrased. DeRobbio was then asked whether in his personal opinion the expenses were reasonable. Foxx did not object. Since Foxx did not renew his objection to DeRobbio's opinion testimony, he has not properly preserved his complaint for our review. See Tex.R.App.P. 33.1(a). Even had he done so, however, we would find no abuse of discretion by the trial court in admitting the testimony.
Testimony as to Repair Expenses
A party seeking recovery for the cost of repairs must prove their reasonable value. Fort Worth Hotel Ltd. P'ship v. Enserch Corp., 977 S.W.2d 746, 762-63 (Tex.App.-Fort Worth 1998, no pet.). Ordinarily, to establish the right to recover costs of repairs, it is not necessary for a claimant to use the words "reasonable" and "necessary;" a claimant need only present sufficient evidence to justify a jury's finding that the costs were reasonable and the repairs necessary. Id. Receipted bills are admissible to show what the injured party actually paid for repairs. Allright, Inc. v. Lowe, 500 S.W.2d 190, 192 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ). However, mere proof of amounts charged or paid does not raise an issue of reasonableness and such amounts ordinarily cannot be recovered without evidence showing the charges were reasonable. Fort Worth Hotel, 977 S.W.2d at 762-63.
One can testify as to the value of his own car. Calvert Fire Ins. Co. v. McClintic, 267 S.W.2d 568, 570 (Tex.Civ. App.-Waco 1954, writ ref'd n.r.e.). In addition, any layman who can testify that he knows the value of automobiles and can give satisfactory facts in support of the statement that he has such knowledge is qualified to testify. Id. If an owner familiarizes himself with the reasonable costs of repairing his vehicle, he may offer his opinion as to those costs. Int'l Srvs. Ins. Co. v. Hanna, 515 S.W.2d 175, 176 (Tex. Civ.App.-Eastland 1974, no writ).
DeRobbio has been a car enthusiast since high school. He has previously restored a 1967 Corvette. When he became interested in purchasing a Barracuda, he began scouring local newspapers looking for a car. He had reviewed magazine articles detailing the restoration of cars, specifically including the Barracuda. Repair receipts were admitted into evidence, showing the actual costs incurred and estimates detailing the costs associated with future repairs. Since DeRobbio had familiarized himself with the reasonable costs of repairing his vehicle and submitted receipts from actual costs incurred and estimates for future costs to be incurred, we find no abuse of discretion in the admission of his opinion that the repairs were reasonable. See Allright, 500 S.W.2d 190, 191-92. We overrule Point of Error Two and affirm the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574304/ | 224 S.W.3d 440 (2007)
Evangeline CAYTON, M.D., Appellant
v.
Patricia MOORE, Appellee.
No. 05-06-00490-CV.
Court of Appeals of Texas, Dallas.
January 24, 2007.
*442 Jennifer T. Shuff, and Michael A. Yanof, Stinnett, Thiebaud & Remington, L.L.P., Dallas, for Appellant.
Stephen Goetzmann, Law Offices of Stephen R. Goetzmann, and D. Bowen Berry, Berry & Randall, L.L.P., Dallas, for Appellee.
Before Justices MOSELEY, FRANCIS, and LANG.
OPINION
Opinion By Justice LANG.
In this interlocutory appeal, Evangeline Cayton, M.D., appeals the trial court's order denying her motion to dismiss, pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code, Patricia Moore's claims alleging medical malpractice. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (Vernon Supp.2006).
Dr. Cayton raises two issues arguing the trial court abused its discretion when it denied her motion to dismiss. She contends the trial court erred because the expert report: (1) does not establish the expert is qualified to render standard of care opinions; and (2) fails to address the applicable standard of care and a causal relationship between the alleged breaches of the standard of care and the injuries claimed.
Moore filed a motion to dismiss this appeal arguing this interlocutory appeal is not permitted by the applicable statute, section 51.014(a)(9) Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2006).
We conclude this Court has jurisdiction over this interlocutory appeal. Moore's motion to dismiss the appeal is denied. Also, we conclude the trial court abused its discretion when it determined the expert report was adequate and denied Dr. Cayton's motion to dismiss because the expert report fails to adequately address the causal relationship between Dr. Cayton's alleged breach of the standard of care and Moore's claimed injury, harm, or damages. The trial court's order denying Dr. Cayton's motion to dismiss is reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 9, 2003, Moore went to the emergency department of the Baylor University Medical Center because she was experiencing weakness on her left side, loss of sensation, and was not able to support herself. At the emergency department, Waleed Hamed El-Feky, M.D., a neurologist, examined and evaluated Moore. Dr. El-Feky interpreted a CT scan of Moore's head and a chest X-ray as normal. However, Dr. El-Feky found evidence of radiculopathy. As a result, he referred Moore to Dr. Cayton, a physiatrist,[1] recommending a cervical magnetic *443 resonance imaging (MRI) study. Four days later, on May 13, 2003, Moore saw Dr. Cayton. After examining Moore, Dr. Cayton diagnosed left upper and lower extremity weakness, and neck pain with spasms. Dr. Cayton ordered a cervical and a brain MRI to look for central nervous system problems as soon as possible. Also, she ordered an electromyographic (EMG) study to look for peripheral nervous system problems to take place in a few weeks. On May 17, 2003, five days after Moore was examined by Dr. Cayton, the cervical and brain MRIs were performed. The brain MRI was normal, but the cervical MRI revealed a disc herniation between the C3 and C4 vertebral bodies, severe central canal stenosis, and cord compression at the C4-5 and C5-6 vertebral bodies. The radiologist notified Dr. Cayton of the results of the MRIs. On May 19, 2003, two days after Moore's MRI, Ben Scott, M.D., a neurosurgeon, admitted Moore to the hospital. He observed that Moore was only able to shrug her left shoulder and diagnosed her with Brown-Sequard Syndrome. Moore was treated with steroids to decrease spinal cord swelling for two days and then, Dr. Scott performed surgery, an anterior cervical disectomy at C3-4 with interbody fusion.
On July 25, 2005, Moore sued Dr. Cayton, Dr. El-Feky, and Baylor University Medical Center for medical malpractice. On August 22, 2005, Dr. Cayton filed an answer generally denying Moore's allegations. On November 17, 2005, Moore filed the expert report of Lorne Sheldon Label, M.D., a neurologist,[2] along with his curriculum vitae, in order to comply with section 74.351 of the Texas Civil Practice and Remedies Code. On December 8, 2005, Dr. Cayton filed a motion to dismiss Moore's claims on the basis that Dr. Label's report was inadequate because he was not qualified and the report did not address how Dr. Cayton caused Moore's injuries. On February 1, 2006, Moore filed an amended response arguing that Dr. Label was qualified and his report did establish causation. However, Moore did not request, in the alternative, a 30-day extension in which to cure any deficiencies in the report. After a hearing, the trial court denied Dr. Cayton's motion.[3] Dr. Cayton appealed.
II. JURISDICTION
Moore filed a motion to dismiss arguing Dr. Cayton's interlocutory appeal was filed improperly pursuant to section 51.014(a)(9) of the Texas Civil Practice and Remedies Code. It is Moore's contention that section 51.014(a)(9) applies only when the trial court denies a motion to dismiss under section 74.351(b) because no expert report was actually served. Because Moore actually filed Dr. Label's report, Moore contends that Dr. Cayton's interlocutory appeal would be proper only under section 51.014(a)(10), which applies when an expert report was filed and the trial court granted the motion to dismiss on the basis that the expert report was inadequate pursuant to section 74.351(l). Dr Cayton responds that this Court has jurisdiction pursuant to section 51.014(a)(9) because: (1) section 51.014(a)(9) expressly provides *444 for appeal from the denial of relief requested pursuant to section 74.351(b); and (2) her motion to dismiss, which she filed pursuant to section 74.351(b), applies both when a report is inadequate and when no report is filed.
Section 51.014(a) establishes when an interlocutory appeal may be taken from a trial court's orders relating to section 74.351. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a); Lewis v. Funderburk, 191 S.W.3d 756, 759 (Tex.App.-Waco 2006, pet. filed). A person may appeal from an interlocutory order issued pursuant to section 74.351 when the trial court: (1) denies the relief sought under section 74.351(b); or (2) grants the relief sought under section 74.351(l). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9), (10); Heart Hosp. of Austin v. Matthews, 212 S.W.3d 331, 333-34 (Tex.App.-Austin, 2006, no pet. h.); Lewis, 191 S.W.3d at 760; Mokkala v. Mead, 178 S.W.3d 66, 67 n. 1 (Tex.App.-Houston [14th Dist.] 2005, pet. filed).
In her motion to dismiss, Dr. Cayton argued the expert report was inadequate under section 74.351(l) and Moore's failure to file an adequate expert report is grounds for mandatory dismissal of all her claims under section 74.351(b). Moore responded that Dr. Label's report was adequate and prayed for the trial court to deny Dr. Cayton's motion.
Because the trial court's order denies, in part, Dr. Cayton's motion to dismiss under section 74.351(b), we conclude this Court has jurisdiction over Dr. Cayton's interlocutory appeal under section 51.014(a)(9).
III. ADEQUACY OF EXPERT REPORT
In her first and second issues, Dr. Cayton argues the trial court abused its discretion when it denied her motion to dismiss, determining the expert report constituted an objective good faith effort to comply with the requirements of an expert report, because the expert report and curriculum vitae: (1) do not establish Dr. Label is qualified to render standard of care opinions; and (2) fails to address the applicable standard of care and a causal relationship between the alleged breaches of the standard of care and the injuries claimed. We address the second issue, which is dispositive of this appeal and decide in Cayton's favor. We need not address the first issue and we express no opinion on its merits.
A. Standard of Review
An appellate court reviews a trial court's decision on a motion to dismiss a claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (per curiam) (discussing former article 4590i); Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (discussing former article 4590i). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (discussing section 74.351) (citing see Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999)). When reviewing matters committed to the trial court's discretion, an appellate court may not substitute its judgment for that of the trial court. See Gray, 189 S.W.3d at 858 (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992)). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would under similar circumstances. See Gray, 189 S.W.3d at 858 (citing see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 *445 (Tex.1985)). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker, 827 S.W.2d at 840. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. See id.
B. Applicable Law
An expert report must provide enough information to fulfill two purposes if it is to constitute an objective good faith effort. See Palacios, 46 S.W.3d at 878-79; Gray, 189 S.W.3d at 859. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Second, the report must provide a basis for the trial court to conclude the claims have merit. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859.
An expert report must provide a fair summary of the expert's opinions as of the date of the report regarding: (1) the applicable standards of care; (2) the manner in which the care rendered by the physician failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). If a report omits any of the statutory elements, it cannot be a good faith effort. Eichelberger v. Mulvehill, 198 S.W.3d 487, 489 (Tex. App.-Dallas 2006, pet. denied).
A report cannot merely state the expert's conclusions as to the standard of care, breach, and causation. See Palacios, 46 S.W.3d at 879; Hansen v. Starr, 123 S.W.3d 13, 20 (Tex.App.-Dallas 2003, pet. denied); Garcia v. Marichalar, 198 S.W.3d 250, 254 (Tex.App.-San Antonio 2006, no pet.); Gray, 189 S.W.3d at 859. The expert must explain the basis for his statements and must link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Garcia, 198 S.W.3d at 254; Gray, 189 S.W.3d at 859. A trial court may not draw any inferences. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. Instead, the trial court must rely exclusively on the information contained within the four corners of the report. See Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. However, the expert report does not need to marshal all of the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. See Ehrlich v. Miles, 144 S.W.3d 620, 626 (Tex.App.-Fort Worth 2004, pet. denied). The expert report may be informal and the information presented need not meet the same requirements as evidence offered in summary judgment proceedings or in a trial. See id. Also, it is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. See id. at 626-27.
C. Application of the Law to the Facts
In her second issue, Dr. Cayton argues the expert report does not constitute an objective good faith effort to comply with chapter 74 because it fails to adequately address: (1) the applicable standard of care and the alleged breach; and (2) the causal relationship between Dr. Cayton's alleged breach of the standard of care and Moore's alleged injuries. She argues the expert report contains only conclusory, general statements regarding the standard of care applicable to Moore and the alleged breach, and it does not articulate what care was expected, but not given. Moore responds that Dr. Label's report states the standard of care, how Dr. Cayton breached that standard of care, and the causal relationship.
In her claims against Dr. Cayton for medical malpractice, Moore alleged, on *446 May 13, 2003, Dr. Cayton noted Moore needed a cervical MRI as soon as possible, but failed to schedule the MRI until May 17, 2003, five days later. Also, Moore alleged Dr. Cayton failed to immediately hospitalize Moore when she first examined Moore on May 17, 2003. In addition, Moore alleged Dr. Cayton failed to immediately communicate the results of the cervical MRI on May 17, 2003, and hospitalize Moore, instead waiting until May 19, 2003, two days later, to inform Moore of the results and hospitalize her.
Dr. Label's report states the following with regard to the standard of care for a patient experiencing Moore's symptoms:
The standard of care for a patient who changes from a normal strong person to someone who is developing hemiparesis and new significant neck pain is to rule out an acute pathologic process in the cervical region. Admittedly, one cannot find fault in ruling out a stroke in the brain despite the lack of facial sensation or motor abnormalities and the degree of neck pain. However, once brain stroke was ruled out in the E.R. the standard of care is to provide work-up and care with an extensive work-up as quickly as possible. The purpose would be to treat those conditions that would be amenable to treatment. In cases such as this where a herniated disc is causing acute compression and swelling with impairment of the spinal cord nervous system, it is known that the sooner that removal of the disc to decompress the area occurs, the more likely weakness and sensory changes could return to some level of prior function or even to normal.
Dr. Label's report addresses the conduct of Moore's primary care physician, Dr. El-Feky, and Dr. Cayton. The report contains only one standard of care and does not specifically state that the same standard of care applies to all three physicians. However, before outlining the standard of care, Dr. Label does state in his report that "The Brown-Sequard Syndrome is an unusual, but well-known entity particularly to neurologists, neurosurgeons, and physiatrists."
Dr. Label's report specifically refers to Dr. Cayton and discusses how she breached the standard of care outlined in his report.[4] It discusses what care was expected, i.e., rapid treatment and diagnosis, *447 and immediate hospitalization. Further, Dr. Label says this care was not given because of repeated delays in conducting diagnostic tests and admitting Moore to the hospital.
The portion of Dr. Label's report that addresses causation does not mention Dr. Cayton.[5] In fact, Dr. Label states that if Moore would have had surgery "within a day or so" of her medical evaluation at Baylor University Hospital, she would have suffered mild to no permanent injury. However, Moore's initial visit to Dr. Cayton did not occur until four days after she was evaluated at Baylor University Hospital. Accordingly, we conclude the trial court abused its discretion to the extent it determined that Dr. Label's expert report constituted an objective good faith effort to comply with chapter 74 because it fails to adequately address the causal relationship between Dr. Cayton's alleged breach of the applicable standard of care and Moore's claimed injury, harm, or damages. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).
Dr. Cayton's second issue is decided in her favor.
IV. CONCLUSION
This Court has jurisdiction over Dr. Cayton's interlocutory appeal because the *448 trial court's order denies, in part, Dr. Cayton's motion to dismiss under section 74.351(b).
Moore's motion to dismiss this interlocutory appeal is DENIED.
The trial court abused it discretion to the extent it determined that Dr. Label's expert report constituted an objective good faith effort to comply with chapter 74 because it fails to adequately address the causal relationship between the standard of care and the alleged breach.
The trial court's order denying Dr. Cayton's motion to dismiss Moore's claims is REVERSED and the case is REMANDED to the trial court for further proceedings consistent with this opinion.
NOTES
[1] A physiatrist is a physician specializing in physiatry or physical medicine and rehabilitation. See American Academy of Physical Medicine and Rehabilitation (AAPM & R), http://www.aapmr.org/condtreat/specback. htm. Physical medicine and rehabilitation is the branch of medicine emphasizing the prevention, diagnosis, and treatment of disorders that may produce temporary or permanent impairment. Id. Physical medicine and rehabilitation provides integrated care in the treatment of all neurologic and musculoskeletal disabilities from traumatic brain injury to lower back pain. Id. Physiatrists often serve as the leader of an interdisciplinary team. Id. That team may include medical professionals such as neurologists. Id. The team is different for each patient and the team's composition changes during treatment to match the patient's shifting needs. Id.
[2] A neurologist is a physician skilled in the diagnosis and treatment of disease of the nervous system. See Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth 2004, pet. denied).
[3] The record on appeal does not contain a reporter's record.
[4] With respect to Dr. Cayton's breach of the standard of care, Dr. Label's report states:
Dr. Cayton, a physiatrist, fell below the standard of care by not immediately evaluating and treating Ms. Moore on May 13, 2003, the first day that she was seen by Dr. Cayton. Her evaluation comments on this 45-year-old woman who had been walking until two weeks previous when she developed a stiff neck and began losing her strength arriving in a wheelchair and finding that the patient had 50% loss of strength on the left yet did not take immediate action as a physiatrist trained in central and peripheral nervous system abnormalities. Furthermore, her examination as a physiatrist is lacking by the incomplete sensory examination (only testing for sharp sensation) and not testing her gait, particularly since she arrived in a wheelchair. "Due to time pressure, they came late in the afternoon. I was not able to stand her up to see if she could walk, as she was wheelchair bound." She fell below the standard of care not by lack of diagnostic acumen by recognizing a Brown Sequard Syndrome, but rather, not taking action on a previously healthy middle aged woman who suddenly could not walk and was half paralyzed with new neck pain and did not have evidence of a brain stroke. The pathology would have to be in the cervical area and the need for treatment rapid. It is not clear who arranged the cervical MRI study, the patient or the physician's staff. However, it was not done until four days later implying a non-communication by the physician with the radiologist as to the urgency of the needed tests. Appropriate treatment would have been immediate hospitalization. Dr. Cayton was not considering an acute problem, as her additional treatment recommendations included aquatic therapy for a few weeks, as well as an EMG in a few weeks. An EMG would only be helpful in cases of a peripheral nervous system problem not a central nervous system problem, which was Ms. Moore's pathology. Dr. Cayton again fell below the standard of care by another delay after receiving information by the radiologist. She should immediately have called the patient and admitted her to the hospital or called the neurologist to take care of the situation. It was not until two days later that Ms. Moore was seen by Dr. Scott, the neurosurgeon, admitted to the hospital and ultimately treated.
[5] Dr. Label's report states the following regarding the causal relationship between Dr. Cayton's failure and Moore's injury, harm, or damages:
The mechanism of injury was related to direct compression of the disc towards the spinal cord, in this case at the C3-4 level with an underlying condition of cervical spinal cord stenosis, which may have been partially congenital in nature. This slowly progressive problem was not causing any medical problems and, in particular, no known neurological difficulties. It was not until her cervical disc began to herniate in late April causing gradual compression of her cervical spinal cord and ultimately the functions of those particular nerve pathways descending and ascending in the spinal cord that neurological damage appeared. In this case, the pattern of damage due to compressing disc was a Brown-Sequard Syndrome. . . .
The issue of how these deviations from the standard of care caused [Ms. Moore's] injuries is a straightforward one. The condition of spinal cord compression by a slowly compressing herniated disc against a soft spinal cord are well-known, as well as what losses occur with damage to the non regenerating [sic] spinal cord. It is known that trauma or significant pressure once affecting the motor and sensory tracts within the spinal cord usually do not regenerate or perform normally once the damage ensues. These cases are often considered neurosurgical emergencies. Once neurological impairment begins, the long term neurologic functional losses are those which present up until the time of surgical correction. So if Ms. Moore would have had her cervical disc removed within a day or so of her medical evaluation at Baylor University Hospital, she would have been left with a mild left hemiparesis or be normal. Less than a week later she was completely paralyzed on the left side and had other neurological abnormalities. The analogy would be when one firmly compresses a straw with enough pressure the indentations may remain permanently. This situation occurs with spinal cord compression. In fact, if her primary care physician would have worked her up or referred her to a specialist, it is unlikely that she would have had any neurological impairment prior to removal of her herniated disc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574305/ | GARY M. GAUDIN
v.
GEORGE WAGUESPACK
No. 2009 CA 0218
Court of Appeals of Louisiana, First Circuit.
September 11, 2009.
Not Designated for Publication
DONALD D. CANDELL Gonzales, LA, Attorney for Plaintiff-Appellee Gary M. Gaudin.
JEAN-PAUL ROBERT Gonzales, LA, Attorney for Defendant-Appellant George Waguespack.
DAVID CALOGERO Lafayette, LA, Attorney for Intervenor-Appellee Elaine Waguespack.
Before: WHIPPLE, HUGHES, and WELCH, JJ.
WELCH, J.
Defendant, George Waguespack, appeals a default judgment entered in favor of Gary Gaudin that dissolved a law corporation, adjudicated the percentage and/or amount of attorney fees owed to the corporation and to the shareholders in connection with the corporation's resolved and pending cases, divided some of the corporation's assets, provided for the distribution of corporate funds to the shareholders, and ordered that the attorney fees and expense reimbursement awarded to defendant be placed into the registry of the court pending the resolution of his divorce proceeding. We reverse and remand.
BACKGROUND
On September 5, 2007, Gary Gaudin, a director and shareholder in the law firm of Waguespack & Gaudin, APLC (Waguespack & Gaudin), filed a petition seeking an accounting and involuntary dissolution of the corporation pursuant to La. R.S. 12:143 against the firm's only other director and shareholder, George Waguespack. In the petition, Mr. Gaudin made the following allegations: On June 21, 2002, the corporation was formed; in September of 2004, Mr. Gaudin, who was no longer interested in continuing a law practice with Mr. Waguespack, consulted an attorney for the purpose of commencing the dissolution process. Thereafter, all existing clients of Waguespack & Gaudin were notified of the forthcoming dissolution and were asked to select either Mr. Gaudin or Mr. Waguespack to continue with their representation. Mr. Gaudin continued to represent former clients of Waguespack & Gaudin through a newly formed and relocated practice, Gary M. Gaudin, APLC, while Mr. Waguespack continued to represent former clients of Waguespack & Gaudin through a newly formed corporation, George Waguespack & Associates. Settlements and judgment proceeds were obtained by Mr. Gaudin and Mr. Waguespack in connection with legal claims asserted on behalf of Waguespack & Gaudin's former clients. While Mr. Gaudin and Mr. Waguespack were able to amicably resolve the amount of attorney fees due to the corporation, to each shareholder, and the appropriate expense reimbursement with respect to some of the corporation's cases, they were unable to reach an agreement.
In the petition, Mr. Gaudin averred that the attorney fees in the disputed cases should be divided commensurate with the legal work, financing, and overall effort contributed by Waguespack & Gaudin prior to the firm's termination as a working law firm as compared to work performed by Gary M. Gaudin, APLC or George Waguespack & Associates thereafter. The petition, however, does not set forth any facts specific to the client files regarding the attorney fee distribution. Mr. Gaudin asserted that both he and Mr. Waguespack were obligated to fully account for and disclose to the other the details of settlements, judgments, and ongoing litigation in connection with those cases derived from Waguespack & Gaudin.
In his prayer for relief, Mr. Gaudin asked that the court render judgment ordering both parties to provide to the other a full and complete accounting of any and all assets in their respective possession belonging in whole or in part to Waguespack & Gaudin, and thereafter, a judgment fairly and justly dividing the remaining assets of the corporation on a quantum meruit basis. He further prayed for an order authorizing a corporate dissolution or, in the alternative, a plan of dissolution pursuant to La. R.S. 12:143, which sets forth the requisites for an involuntary corporate dissolution. In the petition, Mr. Gaudin alleged that the grounds for an involuntary dissolution had been met in that the corporation had ceased operating as a law corporation for more than one year and that its directors had been unable to amicably resolve their differences to dissolve the corporation.
On November 13, 2007, Mr. Gaudin filed a motion for a preliminary default judgment on the basis that Mr. Waguespack had been served with a copy of the petition on September 25, 2007, but filed no answer or responsive pleading. On that date, the trial court granted a preliminary default against Mr. Waguespack. On January 9, 2008, Elaine C. Waguespack, Mr. Waguespack's wife, intervened in the proceeding to assert an interest in the corporate assets.
On February 29, 2008, the trial court held a hearing to confirm the default. At the hearing, Mr. Gaudin testified and through his testimony, introduced evidence consisting of summaries of cases that had originally been handled by Waguespack & Gaudin that were not settled or resolved as of November 21, 2004, the date on which he claimed the attorneys ceased to conduct business as a law firm. Mr. Gaudin offered an exhibit setting forth the amount of attorney fees recovered in 24 resolved cases he handled and 8 resolved cases handled by Mr. Waguespack. In each case, Mr. Gaudin made a determination as to the percentage of work done prior to the informal dissolution of the corporation and the percentage of work done by the new law firms. The exhibit also set forth the expenses incurred in each case, the amount of expenses attributable to Waguespack & Gaudin, and the amount attributable to the new firm. Included in the data was a pending case Mr. Gaudin was handling.
Following the hearing, the trial court rendered judgment dissolving Waguespack & Gaudin pursuant to statute. In connection with the data provided by Mr. Gaudin and after making some calculation corrections, the trial court entered awards of attorney fees in the resolved cases in favor of Waguespack & Gaudin, divided those amounts equally between Mr. Waguespack and Mr. Gaudin, awarded a percentage of the attorney fees in each case to the attorney who worked on the case, and determined the amount of expense reimbursement due to each attorney. The court also determined the percentage of fees Mr. Gaudin was entitled to in a pending case. The trial court determined that Waguespack & Gaudin was owed $217,329.00 in attorney fees and awarded one-half of that sum to Mr. Waguespack as well as certain expense reimbursements, reducing that amount by attorney fees and expenses owed to Mr. Gaudin, for a total award of $129,141.65 to Mr. Waguespack. The court ordered that the funds be deposited into the registry of the court to be disbursed pending resolution of Mr. Waguespack's divorce proceeding.
Additionally, the court divided Waguespack & Gaudin's furniture and fixtures and ordered that funds remaining in the corporation's accounts be used to remove the former firm's billboard and pay the notary assigned in the case, with any remaining funds to be disbursed between the former shareholders. The court also decreed that Mr. Gaudin was authorized to retrieve the corporation's client files and accounting files and appointed a notary to inventory the files removed by Mr. Gaudin.
On May 1, 2008, Mr. Waguespack filed an answer and reconventional demand against Mr. Gaudin. Also on that day, Mr. Waguespack filed a motion for a new trial, which was denied.[1] This appeal followed.
DISCUSSION
In this appeal, Mr. Waguespack attacks the validity of the default judgment, arguing that: (1) the judgment varied substantially from the prayer in the original petition in violation of La. C.C.P. art. 1703; (2) the parties failed to notify Mr. Waguespack of the impending default judgment; (3) the judgment cannot be considered a final judgment because it does not resolve all of the issues; (4) the interests of justice demand that Mr. Waguespack be allowed to present evidence as to the assets and liabilities of the corporation so that a proper and equitable distribution of the corporation can be made; and (5) the corporation is an indispensible party to the dissolution proceeding and should have been named as a defendant in the proceedings below. Because we agree that the default judgment violates La. C.C.P. art. 1703, we pretermit discussion of all other alleged procedural deficiencies in the default judgment under review.
Confirming a default judgment is akin to a trial at which only the plaintiff is present. As such, the unopposed plaintiff must comply with a set of special, somewhat strict rules in proving his claim. Cunningham v. M & S Marine, Inc., XXXX-XXXX, p. 3 (La. App. 4th Cir. 1/11/06), 923 So.2d 770, 773; 19 Louisiana Civil Law Treatise: Evidence and Proof § 2.9 (1999). The first of these special rules is that a plaintiff is confined to the facts and theories pled in the petition; he may not expand his pleadings by introducing evidence at the confirmation hearing. Cunningham, XXXX-XXXX at p. 3, 923 So.2d at 773. Thus, La. C.C.P. art. 1703 precludes a plaintiff from obtaining a default judgment that is "different in kind from that demanded in the petition."
In his prayer for relief, Mr. Gaudin asked for a judgment "ordering that both parties provide to the other a full and complete accounting of any and all assets in their respective possession belonging in part or whole to Waguespack & Gaudin, APLC and thereafter, judgment fairly and justly dividing the remaining assets of the corporation, Waguespack & Gaudin, APLC on a quantum meruit basis." (Emphasis added.) He also prayed for an "order authorizing a corporate dissolution or in the alternative, an order requiring each party to provide a plan of dissolution pursuant to LSA-R.S. 12:143 et seq." However, the court's judgment went far beyond the relief requested in the petition. Although the petition prayed for an accounting, to be followed by a division of the corporation's assets, the court did not order an accounting, but made determinations as to the corporation's share of attorney fees in settled and resolved cases, the percentage of and value of work performed by each attorney, and even determined the percentage of attorney fees Mr. Gaudin should receive in a pending case. Additionally, the judgment exceeded the scope of the prayer by ordering that corporate funds be used to pay the costs of removing a billboard and a notary's fee, ordering that Mr. Gaudin be allowed to retrieve corporate files and retain possession of those files, and providing for the appointment of a notary to inventory those files, matters not even mentioned in the petition.
Because the default judgment clearly differs from and exceeds the relief prayed for by Mr. Gaudin in his petition, we find that judgment to be null and void and of no effect, and we reverse and remand this case to the trial court. See St. Tammany Homesites, Inc., v. Parish of St. Tammany, 491 So.2d 450, 451 (La. App. 1st Cir. 1986).
CONCLUSION
Based on the foregoing, the judgment appealed from is reversed. The case is remanded to the trial court for proceedings consistent with this opinion. All costs of this appeal are assessed to appellee, Gary Gaudin.
REVERSED AND REMANDED.
WHIPPLE, J., concurring.
This is not a case where the plaintiff rushed to confirm a preliminary default. Moreover, the plaintiff clearly made a concerted effort to present adequate evidence to support his claimed interest in the assets of the corporation at issue, i.e., the attorneys fees arising from these cases. However, given the applicable law and jurisprudence, I must agree that the judgment, which ordered a dissolution without a full accounting for all assets and liabilities, did not comply with the relief sought and must be vacated.
NOTES
[1] On July 17, 2008, a community property partition was entered making Mr. Waguespack's former spouse the owner of the funds awarded to Mr. Waguespack in the March 26, 2008 judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574330/ | 224 S.W.3d 577 (2006)
Thomas C. BOWLING, Appellant,
v.
COMMONWEALTH OF KENTUCKY, Appellee.
No. 2005-SC-0712-MR.
Supreme Court of Kentucky.
June 15, 2006.
As Modified on Denial of Rehearing June 21, 2007.
Susan Jackson Balliet, David M. Barron, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Counsel for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Ian G. Sonego, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
JOHNSTONE, Justice.
Appellant, Thomas C. Bowling, appeals from the Fayette Circuit Court's denial of his motion for relief pursuant to CR 60.02 and CR 60.03. Bowling's motion claimed that the United States Supreme Court's recent decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and the Eighth Amendment's proscription against cruel and unusual punishment *578 prohibit the execution of individuals with the mental age of a juvenile. Bowling also argued that he was entitled to a new sentencing hearing due to "the increased mitigating value of functioning at the mental level of a juvenile" resulting from Roper's prohibition of executing juveniles.
Prior Procedural History
In 1990, Bowling was convicted in the Fayette Circuit Court for the murders of Edward and Ernestine Earley, and the assault of their two-year-old child. Bowling was sentenced to death for each of the two murders. His convictions and sentences were affirmed on direct appeal. Bowling v. Commonwealth, 873 S.W.2d 175 (Ky.1993), cert. denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). His RCr 11.42 motion was denied and that decision was also affirmed on appeal. Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998), cert. denied, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999). His petition in federal district court for a writ of habeas corpus, 28 U.S.C. § 2254, was denied, Bowling v. Parker, 138 F.Supp.2d 821 (E.D.Ky.2001), and that decision was affirmed on appeal, Bowling v. Parker, 344 F.3d 487 (6th Cir.2003), cert. denied sub nom., Bowling v. Haeberlin, 543 U.S. 842, 125 S.Ct. 281, 160 L.Ed.2d 68 (2004), thus exhausting all of his conventional avenues of appeal. The Governor of Kentucky signed a death warrant scheduling Bowling's execution for November 30, 2004. KRS 431.240(4). However, both this Court and the Franklin Circuit Court issued orders staying the execution pending resolution of Bowling's challenge to Kentucky's method of lethal injection and his petition to vacate his death sentence based on mental retardation.
In Bowling v. Commonwealth, 163 S.W.3d 361 (Ky.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 652, 163 L.Ed.2d 528 (2005), this Court upheld the trial court's denial of Bowling's CR 60.02/CR 60.03 motion based on mental retardation. Specifically, Bowling relied upon the United States Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that the Eighth Amendment's proscription against cruel and unusual punishment "places a substantive restriction on the State's power to take the life of a mentally retarded offender." Id. at 321, 122 S.Ct. at 2252, 153 L.Ed.2d at 350; Bowling, 163 S.W.3d at 366.
Noting that at the time of Atkins, Kentucky already had in effect a statute affording the same protection created by Atkins, KRS 532.140,[1] we held that Atkins was only retroactive to any condemned mentally retarded offender tried prior to the effective date of KRS 532.140. Bowling, 163 S.W.3d at 371. Because Bowling was tried after the effective date of the exemption statutes and had not raised the mental retardation issue at trial, he was held to have procedurally defaulted the issue:
The Commonwealth did not prevent Appellant from presenting his mental retardation claim; he simply did not assert it at his trial or in his RCr 11.42 motion. Kentucky's exemption statute, KRS 532.140(1), was enacted effective July 13, 1990. Appellant's trial began on December 10, 1990. During the interim, Appellant was examined by two *579 psychologists, one appointed by the trial court and the other selected by his attorneys. Each psychologist administered a separate IQ test, the results of which measured Appellant's IQ at 86 and 87, respectively. Thus, Appellant was afforded both the opportunity to assert his mental retardation claim and the expert witnesses necessary to prove it (if it was provable). He chose not to assert the claim at trial and thereby waived it. Accord Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21, 51 (2004) ("Winston's remaining claims concerning the subject of mental retardation are waived because he deliberately declined to raise a claim of mental retardation under the statutory provisions that apply to him and his trial."). Compare Head v. Hill, 277 Ga. 255, 587 S.E.2d 613, 620 (2003) (defendant could have litigated the issue of his alleged mental retardation at trial but chose not to do so, thus, he was not denied the right to litigate the issue; he had such a right and waived it); with Rogers v. State, 276 Ga. 67, 575 S.E.2d 879, 880 (2003) (defendant who was tried before effective date of mental retardation exemption statute could not be held to have waived claim to exemption).
Id. at 371-72.
Bowling thereafter informed the Sixth Circuit that he had exhausted his mental retardation claims in state court. On September 2, 2005, a three-judge panel of the Sixth Circuit denied Bowling's motion for leave to file a successive habeas corpus petition to re-litigate the mental retardation claim. The Court further upheld the U.S. District Court's order denying Bowling's FRCP 60(b) motion to reopen his previously ruled-upon habeas corpus petition, and concluded that the FRCP 60(b) motion was the functional equivalent to a successive habeas petition. In Re: Bowling, 422 F.3d 434 (6th Cir.2005). On December 2, 2005, the Sixth Circuit denied Bowling's motion for leave to file a petition for an en banc rehearing of his mental retardation claim.
Current Collateral Attack
On June 7, 2005, Bowling filed a motion in the Fayette Circuit Court to vacate his death sentence based upon "juvenile mental age," citing CR 60.02, CR 60.03, and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Relying upon an excerpt from his Perry County elementary school record and an affidavit from his mother, both of which were filed in the earlier mental retardation claim, as well as an additional affidavit from his son, Bowling alleged that he mentally functions at a level equivalent to an eleven-year-old child. Bowling also moved the trial court for funds to hire an expert on juvenile age.
The Commonwealth responded, in part, that Bowling's claim was not filed in a timely manner and was barred as a successive collateral attack. The Commonwealth cited to our prior decision wherein we held that Bowling was not entitled to relief based on his mental retardation claim because he had "not alleged an error that was unknown and could not have been known to him by the exercise of reasonable diligence at the time of his trial, RCr 11.42 motion, or [prior] petition for habeas corpus." Bowling v. Commonwealth, 163 S.W.3d at 366. Since Roper v. Simmons was pending in the United States Supreme Court at the time Bowling filed his prior CR 60.02 motion based on mental retardation, the Commonwealth argued that he could have raised the juvenile mental age claim at that time.
Following a hearing, the trial court denied both motions. However, with respect to the procedural bar issue, the Court noted:
*580 The Court finds that the motion is timely if the Movant is entitled to a defense based on juvenile mental age. As Justice Keller wrote in Bowling v. Commonwealth, 2004-SC-0880-MR:
If the issue of an offender's age had not been presented or addressed previously by the trial court, no one, at least hopefully no one, would seriously argue that the issue was waived and could not be presented later if evidence, or a reasonable inference from the evidence, became available that showed the offender was less than sixteen at the time of the offense.
Thus, if mental age is equivalent to age in years as a defense, Bowling is entitled to go forward.
The trial court nonetheless found that Bowling failed to present evidence sufficient for the court to determine the scientific validity of "mental age."
However, in August 2005, Bowling filed a motion to reconsider the trial court's order under CR 59.05. On August 19, 2005, the trial court heard oral argument and thereafter passed the motion for a two-week period to permit the parties to further brief the issues. The trial court held a second oral argument on August 26, 2005. At the conclusion of such, the trial entered an order granting Bowling's CR 59.05 motion to reconsider, but denying his motion for relief. The court opined:
The Roper Court established age 18 as the categorical cut-off age because "society draws the line for many purposes between childhood and adulthood" at that age.
However, the majority in Roper made it clear that this is a bright line demarcation rather than a case-by-case determination. The Court recognized that some under age 18 "have already attained a level of maturity some adults will never reach." Nonetheless, being under chronological age 18 would make such a youth eligible for the death penalty prohibition. Conversely, the Court recognized that the "qualities that distinguish juveniles from adults do not disappear when an individual turns 18." By this statement, the Court made it clear that remaining "youthful" past chronological age 18 would not invoke the prohibition. "Mental age" less than 18 means no more than remaining youthful past chronological age 18. There is thus no analytical basis to extend the holding of Roper to cover a juvenile mental age.
(Emphasis in original).
Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b); Skaggs v. Commonwealth, 803 S.W.2d 573 (Ky.1990), vacated on other grounds, Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000).
Roper v. Simmons
The United States Supreme Court's recent decision in Roper v. Simmons declared it unconstitutional under the Eighth Amendment for a state to execute any individual who was under the age of eighteen (18) at the time of the offense. Noting that a majority of states have rejected the imposition of the death penalty on juveniles under 18, the Court found evidence sufficient to demonstrate a national consensus. "The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded." 543 U.S. at 564, 125 S.Ct. at 1192, 161 L.Ed.2d at 18. In justifying the prohibition of the death penalty on those less than 18 years of age, the Court explained:
*581 Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions." [Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658]; see also [Eddings v. Oklahoma, 455 U.S. 104, 115-116, 102 S.Ct. 869] ("Even the normal 16-year-old customarily lacks the maturity of an adult"). . . . In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. . . .
The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Eddings, supra, at 115, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 ("[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage"). This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003) (hereinafter Steinberg & Scott) ("[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting").
The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, identity: Youth and Crisis (1968).
These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Thompson, supra, at 835, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (plurality opinion). . . . The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." Johnson, supra, at 368, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290; see also Steinberg & Scott 1014 ("For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood").
In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under *582 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death penalty on juveniles below that age. 487 U.S., at 833-838, 108 S.Ct. 2687, 101 L.Ed.2d 702. We conclude the same reasoning applies to all juvenile offenders under 18.
Roper, 543 U.S. at 569-72, 125 S.Ct. at 1195-96, 161 L.Ed.2d at 21-23.
"Juvenile Mental Age"
Bowling argues that the Roper decision must be interpreted as prohibiting the execution of not only those offenders whose chronological age is below eighteen, but also those offenders whose mental age is below eighteen. Bowling contends that unlike the Supreme Court's prior decisions dealing with the juvenile death penalty, Roper defines "juvenile" and "youthful person" in terms of the mental development and impairments that are inherent in anyone who functions as a juvenile, not just those who are chronologically juveniles. See Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion prohibiting imposition of death penalty on any juvenile under the chronological age of sixteen at the time of offense). See also Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
Bowling points out that the Roper decision focuses on the immaturity, irresponsibility, and susceptibility to negative influences inherent in juveniles, and how such factors prevent the only recognized goals of the death penaltyretribution and deterrence of prospective offenders[2] from being satisfied. Thus, Bowling concludes that because such rationale has no relation to a person's chronological age, but only to his or her mental age, the Court was clearly imposing a broad restriction against the execution of any offender who mentally functions below the level of an average chronological eighteen year old.
We do not necessarily disagree that, in theory, the broad concepts espoused by the Supreme Court could pertain to those who function at the mental level of a juvenile. To be sure, the Roper Court recognized that there are adults who have the mental abilities of a juvenile, as well as those juveniles who function at a level far beyond their years. For that reason, however, the Court established a bright line rule:
Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. *583 Roper, 543 U.S. at 574, 125 S.Ct. at 1197-98, 161 L.Ed.2d at 24-25. The plain language of Roper compels the conclusion that its prohibition is limited to "the execution of an offender for any crime committed before his 18th birthday. . . ." Id. at 588, 125 S.Ct. at 1206, 161 L.Ed.2d at 38. (O'Connor, J. dissenting).
As the Commonwealth notes, the concept of juvenile mental age as a basis to preclude the death penalty was discussed by Justice O'Conner in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated by Atkins, supra:
Penry urges us to rely on the concept of "mental age," and to hold that execution of any person with a mental age of seven or below would constitute cruel and unusual punishment. . . . Mental age is "calculated as the chronological age of nonretarded children whose average IQ test performance is equivalent to that of the individual with mental retardation". . . . See D. Wechsler, The Measurement and Appraisal of Adult Intelligence 24-25 (4th ed. 1958). . . . [T]he "mental age" concept, irrespective of its intuitive appeal, is problematic in several respects. As the AAMR acknowledges, "[t]he equivalence between nonretarded children and retarded adults is, of course, imprecise. . . ." The "mental age" concept may underestimate the life experiences of retarded adults, while it may overestimate the ability of retarded adults to use logic and foresight to solve problems. The mental age concept has other limitations as well. Beyond the chronological age of 15 or 16, the mean scores on most intelligence tests cease to increase significantly with age. Wechsler 26. As a result, "[t]he average mental age of the average 20 year old is not 20 but 15 years." Id., at 27. See also In re Ramon M., 22 Cal.3d 419, 429, 149 Cal.Rptr. 387, 394, 584 P.2d 524, 531 (1978) ("[T]he `mental age' of the average adult under present norms is approximately 16 years and 8 months"). Not surprisingly, courts have long been reluctant to rely on the concept of mental age as a basis for exculpating a defendant from criminal responsibility. See, e.g., In re Ramon M., supra, 22 Cal.3d at 429, 149 Cal.Rptr. at 394, 584 P.2d at 531; State v. Schilling, 95 N.J.L. 145, 148, 112 A. 400, 402 (1920); People v. Marquis, 344 Ill. 261, 267, 176 N.E. 314, 316 (1931); Chriswell v. State, 171 Ark. 255, 259, 283 S.W. 981, 983 (1926). Cf. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, 107 (1953). See generally Ellis & Luckasson, 53 Geo. Wash. L.Rev., at 435. Moreover, reliance on mental age to measure the capabilities of a retarded person for purposes of the Eighth Amendment could have a disempowering effect if applied in other areas of the law. Thus, on that premise, a mildly mentally retarded person could be denied the opportunity to enter into contracts or to marry by virtue of the fact that he had a "mental age" of a young child. In light of the inherent problems with the mental age concept, and in the absence of better evidence of a national consensus against execution of the retarded, mental age should not be adopted as a line-drawing principle in our Eighth Amendment jurisprudence.
Penry, 492 U.S. at 339-40, 109 S.Ct. at 2957-58, 106 L.Ed.2d at 291-92.
While the other members of the Court did not join Justice O'Conner's opinion with respect to "mental age," none explicitly rejected it. Nor has the Court since Penry considered such a theory. Nevertheless, Justice O'Conner's discussion certainly belies Bowling's claim that the Roper Court intended for the definition of "juvenile" to include those who mentally function at a juvenile level. There simply is no language to support such a conclusion. *584 The Court was unquestionably well-versed in the concept of mental age and would have explicitly adopted mental age as a criterion had it wished to do so.
Bowling has not cited any published authority prohibiting the death penalty based upon "juvenile mental age." Nor has Bowling demonstrated a national consensus that mental age should be a criterion by which to exclude the death penalty. Without question, the Supreme Court has been presented with and has considered the concept of mental age. Penry. Thus, we conclude that Roper v. Simmons only prohibits the execution of those offenders whose chronological age was below eighteen at the time of the commission of the offense. See also Hill v. State, 921 So.2d 579, 584 (Fla.2006).
Procedural Default
We believe it necessary to point out that even if this Court were to have concluded that Roper prohibits the execution of "mental juveniles," the result herein would be no different. As we noted in Bowling v. Commonwealth, a decision recognizing a new constitutional right would not be retroactively applied if the state in which the conviction was obtained had in effect at the time of the condemned person's trial a statute affording the same right. 163 S.W.3d at 372. KRS 640.040, enacted in July 1989 and effective at the time of Bowling's 1990 trial, provides in relevant part:
(1) No youthful offender who has been convicted of a capital offense who was under the age of sixteen (16) years at the time of the commission of the offense shall be sentenced to capital punishment.
Thus, at the time of his trial Kentucky had in effect a statute that prohibited the execution of an offender under the age of sixteen. As such, Bowling's claim that execution is prohibited because he functions at the level of an eleven-year-old child could have been asserted at trial, in his RCr 11.42 motion, or his prior CR 60.02 motion. In other words, as it would have applied to his claim, Roper v. Simmons created no greater protection than he could have asserted under the statute. For this reason, the same rationale espoused in Bowling v. Commonwealth that supported a finding that Bowling procedurally defaulted his mental retardation claim applies with equal force to support a finding that his current claim, even if viable, would have been procedurally defaulted as well. Id. at 371-72.
New Capital Sentencing Trial
Finally, Bowling argues that in light of Roper v. Simmons, he is entitled to a new sentencing trial where a jury can consider "the mitigating value of juvenile mental age in light of the substantive restriction against executing juveniles that did not exist in Kentucky until March 1, 2005." It is his belief that that there is a reasonable probability that at least one juror would have viewed the mitigating evidence differently had he or she known that juveniles could not be executed. Bowling's argument is wholly without merit.
As we have previously noted, Kentucky has prohibited the imposition of capital punishment on juveniles who were under the age of sixteen at the time of offense since the enactment of KRS 640.040 in July 1987. As Bowling was tried in 1990, defense counsel was certainly able to make the same arguments in mitigation that he now seeks to make.
Accordingly, the order of the Fayette Circuit Court denying Bowling relief under CR 60.02 and CR 60.03 is affirmed.
*585 Further, Bowling's motion to strike documents improperly included in the record on appeal is denied as moot.
LAMBERT, C.J.; COOPER, GRAVES, SCOTT, and WINTERSHEIMER, JJ., concur.
ROACH, J., not sitting.
NOTES
[1] KRS 532.140(1), enacted July 13, 1990, provides: "[N]o offender who has been determined to be a seriously mentally retarded offender under the provisions of KRS 532.135, shall be subject to execution. The same procedure as required in KRS 532.025 and 532.030 shall be utilized in determining the sentence of the seriously mentally retarded offender under the provisions of KRS 532.135 and KRS 532.140."
[2] "There are two distinct social purposes served by the death penalty: `retribution and deterrence of capital crimes by prospective offenders.'" Roper, 543 U.S. at 571, 125 S.Ct. at 1196, 161 L.Ed.2d at 23. (Quoting Atkins, 536 U.S. at 319, 122 S.Ct. at 2242, 153 L.Ed.2d at 349). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574336/ | 224 S.W.3d 615 (2007)
Houston RANDOLPH and David S. Randolph, Individuals, d/b/a Randolph Farm Equipment, et al., Appellants-Respondents,
v.
MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Respondent-Appellant.
Nos. WD 66269, WD 66289.
Missouri Court of Appeals, Western District.
April 24, 2007.
Motion for Rehearing and/or Transfer Denied May 29, 2007.
*616 Ed Dougherty and Philip R. Holloway, Kansas City, MO, for appellants-respondents.
John W. Koenig, Jr., Regional Counsel, MHTC, Sikeston, MO, for respondent-appellant.
Before HOWARD, C.J., and ELLIS and EDWIN H. SMITH, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 29, 2007.
VICTOR C. HOWARD, Chief Judge.
Appellants ("Property Owners") own real and personal property in and around Carrollton, Missouri. They appeal the decision of the trial court in dismissing their personal property claims in an inverse condemnation action as being untimely and the denial of an award of attorney fees and costs in their inverse condemnation case for property damages. On cross-appeal, the Missouri Highways and Transportation Commission ("MHTC") appeals the trial court's grant of prejudgment interest. For the reasons set forth below, the judgment of the trial court is affirmed.
Factual Background
In 1977, MHTC constructed a highway bypass for Highway 65 around Carrollton, Missouri.[1] In 1993, Missouri experienced one of the worst floods in its history. During this flood, the Property Owners suffered damage to real and personal property and on May 24, 1999, the Property Owners brought an inverse condemnation action against MHTC. The Property Owners alleged that the construction around Highway 65 had materially changed and altered the flow of the surface water in and around the highway and Wakenda *617 Creek resulting in the flooding of their property in 1993 and again in 1998.
On March 19, 2004, MHTC filed a motion to dismiss, arguing that a five-year statute of limitations barred the Property Owners' personal property claims. At a pre-trial conference, the trial court ruled that the Property Owners would be precluded from making any claims for damages that related to personal property.
On May 26, 2005, a jury returned verdicts in favor of Property Owners for real estate damages. The Property Owners filed a Memorandum in Support of Plaintiffs' Proposed Judgment that included a request for attorneys' fees under 49 C.F.R. 24.107 and prejudgment interest. The trial court entered its judgment on August 24, 2005, awarding the Property Owners prejudgment interest but denying the request for attorney fees and costs. Both the Property Owners and MHTC filed motions to amend and/or modify the judgment and motions for a new trial, which were all denied. This appeal follows.
Standard of Review
Property Owners argue on appeal that the trial court erred in granting the motion to dismiss in regard to the personal property claims based on the five-year statute of limitations and that the court erred in denying attorney fees and costs. MHTC cross-appeals, arguing that the trial court erred in awarding prejudgment interest. All of these issues regard the application of statutes and are questions of law. We review questions of law de novo, and no deference is given to the trial court's judgment. McKinney v. State Farm Mut. Ins., 123 S.W.3d 242, 245 (Mo. App. W.D.2003) (citations omitted).
Discussion
Statute of Limitations on Personal Property Damage
In their first point on appeal, Property Owners argue that the trial court erred when it granted MHTC's motion to dismiss regarding the personal property claims based on a five-year statute of limitations. They argue that Shade v. Missouri Highway & Transportation Commission, 69 S.W.3d 503 (Mo.App. W.D. 2001)[2] was wrongly decided in that: (1) a ten-year statute of limitations should apply and (2) subsequent flooding, such that occurred in 1998 in this case, should constitute a new cause of action. We disagree.
Similar to the case at bar, Shade involved flooding that was caused by a MHTC highway construction project. Id. at 506. The plaintiffs alleged that the construction project materially changed and altered the flow of surface water surrounding their properties. Id. at 507. They filed a lawsuit against MHTC under the theory of inverse condemnation for damages to their personal and real property. Id. MHTC filed a motion for summary judgment based on the affirmative defense of the statute of limitations. Id. The trial court granted the motion and the plaintiffs appealed. Id.
On appeal, this court recognized the fact that Heins Implement Company v. Missouri Highway & Transportation Commission, 859 S.W.2d 681, had "remove[d] inverse condemnation actions from the realm of tort liability and set them in a constitutional context." Shade, 69 S.W.3d at 510. After an extensive review of the conflicting precedent on inverse condemnation actions, we held that the statute of *618 limitations in inverse condemnation cases for real property was ten years. Id. at 513. This decision was based on the time period required for an entity with the power of eminent domain to obtain a prescriptive easement. Id. at 512-13.
In regard to personal property, we acknowledged that the eminent domain statute, section 227.120, RSMo 1994, only spoke of "lands," but that the prohibition of taking or damaging personal property stemmed from the constitution and not statutory law. Id. at 516. However, unlike the taking of real property, the time period regarding a prescriptive easement could not be applied to personal property. Id. at 517. We also noted that unlike real property, a specific statute of limitations, section 516.120(4), RSMo 1994, applied to injury to personal property. Id. Section 516.120(4) requires that "[a]n action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated" was to be brought within five years.
Nothing has changed since our holding in Shade. Section 516.120(4)[3] still imposes a five-year statute of limitations to actions for injuring personal property. There is still no statute that prescribes a specific time limit to inverse condemnation claims. See Shade, 69 S.W.3d at 512. Therefore, the Property Owners' personal property claims in this case were required to be brought within five years. The date of taking in this case was determined to be July 18, 1993. Therefore, in order for the suit for personal property damages to be timely, it had to be filed by July 18, 1998. However, the Property Owners did not file their petition for damages until May 24, 1999. Thus, the claim was not timely, and the trial court did not err in granting MHTC's motion to dismiss for failure to state a claim.
Anticipating that we would not overturn Shade, the Property Owners also argue that even if the five-year statute of limitations were to apply, the subsequent flooding in 1998 would constitute a new cause of action. Yet, once again, whether or not subsequent flooding constitutes a new cause of action was answered in Shade.
In Shade we held that a "cause of action for inverse condemnation accrues once the fact of damage is capable of ascertainment." 69 S.W.3d at 514 (citations omitted). An injury will accrue at the "`completion of installation'" or "`when the effect of the injury becomes manifest.'" Id. (quoting Rebel v. Big Tarkio Drainage Dist. of Holt City, 602 S.W.2d 787, 792 (Mo.App. W.D.1980)). The determination depends on the facts of each case, but in situations involving successive floods:
the damage may not be ascertainable on the date of the first flood. It may well be that it would only become "apparent by the passage of time that the intermittent flooding was of a permanent nature." Accrual date of a cause of action does not arise until the damages and the cause of the damages are reasonably ascertainable. Damages are capable of ascertainment to initiate the running of the limitation period when a plaintiff with a recognized theory of recovery sustains damage.
Id. (internal citations omitted). In Shade, the case was remanded because no determination had been made at the summary judgment stage of when the different causes of actions were capable of ascertainment. *619 Id. at 515. That is not the situation in the case at bar. Here, the date of ascertainment was in 1993.[4] The highway construction that caused the flooding at issue in this case was a permanent one that had been completed in 1977. The Property Owners admit that none of them experienced a personal property loss for the first time in 1998. Therefore, the five-year statute of limitations was triggered in 1993. The trial court's grant of the motion to dismiss is affirmed.
Attorney Fees and Costs
In their second point on appeal, Property Owners argue that the trial court erred in denying their motion for assessment of litigation expenses. They argue that pursuant to the Uniform Policy on Real Property Acquisition Practices, 42 U.S.C. 4651, et seq., and 49 C.F.R. 24.107 ("the Act"), attorney fees and costs can be awarded in inverse condemnation cases.[5] In response, MHTC argues that no error was committed because Missouri law does not authorize the award of attorney fees in inverse condemnation cases. We agree with MHTC.
Missouri courts are not allowed to award attorney fees unless provided for by statute, contract or "when needed to balance benefits in a court of equity." Moore v. Weeks, 85 S.W.3d 709, 723 (Mo. App. W.D.2002) (quoting Killion v. Bank Midwest, N.A., 987 S.W.2d 801, 809 (Mo. App. W.D.1998)). Missouri follows the "American Rule" which requires each party to bear the expense of their own attorney fees. Id. (citing Fisher v. Fisher, 874 S.W.2d 543, 546 (Mo.App. W.D.1994)).
The Property Owners argue that the Act provides the required statutory authorization of attorney fees. They allege that through case law, Missouri courts have fully adopted the Act. See City of Columbia v. Baurichter, 713 S.W.2d 263, 265-66 (Mo. banc 1986). However, a closer look at the applicable case law does not support this assertion.
In State ex rel. Missouri Highway & Transportation Commission v. Anderson, the Missouri Supreme Court found that a party was not entitled to subpoenas regarding matters allegedly covered by the Act. 735 S.W.2d 350, 357-58 (Mo. banc 1987). This case clearly stands for the proposition that the Act is not applied in all cases.
Furthermore, in Baurichter, the Missouri Supreme Court pointed out that the Act would only be applied where Missouri law does not expressly prohibit its application. 713 S.W.2d at 266. "The law is well established that costs cannot be assessed against state agencies or state officials absent express statutory authority." M.P. v. Mo. Dep't of Soc. Servs., Div. of Family Servs., 147 S.W.3d 765, 766 (Mo. banc 2004) (citing Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993)). In the face of such a *620 strong prohibition against awarding attorney fees against a state agency, such as the MHTC, the roundabout way that the Property Owners attempted to overcome this prohibition cannot succeed.
Missouri law expressly prohibits the application of attorney fees absent statutory authority. Although the Property Owners try to use the Act as such statutory authorization, we find the Act's application tenuous at best. In accordance with the long-standing and strict application of the American Rule in Missouri and the prohibition of awarding costs against state agencies, the trial court correctly denied the Property Owners' application for attorney fees. The trial court's denial is affirmed.
Prejudgment Interest
On cross-appeal, MHTC argues that the trial court erred in awarding prejudgment interest. On April 24, 2007, this court handed down an opinion that deals with this issue. In Collier v. City of Oak Grove, WD 65355, 2007 WL 1185982, ___ S.W.3d. ___ (Mo.App.W.D. Apr. 24, 2007), we recognized that in order for one to receive just compensation in an inverse condemnation action, interest should be awarded for the time between the taking and the time payment is actually made. Slip op. at 23, ___ S.W.3d at ___. See also Akers v. City of Oak Grove, WD 65220, 2007 WL 1118391, ___ S.W.3d ___ (Mo.App.W.D. Apr. 17, 2007). Because "a claim for interest in an inverse condemnation action is predicated on the just compensation clauses of the United States and Missouri Constitutions[,][s]uch a claim does not require a statutory basis." Id. at 27, at ___.
However, in State ex rel. State Highway Commission v. Green, the Missouri Supreme Court held that "[a] trial court is powerless to amend a verdict beyond that required for clerical errors made manifest by the record and may never amend `matters of substance required to be passed on by the jury, which, in their nature, are essential to the determination of the case.'" Id. at 694 (quoting State ex rel. State Highway Comm'n v. Green, 305 S.W.2d 688, 694 (Mo.1957)) (emphasis added). Therefore, we held in Collier, that although interest can be awarded in an inverse condemnation action, it must be done by a jury, not after the verdict by the judge. Id. "[T]he award of interest and its calculation in an inverse condemnation case is properly the province of the jury as an element of damages." Id. at 691.
In State ex rel. State Highway Commission v. Ellis, it was noted that following Green the legislature passed section 523.045 regarding interest for direct condemnation cases. 382 S.W.2d 225, 230 (Mo.App.1964). The court in Ellis stated that section 523.045 did not give litigants a substantive right. Id. Instead, what it did was provide a "vehicle by which the substantive right was to be enforced and made effective (by addition to the amount of the verdict) [and] was only procedural in providing a method and mechanics for its attainment." Id.See also State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740, 747 (Mo.1964) (section 523.045 provides no "new substantive rights but is merely procedural."). No such procedural statute has been enacted for inverse condemnation cases.[6] However, in this case, the parties agreed that if an award of prejudgment interest were to be awarded, it was to be done by the judge following the jury's verdict.[7]
"Stipulations varying or altering trial procedure, or waiving the benefit of *621 procedural statutes, have been consistently enforced by our courts in the absence of any claim of fraud, duress or mistake. . . ." Pierson v. Allen, 409 S.W.2d 127, 130 (Mo. 1966).[8] Given that a party may waive "the benefit of a statute or constitutional provision enacted for the protection of the party where the stipulation involves a matter of private right," Lewis v. Vargas, 787 S.W.2d 319, 320 (Mo.App. W.D.1990), we see no reason why the parties could not agree to have a judge do the mathematical equation to add interest to the verdict once he determined, as a matter of law, that prejudgment interest was appropriate. The award of prejudgment interest is affirmed.
Conclusion
In conclusion, we affirm the trial court's dismissal of the Property Owners' personal property claims based on our holding in Shade that the five-year statute of limitations applies and that even with successive floods, the cause of action accrued when the cause of the damage was capable of ascertainment. We affirm the trial court's denial of attorney fees because there is no applicable exception to the American Rule of attorney fees. Finally, we affirm the trial court's award of prejudgment interest based on the agreement between the parties that it would be an issue for the judge.
The judgment of the trial court is affirmed.
ELLIS and EDWIN H. SMITH, JJ., concur.
NOTES
[1] This same construction project was what led to the flooding described in Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993). Additional details of the project can be found in Heins.
[2] The motion for rehearing and/or transfer to the supreme court was denied on March 5, 2002.
[3] All statutory references are to RSMo 2000 unless otherwise noted.
[4] Property Owners also argue that the subsequent flooding caused "continuing injury." Their argument is similar to the continuing tort exception to the statute of limitations. However, for this exception to apply, the wrong must be continuing or repeating. D'Arcy & Assocs., Inc. v. K.P.M.G. Peat Marwick, L.L.P., 129 S.W.3d 25, 30 (Mo.App. W.D.2004). Damages resulting from one completed, wrongful act, such as the MHTC construction in this case, are not adequate. Id. When there is only one wrong, which results in continuing damage, the cause of action accrues when that wrong is committed and the damage sustained is capable of ascertainment. Id. In this case, not only does the holding in Shade support the trial court's dismissal, but also the Property Owners' argument regarding a continuing type of injury must fail.
[5] There is no dispute that the highway bypass construction received federal funding.
[6] Once again, we appeal to the legislature to address this issue.
[7] In letter briefs to this court, MHTC has denied that any agreement existed. However, during oral arguments before this court, counsel for MHTC responded "[w]ithout question" that if interest was to be awarded, it was by agreement of the parties, it was going to be done by the judge and that it was "a judge issue." We accept this statement during oral argument as a concession that there was an agreement. See Phipps v. Sch. Dist. of Kansas City, 588 S.W.2d 128, 131 (Mo.App. W.D.1979).
[8] "A stipulation is an agreement between counsel with respect to business before the court." Lewis v. Vargas, 787 S.W.2d 319, 320 (Mo.App. W.D.1990) (citing Pierson, 409 S.W.2d at 130). Just because an oral agreement is not formally called a "stipulation," does not mean that it will not be treated as such. See generally Renick v. City of Maryland Heights, 767 S.W.2d 339, 341 n. 1 (Mo. App. E.D.1989) (agreement between parties regarding size of land treated as stipulation); Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751, 755 (1949) (oral agreement or stipulation has same binding force and effect as a written one). Stipulations are to be "`interpreted in view of the result which the parties were attempting to accomplish.'" Pierson, 409 S.W.2d at 130 (citation omitted). Based on the statements made during oral arguments before this court and that during voir dire MHTC told the jury that the judge had a procedure for taking care of interest and that interest would be taken care of by the Court, it is clear that the parties intended for the judge to handle any issue regarding interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574366/ | 694 S.W.2d 438 (1985)
In the Interest of Kathleen Elizabeth BRECHEISEN, a Child.
No. 05-84-00642-CV.
Court of Appeals of Texas, Dallas.
June 4, 1985.
Rehearing Denied July 22, 1985.
*439 Dennis E. Alvoid, Hultgren, Alvoid & Berger, Dallas, for appellant.
Irwin Lightstone, P.C., Dallas, for appellee.
Before STEPHENS, ALLEN and McCLUNG, JJ.
ALLEN, Justice.
Robert Owen Brecheisen appeals from an order entered on a motion for the involuntary assignment of his wages. Brecheisen urges reversal on five points of error. In his first point of error, he contends that the trial court lacked jurisdiction to enter the order because the motion was filed after the child became eighteen years old and, therefore, the court was no longer a court of continuing jurisdiction as required by statute for entry of the order. We agree with this contention and find it dispositive of this appeal. We reverse the order entered by the trial court, direct that it be set aside, and dismiss the motion for involuntary assignment of wages.
Brecheisen was ordered to pay child support to his former wife, Carolyn Brecheisen Johnson, for the benefit of one minor child, Kathleen Elizabeth Brecheisen, by court orders previously entered in Georgia and Texas. On January 22, 1982, a final judgment for arrearages and attorneys' fees was entered by a district court in Dallas County. On September 9, 1983, Kathleen Brecheisen reached eighteen years of age. A motion for garnishment and involuntary assignment of wages was filed by Johnson on January 19, 1984, for satisfaction of the January 1982 final judgment. The motion resulted in a March 23, 1984, order for assignment of wages directed to Brecheisen's employer Polaroid Corporation.
Brecheisen contends that the trial court was no longer a court of continuing jurisdiction at the time the motion for involuntary assignment of wages was filed because the child had attained the age of eighteen years prior to the filing. He argues that the statute requires that motions for this type relief must be filed in the court of continuing jurisdiction. We agree.
Ordinarily, current wages for personal services are not subject to garnishment. *440 TEX. CONST. art. XVI, § 28; TEX. REV.CIV.STAT.ANN. Art. 4099 (Vernon 1966). An amendment to article XVI, section 28 of the Texas Constitution was adopted November 8, 1983, which literally creates an exception to garnishment prohibition. It provides for garnishment of current wages for "the enforcement of court ordered child support payments." The procedure for obtaining an involuntary assignment of wages for accrued, unpaid child support is provided for in TEX.FAM.CODE ANN. § 14.091(p) (Vernon Supp.1985). Although no time limit is prescribed for the filing of a motion for involuntary assignment of earnings, only the "court of continuing jurisdiction may order an involuntary assignment." TEX.FAM.CODE ANN. § 14.091(p)(1).
A court of continuing jurisdiction is one that, once having acquired jurisdiction, retains jurisdiction in all "matters ... in connection with the child. No other court of this state has jurisdiction of a suit affecting the parent-child relationship with regard to the child...." TEX.FAM.CODE ANN. § 11.05 (Vernon 1975). "Child" is defined as "a person under 18 years of age..." TEX.FAM.CODE ANN. § 11.01(1) (Vernon 1975). From the language used, the evident purpose of section 14.091 is to aid in the collection of on-going child support during the minority years of the child. We hold that motions invoking special aids for the collection of child support arrearages, such as contempt and involuntary assignment of wages must be filed prior to the child's attaining majority. See Ex parte Thomas, 609 S.W.2d 829, 832 (Tex. App.Tyler 1980, no writ). Consequently, we hold that a trial court retains no continuing jurisdiction to make new orders or to entertain new requests for such relief after the child attains age eighteen. See Ex parte Fernandez, 645 S.W.2d 636, 638 (Tex.App.El Paso 1983, no writ).
Johnson contends that Ex parte Hooks, 415 S.W.2d 166, 167-68 (Tex.1967), requires us to hold that the trial court retains continuing jurisdiction to enforce court ordered child support obligations which accrued before the child's eighteenth birthday, even when the application for the order is filed after the child attains age eighteen. We disagree and conclude that the holding in Hooks relied on facts which are distinguishable from the instant case. First, the contempt judgment sought to be enforced in Hooks was entered by the trial court while the child was under eighteen years of age. Second, Hooks concerned construction of a contempt statute which has been repealed and replaced by § 14.09 of the Family Code. Moreover, Family Code section 14.091 was added in 1983 and allows only the court of continuing jurisdiction to order an involuntary assignment of earnings.
By the time Johnson filed her motion for assignment of Brecheisen's wages, Kathleen Brecheisen had reached eighteen years of age. Therefore, she was an adult for purposes of the Family Code and the trial court, losing continuing jurisdiction, was no longer judicially concerned with her support. Ex parte Thomas, 609 S.W.2d at 832. Accordingly, the trial court's order assigning Brecheisen's wages to Johnson is void for lack of subject matter jurisdiction.
This opinion, however, does not leave Johnson without her elected remedy for collection of the unpaid child support. The child support due and owing Johnson was reduced to a final judgment on January 22, 1982. Our statutory law provides that when this remedy is selected in pursuit of your cause of action and reduced to judgment, the judgment may be enforced by any means available for the enforcement of judgments for debts. TEX.FAM.CODE ANN. § 14.09(c) (Vernon 1975).
We reverse the order of the trial court for involuntary assignment of wages, direct that the order be set aside and we direct that the motion for garnishment and involuntary assignment of wages filed by Carolyn Brecheisen Johnson be dismissed for want of jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918191/ | 135 N.W.2d 481 (1965)
178 Neb. 796
Holly CLARK, Appellee,
v.
Roy Norman CLARK, Appellant.
No. 35901.
Supreme Court of Nebraska.
June 4, 1965.
*482 Schrempp, Lathrop & Rosenthal, Omaha, for appellant.
Alfred A. Fiedler, Omaha, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.
BOSLAUGH, Justice.
This is an action for divorce brought by Holly Clark as plaintiff. Roy Norman Clark, the defendant, filed a cross-petition asking that he be granted a divorce. The trial court found generally for the plaintiff; awarded the custody of the minor child of the parties to her; ordered the defendant to pay child support in the amount of $25 every 2 weeks; and dismissed the crosspetition. The defendant's motion for new trial was overruled and he has appealed.
The assignments of error relate only to the granting of the divorce to the plaintiff and the dismissal of the cross-petition. The defendant contends that the evidence is not sufficient to entitle the plaintiff to a divorce and that he should be granted a divorce upon his cross-petition.
The petition alleges that the defendant was guilty of extreme cruelty in that he struck the plaintiff on several occasions; that he had illicit relations with another woman in the family trailer; and that he constantly nagged, argued, and opposed the plaintiff, which caused her to develop a nervous condition requiring medical attention. For the purposes of this appeal it is unnecessary to consider any of the allegations other than those relating to the defendant striking the plaintiff.
The plaintiff testified that they had an argument about attending a bridal shower about 2 weeks after they were married and that the defendant struck her. The defendant admits striking the plaintiff on that occasion. On another occasion the parties had an argument about attending a church supper and the defendant again struck her.
On February 21, 1963, the parties had an argument in which the defendant beat, slapped, and kicked the plaintiff. The defendant admits that he struck the plaintiff at that time. On that occasion the owner of the trailer court came to the trailer house where the parties lived and told the defendant to quiet things down or they would have to leave. The plaintiff took the baby and went to another trailer where a Mrs. Slocum lived.
Mrs. Slocum testified that when the plaintiff came to her trailer she was crying, was hysterical, and that she had fingernail marks on her wrists and a large bruise on her hip. The plaintiff said that the defendant had beaten and kicked her. While the plaintiff was at the Slocum trailer, she telephoned her mother and the sheriff. On the following day, Mrs. Slocum took the plaintiff to her parents' home. The plaintiff's mother testified that the plaintiff had bruises and scratches on her arms and a large bruise on her hip when she returned to their home.
The evidence shows acts of extreme cruelty on the part of the defendant which are sufficient to entitle the plaintiff to a divorce. Ordinarily, acts of personal violence by a husband toward his wife are not justified by conduct on the part of the wife that does not threaten bodily harm. Stephens v. Stephens, 143 Neb. 711, 10 N.W.2d 620.
There is no general rule as to the degree of corroboration required in a divorce action. The determination as to the sufficiency of the corroboration in each case is made upon the facts and circumstances in that case. Kidder v. Kidder, 159 Neb. 666, 68 N.W.2d 279. In this case there is sufficient corroboration as to the conduct of the defendant on the night before the parties separated.
The cross-petition contains a general allegation of extreme cruelty on the part of the plaintiff. The testimony of the defendant, for the most part, is not corroborated. There is evidence which is corroborated *483 that the plaintiff was a poor housekeeper and that the trailer was in a state of extreme disorder when the plaintiff returned to her parents' home on February 22, 1963. However, there is some conflict in the evidence concerning this matter, and the trial court which heard the testimony and observed the witnesses concluded that the evidence was not sufficient to entitle the defendant to a divorce or prevent the granting of a divorce to the plaintiff. We think this conclusion was correct. The evidence as to the misconduct of the defendant transcends and outweighs the other evidence and justifies an award of a divorce to the plaintiff. See Cowan v. Cowan, 160 Neb. 74, 69 N.W.2d 300. The cross-petition of the defendant was properly dismissed.
The judgment of the district court is affirmed. The plaintiff is allowed $250 for the services of her attorney in this court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918193/ | 135 N.W.2d 23 (1965)
NORTH CENTRAL INVESTMENT COMPANY, a corporation, and the South Dakota Corporation, a corporation, Plaintiffs and Respondents,
v.
Richard W. VANDER VORSTE, doing business as Community Electric Company, Defendant and Appellant.
No. 10095.
Supreme Court of South Dakota.
May 10, 1965.
*25 Churchill, Sauer & Manolis, George N. Manolis, Huron, Charles Lacey, Robert L. Jones, Sioux Falls, for defendant and appellant.
Danforth, Danforth & Johnson, T. R. Johnson, Sioux Falls, for plaintiffs and respondents.
Stephens, Riter & Mayer, Pierre, Edgar T. Higgins, Richard H. Bate, Morristown, N. J., for amicus curiae.
RENTTO, Judge.
This litigation growing out of the lending of money by plaintiffs to the defendant involves the defense of usury. The first question presented concerns the civil penalty therefor.
The South Dakota Corporation in count 1 alleges that on April 15, 1960 it loaned the defendant $50,000 and took his note in that amount bearing interest at 8% per annum. He paid on it one year's interest amounting to $4,000, but nothing on the principal. The corporation asked judgment for the amount of the note with interest and foreclosure of the security furnished in connection therewith. Relative to this loan the court found that the lender loaned to the defendant only $49,000 and as a condition to making such loan it required the defendant to agree in advance that his note be in the principal sum of $50,000 and that such sum be discounted $1,000 with the intent and for the purpose of making a charge for the loan in the amount of the discount, of which the defendant received no part, in addition to interest provided in the note.
The North Central Investment Company, a subsidiary of the South Dakota Corporation, licensed under our Installment Repayment Small Loan and Consumer Finance Law, in count 2 alleges that it entered into an agreement with the defendant for accounts receivable financing evidenced by a written agreement dated September 7, 1960. This instrument is in the record as Exhibit 25. In accord therewith defendant transferred to the Investment Company certain accounts receivable and it advanced funds to the defendant. It claims that under the agreement the sum of $34,768 exclusive of interest, is unpaid. Judgment in this amount is requested.
So far as here material this agreement provides that the Investment Company from time to time will purchase accounts receivable from the defendant and pay therefor up to 75% of the net amount thereof. The payment of the remainder of the accounts as collected is the subject of a further and more detailed provision. It also provided that the defendant at the end of each month will pay to the Investment Company, as its compensation, 1/30th of 1% per day upon the purchase money outstanding, from the date of purchase to the date of payment of the account. Defendant contends that the arrangement was a loan agreement commonly referred to as a factoring contract and that the compensation he was required to pay was interest in excess of that allowed by our statute. The Investment Company urges that it provided instead for an assignment and sale of the accounts, and that the charge was for services rendered by it and was not interest.
The trial court was of the view that the exhibit was not an assignment and a sale of accounts, but rather that it created the relationship of debtor and creditor and *26 found that it was entered into solely as security for the loans made by the Investment Company to the defendant. It further found that the Investment Company did not render any service whatsoever to the defendant under the exhibit, nor did the parties intend that it should and that the charge made therein against the defendant was in fact interest on the money loaned to him.
On this factual basis it concluded that in each of these loans the plaintiffs contracted to receive a greater rate of interest than is permitted by our law and that such loans and the exhibits involved in them were usurious. The judgment awarded plaintiffs the amounts remaining unpaid on their loans, but without any allowance of interest and defendant was given credit on the unpaid portions of the loans for the sums he had paid as interest. From the judgment only the defendant has appealed.
Since the plaintiffs have not appealed the propriety of the court's determination that the loans were usurious is not presented.
In his attack on this portion of the judgment defendant claims that because of the usury both transactions are rendered void by reason of which plaintiffs can recover nothing and that they instead are indebted to him for the sums he has paid thereon. Plaintiffs on the other hand contend that with loans of the type here involved forfeiture of interest is the only penalty provided by our laws on usury. This was the view taken by the trial court.
In the resolution of our problem two differing statutory provisions are urged upon us. Plaintiffs contend that the applicable penalty for usury is prescribed by SDC 38.0111. By that section the forfeiture of interest is made the penalty for usury, but the lender may recover the principal of the loan less any interest that was paid. Defendant argues that the provisions of Ch. 16, Laws of 1953, now SDC 1960 Supp. Ch. 6.04B should be invoked declaring the loan void and denying to the plaintiffs any right to receive or collect any of the principal, interest or charges on the loans involved.
From territorial days the penalty for usury has been substantially as provided in SDC 38.0111. It is a part of SDC Ch. 38.01 which contains our law on the general subject of interest and usury. Ch. 16 of the Laws of 1953 does not purport to either amend or repeal the former law. Rather it seems to us to take certain types of loans and make them subject to elaborate and detailed provisions, licensing the lenders, regulating and supervising their manner of doing business, including interest that may be charged, and policing their activities and prescribing civil and criminal penalties for violation of the act.
In the enactment it is designated as the Installment Repayment Small Loan and Consumer Finance Law. In SDC 1960 Supp. 6.04B02, the definition section of the law, it states: "The word `loans' means installment repayment loans except in the case of single repayment loans of not more than fifty dollars which are repaid within thirty days from the making thereof." As to loans less than $2,500 the lender may contract for interest not exceeding 36% per annum on any loan not in excess of $300 and 9% per annum on the remainder. 6.04B19. On loans in excess of $2,500 the interest shall not be greater than 8% or at a rate provided by some other specific enactment under which the licensee operates. 6.04B20. This section also limits the time over which loans under the act may extend, varying with the amount of the loan, but not over 36 months.
The South Dakota Corporation is not a licensee under the act. This fact gives rise to the suggestion that therefore its loans are not subject to the provisions of the act. We do not share that view. 6.04B03 provides that: "Any person who shall lend money on either a single payment or installment repayment plan in excess of the rate specified in SDC 38.0109, or some other specific law and then only to the extent *27 of that other specific law, shall be deemed to have subjected himself to all of the penalty provisions of this chapter, whether of a criminal or civil nature, and whether instituted by the state or by borrowers, and the consequences thereof,". It seems to us that by this provision the legislature made this act apply to any person making such loans whether licensed under it or not. Otherwise the legislature's use of the phrase "shall be deemed to have subjected himself to all of the penalty provisions" is rendered surplusage. See Powell v. Edwards, 162 Neb. 11, 75 N.W.2d 122; State ex rel. Beck v. Associates Discount Corporation, 162 Neb. 683, 77 N.W.2d 215.
As indicated above the penalty for usury under SDC 38.0111 and SDC 1960 Supp. 6.04B are different and contradictory. In that situation it is our duty to reconcile them and to give effect, if possible, to all of the provisions under consideration, construing them together to make them harmonious and workable. Black v. Circuit Court, 78 S.D. 302, 101 N.W.2d 520. This can be done by regarding the latter as creating an exception to our general interest and usury laws. That we think it clearly is. It is concerned with only two types of loansinstallment repayment loans, and single repayment loans of not more than $50 which are repaid within 30 days of the making thereof. Accordingly, we hold that the penalties for usury therein provided apply only to these two types of loans. Since neither of the loans here involved are of that type the penalty for the usury with which they were found to be infected is as prescribed in SDC 38.0111.
Moreover, this act in providing a forfeiture, one much harsher than that prescribed by our general statute on usury, is penal in nature as it concerns the lender. Consequently it should not be construed to embrace loans not expressly enumerated therein. 91 C.J.S. Usury § 8; 55 Am.Jur., Usury, § 6. It is our duty to carry out the legislative policy, but before we enforce the penalties prescribed in laws of this type we must be satisfied that the transaction involved is one that the legislature has declared to be subject to such sanctions.
Several months after the judgment was entered the plaintiffs applied to the court for an execution against the person of the defendant. This was granted, but the issuance of such execution was stayed until the determination of this appeal. Defendant contends that a body execution may not properly issue in the circumstances of this case. In this we concur.
Our law provides for an order of arrest to be issued at any time after the action is commenced and before judgment. SDC 1960 Supp. Ch. 37.25. There is also provision for such arrest after judgment. SDC 1960 Supp. 33.1902. This section, however, declares that "No execution shall issue against the person of a judgment debtor unless an order of arrest has been served as provided in this Code, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by the chapter, `Arrest and Bail', in the title 37, `Judicial Remedies.'" Since no order of arrest had been served in this action our problem is to determine whether the complaint contains a statement of facts showing one or more of the causes of arrest required by Ch. 37.25.
The cases in which a defendant may be arrested are enumerated in SDC 1960 Supp. 37.2502 as follows:
"(1) Where the action is for an injury to person, character, or property, or wrongfully taking, detaining, or converting property;
"(2) When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover *28 damages for fraud or deceit;
"(3) When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors;
"(4) In an action for money received or property embezzled or fraudulently misapplied by a public officer, attorney at law, officer, or agent of a corporation, or a banking association, or by any factor, broker, agent, or other person in a fiduciary capacity, in the course of duty or employment in such capacity;
"(5) In an action for any misconduct or neglect in any official or professional employment;
"(6) In an action for a fine or penalty;
"(7) In an action on a promise to marry;
"(8) In an action for recovery of damages, on a cause of action not arising on contract, where the defendant is not a resident of the state or is about to remove therefrom;
"(9) In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be found or taken, or with the intent to deprive the plaintiff of the benefit thereof; but * * *."
The plaintiffs do not contend that there is anything in their first cause of action which would justify the arrest of the defendant. Their efforts to support it concern only count 2.
As to this count their complaint alleges that when defendant assigned some of the accounts thereunder to the Investment Company he had full knowledge of their disputed nature, but nevertheless represented the same to be good, valid and subsisting accounts and that the balances represented thereby were due and owing. It is claimed that the defendant in accepting advances on these accounts committed a fraud upon the Investment Company. In their reply to defendant's amended answer and counterclaim the plaintiffs plead the following matters pertinent to our inquiry:
"Allege that the defendant has been guilty of a fraud in contracting the debt and/or incurring the obligation for which this action is brought insofar as it relates to the item hereinafter described. That at the time the plaintiffs advanced the defendant the sum of $17,754.00 when they factored the `Morgan and Oswood' account, the defendant represented to the plaintiffs that he had a valid contract with said `Morgan and Oswood' amounting to $22,122.03 and that such amount was due and owing to him at said time, or would be upon completion of a certain contract that he had with said `Morgan and Oswood' and that advancements would be made to him thereon from time to time. That the plaintiffs, relying upon said defendant's representations which were false and known to be false by said defendant, the plaintiffs factored said account and advanced said sum, and if they had known otherwise they would not have factored said account and/or advanced said sum to said defendant. * * *
"That the plaintiffs factored the Brezina Construction-Capehart account described in the Complaint, except the amount thereof was $34,444.00 in lieu of $14,246.00. That plaintiffs advanced the defendant 75% thereof, or $25,833.00. That the defendant thereafter and commencing with May 10, 1961, obtained the sum of $34,920.00 from said Brezina Construction Company based upon said account. That the defendant *29 paid the plaintiffs the sum of $10,152.37, and in lieu of giving all of said sums to the plaintiffs, the defendant wrongfully and/or fraudulently misapplied the balance of $24,291.63 to his own use and benefit."
In the prayer for relief on this pleading the plaintiffs ask that defendant be adjudged guilty of a fraud in contracting the debt or incurring the obligation for which this action is brought insofar as it involves the Morgan Oswood account. Incidentally the original complaint requested only a money judgment on the second cause of action.
The trial court found that on or about May 9, 1961 the defendant received a check in payment on an account receivable which had been assigned to plaintiffs under Exhibit 25 and converted it to its own use; and that on May 12, 1961 he converted a check received by him on another account that had been assigned. It also found that none of the assigned accounts were disputed at the time they were assigned and that at such time defendant had no knowledge that any of said accounts would be disputed and made no representations concerning any of said accounts knowing or having reason to suspect that any of said accounts were not good, valid or subsisting; or that the entire balances thereof were not due and owing at the time of the assignment thereof. The court concluded that the defendant was indebted to plaintiffs in the sum of $74,192.50 and that plaintiffs were entitled to a fraud judgment against him in the sum of $19,135.72 because he had been guilty of fraud in incurring such amount of said total debt. This latter conclusion is based on the two checks that had been converted.
While SDC 1960 Supp. 33.1902 prohibits the issuance of an execution against the person of the debtor in cases where no order of arrests was served before judgment, unless the complaint contains a statement of facts showing one or more of the statutory causes for arrest, we believe that this must be construed to mean that when such statement of facts is put in issue in the litigation, an execution may not issue against the person of the debtor unless the court determines that such statement of facts is established by the evidence. See Griffith v. Hubbard, 9 S.D. 15, 67 N.W. 850; Lyon v. Bertolero, 23 S.D. 82, 120 N.W. 766. Otherwise the debtor would be denied his right to dispute the grounds alleged as authorizing his arrest. J. I. Case Co. v. Alick, 68 S.D. 423, 3 N.W.2d 482. In other words, it is not the mere statement of the grounds for arrest that is essential, but rather their existence.
The plaintiffs in requesting the issuance of a body execution were relying on subdivision (2) of SDC 1960 Supp. 37.2502. So far as here material it provides for the arrest of the debtor "When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought." It seems to us that these two clauses, fraud "in contracting the debt" or fraud "in incurring the obligation" are not synonymous. If they were there would be no reason for including the latter in the statute. In our view the second count in this litigation concerns only a debt which was contracted. Under Exhibit 25, as observed by the trial judge, in his memorandum opinion, the defendant's obligation to repay the advancements made is unqualified.
The only fraud of which the defendant was found guiltyconverting the two checksoccurred subsequent to the contracting of the debt for which the action is brought. Novotny v. Kosloff, 214 N.Y. 12, 108 N.E. 189; Frazier v. Tittle, 100 N.Y.S.2d 534. His liability to pay to the Investment Company the money claimed in count 2 arose out of his agreement to pay and not by reason of these conversions. Accordingly, we hold that the trial court's conclusion that the defendant had been guilty of fraud in incurring a part of his total debt is erroneous and that no execution may issue herein against the person of the debtor.
*30 The right to arrest in a civil action is a drastic remedy, penal in nature. It should not be extended by construction. As indicated in J. I. Case Co. v. Alick, supra, one seeking to avail himself of such remedy must be held to a close observance of the statute. We are reminded by the defendant that Section 15, Art. VI of our Constitution provides that "No person shall be imprisoned for debt arising out of or founded upon a contract." He urges that his imprisonment herein would be in violation of that provision. Our holding precludes consideration of that contention.
Accordingly, the judgment must be modified by striking out the provisions granting plaintiffs a fraud judgment and as so modified it is affirmed.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/339362/ | 542 F.2d 915
Frederick B. FOX and Naomi Ruth Fox, Personal Representativeof the Estate of Benjamin Fox, Appellants,v.KANE-MILLER CORPORATION et al., Appellees.Frederick B. FOX and Naomi Ruth Fox, Personal Representativeof the Estate of Benjamin Fox, Appellees,v.KANE-MILLER CORPORATION et al., Appellants.
Nos. 75-1853, 75-1854.
United States Court of Appeals,Fourth Circuit.
Argued March 1, 1976.Decided Oct. 7, 1976.
Alfred H. Kreckman, Jr., Baltimore, Md. (John J. Ghinger, Jr., Weinberg & Green, Baltimore, Md., on brief), for appellants in 75-1853 and appellees in 75-1854.
Richard L. Bond, New York City (Charles H. Miller, Daniel S. Greenfield, Marshall, Bratter, Greene, Allison & Tucker, New York City, and Sherbow, Shea & Doyle, Baltimore, Md., on brief), for appellants in 75-1854 and appellees in 75-1853.
Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.
FIELD, Senior Circuit Judge.
1
This action arises out of Kane-Miller's acquisition of the outstanding stock of three companies owned by the plaintiffs, Frederick B. Fox and Benjamin Fox. The Foxes claim that during the period of negotiations, from February, 1969, until June 3, 1969,1 Kane-Miller failed to disclose that there were substantial changes in its financial condition resulting from the acquisition of certain other companies. In their complaint which was filed on June 2, 1971, the Foxes asserted their entitlement to recovery of damages under both the federal and Maryland securities statutes, as well as common law fraud and breach of contractual warranty. Following pretrial proceedings, the case was submitted to a jury upon three of the plaintiffs' claims: (1) Section 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l (2); (2) Section 10(b) of the Securities Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5; and (3) common law fraud. The court also submitted to the jury the issue arising upon the defendants' counterclaim,2 and following a lengthy trial, fifty-two questions were submitted to the jury pursuant to Rule 49(a) of the Federal Rules of Civil Procedure. The district judge filed a written opinion in which he analyzed the jury's answers in the light of the relevant law and entered judgment in favor of the plaintiffs based upon the claims under Rule 10b-5 and common law fraud.3 Both sides have filed appeals from the judgment of the district court.
2
With respect to the plaintiffs' claim under Section 12(2) of the 1933 Act, the district court held that any relief was barred by Section 13 of the Act4 which provides in pertinent part:
3
"No action shall be maintained to enforce any liability created under section (12(2)) unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence * * *."
4
On this point the court relied upon our decision in Johns Hopkins University v. Hutton, 422 F.2d 1124, 1131 (1970), wherein we stated that "the one-year limitation of Section 13 does not depend wholly on the subjective judgment of the buyer. Instead it must be tested by the objective standard of reasonable diligence on the part of the buyer in making discovery." The district court reached its conclusion despite the fact that the jury in its answers to the special questions had found that the Foxes neither knew nor, by the exercise of reasonable diligence or care, should have known of the untruths or omissions complained of prior to June 3, 1970. The district judge found the jury's answers to be totally without support in the record, stating "not only did plaintiffs fail to establish by a preponderance of the evidence that they should not have so known, but defendants established the contrary by clear and convincing evidence if not beyond a reasonable doubt."5 Our examination of the record persuades us that the evidence on this issue, which was carefully reviewed by the district court in its opinion,6 provides ample support for its conclusion.
5
The defendants urge upon us that the Rule 10b-5 claim was also time-barred, and that the district court erred in its choice of the period of limitation. On this issue the district court recognized the well-settled principle that the timeliness of an action under the federal securities laws is to be determined by reference to the appropriate state statute of limitations, see Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Newman v. Prior, 518 F.2d 97 (4 Cir. 1975), and in seeking the appropriate period of limitations referred to two prior decisions in the District of Maryland. In Baumel v. Rosen, 283 F.Supp. 128 (1968), modified 412 F.2d 571 (4 Cir. 1969), the litigation involved transactions which occurred in the year 1959, and suit was filed in 1962. Judge Winter, sitting by designation, applied the three year period of limitations for actions based on common law fraud under 5 Ann.Code of Md., art. 57, § 1. On June 1, 1962, the Maryland Securities Act7 became effective. Section 34(e) of that Act contained a two year statute of limitations and in Batchelor v. Legg, 52 F.R.D. 553 (D.Md.1971), Judge Harvey applied the two year limitation to a Rule 10b-5 action.
6
Section 34 of the Maryland Securities Act was amended in 1968 to provide, in pertinent part, that securities actions could not be maintained "unless brought within one year after the discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence * * *."8 Since the events in the present action occurred subsequent to the effective date of the 1968 Amendment the district judge conceded that under the rationale of Batchelor, supra, as well as cases from three other circuits,9 the applicable limitations period on the plaintiffs' 10b-5 counts would be one year. However, he was of the opinion that "once a federal court has established a 10b-5 limitations period by looking to the then most analogous state cause of action, it would seem that a federal court should not, because of subsequent changes in state statutory law, move its own federal 10b-5 limitations period up and down like a yo-yo on a string."10 Accordingly, the court held that the appropriate period of limitations was at least two years as adopted in Batchelor, and in view of the jury's determination that the Foxes neither knew or should have known of the defendants' omissions on or before June 3, 1969, the 10b-5 claim was not barred.
7
In reaching this conclusion the district judge relied upon Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912 (9 Cir. 1971). In our opinion, however, his reliance upon that case was ill-advised for the primary thrust of the decision was the court's rejection of a Washington statute governing the commencement of the period of limitations, a point which unquestionably is controlled by federal law. See Newman v. Prior, supra, at 100. At the time the district judge decided this point he did not have the benefit of our decision in Newman. In that case Judge Butzner, noting that Virginia's blue sky law proscribed the same conduct covered by the federal securities statute, stated that "federal policy is best served by applying the state blue sky law's * * * statute of limitations to a suit involving the fraudulent sale of securities."11 He further noted that "Congress has not favored long limitations in private civil suits under the securities laws."12 In the light of our decision in Newman we hold that the appropriate limitation on the plaintiffs 10b-5 claim was one year under the 1968 Amendment of the Maryland Securities Act.
8
The Maryland statute, as amended, contains language identical to the rule which has been adopted by the federal courts in securities cases under the 1934 Act that "(t)he statute does not begin to run until the fraud is either actually known or should have been discovered by the exercise of due diligence."13 In view of the district court's conclusion, stated in the context of the 12(2) claim, that the plaintiffs had actual or constructive knowledge of the defendants' omissions on or before June 2, 1970, we agree with the defendants that the Rule 10b-5 claim was untimely and should have been dismissed.
9
Turning to the common law fraud count, although the jury found that the defendants had made no untrue statements of material fact to the plaintiffs during the negotiations, it did give an affirmative answer to the following question:
10
"Have plaintiffs established by clear and convincing evidence that a defendant, during the period commencing February 10, 1969 and ending June 3, 1969, omitted to make any statement of material fact in writing or orally to plaintiffs for the purpose of defrauding the plaintiffs?" (Question XXIV, App. 114).
11
The jury further found that the plaintiffs had acted in the belief that complete disclosure had been made, and would not have entered into the transaction had they known of such material omissions. The district court, finding that there was substantial evidence in the record to support the jury's answers, concluded that the plaintiffs were entitled to recover under the fraud claim.
12
Had the jury found a false representation rather than an omission, its findings would clearly establish common law fraud under Maryland law, Casale v. Dooner Laboratories, Inc., 503 F.2d 303, 306 (4 Cir. 1973); Canatella v. Davis, 264 Md. 190, 198, 286 A.2d 122, 126-27 (1972). The only question is whether, in Maryland, fraud may be based upon omissions as well as false representations. The district judge, relying upon observations made by the court in Fegeas v. Sherrill, 218 Md. 472, 147 A.2d 223, 225 (1958), was of the opinion that intentional concealment, as distinguished from non-disclosure, creates liability for fraud under Maryland law. In that case the court stated that although a cause of action cannot rest solely on nondisclosure, it can be based upon concealment which is "intentional and effective the hiding of a material fact with the attained object of creating or continuing a false impression as to that fact." 218 Md., at 476-477. We agree with the conclusion of the district court that liability for fraud may rest upon intentional concealment as well as affirmative misrepresentation, see Fowler v. Benton, 229 Md. 571, 185 A.2d 344 (1962); Levin v. Singer, 227 Md. 47, 64, 175 A.2d 423, 432 (1961), and this reading of Maryland law is in accord with traditional principles of common law fraud.14
13
While we conclude that recovery based upon Rule 10b-5 was improper in this case, since the jury found that the Foxes were directly damaged by the defendants' intentional concealment, the judgment in favor of the plaintiffs was appropriate under the fraud count.
14
We find no merit in the other issues raised by the parties on these appeals and, accordingly, the judgment of the district court is affirmed.
15
AFFIRMED.
1
The agreement for the sale of stock was executed on May 13, 1969, and pursuant thereto the sale was closed and the stock delivered on June 3, 1969
2
As the result of a dispute between Kane-Miller and the Foxes relative to the alleged misstatement of inventories of the Fox companies, the parties entered into a settlement agreement on December 31, 1970. In its counterclaim Kane-Miller charged the Foxes with fraud incident to the settlement
3
Fox v. Kane-Miller Corp., 398 F.Supp. 609 (D.Md.1975)
4
15 U.S.C. § 77m
5
398 F.Supp., note 3 supra, at 629
6
See Id., at 626-629
7
3 Md.Ann.Code, art. 32A, §§ 13-44
8
3 Md.Ann.Code, art. 32A, § 34(e) (1971 repl. vol.)
9
Hudak v. Economic Research Analysts, Inc., 499 F.2d 966 (5 Cir. 1974); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7 Cir. 1972); Vanderboom v. Sexton, 422 F.2d 1233 (8 Cir. 1970), cert. denied 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970)
10
398 F.Supp., note 3 supra, at 641
11
518 F.2d 97, 100
12
Id., at 100, n. 4
13
Id., at 100. See Vanderboom v. Sexton, 422 F.2d note 9, supra, at 1240
14
See Restatement of Torts § 550 (1938) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1574422/ | 694 S.W.2d 901 (1985)
STATE of Missouri, Plaintiff-Respondent,
v.
David Lowell SMITH, Defendant-Appellant.
No. 13893.
Missouri Court of Appeals, Southern District, Division One.
July 23, 1985.
David A. Geisler, Springfield, for defendant-appellant.
William L. Webster, Atty. Gen., T. Chad Farris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
GREENE, Judge.
Defendant, David Lowell Smith, was charged by information with the class C felony of deviate sexual assault in the first degree, § 566.070.[1] He was jury-convicted and punishment was assessed at one year.
Specifics of the charge were that in September of 1983, Smith had deviate sexual intercourse with T.G.B., a 14 year old boy. Deviate sexual intercourse is defined by § 566.010, subd. 1(2) as "any sexual act *902 involving the genitals of one person and the mouth, tongue, hand, or anus of another person."
At trial, T.G.B. testified that one morning Smith got in bed with him and masturbated him. T.G.B. also testified that on two other occasions, Smith fondled his testicles, on the pretext of checking for disease. Smith, a single adult male, was licensed as a foster parent by the Division of Family Services and was entrusted with the care of T.G.B. and three other boys.
M.C.S., who had known the defendant for about six years and lived in defendant's home for his last semester of high school, testified, over objection, that Smith would often get in bed with him, masturbate him, feel his privates, rub up against him, undress him, shower with him, and kiss him and the other boys on the lips.
F.L.A., a 10 year old boy, testified, without objection, that while he was living in Smith's home as a foster child, defendant showered with him, kissed him on the mouth, rubbed his private parts, asked him to sleep with him, and told him "not to tell anybody at school what happened."
In his testimony, Smith admitted kissing the boys on the lips and touching their private parts while checking for testicular cancer, but denied any sexual misconduct.
In his first point relied on, Smith contends the trial court erred by admitting into evidence the testimony of M.C.S. as to any alleged acts of deviate sexual assault committed upon him, because such testimony was evidence of other crimes, which had a prejudicial effect that far outweighed any probative value it might have had.
While it is ordinarily true that evidence of crimes other than the one on which the accused is being tried is not admissible, there are exceptions to that rule. Evidence of other crimes is admissible to establish motive, intent, absence of mistake or accident, a common scheme or plan, or the identity of the person charged. The test for admissibility of such evidence is whether it reasonably tends to establish a material fact in issue in the case being tried. State v. McDaniels, 668 S.W.2d 230, 232 (Mo.App.1984).
Defense counsel's objection to the testimony of M.C.S. was overruled "on the basis that it will show absence of mistake, common scheme or plan." In this case, the modus operandi used by defendant in his sexual contacts with the boys was identical. The place of the assaults upon T.G.B. and M.C.S. was the same (in their beds); the time of the assaults was the same (early morning hours); the victims were similar (boys living in his home); and, his actions during the deviate sexual acts were the same (lying on the bed next to them and masturbating them). The deviate sexual acts performed by Smith on M.C.S. were nearly identical to those performed on T.G.B. so as to earmark them as handiwork of the accused. The evidence offered by M.C.S. had a legitimate tendency to establish Smith's connection with the charged offense, State v. Young, 661 S.W.2d 637, 639-640 (Mo.App.1983), and established a common scheme or plan by Smith to sexually molest young boys entrusted to his care. The point is denied.
In his remaining claim of error, Smith contends the trial court erred in admitting the testimony of F.L.A. because such testimony constituted evidence of other crimes.
This point has not been preserved for appellate review since Smith waived any claim as to the inadmissibility of the testimony by failing to object to its admission at trial. State v. Worthington, 582 S.W.2d 286, 291 (Mo.App.1979). Plain error review under Rule 29.12(b) is not justified as the testimony did tend to show criminal intent on the part of Smith (telling the boy not to repeat at school what was going on at home, and asking the boy to sleep with him). As such, the testimony was admissible. The point has no merit.
Judgment and sentence affirmed.
TITUS, P.J., and FLANIGAN, J., concur.
NOTES
[1] Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1978, V.A.M.S. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574441/ | 308 S.W.3d 76 (2009)
In the Interest of B.S.H., a Child.
No. 2-08-334-CV.
Court of Appeals of Texas, Fort Worth.
December 23, 2009.
*77 Bailey & Galyen, Attorneys at Law, Wade L. Griffin, Jr., Grand Prairie, TX, for Appellant.
Greg Abbott, Attorney General, Andrew Weber, First Assistant Attorney General, Rande K. Herrell, Managing Attorney, Appellate Litigation Section, Child Support Division, John B. Worley, Assistant Attorney General, Austin, TX, Kenneth L. McAlister, Fort Worth, TX, for Appellee.
Panel: CAYCE, C.J.; DAUPHINOT and McCOY, JJ.
OPINION
PER CURIAM.
Cory H. appeals the trial court's order modifying child support. We affirm.
I. Background
Cory and Tricia divorced in January 1993 when their only child, B.S.H., was two years old. In the divorce decree, Cory was ordered to pay $180 a month for child support through the Tarrant County Child Support Office beginning February 1, 1993.
In the early part of 1997, Cory started making payments directly to Tricia instead of through the county office. In 1999, he began to pay $200 each month regularly. In 2000, he increased the payments to $420 and then to $430 a month. From June 2001 through September 2002, he usually paid $510 a month. From October 2002 through July 2005, he consistently paid $450 each month.
In April 2007, Cory filed a petition to modify asking that (1) the direct payments to Tricia be credited to his child support amount, (2) the child support amount be increased to meet family code guidelines, and (3) the amounts paid over the $180 court-ordered monthly payment be credited to his future child support obligation. The Texas attorney general intervened in the case two weeks later. Tricia filed an answer and a counter-petition seeking increased support and an arrearage judgment for an alleged three months of missed payments.
The case went to a bench trial in February 2008. During trial, the parties stipulated that support should be set at $594 a month. They also stipulated that (1) Cory made all payments shown in Petitioner's Exhibit 1, (2) Petitioner's Exhibit 5, a summary of those payments, was corrected to deduct payments for such items as braces and extra-curricular activities, and (3) Cory had paid $13,185 more in child support than had been ordered by the court.
Cory testified that he had made increased payments to "get ahead" on his *78 child support. Tricia, however, testified that Cory never said to her, "I'm just getting ahead by sending this extra money." Also, in a letter to B.S.H. admitted in evidence, Cory wrote, "Over the years I have increased the child support amount on my own to make sure you had everything you needed growing up."
Tricia further testified that after Cory graduated from college she contacted a lawyer to see about increasing the amount of child support. The lawyer told her that it would cost about $1,100 to modify the child support order. Tricia testified that when she relayed this information to Cory, he suggested that, instead of incurring attorney's fees, he would voluntarily increase the amount of support he was paying based upon his income. Cory and Tricia then agreed on the amount by which support would be increased. They continued to make similar agreements about increases in support over the years.
After taking the case under advisement, the trial court signed an order (1) modifying current support to $594 a month, (2) finding that Cory owed no arrears, and (3) finding that over-payments should not be credited towards future child support obligations.
Cory requested, and the trial court filed, findings of fact and conclusions of law. The trial court found that Cory had voluntarily increased his support payments in agreement with Tricia to avoid the cost of going to court to obtain a modification of the decree and that he had intended the increased support payments to be current support for their child. The trial court concluded that Cory was not entitled to a credit for the future support obligations because of the amounts that he paid in excess of court-ordered child support in the past.
II. Issues on Appeal
Cory contends in four issues that the trial court abused its discretion by refusing to credit his past excess child support payments toward his future support obligations. He argues that refusal to credit the overpayments violates common law and the purpose of section 154.014 of the family code, denies him a statutory right to reimbursement under section 154.012 of the family code, and amounts to a prohibited retroactive increase in his child support obligation under section 156.401(b) of the family code.
III. Standard of Review
We review a trial court's decision modifying child support for an abuse of discretion.[1] To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles in other words, whether the act was arbitrary or unreasonable.[2] In making this determination, we view the evidence in the light most favorable to the trial court's order, indulging every legal presumption in its favor.[3] An abuse of discretion does not occur as long as there is some probative and substantive evidence to support the trial court's decision.[4]
*79 IV. Application of Family Code Section 154.014
In part of his first issue and in his third issue, Cory argues that the trial court's refusal to credit his increased support payments toward his future obligations is contrary to the purpose of family code sections 154.012 and 154.014 and would constitute an impermissible modification of a court decree without approval of the court. Section 154.014 provides, in pertinent part:
(a) If a child support agency or local child support registry receives from an obligor who is not in arrears a child support payment in an amount that exceeds the court-ordered amount, the agency or registry, to the extent possible, shall give effect to any expressed intent of the obligor for the application of the amount that exceeds the court-ordered amount.
(b) If the obligor does not express an intent for the application of the amount paid in excess of the court-ordered amount, the agency or registry shall:
(1) credit the excess amount to the obligor's future child support obligation; and
(2) promptly disburse the excess amount to the obligee.[5]
Cory concedes that section 154.014 does not control this case because it regulates the manner by which excess child support payments to child support agencies or registries, not to individual obligees, must be applied. He urges, however, that the trial court's order refusing to credit his past over-payments to his future obligations is contrary to the "purpose" of section 154.014, which, he claims, provides guidance on how payments should be applied. The attorney general agrees that section 154.014 offers guidance on "the proper way to apply payments that exceed the court-ordered amount."
We agree that section 154.014 of the family code offers guidance in determining how excess payments should be applied in a case where excess child support payments are made directly to individual obligees. Accordingly, we hold that in a case where an individual obligee receives from an obligor who is not in arrears a child support payment that exceeds the court-ordered amount, the trial court shall give effect to any expressed intent of the obligor to determine the proper application of the amount that exceeds the court-ordered amount.
The record in this case shows that the trial court did indeed focus on Cory's intent in making the payments. The court stated during trial, "[i]t's the Court's understanding that the factual issue is what the expressed intent of the obligor was." Thereafter, the trial court made these findings:
8. Cory [H.] voluntarily increased the amount of child support he was paying to Tricia [H.] to $200.00 per month in 1999 and then to the sum of $430.00 per month in August or September 2000. This occurred at the same [time] he became a school teacher. At approximately the same time, Respondent Tricia [H.] sought legal advice about modification to increase child support. After that consultation and discussions with Cory [H.], no motion to modify to increase child support was brought since Cory [H.] was paying increased child support without court action.
....
10. Cory [H.] voluntarily increased the amount of child support that he paid directly to Tricia [H.] in 1999 and *80 again in 2000 partially because Tricia [H.] had consulted with an attorney.
11. Cory [H.] voluntarily increased the amount of child support that he paid directly to Tricia [H.] in 1999 and again in 2000 partially because Tricia [H.] agreed to not pursue legal action if the child support payments were increased.
12. Cory [H.] increased the amount he paid to Tricia [H.] as child support in lieu of Tricia [H.] taking legal action to increase support.
13. Cory [H.] intended his increased support amounts beginning in 1999 and then in September 2000 to be current child support.
14. Cory [H.] did not intend for payments made in excess of court ordered support to be credited as future child support at the time he made the payments. (Emphasis added.)
Thus, the trial court found that Cory's intent in paying the excess amount of child support to Tricia was partially to avoid the cost of modifying the decree. There is no finding or evidence that either Cory or Tricia intended the excess payment to effect a modification of the existing child support order. Because Cory has not challenged the trial court's findings that he agreed to pay additional support to avoid the cost of modifying the decree, all of which are supported by the evidence, we are bound to accept them.[6] We overrule part of issue one and all of issue three.
V. Conflict with Family Code Section 154.012 Right of Reimbursement
In issue two and part of issue one, Cory contends that the trial court misinterpreted what section 154.014 means by "expressed intent" and improperly found that Cory's intent was for the excess payments to be for current child support. According to Cory, the question that is to be determined in deciding the obligor's expressed intent is whether the obligor intended that the payment be for "something other than child support." Cory contends that to interpret it to mean whether a payment was intended as future or current support would be incongruous with section 154.012 of the family code, which entitles obligors who overpay to recover the excess without a finding of intent.[7] We disagree.
"Generally, courts are to construe statutes so as to harmonize with other relevant laws, if possible."[8] If adopted by this court, Cory's interpretation of sections 154.012 and 154.014 would put them in conflict. Under section 154.014, if the obligor intends the increased payment to be additional current support, it is treated that way. But, under Cory's interpretation of section 154.012, any increased payment is to be treated as an advance payment towards future obligations, which must be reimbursed after termination of the obligation, regardless of what the obligor intended when he made the payment.
Under the Code Construction Act, in interpreting a statute, it is presumed that a just and reasonable result is intended and that the public interest is favored over any private interest.[9] Cory's interpretation of sections 154.012 and 154.014 would make it impossible for a court to recognize an obligor's intent to provide additional *81 current support for his or her child. This would not be in the best interest of the children of this state.
Statutes are also to be construed in light of the common law.[10] Under common law, a parent may always provide more support for a child than is required by a court order.[11] "[V]oluntary payments made [in fulfillment], or partial fulfillment, of the common law obligation [to support a child] are not necessarily to be offset against the statutory obligation enforced by a court order."[12] To construe section 154.012 to automatically make any increased support payment an advance payment against future obligations, would be contrary to the common law principle that an obligor may voluntarily provide additional support for his or her child.
The excess child support payments referred to in section 154.012, therefore, do not refer to additional or increased payments that an obligor intends to make to meet the current needs of his or her child.[13] Rather, they are excess payments mistakenly made or intended to be advances against future obligations. This is the only interpretation of section 154.012 that harmonizes with section 154.014 and the common law, and that furthers the public interest in promoting the best interest of the children of this state. We overrule issue two and the remainder of issue one.
VI. Retroactive Modification
Cory complains in his fourth issue that the trial court's actions amounted to an impermissible retroactive modification of his child support obligation. The trial court, however, did not find that Cory was obliged retroactively to provide additional support. It found only that he had intended his increased payments to be applied to current support for the child and that, as a result, they would not be considered advance payments for future support. We overrule issue four.
VII. Conclusion
We overrule Cory's four issues and affirm the judgment of the trial court.
NOTES
[1] Worford v. Stamper, 801 S.W.2d 108, 108-09 (Tex.1990); In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.).
[2] Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).
[3] P.J.H., 25 S.W.3d at 405; see In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
[4] Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002) (op. on reh'g).
[5] Tex. Fam.Code Ann. § 154.014 (Vernon 2008).
[6] Inimitable Group, L.P. v. Westwood Group Dev. II, Ltd., 264 S.W.3d 892, 902 n. 4 (Tex. App.-Fort Worth 2008, no pet.).
[7] Tex. Fam.Code Ann. § 154.012 (Vernon 2008).
[8] La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984).
[9] Tex. Gov't Code Ann. § 311.021(3), (5) (Vernon 2005).
[10] See id. § 311.023(4).
[11] In re L.K.K., No. 11-07-00106-CV, 2008 WL 4173742, at *2 (Tex.App.-Eastland Sept. 11, 2008, pet. denied) (mem. op.); Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex.App.-Houston [14th Dist.] 1993, no writ).
[12] In re McLemore, 515 S.W.2d 356, 358 (Tex. Civ.App.-Dallas 1974, orig. proceeding).
[13] See L.K.K., 2008 WL 4173742, at *2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/667858/ | 21 F.3d 1113
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Bryant FENTON; Barbara J. Fenton, individually, and themarital community composed thereof, Plaintiffs-Appellees,v.STERLING PLUMBING GROUP, INC., a foreign corporation; andJohn Does One Through Four, Defendants-Appellants.
No. 92-36946.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 3, 1994.Decided April 8, 1994.
Before: GOODWIN, SCHROEDER and NORRIS, Circuit Judges.
1
MEMORANDUM*
2
Sterling Plumbing appeals, following a bench trial, the court's judgment that Sterling is liable under Alabama product liability law1 and its award of damages in favor of Bryant Fenton in the amount of $390,204.29. The district court found (1) that the box Fenton was unloading when he fell was unreasonably dangerous, and (2) that Fenton's injuries were reasonably foreseeable. Sterling contends these findings are clearly erroneous. Sterling alternatively contends that the district court erred in awarding damages to Fenton for medical expenses that have been paid for by his insurance carrier. We affirm.
3
To recover under the Alabama Extended Manufacturers Liability Doctrine (AEMLD), a plaintiff must show, among other things, that "he suffered injury or damages to himself ... by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer...." Casrell v. Altec Indus., Inc., 335 So.2d 128, 132 (Ala.1976); see Jordan v. General Motors Corp., 581 So.2d 835, 837 (Ala.1991). Alabama courts consistently hold that whether a product is unreasonably dangerous generally is a question for the trier of fact. Morrison's Cafeteria v. Haddox, 431 So.2d 975, 978-79 (Ala.1983); Casrell, 335 So.2d at 133.
4
The district court found that handholds on the APTS Multi-Pack tend to tear during normal use, and that such tearing proximately caused Fenton's injuries. Sterling correctly notes that under Alabama law, unreasonable danger cannot be inferred merely from the fact that the handholds on the box used by Fenton tore. E.g., Brooks v. Colonial Chevrolet-Buick, Inc., 579 So.2d 1328, 1331-32 (Ala.1991). Fenton was required to introduce evidence to show that handholds on the APTS Multi-Pack tear when the box is used as intended. See Jordan, 581 So.2d at 836-38.
5
At trial, both sides offered the testimony of experts to establish the amount of force that was required to drag a Multi-Pack full of bathtubs across the floor of Fenton's truck. Expert testimony also was used to establish the amount of force necessary to tear the handholds on the Multi-Pack in laboratory experiments. The experts were, essentially, in agreement that it took 90 pounds of force, at most, for Fenton to move the box along the floor of his truck by dragging the box by the handholds. Plaintiffs' expert, Robert Cooksey, testified that according to laboratory tests he had performed, it took about 140 pounds of force to tear a single handhold on the Multi-Pack. In a deposition admitted into evidence, defendant's expert, Herbert Schueneman, initially testified that according to his tests, the breaking point of a handhold on the Multi-Pack was between 100 and 150 pounds. Later in the deposition, Schueneman corrected himself, and, indicating that he had misspoken, testified that the handholds broke at a force of 150-170 pounds. The corrected figures given by Schueneman are consistent with test results he had recorded before the deposition.
6
In its findings of fact, the district court referred to Schueneman's deposition testimony that the handholds failed at 100 to 150 pounds. Sterling contends that the court's reliance on Schueneman's misstatement was error, and that with Schueneman's testimony as corrected, the evidence in the record indicates that the handholds tear at 140 pounds of force at the least. Because the experts agree that Fenton required no more than 90 pounds of force to move the box, Sterling argues, there is no support for the district court's conclusion that the box was unreasonably dangerous.
7
The district court did err to the extent it relied on Schueneman's testimony before it was corrected. Sterling, however, identified the error for the court in a motion to amend judgment, or for new trial, and the court denied the motion. Our task on appeal becomes to determine whether there is other evidence in the record, beyond Schueneman's misstatement, that supports the court's finding that the Multi-Pack was unreasonably dangerous. We find that there is such evidence.
8
First, testimony of both experts supports the court's finding that because the Multi-Pack's handholds are not reinforced, they tend to weaken due to "vibration during transit, downstacking, the wax on the box, the age of the corrugated material, the die cutting process, the amount of abuse, mishandling or other degradation of the board, and the temperature at which the container is handled."
9
Second, evidence supports the court's finding that tearing of cardboard box handholds "is a phenomenon generally understood by members of the packaging and plumbing industries." A video tape produced by the Kohler Company, Sterling's parent, in 1991 contains a demonstration on the proper handling of corrugated cardboard boxes, and it warns users that lifting, pulling, or dragging corrugated boxes by the handholds may cause property damage.2
10
Finally, the plaintiff's expert opined that regardless of the specific tearing points of the Multi-Pack under laboratory conditions, handholds in the Multi-Pack are a "bad idea" in general, and that handholds are uncommon in the industry due to their propensity to fail. In light of the experts' testimony and the video tape, there was evidence to support the court's finding that handholds on the Multi-Pack tear during normal use. This finding was not clearly erroneous, notwithstanding the court's reliance on Schueneman's later corrected deposition testimony.
11
Sterling next contends that even assuming that the Multi-Pack was unreasonably dangerous, Fenton failed to show that his injuries were "reasonably foreseeable." See Atkins v. American Motors Corp., 335 So.2d 134, 142 (Ala.1976). Sterling contends that Fenton did not show foreseeability because he presented no evidence that the Multi-Pack previously has failed under similar conditions. The requirement of reasonable foreseeability means only that the injury sustained by the plaintiff must have been foreseeable, not the defect itself. Accord Griggs v. Combe, Inc., 456 So.2d 790 (Ala.1984). To adopt Sterling's view of Alabama product liability law--that the defect itself (or the unreasonably dangerous condition) must be reasonably foreseeable--would import a negligence standard to product liability cases. This would be clearly inconsistent with the intent of the Alabama Supreme Court in establishing AEMLD; fault is shown by proving that Sterling sold an unreasonably dangerous product, regardless of whether handhold failure was foreseeable. See Atkins, 335 So.2d at 138-41. In this case, the type of injury sustained by Fenton--a damaged elbow sustained after he fell out of the tailgate of the truck--is precisely the type of injury that is foreseeable to the supplier of a box with handholds that tear under normal use. The district court did not err in finding Sterling liable under Alabama product liability law.
12
Sterling finally argues that the damage award in this case must be reduced by $19,762.24, the amount Fenton received from his insurance company for his medical expenses. The dispute in this case is whether Fenton has proved that he must repay his insurance company if he recovers from Sterling, as is required by Alabama law to recover medical expenses paid by an insurance carrier. See Ala.Code Sec. 6-5-524.
13
The district court's implicit conclusion that Fenton was required to repay his insurance company is supported by plaintiff's exhibit 131(c), a letter from Fenton's insurance carrier notifying his counsel of the carrier's right to repayment. Sterling argues that this exhibit was never admitted, but this argument is frivolous in light of the district court's explicit order clarifying the record to indicate that this exhibit was, in fact, admitted and considered by the court. (CR 184). We need not address Sterling's argument that the letter contains inadmissable hearsay, for the actual existence of plaintiffs' obligation to the insurer is clear in this record and cannot now be disputed. The language of the policy and the amount of the lien were presented in an affidavit that was before the district court and never challenged. On appeal, the appellant has acknowledged the accuracy of the characterization in the affidavit itself and has quoted the language of the policy in its own opening brief. The district court did not err in concluding that because Fenton must repay his insurance company, Alabama's modified collateral source rule does not apply and Sterling is liable for Fenton's medical expenses.
14
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Neither Fenton nor Sterling challenges on appeal the district court's decision to apply Alabama law in this case
2
Sterling objected to the admission of this tape, arguing that it was not properly authenticated and was not probative of any issue before the court. We find that because the tape carries the Kohler logo and mark, it is self-authenticating. Fed.R.Evid. 902(7); see id. (application note). Moreover, Sterling produced the tape during discovery and has never seriously contended that the tape is anything other than what Fenton claims--a tape, produced by Kohler, outlining the proper handling of cardboard boxes. With respect to the tape's probative value, notwithstanding the fact that it instructs viewers on the use of boxes other than the Multi-Pack, it was relevant to the purpose for which it was used by the district court--finding that in general, corrugated cardboard box handholds tend to fail during normal use | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1575027/ | 253 S.W.2d 585 (1952)
LOUISVILLE & N. R. CO.
v.
YOUNG'S ADM'X.
Court of Appeals of Kentucky.
December 19, 1952.
*586 C. S. Landrum, Lexington, Charles S. Adams, Covington, C. E. Rice, Jr., Lexington, for appellant.
Sawyer A. Smith, Covington, for appellee.
SIMS, Justice.
Appellee, Lillie Mae Young, as administratrix of her deceased husband, Alex J. Young, sued the Louisville & Nashville Railroad Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for $150,000 damages for the death of her husband alleged to have been caused by the negligence of appellant on March 3, 1950. The trial resulted in a verdict in favor of her and her four infant children in the sum of $60,000, which the jury allotted to Lillie Mae (widow) $19,500, Pricilla $7,500, Alex Jr., $9,000, Audrey $11,000 and Glen $13,000. To reverse the judgment entered thereon the Company assigns three errors: 1. The verdict is not supported by the evidence; 2. the court erred in giving and refusing instructions; 3. the damages awarded are excessive.
Young was employed by the Company as a laborer in its yards at Decoursey in Kenton County. About 11:00 o'clock on the morning of March 3, 1950, while he was attempting to unhook a car spring weighing from 450 to 500 pounds which was being lowered into a skid box by an electric crane operated by E. L. England, the boom cable snapped which caused the boom of the crane to fall on Young, who died two days later as a result of his injuries.
The petition set out the age of deceased as 31, that of his widow as 26 and of his four infant children as 9, 6 and 3 years, and a baby of nine months. The answer admitted the ages of the widow and of the children, but denied Young's age and that his death was caused by the Company's negligence, and contained affirmative pleas of contributory negligence and assumption of risk upon the part of Young. A reply denied these affirmative pleas. It may be well to here state that § 54 of the Federal Employers' Liability Act provides that no employee shall be held to have assumed the risk of his employment in any case where his injury or death resulted in whole or in part from the negligence on the carrier, or where the violation by the carrier of any statute enacted for the safety of the employee contributed to his injury or his death.
The alleged negligence of the Company upon which appellee relied is that the boom cable was defective or insufficient for the purpose for which it was being used. The proof shows this crane had an 18 foot boom which was supported and controlled by a 3/8 inch wire cable of three strands twisted together into one *587 piece and each strand was composed of 40 or 50 small wires. The crane carried another similar cable which handled the load. It was the boom cable which snapped and that is the one with which we are concerned. The crane had a capacity of 3 tons but there was proof that at times loads up to 8 tons were handled by it. The crane was overhauled in Louisville in December 1949, but no new cable was put on it then, and the crane was returned to the Decoursey yards early in January 1950. England testified for appellee and stated a new cable had been put on the boom in 1949, in less than 8 months before the accident.
England, the operator of the crane at the time of the accident, was the sole witness for appellee that the cable was defective. He testified that on the morning of the accident he inspected the cable for his own safety, as he did every morning, and it was "very thin, very small", and he told J. W. Stephens, roundhouse foreman, about 8 o'clock the morning of the accident that the cable "should be inspected, we need a new cable on it. * * * Stephens told me he had had the engineer take care of it and he would take care of it". England further testified that the cable, which was exhibited on the trial, "is drawn down thin, I would say from a thirty-second to the size of three-eights"; that heavy loads would stretch the cable and weaken it, and that the cable "snapped due to the use and abuse of the cable".
On cross-examination England was asked if he had not made a report on the accident in which nothing was said about him noticing any defect in the cable. He replied, "there was something said about it, but it was not put into that statement that I made to the Master Mechanic Carl Wolfing". The following appears in the cross-examination of the witness in reference to the signed statement he made four days after the accident to H.G. Breetz, a claim agent of the Company:
"Q. Now talking about the cable `After the accident I saw that the boom had been allowed to fall by the pulling apart of the cable. There was nothing to indicate that there were any old breaks in the cable but where it pulled apart it looked like all the wires were freshly pulled apart.'? A. Yes.
"Q. `The block carried the weight of the material that you are handling, but the boom carries the weight of the whole load and I am totally unable to account for this cable pulling apart especially in doing so immediately after the weight of the spring was taken from it.' You made that statement? A. Yes.
"Q. `The boom cable winds on a drum and runs through pulley blocks and there was nothing wrong with them to have caused any undue wear of the cable.' You made that statement? A. Yes."
On redirect examination England stated he answered questions by Breetz but the latter wrote the statement in his own words.
All the testimony is to the effect that this cable showed no old break, which would have been evidenced by the ends of the wires in the cable curling. And it was conclusively proven that J. W. Stephens, the roundhouse foreman to whom England testified he complained of the cable on the morning of the accident, was out of the State from February 19 until March 4 and England could not possibly have asked him to have the cable inspected.
Appellant argues that England's testimony on cross-examination so contradicted that given on his direct examination as to amount to a withdrawal of it, citing Bass v. Com., 232 Ky. 445, 23 S.W.2d 926, and Great Northern Life Ins. Co. v. Cazner's Committee, 282 Ky. 515, 139 S.W.2d 424. While there are statements made by England on cross-examination which conflict with what he said on direct examination, the statements are not so contradictory as to destroy his value as a witness. England's contradictory statements are nothing like so glaring as those made by the witnesses in the Bass and Cazner cases. In the circumstances it was for the jury to determine the credibility of the witness and the probative value to be given *588 his testimony. Short Way Lines v. Sutton's Adm'r, 291 Ky. 541, 164 S.W.2d 809; City of Paducah v. Brunnhoper, 281 Ky. 177, 135 S.W.2d 413.
It is next insisted by appellant that as the crane just preceding handling this spring had handled a much heavier load without difficulty, and as the Company had no notice that the cable was not in reasonably safe repair, it is not liable for any defect therein which had never been brought to its notice, or which it could not have discovered by the exercise of ordinary care, citing Louisville & N.R. Co. v. Wright, 199 Ky. 422, 251 S.W. 188. That was a case where Wright was injured as the result of a hole in a crossing maintained by the railroad, and we held as the company had no notice of the hole and as there was no proof that it existed long enough for notice to be imputed to the railroad company, it was not liable. That case is not controlling here. Anybody or anything could have made that hole without the railroad's knowledge. Here, the Company furnished a tool to Young in the form of this crane with which to work. While it was not an insurer, it was the company's duty to furnish a tool which it had exercised ordinary care to see was reasonably safe. Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; Atlantic Coastline R. Co. v. Dixon, 5 Cir., 189 F.2d 525.
Under the evidence, and the peculiar and unusual facts of this case, it was for the jury to say whether the Company had exercised ordinary care as to whether this crane was reasonably safe for Young to use. The court properly submitted this question to the jury in the first instruction which is practically the same as instruction "B" offered by appellant.
The complaint of the first instruction is that it not only imposed upon the Company the duty of exercising ordinary care to equip the crane with a cable that was not defective or insufficient, but imposed an absolute duty upon it to do so. Evidently, appellant has misread or misconstrued this instruction, because the duty it placed upon the Company was "* * * to exercise ordinary care to have and to keep said crane equipped with cables that were not defective or insufficient for the purposes for which such cables were used * * *."
The criticism directed at the second instruction on contributory negligence (which under 45 U.S.C.A. § 53 would reduce the recovery in proportion to Young's contributory negligence) is that it only submitted to the jury that it was Young's duty to use ordinary care in going under the crane and in determining whether or not the cable was safe, and omitted all reference to whether or not he used ordinary care in turning his back to the operator of the crane, and in attempting to unhook the spring before it had been completely lowered in the skid box. When the court told the jury that it was Young's duty to use ordinary care for his safety in going under the boom, that was sufficient as it submitted to the jury whether or not he was negligent in turning his back to the operator of the crane and in attempting to unhook the load before it had come to rest when he went under the crane.
We now come to the question as to whether or not the damages of $60,000 are excessive. The uncontradicted proof shows Young's average yearly earnings during the last 5 years of his life, which he took home, were $2712.14. Out of that sum his widow testified he gave her an average of $200 per month, or $2400 per year. She testified that from this sum she paid the rent and the food for the family, in which her husband benefitted he even took his lunch from home. However, Young bought his own clothing. The evidence is not as definite as it might have been as to just what proportion Young shared in the $200 a month he contributed to his family. We realize the difficulty of definitely ascertaining and stating such a fact. The best we can determine from the evidence is that $400 of the $2400 a year he gave his family would be the minimum sum which would cover his lodging and food. This leaves a contribution by him to his family of $2000 per year.
The measure of damages in this character of case is, the dependents of the deceased are entitled to recover for the loss *589 of pecuniary benefits which they had a reasonable expectation of receiving from him had he not been killed. The relationship between deceased and his dependents is a proper consideration in computing the damages. Louisville & N. R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564, at page 571, and the cases therein cited: Louisville & N. R. Co. v. Stephens, 298 Ky. 328, 182 S.W.2d 447, at page 456. In the instant case there was no evidence of any care or advice Young gave his dependents, so the measure of damages is limited to a sum which would produce $2000 a year to his widow and his infant children during their dependency, that is, as long as the mother of the children remained a widow and until each of the children reached the age of 21 years, calculated at the highest net rate of interest a safe investment will yield. As said in the Stephens case, 182 S. W.2d at page 456: "While a calculation based upon the above factors is not conclusive proof of actual pecuniary loss, it furnishes as fair a basis as can be suggested for considering the question of whether the verdict is excessive".
The proof shows Young was 32 years of age at the time of his death and the ages of the widow and children are shown in the third paragraph of this opinion.
The statements of the various bankers testifying gave the highest net rate of interest which a safe investment would bear as ranging from 1½% to 5½%. Mr. Monroe Zeidler, the only banker testifying for appellee, while putting the highest net rate a safe loan would produce at 1½%, admitted that good real estate mortgage loans bore up to 5%. Mr. Edward A. Vosmer, a banker testifying for appellant, stated a safe loan would net from 3½% to 4%. Mr. Thomas A. Hanauer, another banker testifying for appellant, gave such rate as from 3½% to 3.75%. From this record, we think with reason it might be said that the highest net rate a safe investment in March 1950 would produce was 4%.
Young was 32 years of age and under the "Life Expectancy Table" appearing in KRS page 2908, he had an expectancy of 35.88 years. His dependents were receiving from his earnings $2000 per year and the present value with interest at 4% according to the "Present Value Table" shown in Carroll's 1936 Ky.Statutes, page 2687, is $2000 multiplied by 19.9083 (adding 1.000 for the first payment to start immediately), or $39,816.60. To illustrate that the verdict is grossly excessive, the $60,000 judgment at 4% would produce an income to the dependents of $2400 per year, which is $400 a year more than deceased gave his family, or $14,200 in the space of 35.88 years, and at the end of that time his dependents would still have the $60,000.
It is the general rule in federal courts that a verdict will not be set aside on account of excessive damages unless it is so excessive as to demonstrate that the jury has acted against the rules of law or has suffered their passion or prejudice to mislead them. Barry v. Edmunds, 116 U.S. 550, 565; 6 S.Ct. 501, 509, 29 L.Ed. 729; Louisville & N. R. Co. v. Jolly's Adm'x, 232 Ky. 702, 23 S.W.2d 564, 571. This is such a case.
Appellee insists that the verdict should be sustained because of the low purchasing value of the dollar at the time Young was killed. The answer to that argument is the low purchasing power of money was responsible for Young's high wages. In ordinary times a day laborer would not earn $2700 a year "take home pay", nor would he be able to give his wife and four infant children $2000 a year for their support. Young's high wages are responsible for what we say would be reasonable compensation to his dependents in the sum of $39,816.60 for being deprived of his financial support.
Complaint is made that the third instruction, which is on the measure of damages, should have told the jury in arriving at a sum which would produce an income equal to Young's contribution to his dependents that no amount of that sum should be left or not used up at the expiration of the period of dependency of the widow and of the children. As the measure of recovery is to supply the dependents with the amount their decedent would have supplied them during their period of dependency, on another trial the *590 court will include this idea in appropriate language in his instruction on the measure of damages.
It is further argued by appellant that as he offered an instruction on the measure of damages which told the jury in arriving at the pecuniary benefit Young's widow and children would receive, that they should take into consideration the fact that all persons do not live to the age of expectancy shown by the life tables, and that such is particularly true in cases of hazardous employment as in railroad work, as well as the fact that people do not work all the years of their life, and the expected contribution may vary or diminish in the future, the court should have so instructed. Appellant cites Louisville & N. R. Co. v. Thompson's Adm'r, 217 Ky. 21, 288 S.W. 761; Thompson v. Camp, 6 Cir., 163 F.2d 396; Wetherbee v. Elgin J. & E. Ry. Co., 7 Cir., 191 F.2d 302. Also see Stanley's Instructions to Juries, § 335, page 415. These authorities sustain appellant's proposition, and as the Camp and Wetherbee cases were brought under the Federal Employers' Liability Act, the court on another trial should in appropriate language incorporate this theory in its instruction on the measure of damages.
The judgment is reversed for proceedings consistent with this opinion.
CAMMACK, C. J., dissents on the ground that he does not think the damages are grossly excessive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585028/ | 187 P.3d 752 (2008)
REINERTSEN
v.
RYGG.
No. 80916-0.
Supreme Court of Washington, Department II.
July 9, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578186/ | 274 S.W.3d 597 (2009)
Neil SCHAFFER, Claimant-Appellant,
v.
LITTON INTERCONNECT TECHNOLOGY and Insurance Company of the State of Pennsylvania, Respondents.
No. SD 28995.
Missouri Court of Appeals, Southern District, Division Two.
January 14, 2009.
*598 Randall J. Reichard, Lowther Johnson, Springfield, for Appellant.
*599 William C. Love, Daniel P. Molloy, Hyde, Love & Overby, LLP, Springfield, for Respondents.
JOHN E. PARRISH, Judge.
Neil B. Schaffer (claimant) appeals a final award of the Labor and Industrial Relations Commission (the commission) that denied workers' compensation benefits. This court affirms.
Claimant sought compensation for an alleged occupational disease he asserts began approximately May 2, 2002.[1] He was an employee of Litton Interconnect Technology (Litton) on the alleged injury date. He alleged that "[w]hile in the course of his employment, [he] was required to work excessive numbers of hours a day, specifically 70 to 80 hours a week, and was on call 365 days a year, 24 hours a day, which caused stress resulting in irritation to [his] heart and anxiety and depression."
The commission affirmed the award of the administrative law judge. It adopted her award and decision and incorporated the award and decision by reference in its Final Award Denying Compensation.
[T]his court reviews the findings and award of the Commission rather than those of the [Administrative Law Judge]. Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo.App. S.D.2004). However, when the Commission incorporates the [Administrative Law Judge's] award and decision in its own determination, as in this case, we review the [Administrative Law Judge's] findings and conclusions, as adopted by the Commission.
Cox v. Collins, 184 S.W.3d 590, 592 (Mo. App.2006). The commission found that claimant failed to prove, by objective standards and actual events, that he suffered from work-related stress.
Upon review, an appellate court may modify, reverse, remand for rehearing, or set aside the award of the Commission only if it determines that the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant making the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo.banc 2003). We examine the whole record in order to determine whether there is sufficient competent and substantial evidence to support the award. Id. at 223. "[W]e must determine whether the Commission reasonably could have made its findings and reached its result based upon all of the evidence before it." Fitzwater v. Dept. of Public Safety, 198 S.W.3d 623, 627 (Mo.App.2006). However, "we defer to the Commission on issues involving the credibility of witnesses and the weight to be given testimony, and we acknowledge that the Commission may decide a case `upon its disbelief of uncontradicted and unimpeached testimony.'" Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo.banc 1993) (quoting Ricks v. H.K. Porter, Inc., 439 S.W.2d 164 (Mo.1969)).
Clayton v. Langco Tool & Plastics, Inc., 221 S.W.3d 490, 491-92 (Mo.App.2007). Further, a claim for mental injury due to work-related stress requires proof that the injury was, in fact, caused by work-related *600 stress and that such work-related stress was extraordinary and unusual measured by objective standards and actual events. § 287.120.8.[2]
Claimant began working for Litton in 1989 as an environmental engineer. When he was first employed, his duties included monitoring chemical treatment systems; being knowledgeable of various local, state, and federal regulations that governed the use, transportation, and disposal of chemicals; monitoring and submitting reports to various agencies; training and managing employees; and, performance of safety inspections of facilities.[3] Claimant testified that when he began working for Litton, his position required him to work approximately 50 hours per week; that he occasionally took work home, but did not regularly work weekends or holidays.
In 1997, claimant became environmental safety manager. His new position was a promotion. He was assigned additional responsibilities and his pay was increased. The new position was part of Litton's management level. Claimant continued working for Litton in that capacity until October 9, 2002, when he resigned his position with the company and retired.
The position of environmental safety manager was created following claimant's suggestion that the position be established. Claimant's proposal described the duties for the position as follows.
Department will assume all duties associated with safety policies and programs, training and safety engineering. All health issues and insurance are to remain with personnel. Accident investigations still controlled by nurse with follow-up on all investigations performed by Env. Engineer.
Claimant testified that in addition to the environmental duties he previously performed, he became responsible for maintaining safety policies and procedures, and providing safety training and inspections; that he was a member of Litton's emergency response team. He was also given responsibility for a clean-up site behind the company's main facility.
Claimant's new responsibilities included safety oversight of two additional plants, one in Massachusetts and one in California. His role was a support role. He was not responsible for their day-to-day operation, nor was he required to travel to the other plants. The Massachusetts and the California plants were smaller than the Springfield plant. Claimant held the position that he assumed in 1997 until he stopped working for Litton in 2002.
Claimant testified that he worked over 70 hours per week in the position he assumed in 1997; that he worked during most vacations and weekends. He testified that he had to miss lunch; that his wife began going to the office with him to help him with his typing. He said his supervisor found out that his wife was helping him and told him she could not do that. Claimant said that after that, his wife did the typing at home. Claimant's supervisor, Jim Fox, testified that he did not believe it was necessary for claimant to work the number of hours that he claimed he worked.
Claimant asserts that the injuries for which he seeks compensation were sustained in the course and scope of his employment. Claimant contends his injuries *601 commenced in May 2002. He testified that he was at his home on May 18, 2002; that he had taken a week's vacation time. He was preparing to weed his yard when he experienced a rapid and irregular heart beat. He was taken to an emergency room where a physician concluded that he had experienced atrial fibrillation.
Claimant had experienced incidents of rapid heart rate prior to the May 18, 2002, incident due to paroxysmal atrial tachycardia (PAT). He had been diagnosed with PAT as a teenager in 1973. His PAT symptoms included increased heart rate and light-headedness. Prior to 1997, claimant's PAT incidents occurred two to five times a year. Each of those occurrences lasted less than a minute. He claimed the symptoms he experienced May 18, 2002, were different from the previous PAT occurrences.
Claimant returned to work periodically after May 18, 2002. He worked two to four hours a day from May 26 to approximately June 20. He worked maximum eight-hour days, 40 hours a week from July 2 to July 22. He worked fewer than 40 hours per week from September 17 to October 7 and limited his work to performing low stress duties. He experienced increased symptoms of anxiety and depression each time he returned to work.
Claimant was on medical leave from June 20 through July 1 and from July 23 through September 16, 2002. On October 7, 2002, he requested his primary care physician, Dr. Lyons, to recommend "another couple of weeks of medical leave." Dr. Lyons recommended permanent retirement. Claimant submitted his resignation and retired October 9, 2002. He filed the claim for permanent total disability on October 30, 2002.
The administrative law judge's conclusions of law, which were adopted by the commission and made part of its Final Award Denying Compensation, state:
The key issue in this case is whether claimant can meet his burden of adducing substantial and competent evidence supporting his claim that the alleged occupational disease is attributable to claimant's employment with [Litton]. Claimant bears the burden of proving that the alleged mental injury was caused by stress that was work-related and that the work-related stress was extraordinary and unusual. Sherman v. First Financial Planners, 41 S.W.3d 633, 637 [(Mo.App.2001)]. Further, it is clearly stated in § 287.120.8[,] RSMo[,] that the work-related stress shall be measured by objective standards and actual events. § 287.120.8[,] RSMo. In accordance with this objective standard, a claimant "must compare [his] work-related stress with the stress encountered by employees having similar positions, regardless of employer, with a focus on evidence of the stress encountered by similarly situated employees for the same employer." Sherman, 41 S.W.3d at 637 (quoting Williams v. DePaul Health Center, 996 S.W.2d 619, 628 (Mo. App.1999)). Therefore, "without presenting evidence of similarly situated employee's [sic], [claimant] is unable to meet the statutory burden set forth in § 287.120.8[,] RSMo." Sherman, 41 S.W.3d at 637.
There is no doubt that the claimant found his work to be extremely stressful. He has been diagnosed with a Generalized Anxiety Disorder. The question is not what the claimant subjectively thought and felt, but rather what he can prove by objective standards and actual events.
After carefully considering all of the evidence, I do not find that the claimant has presented sufficient objective evidence to meet his burden of proving the *602 stress he experienced was extraordinary and unusual. He has not shown that the amount of stress he experienced was greater than that in comparable positions in his field. The only evidence as to similarly situated employees was that he was looking for a less stressful job and was unable to find one. He stated that the hours required in the jobs he applied for was 60-70.
Nor did claimant show that the stress he experienced was greater than that of other employees of the same employer. The claimant must do this not by his subjective testimony but by objective standards and actual events. Although he testified to the number of hours he was required to work; [sic] there were no objective records to confirm his testimony.
Furthermore, the things he stated caused him stress were all things that other employees in the management level at Litton were required to do. Other managers at Litton experienced similar increases in work load with the plans for the facility replacement. The wage and salary freeze as well as the hiring freeze affected all the managers, and they were required to adjust to the economic downturn. Other management level employees also had very stressful duties that required them to work overtime, be on call, be responsible for issues in other plants, participate on the emergency response team, and take work home. Therefore, while he had an extremely stressful job, I do not find that he has proven that it was objectively, and by actual events, more stressful that [sic] other employees at Litton.
I find that claimant has failed to satisfy his burden of proving a work-related stress claim by objective standard and actual events. Therefore, his claim is denied.
Claimant's first point on appeal contends the commission erred in denying compensation. Claimant argues that the "decision is not supported by competent and substantial evidence upon the whole record and the facts found by the Commission do not support the award because competent evidence demonstrated that Claimant's anxiety was clearly work related and was extraordinary and unusual in that Claimant worked 70-90 hours per week, worked at home in the evenings, on weekends, during vacations and plant shut-downs"; that claimant "had inadequate staff support, he had multi-site responsibility in several states, and endured the death of a co-worker and subsequent lawsuit and harassment by his family, all of which exceeded the level of stress of other employees having similar positions."
As the commission observed, § 287.120.8 establishes what must be shown to demonstrate that mental injury resulted from work-related stress arising out of and in the course of employment. It states:
Mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is workrelated and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.
In Williams v. DePaul Health Center, 996 S.W.2d 619 (Mo.App.1999), the Eastern District of this court explained:
[T]he proper comparison for purposes of Section 287.120.8[, RSMo 1996,][[4]] is to compare Employee's work-related stress with the stress encountered by employees having similar positions, regardless *603 of employer, with a focus on evidence of the stress encountered by similarly situated employees for the same employer. See Dunlavey [v. Economy Fire and Casualty Co., 526 N.W.2d 845 (Iowa 1995).]
Id. at 628.
Claimant's position with Litton as environmental safety manager was specialized and unique. The position was created and structured pursuant to claimant's request. It was a management position. All of Litton's management level personnel were required to be "on call" twenty-four hours a day, seven days a week. There was evidence that, from time to time, claimant requested additional help; that when Litton could do so, it provided additional help and instructed claimant to delegate some of his duties. There was no evidence that claimant's duties were greater than those of other management personnel at Litton or that Litton's actions in establishing and providing for the position claimant occupied in its company were not in good faith.
Claimant attempted to find less stressful employment in his field from 1997 through 2001, but was unable to do so. The only job offer he received during the course of those efforts was from a wastewater development project in Saudi Arabia. Further, although claimant asserted that he worked substantially more than 40 hours per week, Litton's records indicate that he worked 40-hour weeks; that during the relevant time period, he took 17 weeks of vacation.
There was evidence that claimant had many stressors outside his employment. He experienced stress from various family and personal problems, including illnesses, his father's death, and damage to property he owned. There was expert medical testimony that supported the commission's finding that claimant's disorder and symptoms were not caused by his employment.
Claimant relied on testimony of a series of doctors that he had consulted to support his claim that he had sustained mental injury from work-related stress that arose out of and in the course of his employment. He also relied on testimony of Phillip Eldred, a certified rehabilitation counselor, who concluded that claimant had vocational restrictions to the extent that he was unemployable in full-time, gainful employment.
Claimant's personal physician, Dr. Lyons, treated claimant shortly after claimant's May 18, 2002, visit to an emergency room. He diagnosed claimant with PAT. He performed an echocardiogram. Its results were normal. Dr. Lyons ordered an exercise stress test with wall motion analysis and ejection fraction calculations. The test results were normal. Dr. Lyons' opinion at that time was that claimant's medical issues did not preclude him from continuing to work; however, Dr. Lyons placed limitations and restrictions on claimant's work activities "until the cause of his symptoms [were] better elucidated."
In June 2002, claimant reported to Dr. Lyons that since March or April of 2002 he had experienced difficult circumstances; that several family members had been hospitalized; he was working 70-80 hours per week; sleeping very little; that he had little time with his wife. Claimant reported that he had been in an emergency room earlier that week for chest pain. An EKG and rhythm strips were performed during the visit. The test results were normal. Dr. Lyons referred claimant to Dr. Bright, a psychiatrist. Dr. Bright diagnosed claimant with generalized anxiety disorder, major depressive disorder, single episode without psychosis. He increased claimant's medication.
*604 Claimant was dissatisfied with Dr. Bright. He requested that Dr. Lyons refer him to another psychiatrist. Dr. Lyons referred claimant to Dr. Bolyard. Claimant asserted that his symptoms were related to "conversations that [gave him] adrenaline rushes" and to "anything that has to do with ... work." Dr. Bolyard explained his view of claimant's situation:
[Claimant] is a quite verbal, highly intelligent man who finds himself in a situation which he perceives as intolerable. He does provide an internally consistent story that may in fact be an actual description of a job that truly is excessive and intolerable. However, it is also true that [claimant] tends to view problems in black-and-white terms. While it is unreasonable to expect that any person could tolerate the stresses and demands of the job he describes, it is just as unreasonable to expect a 50-year-old man to spend the rest of his life fishing every day. He has no insight into the fact that his own judgment and decisions have played any sort of role in his current predicament. At this time, I believe the intent of his medications is effective. Minor adjustments will be made below. However, I believe it is critical for him to engage in insight-oriented psychotherapy, as his expectations are unreasonable and it did not appear that he is able to view accurately any responsibility he has for the decisions that have placed him in this unreasonable employment.
Claimant began treatment with a clinical psychologist, Dr. Darrow, who treated claimant's anxiety from what she characterized as a cognitive behavioral standpoint. She discussed with claimant how thought processes influence behavior. She worked on ways for claimant to "self-calm" using relaxation techniques and removing triggering stimuli. Dr. Darrow believed claimant's condition was directly caused by his employment with Litton. Her opinion was based on a history of claimant's work and symptoms obtained solely from claimant.
In 2004 Dr. Lyons provided claimant with a letter that stated claimant's symptoms were primarily anxiety related to, and a direct result of, stress experienced while working for Litton. At claimant's request, Dr. Lyons revised the letter to include a prognosis. Claimant suggested that this include that he was permanently and totally disabled. The letter was revised. The revised letter expressed Dr. Lyons' opinion that claimant suffered severe, chronic, and disabling anxiety as a direct result of his employment; that claimant was totally and permanently disabled. A June 5, 2006, letter from Dr. Lyons stated that claimant's prognosis would "be reasonably good once [the litigation] issues [were] settled and he remain[ed] in isolation from outside stressors." Dr. Lyons stated his opinion that claimant's employment with Litton directly caused claimant's symptoms; that it played a substantial contributory role in his diagnosis. Dr. Lyons did not believe claimant would be able to return to work at Litton, although he believed claimant could work at a much lower stress job and could proceed from there.
Prior to the hearing before the administrative law judge, claimant was seen by a psychiatrist, Dr. Rosalyn Inniss, and a clinical psychologist, Dr. Kent Franks, in preparation for the hearing. Dr. Inniss and Dr. Franks stated opinions that claimant was preoccupied with his physical symptoms and the determination that he was "disabled." Both believed there was an issue of secondary gain with claimant in that he would no longer have to work if his symptoms persisted and he could be found *605 permanently and totally disabled. Dr. Inniss explained:
Another level of secondary gain that he has experienced with his "illness" is that he presents himself as unable to work. His wife accepts that he cannot work because of his physical illness, not his psychological illnesses. Because of this, she works a full time job, balances the checkbook, cleans the house, cooks the meals etc. While he remains at home and does nothing. He will change his clothes multiple times a day but does not even do the laundry. He sees himself as never working again and sees no disparity with this as long as he can blame it on the trauma he suffered at the hands of his last employer. If he is declared disabled from his work and duly compensated he can fulfill his ambition to go fishing whenever he wants.
...
He attributes all of his psychological and physiological symptoms to his last employment which he views as being traumatic. Yet he was not prevented from leaving and specifically told this writer that he was advised to leave by others. He would lay responsibility for his social avoidance onto his workplace as well as the sequela from his work environment. Diagnostically, I cannot attribute [claimant's] current issues and symptoms to his employment. I would at best give [claimant] a diagnosis of Generalized Anxiety Disorder, which predated his employment with Litton with a rule out of Somatization Disorder. There are strong Axis II factors in his current present.
Dr. Franks also concluded that claimant suffered from Generalized Anxiety Disorder. He stated:
Based upon the available information, in my opinion [claimant] suffers from a Generalized Anxiety Disorder. The subject's occupational stress contributed to this disorder. However, the persisting nature of this disorder cannot be solely attributable to job stress. The subject has a marked tendency to internalize anxiety and develop psychosomatic symptoms. There is a preexisting personality style which does not bode well for psychological treatment. Secondary gain issues and inconsistent symptom reports suggest that [claimant] has an alternative agenda. He plainly stated that he does not want to work for the rest of his life. He is not motivated to get well, and he probably will not recover until this case is resolved. Were the subject motivated he has the cognitive ability and the psychological resources to work in a different position which is more in keeping with his stress tolerance.
There was conflicting medical testimony regarding whether claimant's disorder and symptoms were caused by his employment. "The decision to accept one of two conflicting medical opinions is an issue of fact for the Commission." Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo.banc 1995). See also Birdsong v. Waste Management, 147 S.W.3d 132, 140 (Mo.App.2004); Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 457 (Mo.App.2001). The fact-finding body, here the commission, determines which medical opinions are the most credible. Sherman v. First Financial Planners, Inc., 41 S.W.3d 633, 637 (Mo.App.2001). The commission's determination is one of credibility. It is binding on this court. Id.
The fact that claimant suffered from generalized anxiety disorder and other stress-related symptoms does not require the award of compensation. "[P]roof of the condition is not proof of causation." Duncan v. Springfield R-12 School Dist., 897 S.W.2d 108, 114 (Mo.App.1995). *606 There was sufficient evidence to support the commission's finding that claimant's work-related stress was not extraordinary or unusual when compared to other similar positions in his field and similar management positions with employer; that claimant failed to satisfy his burden of proving a work-related stress claim by objective standards and actual events. Point I is denied.
Point II is directed to the administrative law judge's refusal to admit in evidence a job description survey, Exhibit TT, and opinions in that survey that compared claimant's duties to other employees that were represented as being similarly situated. Claimant contends the commission erred in concluding that the administrative law judge properly excluded Exhibit TT in that "the survey was reliable because it requested objective responses concerning job duties, and it was necessary to compare the job demands of employees in positions similar to that of [claimant]."
Claimant sought to introduce Exhibit TT as a means of meeting the requirements of § 287.120.8 that for work-related stress to be shown as arising out of and in the course of employment, it must be demonstrated "that the stress is work related and was extraordinary and unusual." Section 287.120.8 requires that the amount of work stress be measured by objective standards and actual events. As noted, supra, the proper means of demonstrating that mental injury was caused by work-related stress would be to compare claimant's work-related stress with that encountered by employees having similar positions. Sherman, 41 S.W.3d at 637; Williams, 996 S.W.2d at 628-29.
Exhibit TT is a description of a survey conducted on behalf of claimant and a summary of the results of the survey. The survey was represented as having been "conducted to determine the job responsibilities and requirements of Environmental Managers in production plant/facilities that produce hazardous waste." It was conducted using open-ended verbal and written questions that allowed the person answering "to elaborate or expand on any job activities that they felt would need more clarification other than the listed or discussed description." Exhibit TT did not reveal the particular questions that were posed or the exact answers that were given.
Five companies were selected for interviews. They were identified "from public records within the state of Missouri as those listed who produced and registered as hazardous waste facilities." Claimant recommended the companies that were selected for the survey.
The first part of Exhibit TT is a letter written by Phillip Eldred, certified rehabilitation counselor. The letter stated the survey was performed by Eldred's son, Ross Eldred, an employment job developer. According to the letter, the survey involved companies the approximate size as Litton that had environmental safety positions; that the information included in the report was obtained from conversations with individuals at those companies with comparable responsibilities to those of claimant. The final page of Exhibit TT is a spreadsheet that summarized the survey results. Based on those results, Phillip Eldred concluded that claimant "endured an extraordinary and unusual degree of work stress."
Litton objected to Exhibit TT being admitted in evidence. The bases for its objection included that its results were hearsay; that no scientific basis was shown for selection of the employers who participated in the survey. Litton objected further as to the foundation for seeking admission of Exhibit TT; that the witness on whose *607 testimony the exhibit was being offered, Mr. Phillip Eldred, was not shown to have requisite training, experience, or background to testify concerning appropriate survey preparation methods. The objection further asserted that no basis was established for comparing the jobs of the survey participants, "what elements of the jobs that were concerned, what description of the job that was concerned, whether it was the description provided by [claimant] or the actual events as reflected in the trial and the issues to be determined by the judge." Litton contended that both the survey and the results of the survey were based on hearsay; that there was no foundation to support either. The administrative law judge took the objection under advisement at the time of the hearing and ultimately sustained the objection.
Courts have permitted scientifically designed and statistically reliable surveys to be used in evidence. See, e.g., Del-Mar Redevelopment Corp. v. Associated Garages, Inc., 726 S.W.2d 866 (Mo.App.1987), and Liberty Financial Management Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40 (Mo.App.1984). In Liberty the survey was scientifically designed by a mathematician-statistician with extensive experience in conducting surveys. The survey group was selected using the random number table, an accepted method for selecting representative groups. Neither the interviewers nor those interviewed knew the purpose of the survey.
In Del-Mar the survey was a formula an expert utilized in arriving at a value of property that had been taken by condemnation. An expert witness for the property owner was a partner and chief executive officer of one of the three largest car wash equipment manufacturers in the United States. The property being condemned was a self-service car wash. The witness had developed a formula for assessing the desirability of potential car wash sites. It had evolved from interviews with approximately 500 self-service car wash owners nationwide. The formula was incorporated in a self-serve car wash trade paper the witness published. It was used at trial to assess the desirability of the property being condemned for the use to which it was put. With the aid of the newsletter formula, the witness arrived at a value for the property. On appeal, the use of the data on which the formula was based was challenged as having been based on hearsay in that it was derived from information obtained from various self-serve car wash owners.
Del-Mar held it was not error to permit the witness to use the newspaper-survey formula as a basis for his testimony. The court explained:
Obviously, the newsletter-survey here was based on hearsay information from various self-serve carwash [sic] owners. Not all of this information was acquired directly by [the expert witness]. But, [the witness] used this newsletter-survey merely as a basis for explaining his opinion of [the property owner's] property; he did not use it as independent substantive evidence of value. Even the document itself states that it is to be used only as a guide. The survey may not have been scientifically designed, cf. Liberty Financial Management Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40, 55 (Mo.App.1984), but it did have aspects of trustworthiness to justify its use by [the witness] in formulating his opinion. See Pittsburgh Press Club v. United States, 579 F.2d 751, 757-758 (3d Cir.1978). The survey was not designed for use in litigation, but was designed to aid [the witness] in his business. Those answering the questionnaire had no reason to lie; they could not profit from the answers. *608 They were merely giving specific information based on their own experiences owning and operating self-service carwashes [sic]. It was actually to their benefit to give the most truthful answers possible knowing that they would possibly have a written aid in assessing future sites. And, after compiling the data, [the witness] attempted to verify the results with still other carwash owners. Under these circumstances, we conclude [the witness] could testify using the newsletter-survey to explain the basis of his opinion since the information used to formulate the survey itself was not offered in evidence. See [State ex rel. State Highway Commission v.] Carlson, [463 S.W.2d 74, 78 (Mo.App. 1970) ].
726 S.W.2d at 871-72.
Here, the survey that was sought to be introduced in evidence and used as a basis for testimony consisted of the letter written by Phillip Eldred identifying what had been conducted as "[a] job description survey." It included references to a list of questions that had been used, but recited only the nature of the questions, not the questions themselves. It characterized the list as "cover[ing] all major aspects of an environmental manager's job." It then listed categories of topics it represented as having been covered in the questioning. That was followed by a page that identified five companies that "filled out the job description survey," and the individual in each company who responded for the company. (The survey itself was not tendered in evidence.) This page was followed by "results" that had been transferred into a spreadsheet. The spreadsheet listed 13 job duties of what was characterized as "Duties of Environmental Managers in the State of Missouri." Six columns appeared to the right of the list of job duties in which "x's" could be placed under the name of the five companies contacted and a sixth column in which claimant's duties could be marked.
Here, as in Dummit v. Burlington Northern Railroad Co., 789 S.W.2d 136 (Mo.App.1990), the survey in question was taken solely for the purpose of litigation. The precise questions that were posed were not identified, nor were the exact answers disclosed at the hearing. Arguably, by accepting claimant's recommendations as to what companies to include in the survey, the selection of those responding could be characterized, as in Dummit, as having been done haphazardly. Dummit suggested that the only indicium of trustworthiness of the survey in that case "was the survey taker's conclusion that the results were trustworthy." Id. at 138. That suggestion appears apropos with respect to the survey that is the subject of Point II.
"Admission of evidence and making a determination regarding whether a good and sufficient foundation was laid for that evidence is within the Commission's sound discretion." Werber v. Washington University, 998 S.W.2d 877 (Mo.App.1999). This court finds no abuse by the commission in its adoption of the administrative law judge's ruling that Exhibit TT was not admissible and could not be utilized as a basis for testimony. Point II is denied. The Final Award Denying Compensation is affirmed.
LYNCH, C.J., and BURRELL, P.J., concur.
NOTES
[1] Claimant also sought recovery from the second injury fund for prior "injury(ies) paroxysmal atrial tachycardia; left atrial enlargement and heightened adrengergic [sic] tone." However, at the start of the hearing before the administrative law judge he dismissed the second injury fund claim.
[2] References to statutes are to RSMo 2000, unless stated otherwise.
[3] During the time claimant was employed by Litton, the company had two plants in Springfield, Missouri, one in Andover, Massachusetts, and one in Fairfax, California. It also had clean-up sites in Texas and California.
[4] § 287.120.8, RSMo 2000, is unchanged from the 1996 revision of that statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578264/ | 281 S.W.3d 666 (2009)
SIGNATURE MANAGEMENT TEAM, LLC, d/b/a Team, A Nevada Limited Liability Company, Appellant,
v.
QUIXTAR, INC., a Michigan Corporation, Appellee.
No. 05-07-01765-CV.
Court of Appeals of Texas, Dallas.
March 13, 2009.
*669 Susan M. Fisher, Bryan Burg, Siebman, Reynolds, Burg, Phillips & Smith, LLP, Sherman, TX, Clyde M. Siebman, Homer B. Reynolds, III, Siebman, Reynolds, Burg & Phillips, L.L.P., Plano, TX, William Charles Bundren, WM. Charles Bundren, Esq., Frisco, TX, for Appellant.
Brian S. Loughmiller, Loughmiller & Higgins, McKinney, TX, Richard E. Griffin, Alan Brandt Daughtry, Jackson & Walker L.L.P., Houston, TX, Mark R. Steiner, David C. Myers, Jackson & Walker, Dallas, TX, for Appellee.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
Opinion by Justice MAZZANT.
The trial court dismissed appellant's lawsuit without prejudice based on forum non conveniens. We reverse and remand.
I. BACKGROUND
A. Factual background
Appellant Signature Management Team, LLC ("Team") is a limited liability company organized in the state of Nevada with its principal business offices in Michigan. Appellee Quixtar, Inc. is a Virginia corporation with its principal place of business in Michigan. Quixtar, a successor to Amway Corporation, is in the "multi-level marketing industry." Quixtar sells its products through an extended network of individual contractors called "individual business owners" or "IBOs." IBOs can increase their revenues by recruiting new IBOs for Quixtar. Quixtar promulgates rules to regulate how IBOs are recruited.
Team alleges that some IBOs have formed their own separate companies called "tool companies" that are devoted to selling marketing tools, self-help books, seminars, and motivational speakers to other IBOs. Team is a tool company and has developed a successful business through its sales of training, leadership, and motivational materials to IBOs. Team has held seminars and sold its materials in Texas. According to Team, Quixtar also owns a training system and sells training materials to its IBOs, thus making Quixtar a direct competitor to tool companies like Team. Team alleges that Quixtar is using its power over the interpretation of its rules governing IBOs to restrain Team's trade and business in Collin County, Texas.
Team alleges that some former IBOs who were formerly associated with Team filed a federal class action against Quixtar in California. It further alleges that Quixtar retaliated by threatening to terminate or suspend all IBOs who purchase materials from Team, offer Team materials for resale, or attend Team meetings. Among other things, Quixtar allegedly sent emails to Team-affiliated IBOs in Texas in which Quixtar accused Team of wrongdoing.
B. Procedural history
Team sued Quixtar in Collin County, Texas. In its original petition, Team asserted claims for tortious interference, business disparagement, and unfair competition. A week later, Quixtar filed a motion *670 to dismiss based on the doctrine of forum non conveniens. Team amended its petition and added claims for promissory estoppel, declaratory judgment, and relief under the Texas Free Enterprise and Antitrust Act of 1983. Team also filed a response to Quixtar's motion to dismiss, supported by affidavits and other evidence. Quixtar filed written objections to some of Team's evidence.
The trial judge conducted an evidentiary hearing on Quixtar's motion to dismiss. A few days later, he signed orders granting Quixtar's motion and sustaining its objections to Team's evidence. Team filed a motion for new trial, which the trial judge denied.
II. ISSUES PRESENTED
Team presents three issues on appeal. It contends that (1) the trial court abused its discretion by dismissing the case, (2) the trial court abused its discretion by striking Team's affidavits, and (3) the trial court abused its discretion by denying Team's motion for new trial.
III. STANDARD OF REVIEW
This case involves an application of the common-law doctrine of forum non conveniens. See generally Sarieddine v. Moussa, 820 S.W.2d 837, 840-41 (Tex. App.-Dallas 1991, writ denied). Our standard of review is abuse of discretion. Sarieddine, 820 S.W.2d at 841; accord Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492, 495 (Tex.App.-Dallas 2006, no pet.).
We also review a trial court's evidentiary rulings and its denial of a motion for new trial for abuse of discretion. See Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 655 (Tex.App.-Dallas 2008, no pet.) (evidentiary rulings); Dugan v. Compass Bank, 129 S.W.3d 579 (Tex.App.-Dallas 2003, no pet.) (denial of motion for new trial).
IV. FORUM NON CONVENIENS
A. Applicable law
Forum non conveniens is an equitable doctrine that authorizes a court to decline to exercise jurisdiction over an action for reasons of the convenience of the parties and witnesses and in the interest of justice. Van Winkle-Hooker Co. v. Rice, 448 S.W.2d 824, 826 (Tex.Civ.App.-Dallas 1969, no writ). "The central theme of the doctrine is that a court will decline jurisdiction of the action when it appears that the scene of the controversy is laid in another state, so that the litigants and witnesses will have to come from that state, making it inconvenient to try it in the jurisdiction involved." Id. The defendant bears the burden of raising the doctrine of forum non conveniens by motion to dismiss, and it generally bears the burden of demonstrating that the plaintiff's choice of forum should not be honored. Sarieddine, 820 S.W.2d at 841.
The first step of a forum-non-conveniens analysis is the determination of whether an available and adequate alternative forum exists for the plaintiff's suit. Id. A forum is "available" if the entire case and all of the parties can come within the jurisdiction of that forum. Id. A forum is "adequate" if the parties will not be deprived of all remedies or treated unfairly. Id. The defendant bears the burden of showing that another forum is available; if it establishes the existence of an available forum, the burden shifts to the plaintiff to show that the available forum is not adequate. Id.
If an available and adequate alternative forum exists, the inquiry shifts to an examination of various factors reflecting the private interests of the litigants and the public interests of the forum. *671 Id. at 840, 842-43. The private-interest factors include the ease of access to sources of proof, the availability of compulsory process for attendance of unwilling witnesses, the costs of obtaining attendance from willing witnesses, all other practical matters that affect the difficulty and expense of trial, and the enforceability of a judgment obtained in the forum state. Id. at 842. The public-interest factors include the burden imposed on the citizens of the state, the burden on the trial court, and the general interest in having localized controversies decided in the jurisdiction in which they arose. Id. at 840. The private- and public-interest factors are sometimes referred to as the Gulf Oil factors, after the seminal Supreme Court case embracing them. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). The defendant must establish that the balance of these factors strongly favors dismissal. Sarieddine, 820 S.W.2d at 842.[1]
In granting Quixtar's motion to dismiss, the trial court implicitly determined that an alternative forum existed and that the factors strongly favored dismissal. We review its conclusions on these matters for abuse of discretion.
B. Whether Michigan is an available and adequate alternative forum
The first inquiry is whether an alternative forum to Texas is available and adequate. As movant, Quixtar bore the burden of showing that another forum is available; if Quixtar successfully carried this burden, then Team bore the burden of showing the available forum is not adequate. Sarieddine, 820 S.W.2d at 841. A forum is "available" if the entire case and all of the parties can come within the jurisdiction of that forum. Id.
As to availability, Team acknowledges that both it and Quixtar have a "principal office" or "principal place of business" in Michigan. It makes no argument that Michigan would lack personal jurisdiction over it or Quixtar. It argues only that Michigan is not an available forum because Michigan would not be able to hear Team's claim under the Texas Free Enterprise and Antitrust Act. In response, Quixtar argues that Michigan's ability to consider Team's state-law antitrust claim is not relevant to the question of whether Michigan is "available" as a forum. Quixtar submits that this factor pertains only to the "adequacy" of Michigan as a forum.
We agree with Quixtar. In Sarieddine, we concluded that Lebanon was an available forum simply because both parties were citizens of Lebanon. 820 S.W.2d at 842. In this case, both parties have principal offices or places of business in Michigan. We did not mention possible disparities between Texas and Lebanese law as a concern that affects the availability of an alternative forum. Moreover, in the recent case of In re Pirelli Tire, L.L.C., the Texas Supreme Court considered whether a forum-non-conveniens dismissal was required in a case arising from a truck accident that occurred in Mexico. 247 S.W.3d 670, 673 (Tex.2007) (plurality op.). The plaintiffs argued that Mexico was not an adequate alternative forum because, *672 among other things, Mexico does not recognize a cause of action for strict liability. Id. at 678. The plurality analyzed the substantive differences between Texas law and Mexico law in terms of the adequacy of a Mexican forum, not its availability. Id. The plurality also concluded that differences that make the alternative forum's laws less favorable to the plaintiff are entitled to little if any weight in the adequacy analysis. Id. Although Pirelli Tire involved statutory forum non conveniens, the plurality relied heavily on precedents applying common-law forum non conveniens, see generally id. at 675-79, so we consider it additional persuasive authority that differences between the law of Texas and the law of Michigan do not bear on the question of Michigan's "availability" as a forum. We conclude that Quixtar sufficiently demonstrated that Michigan is an available alternative forum for Team's lawsuit.
Once Quixtar showed that Michigan was an available forum, the burden shifted to Team to demonstrate that Michigan was not an adequate forum. Sarieddine, 820 S.W.2d at 841. The Pirelli Tire plurality opined "[a]n alternative forum is adequate if the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court." 247 S.W.3d at 678 (internal quotations and citation omitted); accord Sarieddine, 820 S.W.2d at 841. Team argues that Michigan is not an adequate forum because Michigan will not entertain Team's Texas antitrust claim and because Team will lose advantageous subpoena rules available only under the Texas antitrust statute. Even assuming Team's assertions are correct, these disadvantages do not rise to the level of deprivation of all remedies or unfair treatment. The plaintiffs in Pirelli Tire faced much more severe disadvantages under Mexico law compared to Texas law, but the plurality still concluded that Mexico provided an adequate forum for their claims. 247 S.W.3d at 678.
We conclude that the trial court did not abuse its discretion by concluding that Michigan was an available and adequate alternative forum for Team's lawsuit.
C. Balancing the Gulf Oil factors
Next we review the evidence to determine whether the trial court acted arbitrarily or unreasonably by deciding that the balance of the Gulf Oil factors strongly favored dismissal of Team's lawsuit.
1. Team's evidence
At the outset, we must consider Team's second issue on appeal, whether the trial court erred by sustaining Quixtar's objections to some of Team's affidavits and granting Quixtar's motion to strike. Team attached four affidavits to its response to the motion to dismiss, and it separately filed seven other affidavits in support of its response. Quixtar filed written objections to nine of Team's eleven affidavits, and the trial court sustained all of Quixtar's objections. On appeal, Team complains about the striking of six of its affidavits.
The trial court struck the six affidavits in question on the ground that they were cumulative. All six affidavits were executed by customers of Team residing in Texas. In their affidavits, they recounted their relationships with Team, the actions taken by Quixtar in August 2007 to discourage IBOs from using Team materials, the effects of Quixtar's actions, and the hardship that would be imposed on them to testify at a trial in Michigan. Two of the affiants, plus one other Team customer who resides in Texas, testified live at the hearing to the same or similar facts. We conclude that the trial court did not abuse *673 its discretion by striking those six affidavits as cumulative of the testimony presented at the hearing. See TEX.R. EVID. 403. We overrule Team's second issue on appeal.
2. Private-interest factors
We next consider the evidence supporting Quixtar's position as to the private-interest factors, keeping in mind that Quixtar bore the burden of proof. The private-interest factors include the availability of compulsory process against unwilling witnesses, the cost of obtaining attendance by willing witnesses, relative ease of access to other sources of proof, and all other practical and logistical issues surrounding a trial. Sarieddine, 820 S.W.2d at 842.
First, we consider the issue of whether unwilling witnesses can be compelled to testify in the competing forums of Texas and Michigan. Quixtar identified no likely but unwilling witnesses who are beyond the subpoena power of the Collin County district court. Nor did Quixtar identify any probable unwilling witnesses who would be within the subpoena power of a Michigan court but not the Collin County district court. Team argues that it intends to call as witnesses certain Texas residents who received Quixtar's emails about Team and that Quixtar made no showing that these witnesses would be amenable to process from a Michigan court. We conclude that this first factor does not support the trial court's ruling and actually weighs somewhat against it.
Next, we consider the issue of cost and convenience of attendance by willing witnesses. Quixtar filed affidavit evidence that almost all of Quixtar's potential trial witnesses reside in Michigan, including five Quixtar employees. Quixtar's affidavit also shows that it will likely depose eleven people who are affiliated with Team and reside in Michigan. We note, however, that Quixtar did not introduce any evidence attempting to quantify the additional witness expense that a Texas forum would entail. This weakens the impact of its evidence. See In re Williams Gas Processing Co., No. 14-07-01026-CV, 2008 WL 257275, at *2 (Tex.App.-Houston [14th Dist.] Jan. 31, 2008, orig. proceeding [mand. denied]) (mem.op.) (discounting general assertions regarding remote location of trial witnesses and evidence when not supported by specific details about burdensomeness and expense). Team argues that it intends to call a number of Texas residents as trial witnesses about the emails they received from Quixtar and the negative effects those emails have had on their business relationships with Team. Two of its witnesses at the hearing testified that it would be inconvenient or difficult for them to travel to Michigan to testify at a trial. We conclude that the evidence, even viewed in the light most favorable to the trial court's ruling, favors Quixtar only marginally on this factor.
Quixtar presented affidavit evidence that "the overwhelming majority" of its records that it intends to use as evidence in the case are maintained at its offices in Michigan. Its affidavit evidence also shows that none of its records relating to this dispute are maintained in Texas. But as Team points out, Quixtar adduced no evidence of the volume of those records or their importance to Quixtar's defense. Quixtar also adduced no evidence as to how difficult or expensive it would be to transport them to Texas for trial purposes. We conclude that Quixtar did not adduce any probative evidence that the location of its records strongly favors Michigan over Texas as a matter of convenience.
There should be no question regarding the enforceability of a judgment obtained in either forum. See U.S. CONST. art. IV, *674 § 1 (full faith and credit clause). This factor carries no weight in our analysis.
We conclude that Quixtar's evidentiary showing under the private-interest factors was weak.
3. Public-interest factors
The public-interest factors include the burden imposed on the citizens of the forum state, the burden on the trial court, and the general interest in having localized controversies decided in the jurisdiction in which they arose. Sarieddine, 820 S.W.2d at 840. We may consider docket congestion, choice-of-law problems, and the various forums' relative degree of interest in the litigation. Pirelli Tire, 247 S.W.3d at 677, 679.
Team is a Nevada limited liability company with its principal business offices in Michigan. As between Texas and Michigan, Michigan has a greater interest in seeing that Team is compensated for any injuries. Quixtar is a Virginia corporation with its principal place of business in Michigan. Its business is national and international in scope, so both Texas and Michigan have an interest in protecting their citizens from wrongful conduct by Quixtar, such as the alleged publication of false and disparaging information about its competitors. Arguably, it would be more fair to require Michigan courts and jurors to bear the time and expense of litigating a business dispute between two businesses that are essentially Michigan enterprises. To the extent the controversy has a center of gravity, that center appears to be in Michigan, where a key meeting between Team and Quixtar personnel took place and where Quixtar took the actions that have allegedly resulted in injury to Team. On the other hand, Quixtar has not demonstrated that the case will present any complex choice-of-law issues or that Michigan law is so dissimilar to Texas law that a Texas court would find it difficult to administer. Nor did Quixtar demonstrate that docket congestion is an issue in Collin County district court.
We conclude that Quixtar did not show that the public-interest factors, on the whole, strongly favor Michigan as a more appropriate forum for Team's lawsuit than Texas.
4. Conclusion
We are mindful that under an abuse-of-discretion standard of review, we may not substitute our own judgment for that of the trial court. Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex.App.-Dallas 2007, pet. denied). We are also mindful of the principles that we must review the evidence in the light most favorable to the court's action and that ordinarily we cannot find an abuse of discretion if some substantive and probative evidence supports the action. In re C.C.J., 244 S.W.3d 911, 917 (Tex.App.-Dallas 2008, no pet.). In this case, however, we must also enforce the principle that the plaintiff's choice of forum must be respected unless evidence shows the private-interest and public-interest factors strongly favor dismissal in favor of another forum. Sarieddine, 820 S.W.2d at 840. The ultimate test for abuse of discretion in this case, then, is whether the trial court acted arbitrarily or unreasonably in concluding that Quixtar had met this heavy burden. Cf. Perry Homes v. Cull, 258 S.W.3d 580, 597-98 (Tex.2008) ("Every abuse-of-discretion review is not identical because a trial judge's discretion may be applied to scores of situations and in many different ways.") (internal quotations and footnote omitted), cert. denied, ___ U.S. ___, 129 S. Ct. 952, 173 L. Ed. 2d 116 (2009).
We conclude that the trial court abused its discretion. Even when viewed in the light most favorable to Quixtar, the evidence that the private interests of the *675 parties and witnesses would be strongly disserved by retaining this case in Texas as compared to a similar suit in Michigan was weak. At most, Quixtar showed that most of its witnesses reside in Michigan and most of its relevant records are likewise kept there. But it did not attempt to quantify the actual burden that a Texas trial would impose on it or its witnesses. And Quixtar did not demonstrate that any necessary witnesses are beyond the subpoena power of the Collin County district court. On the whole, the public-interest factors also do not favor Michigan over Texas as the appropriate forum to bear the administrative burdens of this litigation. Quixtar's burden was to show that the Gulf Oil factors in their totality strongly favor dismissal. Given the weakness of Quixtar's evidentiary showing and the law's strong preference for respecting the plaintiff's choice of forum, we hold that the trial court erred by granting Quixtar's motion to dismiss. Cf. Sarieddine, 820 S.W.2d at 842-44 (reversing trial court's forum-non-conveniens dismissal of suit by Lebanese citizen residing in Washington against Lebanese citizen residing in Bahrain).
We sustain Team's first issue on appeal. Accordingly, we need not address its third issue, in which it attacks the trial court's denial of its motion for new trial.
V. DISPOSITION
For the foregoing reasons, we reverse the judgment of the trial court dismissing Team's lawsuit and remand for further proceedings.
NOTES
[1] We note that a plurality of the Texas Supreme Court has indicated that the balance should not be weighted so heavily in favor of the plaintiff when the plaintiff is not a resident of the forum state. See In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 675 (Tex.2007) (plurality op.) ("[F]orum-non-conveniens doctrine generally affords substantially less deference to a nonresident's forum choice."). But in the absence of a decision by a majority of the Texas Supreme Court or by this Court sitting en banc repudiating our prior holding in Sarieddine, we are bound to follow it. See MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex.App.-Dallas 2008, no pet.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578260/ | 281 S.W.3d 353 (2009)
STATE of Missouri, Plaintiff/Respondent,
v.
Robert F. BROOM, Defendant/Appellant.
No. ED 91239.
Missouri Court of Appeals, Eastern District, Division Four.
April 14, 2009.
*354 Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for respondent.
Gwenda R. Robinson, District Defender, St. Louis, MO, for appellant.
KATHIANNE KNAUP CRANE, Presiding Judge.
Defendant, Robert F. Broom, appeals from a judgment entered on a jury verdict finding him guilty of robbery in the first degree, in violation of section 569.020 RSMo (2000).[1] The trial court found defendant to be a persistent offender and sentenced him to ten years imprisonment. We affirm.
Defendant does not challenge the sufficiency of the evidence. In the early hours of September 20, 2005, defendant approached *355 a woman as she was returning home in the City of Saint Louis. Defendant pointed a gun at the woman and, after a struggle, defendant and an accomplice took two purses in her possession. During the course of the robbery, defendant fired the gun once. Defendant and the accomplice subsequently fled with the purses.
The state charged defendant by indictment with robbery in the first degree, in violation of section 569.020. The indictment further charged that defendant was a "prior offender" as defined in section 558.016. During voir dire, the state used peremptory strikes to remove venirepersons A.W. and M.D. Defendant raised Batson[2] challenges to both of these strikes, which the trial court denied.
DISCUSSION
I. Batson Claims
For his first point, defendant contends that the trial court erred in (1) failing to reinstate venireperson A.W. based on defendant's Batson challenge to the state's use of a peremptory strike against A.W. on the ground that the state refused to proffer a race-neutral reason for striking A.W. at the time the challenge was made and (2) in failing to reinstate venireperson M.D. based on defendant's Batson challenge to the state's use of a peremptory strike against M.D. on the ground that the state's reason for striking M.D. was pretextual.[3]
The Equal Protection Clause prohibits a party from exercising a peremptory challenge to remove a venireperson because of that venireperson's race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). See also State v. Hampton, 163 S.W.3d 903, 904 (Mo. banc 2005); State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). In Missouri, a Batson challenge to the improper removal of a venireperson proceeds in three steps:
First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.
State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992) (footnote and citations omitted). See also State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006); State v. Johnson, 220 S.W.3d 377, 380 (Mo.App.2007). "In evaluating pretext, the trial court considers whether the explanation is (1) race-neutral, (2) related to the case to be tried, (3) clear and reasonably specific, and (4) legitimate." State v. McFadden, 216 S.W.3d 673, 676 (Mo. banc 2007). The existence of similarly-situated venirepersons of another race, who are not stricken, is probative of pretext but is not dispositive. State v. Nettles, 10 S.W.3d 521, 525 (Mo.App.1999).
When we review the trial court's ruling on a Batson challenge, we defer to the trial court's findings and will not reverse unless the findings are clearly erroneous. State v. Johnson, 207 S.W.3d 24, 35-36 (Mo. *356 banc 2006). A trial court commits clear error if we are "left with the definite and firm conviction that a mistake has been made." McFadden, 216 S.W.3d at 675. On appeal, we do not consider grounds for Batson challenges that were not raised in the trial court. Johnson, 220 S.W.3d at 383.
A. Venireperson A.W.
Defendant argues that the trial court erred in denying his Batson challenge to the state's peremptory strike of venireperson A.W. because the state did not proffer race-neutral reasons for its strike of A.W. During voir dire, the state responded to defendant's Batson challenge by stating that it had reasons for striking A.W., but that it was not required to disclose them because it believed that Batson did not apply to A.W., in that "he is not a member of a minority." The trial court denied defendant's Batson challenge to A.W. without requiring the state to come forward with race-neutral reasons for the strike.
However, during the sentencing hearing, when the court took up defendant's new trial motion, the state did give an explanation for its strike of A.W.:
MR. WARREN: Ms. Llewellyn has challenged juror 459, [A.W.], who I did not give a Batson reason for striking him because he was of the Caucasian race and I did not think that was required. The Court did not require me to make one. She has cited a U.S. Supreme Court case which I have not had a chance to read, but I would, for the record, indicate that I had made notes after the voir dire, and my notes indicate that I was prepared to say that he had served on a grand jury and there were several cases that he thought there was insufficient evidence to support the charges, but he concluded majority rules. And I think he would have been an inappropriate juror to be on this case.
The court asked defense counsel if she wished to respond, and she declined. The court then denied the motion.
The particular race of a defendant or a venireperson is irrelevant to the question whether a peremptory strike is racially motivated and therefore violates the Equal Protection Clause. See Marlowe, 89 S.W.3d at 468 (citing Powers v. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991)); State v. Gray, 887 S.W.2d 369, 384-85 (Mo. banc 1994). Further, under the Parker procedure, a Batson challenge should be made and decided before the venire panel is discharged. Parker, 836 S.W.2d at 937. As a result, the trial court erred in denying defendant's Batson challenge to the state's peremptory strike of venireperson A.W. without requiring the state to come forward with race-neutral reasons for its strike at the time the challenge was made. See State v. Mayweather, 865 S.W.2d 672, 676-77 (Mo.App.1993).
Ordinarily, the failure to follow the Parker procedure requires a remand for an evidentiary hearing at which the trial court must follow the proper procedure and certify a record of its proceedings and findings to us. State v. Nathan, 992 S.W.2d 908, 915 (Mo.App.1999). However, if such a hearing has already taken place and been made a part of the record after the initial failure occurred, remand is unnecessary. Accordingly, the failure to follow the Parker procedure may be cured if the state subsequently offers its reasons, as it did here, when the trial court considers defendant's motion for new trial. State v. Koenig, 115 S.W.3d 408, 412 (Mo. App.2003). In this case, defendant raised the issue in his motion for new trial, and the state gave its reasons for its use of the strike when the court considered that motion. *357 Defendant did not object to this procedure. The court invited defendant to respond to the state's reasons for its strike, which defendant declined to do. Since these actions cured the procedural error, we may consider whether the state's reasons for its strike of venireperson A.W. were facially race-neutral.
During voir dire A.W. disclosed that he felt that the state had not presented sufficient evidence to support an indictment on several cases that he had heard as a grand juror. This is a facially race-neutral reason for a peremptory strike. See, e.g., United States v. Samuels, 543 F.3d 1013, 1018 (8th Cir.2008); United States v. Scott, 26 F.3d 1458, 1466 (8th Cir.1994); United States v. Thomas, 914 F.2d 139, 142 (8th Cir.1990). Defendant did not attempt to establish that this reason was pretextual. As a result, the trial court did not clearly err in denying defendant's Batson challenge to venireperson A.W. See State v. White, 941 S.W.2d 575, 582 (Mo.App. 1997).
B. Venireperson M.D.
Defendant also contends that the trial court erred in denying his Batson challenge to the state's peremptory strike of an African-American venireperson, M.D. On appeal, defendant concedes that the state gave race-neutral and reasonably specific reasons for striking venireperson M.D., but argues that the reasons were pretextual because the state did not strike M.F., who, defendant argues, was a similarly situated Caucasian venireperson.
The voir dire transcript discloses that when defense counsel asked M.D. whether he would be able to presume that defendant was innocent, M.D. answered, "Yes, he's innocent." Defendant's Batson challenge to the strike of M.D., the state's response, and the trial court's ruling proceeded as follows:
MS. LLEWELLYN: Juror number 46, Judge, [M.D.]. I believe this strike is a violation of his right to be a juror and of Robert Broom's right as a defendant, and [M.D.] is a black male, on the basis of race.
* * *
THE COURT: Your reasons?
MR. WARREN: My reason is that he was constantly muttering throughout the defendant's voir dire. And rather loudly shouted he is innocent basically with an emphasis of exclamation mark behind it, when the defense was asking for their views on the defendant's guilt or innocence. And for that reason, I struck him. He was the most outspoken person, claiming the defendant's innocence.
THE COURT: Ms. Llewellyn?
MS. LLEWELLYN: Your Honor, I'd say that reason is pretextual. His demeanor could be interpreted another way. Plain old frustration because I kept asking the same questions of the panel and by the time I got to his section, it was the third group. I believe that reason is pretextual. And at one point when I was asking the questions, when I started, juror [M.F.] was actually pretty loud about responding also and [M.F.] is a Caucasian male. I believe the reasons are pretextual.
THE COURT: The Court finds that the reasons stated by the State for the strike of [M.D.], juror number 46, are not pretextual or racially motivated. Therefore, the defense motion with regard to Batson will be overruled and the strike shall stand....
Defendant claimed that M.F. was similarly situated to M.D. because M.F. "was actually pretty loud about responding also." However, the state's reason for striking M.D. was not that M.D. was simply loud, but that M.D. was "constantly *358 muttering" during voir dire and that he emphatically shouted that defendant was innocent. In contrast, M.F. did not make a comparable statement. In his three responses during voir dire, M.F. stated his profession, explained that he and his girlfriend had been "mugged and robbed" by assailants who were never apprehended, and stated that his brother had been charged with a crime for which he received probation. Even if M.F. was "loud" in his responses, he was not similarly situated to M.D. because he did not express a belief favorable to the defense. See, e.g., State v. Sage, 977 S.W.2d 65, 69 (Mo.App.1998); State v. Brown, 958 S.W.2d 574, 582 (Mo. App.1997). Moreover, the prosecutor's explanation highlighted M.D.'s tone of voice and demeanor, which "cannot be gleaned from a transcript." Johnson, 220 S.W.3d at 382. The trial court was in the best position to determine if the prosecutor accurately described the venireperson's demeanor, and we defer to its determination of this issue. Snyder v. Louisiana, ___ U.S. ___, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008); State v. Pullen, 843 S.W.2d 360, 363 (Mo. banc 1992); State v. Christian, 865 S.W.2d 715, 716 (Mo.App. 1993).
The trial court did not clearly err in denying defendant's Batson challenges. Point one is denied.
II. Plain ErrorPersistent Felony Offender
For his second point, defendant asserts that the trial court plainly erred in finding that he was a persistent offender for several reasons, including the reason that the indictment charged defendant as a prior offender, and not as a persistent offender. Defendant concedes that his claim of error under point two is not preserved because he did not object to his sentence at trial and did not raise the issue of the persistent offender finding in a motion for a new trial. See Johnson, 220 S.W.3d at 383. Accordingly, our review is limited to determining whether the trial court committed plain error. Rule 30.20.
The indictment charged defendant as a prior offender,[4] and defendant testified that he had a prior felony offense. However, on the judgment form, the trial court checked the box indicating it had found defendant to be a "persistent offender" and did not check the box indicating it had found defendant to be a "prior offender."
In order for a trial court to properly find that a defendant is a persistent offender, which is "one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times," section 558.016.3, the indictment must plead all essential facts warranting a finding that the defendant is a persistent offender. Section 558.021.1. See also State v. Teer, 275 S.W.3d 258, 261 (Mo. banc 2009). The state concedes that the trial court's finding that defendant was a persistent offender violated section 558.021.1(1) because the indictment did not charge that defendant was a persistent offender, but charged only that he was a prior offender. However, "[p]rocedural errors in prior offender hearings require reversal only if the defendant is shown to have been prejudiced." Teer, 275 S.W.3d at 260. See also State v. Madison, 997 S.W.2d 16, 22 (Mo. banc 1999). Moreover, to be entitled to reversal on a claim of plain error, a defendant bears the "burden of demonstrating that the action of the trial court was not only erroneous, but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is *359 left uncorrected." State v. Roll, 942 S.W.2d 370, 373-74 (Mo. banc 1997).
In this case, defendant was sentenced to ten years imprisonment for robbery in the first degree, which is a class A felony. Section 569.020.2. Ten years is the minimum sentence that can be imposed for a class A felony, whether or not a defendant is found to be a persistent offender. Sections 558.011.1(1), 558.016.7(1). Accordingly, defendant did not receive an extended term of imprisonment as a result of the trial court's finding that he was a persistent offender. Defendant is not entitled to reversal and remand for re-sentencing because he was not prejudiced by the trial court's persistent offender finding. Since the persistent offender finding could not result in reversible error, there are no extraordinary circumstances in this case to justify reviewing this argument as a matter of plain error. State v. Mosley, 980 S.W.2d 1, 3 (Mo.App.1998). However, we will correct the judgment by changing the finding that defendant was a persistent offender to the finding that defendant was a prior offender. Rule 30.23; State v. Ballard, 169 S.W.3d 893, 895 (Mo.App. 2005); State v. Williams, 145 S.W.3d 874, 879 (Mo.App.2004); State v. Halk, 955 S.W.2d 216, 217 (Mo.App.1997). Point two is granted.
Conclusion
We correct the judgment and sentence to delete the finding that defendant was a persistent offender and replace it with the finding that defendant was a prior offender. The judgment of the trial court is affirmed as so modified.
MARY K. HOFF, and KENNETH M. ROMINES, JJ., concur.
NOTES
[1] All further statutory references are to RSMo (2000).
[2] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
[3] This point contains two separate claims of error which should have been stated in separate points. Christeson v. State, 131 S.W.3d 796, 799 n. 5 (Mo. banc 2004).
[4] "A `prior offender' is one who has pleaded guilty to or has been found guilty of one felony." Section 558.016.2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574378/ | 308 S.W.3d 221 (2010)
COMMONWEALTH of Kentucky, ENERGY AND ENVIRONMENT CABINET, Formerly Environmental and Public Protection Cabinet, Appellant,
v.
Vernon SPURLOCK, d/b/a Vernon Spurlock; and War Eagle Coal Company, Appellees.
Nos. 2008-CA-001184-MR, 2008-CA-001275-MR.
Court of Appeals of Kentucky.
January 22, 2010.
As Modified on Denial of Rehearing March 26, 2010.
*222 Maria T. Geisler, Stephen C. Boyd, Frankfort, KY, for appellant.
Donald Duff, Frankfort, KY, for appellee.
Before CAPERTON, THOMPSON, and WINE, Judges.
OPINION
THOMPSON, Judge.
The Commonwealth of Kentucky, Energy and Environment Cabinet (formerly Environmental and Public Protection Cabinet), appeals from two orders of the Clay Circuit Court declaring the Cabinet's final orders entered against Vernon Spurlock d/b/a Vernon Spurlock void based on its interpretation of the Kentucky Supreme Court's decision in Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet v. Kentec Coal Co., Inc., 177 S.W.3d 718 (Ky.2005). We conclude that the trial court was incorrect in its application of the law and reverse and remand.
Pursuant to KRS 350 et seq., the Cabinet inspected Spurlock's property located in Clay County and determined that he violated the provisions of KRS Chapter 350 et seq., and its related regulations. As a result, the Cabinet issued two noncompliance orders and two cessation orders. After Spurlock was notified of the orders and failed to respond, the Cabinet issued proposed assessment orders assessing civil penalties of $100,104 and $52,200.
The notices of assessment were preprinted forms and advised Spurlock to choose one of three options:
I choose not to contest the amount of the proposed assessment and I understand that an appropriate final Order in conformity with 405 KAR 7:092, Section 3(4) will be entered.
I request an assessment conference to contest the proposed assessment. I am requesting the assessment conference on behalf of
____________.
Name of Business Entity (please print)
I waive my right to an assessment conference. Attached is a petition for an administrative hearing and a cashier's check, certified check, or money order in the amount of the proposed assessment for payment into the escrow account as required under 405 KAR 7:092, Section 6.
Spurlock was further instructed:
If you fail to respond within thirty (30) days of receipt of this notice, the Secretary of the Environmental and Public Protection Cabinet will enter an *223 appropriate final order in conformity with 405 KAR 7:092, Section 3(4).
Neither notice advised Spurlock of his right to seek a waiver of the prepayment of the proposed penalties.[1] After Spurlock failed to respond, the Cabinet issued two final orders on June 30, 2005, finding that Spurlock failed to request an administrative hearing as advised in the notices of assessment and, therefore, waived all rights to administrative hearings. As a consequence, the violations cited in the noncompliance orders were deemed admitted and the civil penalties imposed. Spurlock was further ordered to perform all remedial measures required in the noncompliance and cessation orders.
On July 25, 2005, Spurlock filed two petitions for "Review and Appeal", each seeking to have the Cabinet's orders set aside on the basis that in Kentec, the Kentucky Supreme Court declared the prepayment provision in KRS 350.0301(5) and 405 KAR 7:092, Section 6 unconstitutional.[2] Subsequently, he filed motions for summary judgment and, in support, filed affidavits stating that he could not file a petition for an administrative hearing because he had insufficient resources to pay the amount of the penalties imposed. The Cabinet responded and moved to strike Spurlock's affidavit because it was not included in the administrative record. KRS 350.032(2). Finally, it argued that Spurlock failed to request an assessment conference or a formal hearing prior to filing his petitions in the circuit court and, therefore, waived any right to challenge the Cabinet's orders.
The circuit court concluded that in Kentec, the Kentucky Supreme Court nullified the prepayment provisions in KRS 350.0301(5) and 405 KAR 7:092, Section 6 and, therefore, Spurlock was not required to request hearings before the Cabinet. Ultimately, the circuit court held that the orders were void and set aside the orders.
The circuit court utilized a de novo standard of review because there was no administrative hearing to provide a basis for factual findings and the facts underlying the Cabinet's orders. Our initial inquiry is whether the circuit court utilized the proper standard of review.
The purpose of judicial review of an appeal from an administrative agency is to ensure that the agency did not act arbitrarily. Baesler v. Lexington-Fayette Urban County Government, 237 S.W.3d 209 (Ky.App.2007). If the Court concludes that the agency applied the correct rule of law to the facts supported by substantial evidence, the final order of the agency must be affirmed. Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406 (Ky.App.1994).
We conclude that the trial court correctly framed the standard of review as de novo: The issues presented require only that we resolve whether the Cabinet properly applied the law. Although we conclude that the circuit court's application of Kentec was misguided, on other grounds, we remand the case to the Cabinet with directions that Spurlock be permitted to file a request for a formal hearing.
Although the circuit court relied exclusively on the Kentec decision, a thorough understanding of the effect of that decision requires an analysis of the Supreme Court's prior decision in Franklin v. Natural Resources and Environmental Protection Cabinet, 799 S.W.2d 1 (Ky.1990), and *224 the statutory and regulatory changes made in response to that decision.
Franklin involved four cases in which the Cabinet issued notices of noncompliance and orders for remedial measures. Two of the mining companies filed applications for a formal hearing that were unaccompanied by the required payment of the assessed penalties. The remaining two companies did not file applications for formal hearing, as neither party had sufficient funds to pay the assessed penalty levied by the preliminary hearing officer.
Our Supreme Court was requested to subject 405 KAR 7:092 to constitutional scrutiny. At the time of the Court's decision, the procedures available provided for an informal hearing at which no records were kept and the only recourses available, if fines and penalties were imposed by the hearing officer, were to prepay the assessment and request a formal hearing within thirty days.
The Court concluded that the regulation requiring prepayment of the assessed penalty prior to the grant of a formal hearing was void. Crucial to the Court's analysis was that the enabling statutes did not authorize the Cabinet to impose a prepayment of penalties as a condition precedent to a formal hearing. Id. at 3. Interpreting existing statutory law, the Court pointed out that:
KRS 350.028(2) provides that the Cabinet has the power to conduct hearings under Chapter 224, which, in turn, provides in KRS 224.081 and KRS 224.083 that, whenever the Cabinet has reason to believe that a violation has occurred, it shall serve a written notice upon the violator and hold a hearing thereon. The statutes state that the hearing shall be one at which the party may be represented by counsel, may make oral or written arguments, offer testimony, cross-examine, issue subpoenas, etc. Of additional note is that KRS 224.083 provides that a record shall be kept of such hearing and made available. Under the regulation herein, the preliminary hearing does not follow the statute and the only way in which a formal hearing may be obtained is by the prepayment of the penalties and fines, which procedure is not mentioned or authorized by the statute.
Id.
The court explained that the statutes and regulations pertaining to surface mining were adopted pursuant to the Federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq., which provides the miner with a formal hearing, a full record, and attendant due process rights and, further, an appeal to an administrative law judge and appeal to the federal court system. Because similar proceedings were not provided by the Kentucky regulations, the Court held that Kentucky's regulations were more stringent than federal law and regulations and, consequently, the prepayment provision of 405 KAR 7:092 unenforceable. Id. at 3.
Kentec followed legislative changes to Chapter 350 and those to the Cabinet's regulations in response to Franklin. The same statutes and regulations were in effect when the Cabinet issued the orders against Spurlock.
In Kentec, challenges were made to the newly revised versions of KRS 350.0301(5) and 405 KAR 7:092. The post-Franklin statute authorizes the Cabinet to promulgate regulations for the placement of proposed civil penalty assessments into an escrow account prior to a formal hearing in the amount of the assessment. However, it also states that the regulations shall "provide for a waiver of the placement of the proposed civil penalties into escrow for those individuals who demonstrate with *225 substantial evidence an inability to pay the proposed civil penalties into escrow." KRS 350.0301(5).
Pursuant to the amended version of the statute, the Cabinet promulgated 405 KAR 7:092, Section 3 of which sets forth the requirements for a proposed penalty assessment and the options available following the issuance of a "Notice of Proposed Assessment." Section 4 provides for an informal assessment conference and does not require prepayment of the assessed penalty; however, identical to the preliminary hearing procedure pre-Franklin, no record is created from which an appeal may be taken. Section 6 outlines the procedure that must be followed to obtain a formal hearing to challenge the proposed assessment and requires prepayment of the assessment or, if an assessment conference has been held, prepayment of the penalty recommended by the conference officer. However, and presumably in direct response to Franklin, Section 15 allows individuals to prove their inability to prepay the proposed assessment and to obtain a waiver from the prepayment requirement.
KENTEC, a corporation, filed a request for an informal assessment conference but failed to attend the hearing. As a result, the conference officer recommended to the Secretary that the assessment be upheld and advised KENTEC that it could request a formal hearing accompanied by full payment of the assessment.
KENTEC filed a "Petition for Hearing" in which it alleged that it did not have sufficient funds to prepay the proposed assessment. The Cabinet dismissed the petition because the prepayment was not attached and, therefore, affirmed the penalty. Central to the Cabinet's conclusion was that KRS 350.0301(5) permitted only individuals, not corporations, to obtain a waiver of the penalty prepayment.
As in Franklin, the Supreme Court considered the constitutionality of the prepayment provisions in the Cabinet's regulations. Because of the statutory amendments, including the prepayment requirement in KRS 350.0301(5), the Court also considered the exclusion of corporations from the waiver provision. Ultimately, the Court held that the statute, and 405 KAR 7:092, Section 6, were unconstitutional to the extent that corporations could not request a waiver of the prepayment requirement. The Court concluded that the distinction between an individual and a corporation violated the equal protection clause of the United States and Kentucky Constitutions and the denial of access to a formal hearing based on the inability to pay was unreasonable and arbitrary in violation of Section 2 of the Kentucky Constitution. Id. at 727. Reaffirming its position in Franklin, the Court explained that a due process hearing cannot be denied based on the inability to pay.
KENTEC, which plead "its inability to make the prepayment," is deprived of a right to a due process hearing, while the hearing is secured to a corporation that can afford it, and even an indigent individual who has the means of securing a waiver. Like the Court of Appeals before us, we too have been unable "to discern any rational basis or legitimate state interest to explainmuch less to justifythe arbitrary singling out of a corporation for such disparate treatment."
Id. at 725 (footnote omitted).
The Court held that KRS 350.0301(5) and 405 KAR 7:092, Section 6, were unconstitutional as applied to KENTEC because corporations were excluded from the waiver provisions, while individuals were granted the right to seek relief from prepayment. In reliance on Kentec, Spurlock *226 successfully persuaded the circuit court that the Cabinet's orders were void. For the reasons stated below, we disagree that Kentec resolved the disposition of the case.
The fallacy in the circuit court's reasoning is attributable to its failure to recognize the factual distinctions between Kentec and the present case. As pointed out by the Cabinet, Spurlock is an individual to whom the statutes and regulations explicitly grant the right to seek a waiver from the prepayment provision. The assessments of civil penalties against Spurlock were not premised on his inability to prepay the assessment penalties, rather the Cabinet's orders were based upon Spurlock's failure to respond to its orders.
In view of the factual distinctions, the Cabinet urges this Court to apply the Supreme Court's decision in Natural Resources and Environmental Protection Cabinet v. Cricket Coal Co., Inc., 780 S.W.2d 609 (1989), and this Court's decision in Griffie v. Natural Resources and Environmental Protection Cabinet, 817 S.W.2d 897 (Ky.App.1991). We are unconvinced that either case establishes precedent for the situation presented.
In Cricket Coal Company, Inc., despite receiving notification, the coal operator failed to attend a preliminary hearing. The Cabinet issued a final judgment finding that the coal operator committed the violations and imposed a fine. The Supreme Court held the failure to attend the preliminary hearing fatal to the coal company's subsequent appeals. It pointed out that 405 KAR 7:092, in effect at the time of the violations, provided that the failure to attend the preliminary hearing without good cause waived all rights to contest the fact of the violation or the proposed penalty. Additionally, the Court relied on KRS 350.032 which provided that "[n]o objection to the order may be considered by the court unless it was urged before the Cabinet or there were reasonable grounds for failure to do so."
The Court held that the coal operator could not simply disregard the proceeding before the Cabinet and seek judicial review of the Cabinet's order. The Court emphasized that the Cabinet's regulations "clearly provide for entry of a default order.... The failure to appear at the preliminary hearing and the failure to request a formal hearing are deemed to be an admission of the violations charged and an acceptance of the proposed penalty." Id. at 611.
After Franklin, this Court rendered its decision in Griffie v. Natural Resources and Environmental Protection Cabinet, 817 S.W.2d 897 (Ky.App.1991), wherein it addressed the impact of Franklin on the Supreme Court's holding in Cricket that attendance at the preliminary hearing was a prerequisite to contest the fact of the violation or the proposed penalty. This Court rejected the appellants' broad interpretation of Franklin and held that Franklin only invalidated the Cabinet's regulatory scheme to the extent that it required prepayment of fines as a prerequisite to a formal hearing. It reasoned:
Griffie and Daniel would have us believe that all cases where the cabinet failed, for whatever reason, to hold a formal hearing, were somehow rendered void by virtue of Franklin. Appellants are reading too much into Franklin, which invalidated only so much of the cabinet's regulatory scheme as required prepayment of fines as a prerequisite to the granting of a formal hearing. Significantly, the Supreme Court did not see fit to overrule or even discuss Cricket, nor did it consider or discuss the regulations concerning attendance at informal hearings. Thus, we must conclude that *227 the Supreme Court intended to maintain the viability of its holding in Cricket.
Id. at 898.
Neither the legislature nor the Supreme Court has modified or removed the default provisions from the Cabinet's proceedings. KRS 350.032 continues to require that all issues be presented to the Cabinet and the Cabinet's regulations continue to contain default provisions. See 405 KAR 7:092. As in Franklin, in Kentec, the Supreme Court did not address its decision in Cricket and left unaltered the requirement that all hearing requirements be satisfied prior to filing for judicial relief. Our dilemma in Spurlock's case is that the Cabinet misinformed him regarding his rights.
The Supreme Court held in Franklin that the Cabinet's prepayment provisions imposed prior to the granting of a formal hearing were unauthorized by statute and unconstitutional. Despite the legislative and administrative changes and in complete disregard of the dictate of our Supreme Court, the form notice provided by the Cabinet advised Spurlock that he was not entitled to an administrative hearing absent prepayment of the proposed penalty. Thus, there was no difference in the options available to Spurlock than those given under the pre-Franklin statutes and regulations. Through its order, the Cabinet imposed upon Spurlock the identical provisions held unconstitutional in Franklin and Kentec.
"Administrative agencies are bound by the procedural dictates of the statutes and are not empowered to adopt regulations in conflict with plain statutory provisions." Natural Resources & Environmental Protection Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438, 439 (Ky.1987). It is logical that an agency is likewise without authority to issue an order in direct contradiction of our statutes and judicial decisions. This is particularly true where, as here, the agency misinformed a citizen regarding a constitutional right to which he is entitled.
Based on the foregoing, the opinion and orders of the Clay Circuit Court are reversed and the case remanded to the Cabinet with directions that Spurlock be granted the opportunity to request a formal hearing.
ALL CONCUR.
NOTES
[1] In 2006, the Cabinet amended its Notice of Proposed Assessment to state that the prepayment of the proposed assessment is no longer required.
[2] The Attorney General was notified pursuant to KRS 418.075 but declined to intervene. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585050/ | 187 P.3d 219 (2008)
344 Or. 558
McNACK
v.
HILL.
No. (S055821).
Supreme Court of Oregon.
May 29, 2008.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/26284/ | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30664
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JOHN ANTHONY MUNIZ,
Defendant-
Appellant.
-----------------------------------------------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 96-CR-20037-6
-----------------------------------------------------------
December 19, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges:
PER CURIAM:*
John Anthony Muniz appeals from his guilty-plea conviction and sentence for conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(a). Muniz’s base
offense level was increased for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on his
having failed to appear for sentencing in 1997 and remaining a fugitive for nearly four years.
Muniz contends that the district court erred in imposing the § 3C1.1 enhancement. Included
on a “non-exhaustive list of examples of conduct” to which the obstruction-of-justice enhancement
applies, however, is “escaping or attempting to escape from custody before trial or sentencing; or
willfully failing to appear, as ordered, for a judicial proceeding.” § 3C1.1, comment. (n.4(e)).
*
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.
Because Muniz’s conduct was explicitly covered by the guideline, the district court did not clearly
err in imposing the increase. See United States v. Upton, 91 F.3d 677, 687 (5th Cir. 1996).
Muniz also argues that the district court erred in refusing him an offense-level reduction for
acceptance of responsibility, pursuant to § 3E1.1. As conduct resulting in an enhancement under §
3C1.1 usually indicates that the defendant has not accepted responsibility, see § 3E1.1, comment.
(n.4), the court’s finding was not “without foundation.” See United States v. Brace, 145 F.3d 247,
264 (5th Cir. 1998) (en banc).
Muniz maintains that the district court erred in attributing three criminal history points each
to his 1991 conviction for receiving a firearm by a person under indictment and a 1990 deferred-
adjudication offense of unauthorized use of a motor vehicle (“UUMV”). The district court properly
counted the firearm offense because it was not “related” to the UUMV offense under the definition
of “related” in the guidelines commentary. See § 4A1.2(a)(2), comment. (n.3). The UUMV offense
was properly included because even a deferred-adjudication conviction is counted if it results in a
finding or admission of guilt or a nolo contendere plea. See § 4A1.2(f). Deferred adjudication in
Texas requires that a defendant first plead guilty or nolo contendere. United States v. Cisneros, 112
F.3d 1272, 1281 (5th Cir. 1997).
Muniz contends that the district court erred in refusing to grant him a downward departure,
apparently based on his youth at the time of his prior offenses and on his criminal history score
overrepresenting his criminal background. This court has jurisdiction to review a district court’s
decision not to depart downward from the applicable guideline range only if the district court based
its decision upon an erroneous belief that it lacked the authority to depart. See United States v.
Wilson, 249 F.3d 366, 380 (5th Cir. 2001). There is no indication in Muniz’s sentencing transcript
that the district court’s refusal to depart was based on anything other than the facts of the case.
Accordingly, the issue is not reviewable. See id.
AFFIRMED. | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1574405/ | 17 So.3d 465 (2009)
ISIDORE NEWMAN SCHOOL
v.
J. EVERETT EAVES, INC. and Westport Insurance Corporation.
No. 2008-CA-1368.
Court of Appeal of Louisiana, Fourth Circuit.
August 5, 2009.
Rehearing Denied September 1, 2009.
*466 James R. Swanson, Lance C. McCardle, Fishman Haygood Phelps Walmsley Willis & Swanson, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
Jack M. Alltmont, April L. Watson, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Defendants/Appellants.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
*467 JAMES F. McKAY III, Judge.
The defendants, J. Everett Eaves, Inc. (Eaves) and Westport Insurance Group (Westport), appeal a trial court judgment finding them liable for negligence in a Hurricane Katrina related insurance claim. The plaintiff, Isidore Newman School (Newman), answered the appeal contending that the trial court erred in allocating it 70% comparative fault. We affirm.
FACTS AND PROCEDURAL HISTORY
From 1989 until 2005, Cornelius "Hap" Crusel, an insurance broker with J. Everett Eaves, Inc. consulted with and sold property and casualty insurance to Isidore Newman School. Every year, Mr. Crusel provided a written proposal of recommended coverage and met with Newman's business managers[1] to discuss these recommendations. From 1989 until 1999, Newman purchased $250,000.00 of extra expense coverage. In 1999, the designation was changed to business income/extra expense coverage, but the limits remained at $250,000.00. For the 2003-2004 policy, the business income/extra expense policy limit was increased to $350,000.00. When speaking with Newman's business managers, Mr. Crusel explained that business income/extra expense coverage protected the school against the risk that it would incur extra expenses while it was fixing its physical damages. The example given was that this coverage would pay for trailers on the football field should the school building(s) be damaged and unable to be used.
In August of 2005, as a result of Hurricane Katrina, Newman's property suffered physical damages and the school was closed for several months. In August of 2005, the policy limits provided by the business income/extra expense coverage was $350,000.00. In May of 2006, Newman filed suit against Eaves and Westport Insurance Group, the errors and omissions insurer of Eaves. Newman alleged that Mr. Crusel was negligent in failing to advise school personnel that business income/extra expense coverage included tuition loss.
The trial court found that Newman had proven by a preponderance of the evidence that Mr. Crusel had breached the duty of care required of an insurance broker. However, the trial court also found that Newman was not justified in relying solely on the advice it received from Mr. Crusel. Based on its findings, the trial court awarded Newman $3,166,606.00 plus court costs and interest from the date of judicial demand. The trial court reduced this amount by 70% due to Newman's comparative fault. The defendants have appealed from this judgment and the plaintiff has answered their appeal.
DISCUSSION
On appeal, the defendants raise the following specifications of error: 1) the trial court erred by failing to hold that plaintiff's claim was preempted under the one-year peremption provision of La. R.S. 9:5606; 2) the trial court erred by failing to hold that plaintiff's claim was preempted under the three-year peremption provision of La. 9:5606; 3) the trial court erred in holding that Mr. Crusel breached a duty of care required of a broker. The plaintiff contends that the trial court erred in assigning it a disproportionately large share of the comparative fault.
Peremption
The defendants argue that Newman's claims are preempted under both the one *468 year and three year provisions of La. R.S. 9:5606. This statute provides that no action may be brought against an insurance broker unless done so within one year from the date of the alleged act, omission, or neglect was discovered or should have been discovered and within three years from the date of the alleged act, omission or neglect, regardless of the date of discovery.
In the instant case, Mr. Crusel admitted that he last met with Newman's business manager in June of 2005, and he issued his last insurance proposal on June 29, 2005. It is well settled that an agent's misrepresentations or negligent acts occurring after the issuance of the original insurance policy constitute separate and distinct torts. See Sonnier v. Louisiana Farm Bureau Mutual Ins. Co., XXXX-XXXX (La.App. 3 Cir. 3/1/06), 924 So.2d 419, 422. Mr. Crusel's last meeting with Newman officials was less than one year before Newman filed its lawsuit. In fact, Mr. Crusel met with Newman's business managers every year to present his insurance recommendations. These meetings were more than mere renewals of the existing policy. They were sessions to evaluate Newman's current insurance coverage and advise whether that coverage needed to be changed. Accordingly, we find no error in the trial court's finding that the plaintiff's claims were not preempted. We also find no merit in the defendants' arguments that Newman's claims are preempted by the three year provision of La. R.S. 9:5606.
Breach of Duty of Care
Under Louisiana law, an insurance broker or agent owes a fiduciary duty to his customers, which includes a duty to prudently advise his clients regarding recommended coverage. See Taylor v. Sider, 99-2521 (La.App. 4 Cir. 5/31/00), 765 So.2d 416; Durham v. McFarland, Gay and Clay, Inc., 527 So.2d 403 (La.App. 4 Cir. 1988). The duty imposed upon insurance agents, like that imposed on attorneys, physicians, and accountants, is that of "reasonable diligence," a breach of which duty gives rise to a claim for negligence. Roger v. Dufrene, 613 So.2d 947, 949 (La. 1993). When an insurance advisor voluntarily assumes a task, he must perform that task in a reasonable and prudent manner. See generally Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984).
In the instant case, Mr. Crusel assumed a duty to provide recommendations on the scope and amount of insurance coverage that Newman should purchase. Mr. Crusel failed to inform Newman that business income/extra expense coverage is designed to protect against two distinct risks in their case: the payment of extra expenses and the loss of tuition revenue. To properly advise a client about the business income/extra expense coverage, an insurance advisor must explain both components of the coverage. Explanation of both risks is important because without understanding the scope of what the insurance is designed to cover, it is impossible to calculate the magnitude of the exposure and make informed decisions about what limits of insurance should be purchased. The insurance advisor must also provide the client with an estimate of the cost of protecting against both the tuition loss risk and the extra expense risk. By not adequately informing his client regarding their options, Mr. Crusel breached his duty to them. Accordingly, we find no error in the trial court's finding.
Comparative Fault
Although Newman admits that it was partially at fault for the damages that it incurred, it contends that the trial court erred in assigning it too high a percentage *469 of fault. In assessing the nature of the conduct of the parties to a negligence action, various factors may influence the degree of fault assigned. These may include: whether the conduct resulted from inadvertence or involved awareness of the danger, how great a risk was created by the conduct, significance of what was sought by the conduct, capacities of the actors, whether superior or inferior, and any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). In the instant case, Newman's business manager did not review the insurance policy until September of 2005. Newman is also managed by a board made up of qualified and professional people who should have been more aware of the potential risk from having inadequate business income/extra expense coverage. It was not reasonable for Newman's business managers and board to rely entirely on what was represented to them by Mr. Crusel. Allocation of comparative negligence is a factual matter within the discretion of the trial court, and such determination will not be disturbed on appeal absent manifest error. Steadman v. Georgia-Pacific Corp., 95-1463 (La.App. 1 Cir. 4/6/96), 672 So.2d 420. Accordingly, we find no error in the trial court's assigning Newman 70% of the fault in this case.
CONCLUSION
For the above and foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED.
ARMSTRONG, C.J., Concurs in the Result.
BELSOME and BONIN, JJ., dissent with reasons.
ARMSTRONG, C.J., Concurs in the Result.
I would affirm the judgment of the trial court. Therefore, I respectfully concur in the result reached by the majority.
BELSOME, J., Dissents with Reasons.
I agree with the majority's assertion that an insurance agent has a duty when advising clients. However under the facts and circumstances of this case I disagree that the duty was breached. Therefore, I must dissent.
In the instant case, this Court was not faced with an unsophisticated buyer. During the time relevant to this appeal, the chairman of the Building Grounds Committee for Newman School was an attorney, who was involved in the assessment of insurance coverage. Also, two other Board of Governors members were professional insurance agents specializing in commercial property and casualty coverages.
Furthermore, the record indicates that increases in business income and extra expense coverage (BI/EE) were periodically offered and rejected. Quotes were given for $500,000 and $750,000 limits. In 2003, Newman increased the BI/EE coverage from $250,000 to $350,000. Clearly, this was a calculated business decision made by clients who were knowledgeable and informed professionals. The record is void of any evidence to suggest that even though Newman declined limits of $750,000, it would have purchased the $14,000,000 in coverage necessary to protect its potential loss of tuition. In this particular case, there was no breach of the agent's duty. Thus, I find that the trial court was manifestly erroneous in its determination that the defendants, J. Everett Eaves, Inc. and Westport Insurance *470 Group were negligent.[1] Accordingly, I would reverse the trial court.
BONIN, J., Dissents with Reasons.
I respectfully dissent.
I
In City Blueprint & Supply Co., Inc. v. Boggio, 08-1093, p. 8 (La.App. 4 Cir. 12/17/08), 3 So.3d 62, 66, we held that an agent has no duty to advise a client that it is "underinsured." "An insured is responsible for reading his policy and is presumed to know its terms." Id at p. 7, 3 So.3d at 67. Consequently, the failure of Eaves to advise the school that it was underinsured in its business income and extra expense (BI/EE) coverage was not a breach of any duty it owed the school.
For many years Eaves has provided insurance services, on a non-exclusive basis, to the school. Mr. Cornelius "Hap" Crusel, one of Eaves' principals, was the primary individual servicing the school's account. The school is a private school operated by a Board of Governors, which includes two well-known insurance executives and at least one attorney well acquainted with insurance issues. The Board of Governors occasionally discharges its functions through committees, but it did not see fit to create an insurance committee to oversee its insurance needs. The Board, according to the school's headmaster, delegated this responsibility to the school's business manager. The primary source of operating income for the school is tuition.[1] The school does not operate for a profit.
During the years that the insurance agent sold insurance policies to the school, he dealt with three different business managers. Over the years he sold a variety of insurance policies to the school, including property, casualty, workers compensation, and flood. He generally met on an annual basis with the business manager and reviewed the coverages and the premiums. These meetings were typically followed by a written proposal from Eaves which set forth that "[t]his presentation is designed to give you an overview of the insurance coverages we recommend for your company."
For the years 1989 until 1999, the coverage which the Newman school purchased through Eaves included "extra expense" coverage with limits of $250,000. In 1999, this coverage item was expanded to "business income/extra expense" ("BI/EE"), but the limits of the coverage remained at $250,000. In 2000 the business manager's notes addressed raising business income/extra expense limits from $250,000. The limits of this expanded coverage were not increased until the 2003 policy, when the school increased its limits of coverage to $350,000.[2] Prior to that policy period, the agent had quoted to the business manager the additional premium for increasing these limits to $500,000 and $750,000, respectively, but the school had declined.
*471 When the school hired a new business manager, the Eaves agent met him in early 2004 to review the insurance coverages. Both men testified that the business manager's primary focus in the subsequent meetings and discussions with the Eaves agent was the premium costs, not the coverages or the limits of coverage.[3] There is no evidence that the business manager reviewed the annual "recommendation" for coverage furnished the school by Eaves, the last of which was received by the business manager on June 29, 2005; he filed them away in a drawer.
At no time did any of the school's three business managers request that Eaves obtain increased limits of BI/EE coverage. There is no question that the policy which Eaves recommended to the school and which was issued to the school included coverage for tuition losses. Before the storm and the school's losses, the business manager had not read the school's policy: "I did not read my policy in the school or my home until after the storm." He admits that he should have read the policy.
Approximately two months before the storm, Eaves forwarded its insurance proposal to the school. In that proposal the summary page for the coverages clearly showed that "Business Income/Extra Exp" was included with limits of $350,000. Within the proposal was yet another summary for this coverage which clearly showed that "Tuition & Fees" were "Included" in BI & EE coverage. The business manager testified that he considered this summary "the gory details of the summary that we had seen before . . . I would put it in my binder and keep it in my files." He would have "scanned it just to see if there was anything there" but he did not read it.
Not until after the school sustained damages to its facilities due to Hurricane Katrina on August 29, 2005, and it seemed that the student body would be dispersed because of the catastrophe affecting the entire metropolitan New Orleans area, did the business manager, as well as staff and board members of the school, read the policy. He easily read and understood the clear policy provisions of the BI/EE coverage and instantly grasped the consequences for the school it was woefully underinsured. The school faced losses of its business income, that is tuition, of nearly $3,000,000, but its limits of coverage were only $350,000.
II
The policy itself, with an effective date of July 1, 2005, showed on its Commercial Property Coverage Part, Supplemental Declarations, coverage for "Business Income" with limits of $350,000. One of the forms included in the policy is titled "Business Income (and Extra Expenses) Coverage Form." Another endorsement form, which modified the other, is titled "Business Income Changes Educational Institutions." Among the covered "business activities" are those "which generate tuition and related fees from students."
The record is clear that in November 2000 the previous business manager had made handwritten notes next to "Blanket Business Income" on the school's schedule of insurance provided by Eaves dated November 13, 2000 "(temp. reloc.) loss of tuit. inc."[4] and next to the limits of $250,000 *472 she wrote "consider raising." On November 15, 2000, The St. Paul Fire and Marine Insurance Company wrote to Eaves: "I received your request for a quote for optional Business Income limits. To increase to $500,000 $999.00 ap To increase to $750,000 $2000.00 ap These are annual premiums." On November 30, 2000, the agent faxed the letter to the business manager. On his cover sheet he referenced "Business Income." In the comments, he noted "Quote for additional limits enclosed." The school did not increase its limits on its business income coverage at that time,' but later increased its limits to $350,000 for the policy beginning in 2003.[5]
III
The trial court predicated its finding of Eaves' liability on the testimony of Mr. Ronald Wanglin, who is both a certified insurance counselor and a certified school risk manager. The trial judge accepted Mr. Wanglin as an expert witness "in the area discussing the customary practices in the industry specially dealing with advice to schools." He testified that an insurance broker for a private school should use an industry worksheet, such as The St. Paul Travelers Insurance Company's "business income and extra income (sic) worksheet for colleges and schools." The purpose of the broker's using the worksheet is to have a "pretty high level conversation with the business manager . . . in determining what the exposure loss is for loss of tuition income as well as what potential continuing extraordinary expenses there might be. . ." It is undisputed that the agent never reviewed the industry worksheet with any business manager at the Newman school. From this Mr. Wanglin opined that the agent's conduct was not reasonable when he failed to obtain the school's "reapproval" for the large gap in exposure between a possible loss of tuition income of $14,000,000 and the limit of $350,000 coverage.
IV
"The duty imposed upon the insurance agent . . . upon whose advice the client . . . depends is that of `reasonable diligence' a breach of which duty results in an action in negligence." Roger v. Dufrene, 613 So.2d 947, 949 (La.1993).[6] In Parker v. Lexington Insurance Co., 2006 WL 3328041 (E.D.La.11/15/06), Judge Zainey reviewed numerous decisions treating the duty of an insurance agent under Louisiana law. While his review was not exhaustive, it was comprehensive. He concluded that "two common threads emerge in those cases in which an insured states a cause of action against the agent." Id. at *3.
The first common thread arises from the decisions in Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730 (La. 1973), Durham v. McFarland, Gay, & Clay, Inc., 527 So.2d 403, 407 (La.App. 4 Cir.1988), and Offshore Prod. Contrs., Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229-30 (5th Cir.1990). In this thread the agent's liability arises from his failure to procure coverage requested by the insured. This case does not involve Eaves' failure to provide coverage of business income for tuition loss.
The second thread arises from the line of cases including Zinsel Co. v. J. Everett Eaves, Inc., 99-691 (La.App. 5 Cir. *473 11/30/99), 749 So.2d 798, Taylor v. Sider, 99-2521 (La.App. 4 Cir. 5/31/00), 765 So.2d 416, and Richmond v. Chubb Group of Ins. Cos., 2006 WL 2710566 (E.D.La.09/20/06). As Judge Zainey wrote:
In all of these cases the "advice" that the agent had an affirmative duty to give the insured pertained to aspects of the policies or aspects of insurance law that were not within the knowledge generally held by a lay person. In other words, the information that the agent had a duty to provide was something about which the agent had superior knowledge given his insurance expertise, and the agent's specific knowledge of the insured's individual situation triggered that duty to disclose.
Parker, 2006 WL 3328041, at * 3-4.
This thread bears closer scrutiny to consider properly whether Eaves is liable to the school on the facts of this case. In Zinsel the court found that "there was no evidence that Eaves had undertaken to make sure that [its client] had the maximum available flood insurance." Zinsel, 99-691 at pp. 3-4, 749 So.2d at 799. The court determined that any duty Eaves had to notify its client of the availability of increased limits of flood was satisfied by the insurer's direct notice which was sent to the client "who speculated that either he or his secretary may well have thrown it in the trash as junk mail." Id. at 99-691 at pp. 6-7, 749 So.2d at 800-801.
In Taylor v. Sider, 99-2521, p. 4, 765 So.2d at 419, our court considered whether the client had stated a cause of action against her agent for breach of a fiduciary duty by failing to advise the client of uninsured motorist coverage and the nature of anti-stacking provisions. The plaintiff alleged that if she had been properly informed, she might have opted for a different type of coverage. Similarly, in the context of a contention of fraudulent joinder in opposition to a motion to remand, the federal court decided that an insurance agent who was alleged to have breached his duty to inform and offer his clients "excess flood insurance and contents coverage" was not fraudulently joined. Richmond v. Chubb Group of Ins. Cos., 2006 WL 2710566, at * 5 (emphasis added). This thread of cases reveals that insurance agents have a fiduciary duty to their clients in those areas of insurance in which the client would ordinarily require guidance.
In the instant case Eaves did not undertake to procure the maximum limits of business income coverage for the school. The school had been informed by Eaves that policy limits in excess of double the $350,000 it ultimately selected were available, but the school for whatever reason did not increase its limits beyond $350,000.[7] The school was notified of the business income coverage and of the limits by Eaves and by its policy. Thus, as in Zinsel, any duty to the school was discharged by Eaves.
Although the school argued that it did not understand the coverage, it is not arguing that it did not have the proper coverage. There was no dereliction of duty on the part of Eaves in failing to provide the business income (tuition loss) coverage. While the school may not have realized that it was covered for tuition loss, under the second thread of cases no liability can attach to Eaves for failure to procure the proper coverage.
The only basis for imposing liability upon Eaves would be if it had an affirmative *474 duty to the school regarding the limits of the business income coverage. In Smith v. Millers Mutual Ins. Co., 419 So.2d 59, 65 (La.App. 2d Cir.1982) the court considered the liability of an agent for failing to recommend higher limits of liability coverage. The court noted:
The stated liability limits of an insurance policy is not a complex matter or provision. Although an insured should not be held to have read and understood the complex and often confusing intricate details of an insurance policy, an insured should be held to have read and know the liability limits of his insurance policy, plainly disclosed on the face of the policy, particularly where, as here, the insured is an experienced businessman, signed an application showing the policy limits, and has received copies of his policy each year for several years with advice to review it. (emphasis added).
The court in Smith concluded that there was no breach of duty by the insurance agent with regard to recommending higher limits. Similarly, in Graves v. State Farm Mutual Auto Ins. Co., 01-1243 (La.App. 3 Cir. 6/26/02), 821 So.2d 769, the client argued that his agent had a duty to advise him to carry higher limits for his automobile liability coverage or purchase an umbrella policy. Under the facts of that case, the court decided that the agent was under no "affirmative duty to inquire into [the client's] financial condition and make recommendations." Id. at p. 7, 821 So.2d at 774.
Returning to the Parker decision referenced above, the clients argued that their agent "had a duty under Louisiana law to advise them to purchase flood coverage with higher limits and that his failure to do so caused them to be underinsured." Parker, 2006 WL 3328041, at *4 (emphasis added). The value of the clients' property was not a matter of which the agent had the superior knowledge: "[p]laintiffs were in a far better position than [their agent] to know that their property was worth more than the coverage limits that they selected." Id. (emphasis added).
The majority opinion now imposes a new duty on the agent "to spontaneously identify a client's needs and advise him whether he is underinsured." See Dobson v. Allstate Ins. Co., Nos. 06-0252, 06-1097, 06-1064, 06-1255, 06-1734, 06-1585, 2006 WL 2078423 (E.D.La.7/21/06). "Agents do not have a duty to advise clients whether they are underinsured. Clients, not agents, are responsible for reading their policies and communicating their insurance needs." Cameron Parish School Board v. State Farm Fire and Cas. Co., 560 F.Supp.2d 485, 489 (W.D. La. 5/19/08) (Minaldi, J.); Dobson, supra., 06-0252, 2006 WL 2078423, at *12 (holding that the client is "chargeable with knowledge of the terms of [its] policy . . .").
V
The school, unaided by its insurance broker, was quite capable of evaluating its exposure to tuition income loss in the event of a catastrophe. A mathematical calculation the number of students multiplied by tuition charges would yield the information, and the school was in a superior position to Eaves in the knowledge of the number of students and the amounts of tuition. The majority opinion in my view erroneously defers to the trial court which erred as a matter of law in its reliance upon the expert testimony of Mr. Wanglin in order to establish a breach of duty by Eaves. Mr. Wanglin's testimony essentially posited that an insurance agent for a private school is required to make the school aware if it is underinsured. Until now, this has not been the law in Louisiana.
*475 The school points out that the agent gave as an example of the Extra Expense portion of the Business Income/Extra Expense coverage, the expense of renting or buying trailers for use as temporary classrooms on the school's football field in the event of a disaster.[8] School staff and board members who testified appear to have parroted this example whenever the topic of insurance coverage arose. The evidence showed that the school's focus of insurance concerns shortly before Katrina was raising liability coverage limits in the aftermath of a large judgment against a local community center close to the school rather than the "trailers on the football field" specter, with no one imagining the nature and extent of the actual disaster, Katrina, that occurred.
The broker's example did not constitute a voluntary undertaking to explain the entire policy, nor did it address limits of coverage. Even if the example rose to the level of a representation, which I do not think that it does, it was not reasonable for the school to rely on it to determine its coverage limits, which the school was in a unique position to determine based on its internal information.[9]
I, therefore, respectfully dissent.
NOTES
[1] From 1989 through December 2000, Newman's business manager was Martin Macdiarmid. From October 28, 2000 through October 1, 2003, Newman's business manager was R. Leigh Barker. From January 5, 2004 through June 30, 2006, Newman's business manager was Fred Drew.
[1] Appellate courts review factual determinations made by the trial court using the manifest error or clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Reversing the trial court's factual findings is warranted if we find no reasonable factual basis exists for the trial court's findings and that the findings are wrong or "manifestly erroneous" according to the record. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).
[1] Tuition represents about 90% of the school's revenue; other sources include withdrawals from the endowment, State of Louisiana payments for mandated services, and auxiliary fees. At the time of the storm, enrollment at the school was around 1,152 students who paid average annual tuitions of $14,000.
[2] The fire coverage for the school's physical plant was approximately $31,000,000.
[3] The school's business manager testified that he was hired to address delinquencies in the tuition payments.
[4] The record does not clarify whether the "inc." is an abbreviation for "income", "included," "increase," or some other possibility.
[5] Increasing policy limits for tuition loss is not the only way to manage the risk. After the storm, the school's Board of Governors changed its tuition contracts "so that in the event of another climactic catastrophe, no parent would get anything back."
[6] Roger involved an allegation that the insurance agent failed to provide coverage for the corporation's employee while driving his own personal vehicle for company business.
[7] It is difficult to believe that the school would have selected $14,000,000 (which the expert witness testified was the potential loss of tuition income) or even $3,500,000 limits had the agent discussed such limits since it caviled about a $100,000 coverage increase.
[8] COUCH ON INSURANCE 3D, § 185.14 (2005), explains: "Business interruption coverage was intended to insure against loss of earnings, and in absence of loss of earnings, liability is limited to extra expense necessary to prevent loss of earnings." See also Eric M. Holmes, HOLMES'S APPLEMAN ON INSURANCE, 2D, § 1.11.
[9] The school staff and board knew enrollment for each semester, tuition charges and other private financial information to determine "bottom line" sums needed to replace tuition income to maintain the school. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575035/ | 253 S.W.2d 441 (1952)
SINGLETON
v.
STATE.
No. 26077.
Court of Criminal Appeals of Texas.
December 10, 1952.
Newman & McCollum, Brady, for appellant.
George P. Blackburn, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is burglary; the punishment, two years.
*442 M. A. Gainer, a general merchant at Rochelle, testified that his place of business was burglarized sometime during the night of September 18, 1950, and a great many dry goods items, as well as money and checks from the safe, were taken therefrom. He stated that on the day before the burglary he had inspected the shelves in which he kept men's hats and that he saw there in its accustomed place a box for the only size 7½ hat which he had in stock at that time. He stated that it was never his practice to leave an empty hat box on the shelves. He further stated that on the morning following the burglary he found this same hat box open and empty, lying on the floor in front of the shelves. The witness further testified that the missing hat was one of an order of 3X Stetson hats which he had received under stock number 71055, in the band of each of which was stamped the name and address of his company. He identified the hat introduced in evidence by the size, make, quality, stock number, and also by the fact that the name of his company had been scratched out but was still discernible upon close inspection. He further testified that certain boots were stolen, and he identified them by stock number. Quite understandably, his identification of the other items stolen was not as accurate as that relating to the hat, but such was not necessary.
Officer Montgomery testified that on January 18, 1951, in company with other peace officers, he went to the home of appellant, where they conducted a search, during the course of which they found a great many dry goods items and found on the appellant's head the hat which was introduced in evidence, the sweat band of which had been scratched so as to obliterate certain markings therein.
Mrs. Parsons testified that she and her husband had been residing in appellant's home at the time of the burglary; that late one evening the appellant and her husband had left the home, refusing to tell her where they were going; and that they had not returned until the next morning. The witness testified that upon their return they had quite a few dry goods items, which they divided among themselves; that each of them had boots and hats; and that her husband advised appellant to obliterate the name "M. A. Gainer" in the band of his hat; that the appellant had done so in her presence and had thereafter worn the hat. It was stipulated that Billy Parsons, the husband of this witness, had plead guilty to the burglary herein charged.
The Sheriffs of Johnson and McCulloch Counties also testified and corroborated the testimony of Officer Montgomery and traced the custody of the items introduced in evidence.
Appellant, testifying in his own behalf, denied having left his home with Parsons on the night of the burglary and stated that Parsons had given him the telltale hat sometime before the burglary. He was supported in his testimony by that of his wife and her relatives.
The jury resolved this issue of fact against the accused, and we find the evidence sufficient to support the verdict.
We shall discuss the contentions of appellant in the order raised in his brief.
Bill of exception No. 1 relates to the sufficiency of the evidence and need not have been presented in a bill, since this Court passes upon the same in all cases whether raised or not. 4 Tex.Juris., Sec. 147, p. 206.
Bill of exception No. 2 complains of the refusal of the court to instruct the jury that the witness Mrs. Parsons was an accomplice as a matter of law.
We find that the trial court left this question for the jury's determination under a proper charge. Under the facts of this case, such was the proper procedure.
Bill of exception No. 3 complains of that portion of the court's charge wherein he charged on the law as to principals. He contends that the evidence was insufficient to raise the issue that appellant acted with Parsons in the commission of the burglary.
In Harper v. State, Tex.Cr.App., 95 S.W. 125, 126, we said:
"It is not necessary, in order to make a party a principal, that there be direct and positive evidence of the presence of the party and his participancy in the *443 original taking. If the circumstances exclude every reasonable hypothesis except guilt, this is sufficient."
We find a great many informal bills of exception indexed in the statement of facts. None are briefed. A goodly number thereof are predicated upon the theory that the search of appellant's home, which resulted in the finding of the stolen property, had occurred four months after the burglary and was, therefore, too remote in point of time from the burglary, which rendered the fruits of the search inadmissible. With this contention, we cannot agree. It must be remembered that the State did not rely alone upon the testimony of the officers in order to place the appellant in possession of the fruits of the burglary. Such testimony was supplemented by that of Mrs. Parsons, who placed the articles in appellant's possession the morning following the burglary.
Finding no reversible error, the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558407/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00297-CR
Neil Howard MCGINNIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 6782
Honorable Kirsten Cohoon, Judge Presiding
ORDER
On August 10, 2020, we advised the court reporter that the records were late. On August
17, 2020, court reporter Connie Calvert advised this court that counsel has not asked her to
prepare the reporter’s records.
We ORDER Appellant to provide written proof to this court within TEN DAYS of the
date of this order that (1) Appellant has delivered a written request to prepare the reporter’s
records to court reporter Connie Calvert that designates any exhibits to be included, see TEX. R.
APP. P. 34.6(b), and (2) either the arrangements have been made to pay the reporter’s fee, or
Appellant is entitled to free reporter’s records, see TEX. R. APP. P. 20.2.
If Appellant fails to respond as ordered, Appellant’s briefs will be due within THIRTY
DAYS of the date of this order, and the court will only consider those issues or points raised in
Appellant’s briefs that do not require a reporter’s record for a decision. See TEX. R. APP. P.
37.3(c).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2585354/ | 13 P.3d 772 (2000)
199 Ariz. 30
KZPZ BROADCASTING, INC., Plaintiff-Appellee,
v.
BLACK CANYON CITY CONCERNED CITIZENS, Intervenor-Appellant.
No. 1 CA-CV 00-0128.
Court of Appeals of Arizona, Division 1, Department C.
November 30, 2000.
*773 Lewis and Roca LLP by Richard A. Halloran and Daniel A. Goldfried, Robert G. Schaffer, Phoenix, Attorneys for Plaintiff-Appellee.
Irvine Van Riper, P.A. by Ellen M. Van Riper, Phoenix, Attorneys for Intervenor-Appellant.
OPINION
VOSS, Presiding Judge.
¶ 1 Appellant Black Canyon City Concerned Citizens ("Citizens") appeals from the trial court's summary judgment in favor of appellee KZPZ Broadcasting, Inc. ("KZPZ") in this successful challenge to the validity of referendum petition sheets circulated by nonresidents of Yavapai County. The primary issue before us is whether any statutory authority precludes the circulation of county referendum petitions by nonresidents of the county who are otherwise qualified electors in Arizona, and, if so, whether such a restriction can withstand constitutional scrutiny after the United States Supreme Court's decision in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). We conclude that no statutory authority in January 1999 could have required invalidation of referendum petition sheets circulated by nonresidents of Yavapai County who were otherwise qualified electors in Arizona, because such a restriction would not withstand the strict scrutiny required under the free speech protections of the First and Fourteenth Amendments to the United States Constitution.
*774 FACTS AND PROCEDURAL HISTORY
¶ 2 In January 1999, Citizens collected signatures on a petition to bring a referendum in Yavapai County challenging the actions of the Yavapai County Board of Supervisors in granting a special use permit to KZPZ to erect seven radio towers in Black Canyon City. Citizens was required to obtain the referendum petition signatures within thirty days of the Board's approval of the minutes reflecting the action. See Ariz.Rev.Stat.Ann. ("A.R.S.") § 19-142(A). The parties do not dispute the following relevant facts: (1) twenty-five of the thirty-two referendum petition circulators were Yavapai County residents; (2) the remaining seven petition circulators were residents of either Maricopa County or Pinal County; (3) all thirty-two circulators were registered voters in Arizona; and (4) the referendum would not qualify for the ballot unless the petition sheets circulated by the Maricopa and Pinal County residents were included in the signature count. The Yavapai County Elections Director included the signatures on petition sheets circulated by the nonresidents of Yavapai County, and on March 24, 1999, certified that the referendum qualified for the ballot.
¶ 3 KZPZ filed a special action in superior court, seeking to enjoin the placement of the referendum on the ballot, and challenging the validity of the signatures collected by the nonresident circulators. Citizens intervened, and by stipulation was allowed to defend the Election Director's and the County Recorder's certification of the referendum.
¶ 4 The parties filed cross-motions for summary judgment. KZPZ contended that, because only residents of Yavapai County are statutorily qualified to circulate referendum petitions on county ordinances, the signatures obtained on petition sheets circulated by the Maricopa and Pinal County residents should have been invalidated by the County Recorder. Citizens contended that no such local residency restriction was imposed on Arizona residents as petition circulators under Arizona law, and alternatively that, if such a restriction existed, it was unconstitutional.
¶ 5 The trial court concluded that, although the former statutory requirement that referendum petition circulators be "qualified electors" was no longer constitutionally valid after the United States Supreme Court's decision in Buckley, the unconstitutional portion of the statute that required a petition circulator to be a registered voter could be severed, leaving the remaining constitutional requirement that a circulator be "qualified to register to vote." The trial court concluded that this restriction "includes a requirement of residency in the political subdivision, is not a violation of the First Amendment and is not unconstitutional." Therefore, the court held, "the circulator must be qualified to register to vote in a county election and be a resident of that county." Because seven of the petition circulators were not Yavapai County residents, the court ruled that the petition signatures they collected must be subtracted, and ordered the County Recorder and Elections Director to "disqualify all invalid signatures, that the referendum not be placed on any election ballot and that the Board of Supervisors' January 4, 1999 approval of a special use permit is effective." After the trial court granted summary judgment in KZPZ's favor and awarded it attorneys' fees, Citizens timely appealed.[1]
DISCUSSION
1. Standards of Review
¶ 6 In reviewing an order granting summary judgment, we must determine whether there is a genuine issue of disputed material fact and, if not, whether the trial court correctly applied the substantive law. See In re Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App.1991). Questions of law are reviewed de novo. See State v. Malvern, 192 Ariz. 154, 155, 962 P.2d 228, 229 (App.1998).
2. Justiciability Issues
¶ 7 As a preliminary matter, we address issues raised on appeal regarding the justiciability of this action.
*775 A. Plaintiff's Standing to Challenge a Referendum
¶ 8 In a motion to dismiss, Citizens challenged KZPZ's standing to bring this lawsuit, contending that, as a corporation, KZPZ was not a "citizen" entitled to challenge the referendum certification within the meaning of A.R.S. sections 19-122(C) and 19-121.03(B). Our review of this issue is de novo. See Gemstar, Ltd. v. Ernst & Young, 185 Ariz. 493, 499, 917 P.2d 222, 228 (1996).
¶ 9 The trial court ruled as follows:
The Court finds that for purposes of challenging a referendum or an election, a corporation is a citizen. A.R.S. § 19-121.02(B) specifically provides that any citizen may challenge in the Superior Court the certification made by a County Recorder pursuant to § 19-121.02 within ten (10) calendar days of the receipt thereof by the Secretary of State. In A.R.S. § 19-101, the Legislature has prescribed that a form of petition for referendum must now contain in part the following language, "We, the undersigned citizens and qualified electors...." And [in] § 19-102, the Legislature requires the same language in an initiative petition. However, in A.R.S. § 19-121.03, which provides for judicial review of actions by the County Recorder, paragraph B, provides that any citizen may challenge in the Superior Court the certification made by a County Recorder and does not require the citizen to also be [a] qualified elector. Article 14 Section 1 of the Arizona Constitution provides in part that corporations shall have the right to sue and shall be subject to be sued, in all courts, in like cases as natural persons.
The Court finds that the Legislature in specifically requiring that a citizen be a "qualified elector" for certain purposes and... [not requiring] a citizen to be [a] "qualified elector" for other purposes, specifically has not limited the "citizen" to take certain action or to challenge certain statutes. Had the Legislature so intended, it would have specifically required the "citizen" in § 19-121.03 to not only be a citizen but also a qualified elector.
The Court also finds that KZPZ has a personal stake in the outcome as required by Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Therefore, the Court concludes KZPZ has standing.
¶ 10 We set forth this ruling in its entirety because we find it well-reasoned and legally correct. Citizens argues that only a "natural person" can be included in the meaning of "citizen," relying on Alliance Marana v. Groseclose, 191 Ariz. 287, 955 P.2d 43 (App.1998). That case, however, held only that a plaintiff who was not a "citizen" of the town and had no interest in the outcome of the litigation, had no standing to compel the town clerk to forward the referendum petitions to the county recorder. 191 Ariz. at 289, 955 P.2d at 45. Additionally, Citizens' references to cases in which various courts have interpreted a "citizen" to be "a natural person" have no application to our statutory interpretation within the context of Titles 19 and 16. We therefore find no ground for reversal on this basis.
B. Indispensable Parties
¶ 11 Citizens also contends that the trial court erred in denying its motion to dismiss on the ground that KZPZ failed to join, as indispensable parties to this suit, both Yavapai County and the Yavapai County Board of Supervisors. The trial court ruled:
The Court finds that neither Yavapai County nor the Yavapai County Board of Supervisors are necessary or indispensable parties. The Plaintiff's claim for relief seeks to compel the County Recorder and the Elections Director to comply with statutory duties, including disqualifying alleged irregular and defective petitions filed by BCCCC and refusing to certify BCCCC's referendum for the ballot. These are not duties imposed on the County or the Board of Supervisors, consequently neither are necessary or indispensable parties.
¶ 12 We agree with this ruling. This case was brought as a statutory special action pursuant to A.R.S. section 19-121.03 for judicial review of the actions of the Yavapai County Recorder, and seeking a writ of mandamus *776 compelling the County Recorder and the Yavapai County Elections Director to decertify the referendum and remove it from the ballot. No order was sought against either the County itself or the Board of Supervisors. Citizens argues that the power to call a county election is vested exclusively in the Board of Supervisors. However, this power is not at issue in this case. The complaint did not seek to prevent an election but only to keep a referendum off the ballot. Under the criteria set forth in Rule 19, Arizona Rules of Civil Procedure, the County and the Board of Supervisors were neither necessary nor indispensable to (1) complete relief being afforded among those already parties; (2) the protection of any interest in the referendum, or (3) the prevention of inconsistent obligations. See Gerow v. Covill, 192 Ariz. 9, 14, 960 P.2d 55, 60 (App.1998). The trial court therefore properly denied the motion to dismiss on this basis.
3. Statutory Requirements for Referenda Petition Circulators
¶ 13 At the time the petitions were circulated, A.R.S. section 19-114(A) provided, in part, that "no person other than a qualified elector[2] shall circulate an initiative or referendum petition and all signatures verified by any such person shall be void and shall not be counted in determining the legal sufficiency of the petition." A "qualified elector" was defined as a "person who is qualified to register to vote pursuant to section 16-101 and who is properly registered to vote, if he is at least eighteen years of age on or before the date of the election." A.R.S. § 16-121(A). A "person who is qualified to register to vote" included "[e]very resident of the state," with some restrictions not relevant here. A.R.S. § 16-101(A). "Resident," for the purposes of determining who was qualified to register to vote, was defined as "an individual who has physical presence in this state, or for purposes of a political subdivision actual physical presence in the political subdivision combined with an intent to remain." A.R.S. § 16-101(B).
¶ 14 KZPZ's contention, with which the trial court agreed, was that this statutory scheme required a petition circulator to be a "resident" in the political subdivision in which the referendum petition was to be filed, and that this restriction was not unconstitutional. On appeal, Citizens argues that no provision of either Title 19 or Title 16 "expressly, clearly, and unambiguously required circulators of petitions for local referenda to be qualified electors or residents of the county, city, or town. All that this statute required was that the circulators be `qualified electors.'"
¶ 15 The trial court's ruling was based, in part, on the following reasoning from the Arizona Supreme Court:
Arizona's circulator requirement is intended to ensure that those involved in direct law making have ties to the state and a stake in the outcome. "We can think of no better way to preserve the integrity of the referendum process as it relates to local ordinances than to require that only those eligible to vote for the members of the body which passed the ordinance be able to engage in the `core political speech' of attempting to gather signatures to challenge the ordinance."
McDowell Mountain Ranch Land Coalition v. Vizcaino, 190 Ariz. 1, 4, 945 P.2d 312, 315 (1997) (quoting Browne v. Russell, 27 Cal. App.4th 1116, 33 Cal.Rptr.2d 29, 34 (1994)). In Vizcaino, however, the issue was the "residency" of Arizona nonresidents; the court affirmed the trial court's findings that the validity of the voter registrations of several nonresident circulators' was rebutted by clear and convincing evidence that they had no intent to remain in Arizona, but merely operated as "political vagabonds," with no interest in the issues contained in the petitions they circulated or stake in the outcome of the changes sought. Id. The Vizcaino court did not address whether Arizona residents circulating county referenda petitions were required to be residents of the county in which the referendum was sought.
*777 ¶ 16 The only other Arizona authority we have found supporting the proposition that a petition circulator must be a resident of the locality rather than the state is in a case decided before Buckley, in which a person who was not a town resident was found to lack standing to challenge the town clerk's refusal to forward referendum petitions. See Alliance Marana v. Groseclose, 191 Ariz. 287, 955 P.2d 43 (App.1998). The court concluded that the plaintiff's only "claimed interest" in the litigation, because he could not sign a petition or vote in the referendum election as a town resident, was that he had circulated some of the petitions; however, pursuant to a local town ordinance, only "qualified electors" of the town were permitted to circulate petitions. Id. at 289, 955 P.2d at 45 (citing Marana Ordinance 89.24). No Arizona statutory authority was cited to require a circulator of a town referendum petition to be a town resident.
¶ 17 We find support for Citizens' statutory interpretation by examining other areas of Title 19 to discern the legislature's intent. See Talley v. Industrial Comm'n, 137 Ariz. 343, 346, 670 P.2d 741, 744 (App.1983)("all parts of a statute relating to the same subject will be construed together"). Circulators of initiative and referendum petitions are required to state in their affidavit that, in their belief, "each signer was a qualified elector of a certain county of the state, or, in the case of a city, town or county measure, of the city, town or county affected by the measure on the date indicated." A.R.S. § 19-112(B)(emphasis added). However, as a contrasting example, the requirements set forth for the circulator's affidavit on a recall petition are as follows:
The affidavit shall be in the form prescribed for initiative and referendum. In addition it shall also require a statement by the circulator that the circulator believes that the circulator and all signers thereof are qualified to vote in the recall election.
A.R.S. § 19-205(C)(emphasis added). No similar language is included requiring a referendum petition circulator to swear that he or she is a resident of the political subdivision affected by the measure.
¶ 18 KZPZ also argues that the statutory form of the circulator's affidavit lends support to its position that a circulator must be a resident of the county in which the referendum is sought. The affidavit requires the circulator to state that he or she is "a qualified elector in the county of___________, in the state of Arizona at all times during my circulation of this petition sheet," and requires the listing of a residence address and county of registration. A.R.S. § 19-112(D). This requirement, however, does not restrict the circulator's residency to more than the state of Arizona. Rather, the purpose of requiring the circulator to state his or her county of residence appears to be to enable the secretary of state (or the county elections director, in the case of a local referendum) to verify the circulator's eligibility with the appropriate county recorder. See A.R.S. § 19-121.02.
¶ 19 KZKP, on the other hand, makes a convincing argument that the literal wording of the 1999 statutes, read in para materia, supports the trial court's conclusion that, in order to qualify to circulate petitions for a local referendum, the circulator must be a qualified elector of the locality. We agree that, in construing a statute, we must construe statutes regarding the same subject matter to "harmonize rather than contradict each other `if sound reasons and good conscience allow.'" Ban v. Quigley, 168 Ariz. 196, 198, 812 P.2d 1014, 1016 (App.1990) (quoting City of Mesa v. Salt River Project Agric. Improv. & Power Dist., 92 Ariz. 91, 98, 373 P.2d 722, 727 (1962)). Furthermore, we must examine the statutory scheme as a whole, to give effect to all the statutes involved. See Pima County v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988).
¶ 20 In 1991, the legislature added the definition of "resident" to A.R.S. section 16-101(B), requiring actual physical presence in a local subdivision combined with an intent to remain, to apply to a "qualified elector" as defined in A.R.S. section 16-101(A). See 1991 Ariz. Sess. Laws Ch. 1, § 2 (40th Legis., 3d Spec.Sess.)(amending A.R.S. § 16-101(B)). That same legislative enactment made extensive changes to various sections *778 in both Titles 16 and 19 regarding initiative, referendum, and recall elections. See id., S.B. 1001. The legislature did not, however, change the requirement in section 19-114(A) that a petition circulator must be a "qualified elector." See id. at Ch. 9. Reading these statutes together, one could logically conclude that a petition circulator, required to be a "qualified elector" pursuant to A.R.S. section 19-114(A), defined as "a person qualified to register to vote" pursuant to A.R.S. section 16-121(A), was also required to be a "resident" of the political subdivision pursuant to A.R.S. section 16-101(B).
¶ 21 We are thus faced with two possible constructions of this statutory scheme: the literal language of the statutes supporting one interpretation but the doctrine of harmonious construction supporting another. We must, however, interpret a statute in a way that renders it constitutional; if there are any uncertainties, we must resolve them in favor of constitutionality. State v. Gilfillan, 196 Ariz. 396, 405, 998 P.2d 1069, 1074 (2000). We therefore are squarely faced with one of the constitutional questions raised in this case: whether a statutory local residence requirement for circulators would be constitutional after Buckley.
4. Constitutional Analysis
¶ 22 Normally, a constitutional issue need not be addressed if a case can be decided on a nonconstitutional ground, such as pure statutory interpretation. City of Sierra Vista v. Director, Ariz. Dep't of Environmental Quality, 195 Ariz. 377, 379, 988 P.2d 162, 164 (App.1999). However, in this case, the constitutional issue is inextricably intertwined with our statutory interpretation and forms the basis for our ultimate conclusion; we therefore find its discussion essential.
¶ 23 In Buckley, the Court held unconstitutional a Colorado statute that required circulators of initiative petitions to be registered voters. 525 U.S. at 197, 119 S.Ct. 636. Applying a strict scrutiny analysis because petition circulation is "core political speech" for which First Amendment protection is "at its zenith," id. at 186-87, 119 S.Ct. 636, the Court concluded that the registered voter requirement "drastically reduces the number of persons, both volunteer and paid, available to circulate petitions." Id. at 193, 119 S.Ct. 636 (citing Meyer v. Grant, 486 U.S. 414, 423, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)). The state could not justify this burden on political expression with a compelling interest protected by a narrowly tailored restriction, because other reliable safeguards already protected those interests:
The State's dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State's subpoena power, which in this these matters does not extend beyond the State's borders.... The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the "address at which he or she resides, including the street name and number, the city or town, [and] the county." ... This attestation, we note, has an immediacy, and corresponding reliability, that a voter's registration may lack.
525 U.S. at 196, 119 S.Ct. 636. Pointing out that no challenge had been made to Colorado's right to require circulators to be state residents, the Court noted that the Tenth Circuit had found that a residency requirement "more precisely achieved the State's subpoena service objective," and concluded:
In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measurea question we, like the Tenth Circuit, ... have no occasion to decide because the parties have not placed the matter of residence at issuethe added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot access area without impelling cause.
Id. at 197, 119 S.Ct. 636.
¶ 24 After Buckley, therefore, the question of the constitutionality of a state residency requirement on petition circulators is left *779 open. Assuming, without deciding,[3] that a state residency requirement would be upheld as a narrowly tailored restriction protecting the state's compelling interest in policing its elections through statewide subpoena power to contact circulators, we do not see how the more restrictive requirement of county residency would survive strict scrutiny. The more local the residency restriction becomes, the smaller the pool of available petition circulators becomes, thus limiting political conversation about proposed changes, but with no corresponding heightened protection of the state's interests in the integrity of its elections. By illustration, the imposition of a county residency requirement would have decreased the pool of available petition circulators from 2,271,290 (the actual number of qualified electors in Arizona in January 1999) to 88,501 (the actual number of qualified electors in Yavapai County in January 1999).[4] Correspondence with Arizona Secretary of State, Sept. 12, 2000. Given the short time frame in which to collect significant numbers of signatures, it is apparent that this restriction would place a heavy burden on political expression regarding referendum issues in our smaller counties.
¶ 25 KZKP also argues, however, that, besides its interest in policing elections through its subpoena power, the state has a further compelling interest in assuring that local legislative measures are not delayed by petition circulators with no ties to the community or stake in the outcome of a referendum election. The local residency requirement, KZPZ contends, prevents "abuse and capture of the local referendum process by political outsiders." In determining whether this interest is compelling enough to warrant a significant burden on free speech, we must consider "the other mechanisms the State currently employs to serve the statute's purpose." Krislov, 226 F.3d at 862. Here, we believe the state's valid "grass roots support" interest, see Meyer, 486 U.S. at 425-26, 108 S.Ct. 1886, is already protected by the statutory requirement that only county residents can cast a vote in a county referendum election. See A.R.S. § 16-120 (no elector shall vote in an election "unless the elector has been registered to vote as a resident within the boundaries or the proposed boundaries of the election district for which the election is being conducted"). Furthermore, the argument that, without a local residency requirement, "outsiders" could impose the cost of a local election on the county is simply not true; it is not the petition circulators who impose the cost of an election, but the county residents who sign the petition who do so. See Molinari v. Powers, 82 F.Supp.2d 57, 74 (E.D.N.Y.2000)(finding unconstitutional a requirement that witnesses of primary petition signatures be residents of the district). The law already provides, by the number of signatures of local residents required to place an issue on the ballot, that community interests are truly at stake in the outcome. Additionally, we are unwilling to say, as a general proposition, when local Arizona land use issues are involved, that only local residents have an interest in the outcome sufficient to entitle them to voice political expression through circulation of a referendum petition. We conclude, as the Molinari court did, that the "proffered reasons for the residence requirement simply cannot justify the burden the residence requirement placed on the petition gathering process." Id. at 75.
¶ 26 KZPZ points out that residency requirements for petition circulators have been upheld in other courts. See Kean v. Clark, 56 F.Supp.2d 719 (S.D.Miss.1999); Hart v. *780 Secretary of State, 715 A.2d 165 (Maine 1998); Browne v. Russell, 27 Cal.App.4th 1116, 33 Cal.Rptr.2d 29 (1994). Kean and Hart, however, both upheld statewide residency requirements as narrowly tailored to protect the state's interest in protecting the integrity of its elections through use of the subpoena power; neither court addressed a more local restriction than a statewide residency requirement. In Browne, although the court upheld a city ordinance requiring a petition circulator to be a city resident, it also upheld the registered voter requirement, and may be questionable law after Buckley.[5]See 33 Cal.Rptr.2d at 33. We therefore do not find these cases persuasive.
¶ 27 In sum, if we were to construe the statutory scheme for referendum petition circulators to include a local residency requirement, we would run afoul of the First and Fourteenth Amendments under the principles set forth in Buckley. We broadly interpret the statutory scheme in a manner we believe supports the requirements of the Constitution. See Sherrill v. City of Peoria, 189 Ariz. 537, 540, 943 P.2d 1215, 1218 (1997). We therefore conclude the statutory scheme could not constitutionally include a local residency requirement for referendum petition circulators and we interpret in a way that avoids an unconstitutional result.
5. Other Constitutional Issues
¶ 28 Because our dispositive holding in this case is that the statutes regulating petition circulators could not constitutionally require local county residency, we need not address any arguments concerning the trial court's ruling that the "registered voter" element of the "qualified elector" requirement in effect in January 1999 was clearly unconstitutional under Buckley. It is undisputed, in any event, that all of the petition circulators in this case were registered voters in Arizona and thus were "qualified electors" in January 1999.
¶ 29 We also need not address whether the "registered voter" requirement could properly be severed from the statute, leaving intact the "qualified to register to vote" requirement. We merely point out that the legislature's subsequent amendments, see supra note 2, accomplished the same result, and that those amendments were clearly intended to bring the statutory scheme into conformance with the Buckley decision.[6]
6. Attorneys' Fees
¶ 30 Citizens also appeals from the award of attorneys' fees against it pursuant to A.R.S. section 12-2030. Our disposition in this case moots the substantive issues raised on appeal regarding the application of this statute. Because KZPZ no longer "prevails" on the merits in this action, it is not entitled to an award of fees, and that portion of the judgment is vacated.
CONCLUSION
¶ 31 We conclude that the statutory requirements for a referendum petition circulator could not constitutionally include county residency in the county in which the referendum is sought. Because it is undisputed that all the circulators in this case were "qualified electors" of the State of Arizona, the trial court erred in granting summary judgment in favor of KZKP.
*781 ¶ 32 For the foregoing reasons, we reverse the trial court's judgment and vacate the order directing the Yavapai County Recorder and the Elections Director to disqualify, as invalid, the signatures obtained by the Maricopa and Pinal County petition circulators of the referendum petition. This matter is remanded for proceedings consistent with this opinion
CONCURRING: NOEL FIDEL, Judge, CECIL B. PATTERSON, Judge.
NOTES
[1] KZZP and the County defendants entered into a Stipulation Regarding Settlement and Compromise, in which the County defendants agreed not to appeal.
[2] Following the Buckley decision, the Arizona legislature changed the "qualified elector" requirement to "qualified to register to vote." See 1999 Ariz. Sess. Laws, ch. 353 (1st reg.sess.), amending A.R.S. §§ 19-112, -114, -121.01, -121.04.
[3] The constitutionality of a state residency requirement for referendum petition circulators is not at issue in this case, because it is undisputed that all 32 circulators were Arizona residents.
[4] We recognize that the number of people who could potentially circulate petitions does not indicate the true number of people who are actually willing to circulate petitions, but the burden is nevertheless evident:
It is undoubtedly true that most people excluded from soliciting signatures would likely not be avid supporters. But this fact actually underscores the candidate's argument that the law severely burdens them. Candidates who do not have broad support must count on only a few supporters, and if they are not registered to vote or do not live in the district, the already small pool of volunteers will evaporate, thus greatly limiting the candidates' ability to disseminate their message and obtain the required signatures.
Krislov v. Rednour, 226 F.3d 851, 861 (7th Cir. 2000).
[5] Similarly, the reasoning quoted from Browne by our supreme court in Vizcaino, 190 Ariz. at 4, 945 P.2d at 315, and adopted by the trial court in its ruling in this case, may also be questionable after Buckley.
[6] See Arizona State Senate, Minutes of Committee on Judiciary, March 23, 1999 at 28 (analyst stated that H.B. 2656 "conforms Arizona's law to a recent Supreme Court decision regarding the qualifications of petition circulators"; it "eliminates the requirement that petition circulators be registered to vote, and instead requires that circulators be qualified to register to vote;" State Elections Director stated "that anyone who is qualified to vote can circulate petitions."). See also Arizona State Legislature, Minutes of Committee on Government Operations, February 17, 1999 at 14 (chairman explained that changes were "necessitated by Supreme Court case decided six weeks ago"; Maricopa County Elections Director explained "In order to be qualified to register to vote, an affidavit must be signed swearing that the circulator is qualified under Arizona law to register to vote. To be qualified, a person must be 18 years of age, consider Arizona as a place of residence, swear that they have had no felonies or if so, their rights were restored, and the individual must be a U.S. citizen."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578223/ | 958 S.W.2d 36 (1997)
Michael J. CHEHVAL, M.D., Plaintiff-Respondent,
v.
ST. JOHN'S MERCY MEDICAL CENTER, Defendant-Appellant.
No. 72287.
Missouri Court of Appeals, Eastern District, Division Four.
November 4, 1997.
Motion for Rehearing and/or Transfer to Denied January 8, 1998.
*37 Gary P. Paul, Brinker & Doyen, St. Louis, for appellant.
Morris E. Stokes, Morris E. Stokes, P.C., St. Louis, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 8, 1998.
HOFF, Judge.
St. John's Mercy Medical Center (Medical Center) appeals from the trial court's "Judgement, Order and Decree" (Judgment) entered in favor of Michael J. Chehval, M.D.[1] (Physician) in Physician's declaratory judgment action focusing on a contractual indemnity provision. The trial court's Judgment, which resolved cross-motions for summary judgment, requires Medical Center to pay all costs and to "defend, indemnify, and hold harmless" Physician in a separate wrongful death action[2] in which Physician is a defendant. We affirm because the parties' agreement clearly and unequivocally expresses an intent that Medical Center defend, indemnify, and hold harmless Physician for sums he is required to pay for personal injuries arising out of his own negligence in his rendering of or failure to render professional services to patients of two Medical Center clinics.
Summary judgment is proper to resolve claims interpreting a contractual indemnification provision. RJF Int'l Corp. v. B.F. Goodrich Co., 880 S.W.2d 366, 371 (Mo. App. E.D.1994). When considering an appeal from summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. Combined Communications Corp. v. City of Bridgeton, 939 S.W.2d 460, 462 (Mo. App. E.D.1996), citing ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In essence, our review is de novo and the key is the undisputed right to judgment as a matter of law. Id. at 462-63.
The undisputed facts disclose the following. In 1993 Physician and Medical Center entered into a written agreement regarding Physician's professional services (Agreement). In relevant part, that Agreement addressed Physician's responsibilities as Chief of Staff at the Medical Center, Chairman of the Medical Center's Division of Genito-Urinary Surgery, member of the Medical Center's Medical Staff, and physician at the Medical Center's clinics. Under the heading Clinic and Charity Patients the Agreement states in full
Physician will provide professional consultative services to patients in the J.F.K. and Meacham Park Clinics at the Medical Center. Physician agrees that billings and collections for these clinic patients will become part of the Medical Education and Research Institute. Physician shall also provide professional consultative services for charity patients as required in the Medical Staff Bylaws.
Paragraph 7.1 at page 4 of the Agreement. By paragraphs 6.1 and 6.2 of the Agreement, Physician is required to "restrict his private practice of medicine to a level that will not interfere with Physician carrying out the primary responsibilities as outlined in this *38 Agreement" and to "restrict his private practice of medicine to the Medical Center." Pages 3-4 of the Agreement. The Agreement addresses the issue of Physician's potential liability for professional services as follows:
13. PROFESSIONAL LIABILITY INSURANCE
13.1 Medical Center hereby agrees to defend, indemnify and hold harmless Physician for all sums, including defense costs, which Physician shall become legally obligated to pay as damages because of injury to any person arising out of the rendering of or failure to render the professional services and obligations, including clinical duties, which are the subject of and which are described in this Agreement.
13.2 Physician hereby agrees to maintain a minimum level of professional liability coverage of Five Hundred Thousand ($500,000) dollars per occurrence, Five Hundred Thousand ($500,000) dollars annual aggregate, or at such limits as required by the laws of the State of Missouri as time to time revised, for any private practice activities or other rendering of professional services not included within the scope of this Agreement.
Page 6 of the Agreement.
Sharon Moeller was a clinic patient of Physician when she died on May 24, 1994. Sharon Moeller's husband, Michael Moeller, sued Medical Center and Physician in a wrongful death action alleging his wife's death resulted from their negligence and carelessness in the conduct and monitoring of surgery by Physician.
Physician then filed this separate declaratory judgment action against Medical Center.[3] In his petition, Physician alleged he unsuccessfully asked Medical Center, pursuant to their Agreement, to defend Physician and to indemnify him for any loss, cost, expense or obligation incurred in the wrongful death action. Physician and Medical Center filed cross-motions for summary judgment.[4] In resolving the cross-motions for summary judgment, the trial court found no genuine issues of material fact, summary judgment was appropriate, Sharon Moeller was a clinic patient, and "as such ... the agreement of the parties requires [Medical Center] to defend, indemnify, hold harmless, and pay all defense costs in Moeller v. St. Johns, et al # 670115."
Medical Center concedes the basic facts are not in dispute. It urges, however, the trial court erroneously applied the law to the facts because the language of the Agreement does not clearly and unequivocally express the intent to indemnify Physician for his own negligent acts. Medical Center also argues the Agreement required Physician to maintain professional liability insurance of $500,000 and "[a] fair reading of the agreement contemplated instances in which Physician would be directly sued for his own professional negligence." Medical Center's arguments are not persuasive.
One party may agree to indemnify a second party for loss resulting in whole or in part from the second party's own negligence; but such intention must be expressed in clear and unequivocal terms. Missouri Dist. Tel. Co. v. Southwestern Bell Tel. Co., 338 Mo. 692, 93 S.W.2d 19, 27-28 (1935). Broad and general indemnification language is alone insufficient to provide such indemnification. See, e.g., Howe v. Lever Bros. Co., 851 S.W.2d 769 (Mo.App. E.D.1993). There is, however, no special wording required. See RJF Int'l Corp., 880 S.W.2d at 371 (interpreting non-explicit indemnification language as providing indemnification "irrelevant of fault").
Rules applicable to the construction of contracts apply generally to indemnity agreements. Denny's Inc. v. Avesta Enters., Ltd., 884 S.W.2d 281, 290 (Mo.App. W.D. *39 1994). When a contract uses plain and unequivocal language it must be enforced as written. Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 436 (Mo.App. E.D.1996). To ascertain the intent of the parties to an unambiguous contract, we give the language used its natural, ordinary, and common sense meaning, and consider the entire contract, along with its object, nature, and purpose. Central City Ltd. Partnership v. United Postal Sav. Ass'n, 903 S.W.2d 179, 182 (Mo. App. E.D.1995). An ambiguity does not exist merely because the parties dispute the meaning of the contract. Id. Rather, a contract is ambiguous when the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms. Id.
Looking at the Agreement as a whole, we find its purpose is to delineate an employment relationship between Medical Center and Physician. Importantly, the Agreement expressly distinguishes between Physician's professional obligations and services at the Medical Center's clinics and his other professional obligations and services for the Medical Center. The Agreement also makes explicit distinctions between Physician engaging in professional services within the scope of the Agreement and Physician engaging in such services outside the scope of the Agreement.
With respect to Physician's clinical duties, the Agreement required Physician to see and treat patients at two specified clinics of the Medical Center and expressly denied any payment to Physician as compensation for such work. Instead, Medical Center required that payment for Physician's required clinic services be contributed to a specific institute. The Agreement also expressly recognized Physician may engage in professional services outside the scope of the Agreement by noting Physician's private practice must not interfere with his services under the Agreement and was restricted to the Medical Center.
This distinction between the rendering of services within the scope of the Agreement and the rendering of services beyond the scope of the Agreement is reiterated by the manner in which Physician's potential liability for providing professional services is addressed in Paragraph 13.1 of the Agreement:
Medical Center hereby agrees to defend, indemnify and hold harmless Physician for all sums, including defense costs, which Physician shall become legally obligated to pay as damages because of injury to any person arising out of the rendering of or failure to render the professional services and obligations, including clinical duties, which are the subject of and which are described in this Agreement.
(emphasis added.) In the next paragraph of the Agreement, Physician is required to maintain a minimum level of professional liability coverage for "any private practice activities or other ... professional services not included within the scope of this Agreement " (emphasis added).
Paragraph 13.1 of the parties' Agreement clearly indicates Medical Center's intent to indemnify Physician for any sum he is obligated to pay for injury to any person arising out of his acts or failure to act, while carrying out "clinical duties" that are the subject of the Agreement. The Agreement clearly and unambiguously requires Physician to provide professional services to patients at two clinics. The Agreement does not set forth any obligations of the Medical Center with regard to the two identified clinics. Therefore, the professional services Physician renders to patients at the two clinics are the "clinical duties" referenced in the Agreement's indemnification provision.
There is no dispute that the separate wrongful death action seeks damages from Physician for his alleged acts or failure to act in his provision of professional services to a patient at one of the Medical Center's clinics identified in the Agreement. Furthermore, there is no dispute that the services of Physician which are the focus of the wrongful death action are within the services of Physician required by the Agreement. Under the circumstances, the Agreement's indemnification provision clearly and unequivocally encompasses the conduct of Physician that is challenged in the separate wrongful death action.
*40 Nevertheless, Medical Center argues it is not obligated to indemnify Physician for his own negligent acts because such indemnification must be set forth explicitly in the indemnification provision and an express statement of such coverage is not present here. In support of this position, Medical Center cites Howe, supra; Pilla v. Tom-Boy, Inc., 756 S.W.2d 638 (Mo.App. E.D.1988); and Bonenberger v. Associated Dry Goods Co., 738 S.W.2d 598 (Mo.App. E.D.1987). We find these cases inapposite.
In Howe, this Court found the relevant indemnification provision did not clearly express an intent to indemnify against the indemnified party's own negligent acts. Howe, 851 S.W.2d at 772-73. Corrigan Company Mechanical Contractors (Corrigan) contracted with a general contractor, Fru-Con Construction Company (Fru-Con), to do some work on a construction project and then subcontracted some of its work to Ratican Insulation Company (Ratican), who subcontracted some of its work to Insulation Abatement Services, Inc. (Insulation). One of Insulation's employees was injured falling from a scaffolding. Id. at 771. He sued the property owner (Lever Brothers), the general contractor (Fru-Con), and Corrigan, who added Ratican as a party to the lawsuit. Id. With all defendants' consent, Lever Brothers settled with the injured employee. Id. All defendants contributed equally to the settlement amount and permitted the trial court to determine their contractual indemnity claims. Id. In relevant part, the trial court concluded Corrigan was not entitled to indemnification from Ratican based upon the following indemnification provision:
[Ratican] hereby assumes entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever to all persons, whether employees or otherwise, and to all property, growing out of, or resulting from the labor or material or both used in the performance of this contract or occurring in connection therewith, and agrees to indemnify and save harmless [Corrigan and/or Lever brothers] and their agents, servants and employees from and against any and all loss, expense, including legal fees and disbursements, damage or injury growing out of or resulting therefrom, or occurring in connection therewith....
Id. at 773. In affirming the trial court's judgment, this Court stated, in relevant part, "[t]he indemnity provision Ratican gave Corrigan is silent concerning indemnity for injuries caused by Corrigan's negligence" and does not either "expressly [ ]or unequivocally" evince Ratican's agreement to indemnify Corrigan "for the negligence of any party other than [Ratican]." Id.
In Pilla we found broad, general language in an indemnification provision of a lease did not satisfy the requirement that "an intention to indemnify [the Pillas] for their negligence, [be] clearly and unequivocally expressed." Pilla, 756 S.W.2d at 641. The Pillas owned a building adjacent to a sidewalk on which a pedestrian fell and sustained injuries. Id. at 639. The Pillas (Lessors) leased the building to Tom-Boy, Inc. (Lessee), who sub-leased the premises to Gewinner's Tom-Boy Supermarket, Inc. (Supermarket). Id. The pedestrian filed suit against Supermarket and the Pillas were added as defendants. Id. The Pillas unsuccessfully demanded indemnification from Lessee on the basis of the following lease provision:
Lessee agrees to save the Lessor[s] ... harmless from any and all damages and damage suits in connection with the liability for any and all injuries or damages suffered by any employee of said Lessee, or Lessee's agents, customers, guests or other persons whomsoever, caused to them or their persons or property in, on, or about or adjacent to said premises.
Id.
Howe and Pilla are distinguishable from the case now before this Court because nothing in the language of the relevant indemnification provisions clearly encompassed the conduct at issue in those cases; the provisions were silent on the issue of indemnity for the indemnified party's own negligent acts. Here, on the other hand, the indemnification provision expressly encompasses liability arising out of "clinical duties" set forth in the Agreement, and only the Physician has "clinical duties" under the terms of the Agreement. Therefore, it is clear Medical *41 Center must indemnify Physician for sums he must pay for injuries arising out of any act or failure to act within Physician's clinical duties.
In Bonenberger the indemnification provision stated in relevant part "[Lessee] agrees to defend [Lessor] ... from any and all claims ... arising from [Lessee's] operation of its business." Bonenberger, 738 S.W.2d at 601 n. 2. In light of the emphasized language, and a comparison of the indemnification language with such language in other Missouri cases, we determined this provision did not "unequivocally mean that [Lessee] agreed to indemnify [Lessor] if [Lessor] is established to have contributed to ... injuries through its own negligence." Id. at 601. Because that provision, unlike the provision at issue here, expressly provides indemnification for the indemnifying party's conduct, Bonenberger is not helpful to Medical Center.
Due to similar distinctive language in the relevant indemnification provisions at issue in Kansas City Power & Light Co. v. Federal Constr. Corp., 351 S.W.2d 741 (Mo.1961); Missouri Dist. Tel. Co., supra; and Allison v. Barnes Hosp., 873 S.W.2d 288 (Mo.App. E.D.1994), Medical Center's reliance on those cases is misplaced. In Kansas City Power & Light Co., the Missouri Supreme Court construed an indemnification provision stating Contractor was liable "for the safety of the work to be performed by him" as "referring solely to risks created by the contractor's own acts." Kansas City Power & Light Co., 351 S.W.2d at 745. The supreme court also construed a provision stating Contractor "shall indemnify * * * [another entity] * * * from all suits * * * for * * * damages or injuries received * * * by any party by or from the Contractor, his agents, * * * in the performance of the work" as "amply reinforc[ing] the view that the whole paragraph speaks only" of indemnity from injuries or loss arising from Contractor's own conduct. Id. Next, the state supreme court interpreted a provision that Contractor "shall indemnify [the other entity] * * * from all loss * * * resulting from or arising out of the acts or omissions of the Contractor, or any subcontractor * * * resulting in injury to * * * the person or property (1) of the contractor's employees, and (2) of all other persons." Id. at 746. The supreme court found that, in this provision, there was "a clear inference of a requirement of fault on the part of [the Contractor], either by acts of commission or omission." Id.
In Missouri District Telegraph Company, the Missouri Supreme Court construed an indemnification provision stating lessee undertook to indemnify lessor, in relevant part,
from and against any and all * * * claims, suits, judgments for damages or injuries arising to persons or property or in any manner by reason of the use or maintenance by the lessee of plant facilities hereunder, or by reason of the acts or negligence of the agents, or employees of lessee while engaged in the work of placing, maintaining, renewing or removing plant facilities hereunder.
Missouri Dist. Tel. Co., 93 S.W.2d at 26 (some emphasis added; some emphasis in original). The court found lessee did not indemnify lessor when lessor's negligence is the "primary or a contributing cause of the loss or damages" because the language "is phrased in general terms" and "is very broad and indefinite." Id. at 27-28.
In Allison this Court found a party (Contractor) to an Elevator Maintenance Agreement was not required to defend the building owner in a negligence action for injuries sustained by a visitor to the building. Allison, 873 S.W.2d at 292-93. The indemnity provision stated in relevant part:
Contractor shall indemnify and hold harmless the owner for damages to property or persons, including death, directly caused in whole or in part by the negligent acts or omissions of the contractor, its employees, servants or agents; contractor will defend any and all suits which may be brought against the owner for damages to property or persons, including death, directly caused in whole or in part by the negligent acts or omissions of the contractor, its employees, servants or agents.
Allison, 873 S.W.2d at 292 (some emphasis added; some emphasis in original). We found the provision did not unequivocally provide indemnification or defense by Contractor for liability arising from the building owner's own negligence. Id. at 292-93.
In these cases, the relevant indemnification provision(s) expressly indemnified a party *42 from liability for the indemnifying party's own conduct. In the instant case, however, the relevant indemnification provision is not expressly limited to indemnification of the Physician for sums he is legally obligated to pay as the result of any act or failure to act by the Medical Center (the indemnifying party). Instead, the indemnity provision here explicitly encompasses "clinical duties," which by the terms of the Agreement, are only duties of Physician. Thus, the indemnity provision clearly encompasses liability of the Physician for sums relating to injuries arising out of his professional services at the two identified clinics of the Medical Center.
Under the circumstances presented here, we find the language used in paragraph 13.1 of the parties' Agreement clearly and unequivocally requires Medical Center to defend, indemnify, hold harmless, and pay the defense costs incurred by Physician with respect to the Moeller wrongful death action.
The Agreement further requires Physician to maintain professional liability coverage for any professional services beyond the scope of the Agreement. Medical Center argues this requirement reflects the parties' understanding Physician would be sued directly for his own professional negligence, and therefore the indemnity clause is not all encompassing. Such an argument ignores the language of the Agreement. The language of the Agreement very clearly requires Physician to carry professional liability insurance "for any private practice activities or other rendering of professional services not included with the scope of th[e] Agreement." No provision of the Agreement requires Physician's own professional liability insurance to cover his professional duties at the Medical Center's two clinics. In accordance with the express terms of the Agreement, those duties include Physician's professional services to the clinics' patients, services which are the focus of the separate wrongful death action. Therefore, the Agreement's requirement that Physician have certain professional liability insurance cannot be construed as limiting Medical Center's indemnification obligation under the circumstances of this case.
Because we interpret the language of the indemnity provision at paragraph 13.1 of the parties' Agreement to require Medical Center to defend, indemnify and hold harmless Physician, regardless of fault,[5] for sums Physician must pay for injuries arising out of Physician's acts or failure to act in the providing of professional services to patients at Medical Center's two specified clinics, Medical Center's point is denied. To clarify the extent of this opinion, we specifically note we are not interpreting the indemnification provision of paragraph 13.1 in light of any other services by Physician or any other circumstances that may arise throughout the relationship between Medical Center and Physician.
The Judgment of the trial court is affirmed.
PUDLOWSKI, P.J., and SIMON, J., concur.
NOTES
[1] Dr. Chehval's first name is spelled "Micheal" throughout the agreement that is the focus of this lawsuit and spelled "Michael" in the petition that initiated this lawsuit.
[2] In its Judgment the trial court identified the wrongful death action as "Moeller v. St. Johns, et al # 670115." That lawsuit is being pursued by Michael Moeller for the death of his wife, Sharon Moeller, while she was under Physician's care. Physician named Michael Moeller as a defendant in this declaratory judgment action; however, Michael Moeller is not a party on appeal from the Judgment entered by the trial court in this case.
[3] As noted earlier, Physician also pursued this declaratory judgment action against a second defendant, Michael Moeller, who is not a party to this appeal.
[4] Medical Center actually filed two motions to dismiss or for summary judgment, one in August 1996 and one in December 1996. Physician filed a motion for summary judgment. The trial court's Judgment expressly considers only the "cross-motions for summary judgement." The record before us does not contain an indication of how the trial court resolved Medical Center's motions to dismiss.
[5] See RJF Int'l Corp., 880 S.W.2d at 369, 371 (upholding the entry of summary judgment upon interpreting a provision that the indemnifying party "assumes and indemnifies and holds harmless [the indemnified party] from and against ... [a]ll liabilities and obligations arising from [certain specified conduct] on or after" a specified date as providing indemnification "irrelevant of fault" even though the acts occurred prior to the specified date). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578269/ | 281 S.W.3d 129 (2008)
Mark REASOR, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-07-00442-CR.
Court of Appeals of Texas, San Antonio.
September 24, 2008.
Rehearing Overruled January 9, 2009.
*131 Angela J. Moore, Chief Public Defender, San Antonio, Nancy B. Barohn, Kansas City, MO, for appellant.
Scott Roberts, Asst. Crim. Dist. Atty., San Antonio, for appellee.
Sitting: KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
OPINION
PHYLIS J. SPEEDLIN, Justice.
In nine issues on appeal, Mark Reasor complains that the trial court abused its discretion in revoking his deferred adjudication community supervision and sentencing him to six years' confinement. We modify the judgment to delete the payment of restitution and affirm as modified.
BACKGROUND
In 1996, Reasor was charged by indictment with possession of 400 grams or more of cocaine, as a repeat offender. On May 1, 1997, pursuant to a plea bargain agreement, Reasor pleaded guilty to possession of cocaine between 200 and 400 grams. The trial court deferred adjudicating guilt, and awarded Reasor a ten-year term of community supervision. Seven years later, the State filed a motion to revoke Reasor's community supervision. At a hearing held on August 12, 2005, Reasor pleaded "true" to two violations of his conditions of supervision, but was continued on supervision pursuant to an order entitled "Order Altering and Amending Term And/Or Conditions of Community Supervision." As a condition of his community supervision, Reasor was ordered to pay $10,453 in restitution, to be paid at a rate of $847 per month beginning November 10, 2005.
Almost one year later, the State filed another motion to revoke. At the revocation hearing, Reasor pleaded "not true" to the allegations that he committed six separate violations of his community supervision, including criminal mischief, theft by check, and failure to pay restitution. The trial court found all but one of the State's allegations to be true, revoked Reasor's community supervision, and sentenced Reasor to a term of six years' confinement in the Institutional Division, Texas Department of Criminal Justice. The trial court found that Reasor was obligated to pay $15,053 in restitution, and recommended to the Texas Board of Pardons and Paroles that payment of the restitution be made a condition of parole. Reasor filed a motion for new trial, which was denied by the trial court after a hearing.
REVOCATION OF COMMUNITY SUPERVISIONSTANDARD OF REVIEW
We review the trial court's judgment revoking community supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.App.2006). We indulge all reasonable inferences in a light favorable to the trial court's ruling, Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. [Panel Op.] 1979), and sustain the order of revocation if the evidence substantiates a single violation. Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978). Because a revocation hearing is an administrative hearing rather than a criminal trial, the State is only required to prove a probation violation by a preponderance of *132 the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). The State meets its burden when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision. Rickels, 202 S.W.3d at 764. If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984).
DISCUSSION
Criminal Mischief
Reasor and his girlfriend, Tanya Ambrosio, rented a house from Nick Fusco. The lease, which was signed by both Reasor and Ambrosio, began on March 1, 2005 and was to continue until March 31, 2006. The rent was $1,200 per month, and a $500 security deposit was required. From June 8, 2005 until September 8, 2005, Reasor was required to reside in a federal halfway house as a condition of supervised release imposed for a subsequent federal criminal conviction. During this time, Fusco became unhappy about the appearance of the rental home, complaining that contracting supplies, wood logs, and a large tree stump were left in the yard. In late July 2005, Fusco informed Reasor and Ambrosio that they had breached their lease and demanded they move out by August 31, 2005; however, the next month, Fusco and Reasor agreed that Reasor and Ambrosio would move out on October 31, 2005. Shortly thereafter, Fusco went to the rental house to collect rent for the month of September. Fusco claimed he entered the home after knocking and calling out; Ambrosio, however, testified that she was home alone and in the shower when Fusco entered the home and came into the bathroom where she was showering. Ambrosio then decided to vacate the premises at once. After they moved out, Fusco sent Reasor and Ambrosio the following letter:
Your Security Deposit would have been ALL Returned if you abided by your Rental lease. All damages done when renting our property have been documented and photographed.... No Keys returned or yard work clean up was done Prior to moving. NO MOVE-OUT NOTICES was given by tenants. You move out September 30, 2005. You did not pay for the month of September 2005. You owe us for 3 return ISF checks. We can work out a fair settlement between the% both of us, rather going to a small claim court. Please contact me. We have many color photos and documents to prove our case. Don't jeopardize your Parole or credit.
Fusco then notified Reasor's state probation officer about four bad checks which he claimed Reasor had written to him for rent. The State then filed a motion to revoke Reasor's community supervision, alleging that he: 1) committed the offense of criminal mischief by damaging Fusco's rental home; 2) committed three offenses of theft by paying for rent with a hot check; 3) committed the offense of theft of services by failing to pay one month's rent; and 4) failed to pay court-ordered restitution. As noted, the trial court found all of the allegations true except for one allegation of theft.
On appeal, Reasor argues that the trial court abused its discretion in finding that he violated the terms of his community supervision by committing the offense of criminal mischief by causing $50 to $500 of property damage. A person commits the offense of criminal mischief if, without the effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner. TEX. PENAL CODE ANN. § 28.03(a)(1) (Vernon *133 Supp.2008). "The `value of pecuniary loss' or `cost of replacing or repairing damaged property' is a crucial element of the offense because it forms the basis of punishment assessed." Barnes v. State, 248 S.W.3d 217, 220 (Tex.App.-Houston [1st Dist.] 2007, pet. struck) (citing Elomary v. State, 796 S.W.2d 191, 192-93 (Tex.Crim. App.1990)). If the property was damaged, the amount of pecuniary loss is "the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred." TEX. PENAL CODE ANN. § 28.06(b) (Vernon 2003). The property does not actually have to be repaired to establish the cost of repair work. Elomary, 796 S.W.2d at 193.
At the revocation hearing, Fusco testified that Reasor painted inside the rental house without his permission and that Reasor removed the cabinet doors in the bathroom, kitchen, and dining room. The majority of the cabinet doors were lost and never replaced. Reasor also removed a ceiling fan and a non-functioning air conditioning unit; the ceiling fan was left disassembled as was the air conditioning unit. Fusco testified that he had spent more than $50 repairing the damage that was done to the rental home. He also noted that there was a hole in the back bedroom wall caused by slamming the door into the wall. Fusco further stated that, although he never got an estimate, he believed that it would cost him more than $50 to replace the cabinet doors that are missing; he also figured it would cost $120 to repair the air conditioning unit. He repaired the ceiling fan with a piece of board. Fusco used part of the $500 security deposit to pay for some of the repair costs.
Reasor conceded that he did some painting in the house, but stated he had Fusco's permission. Reasor stated he removed the cabinet doors in order to paint them or stain them to make them more presentable, but did not finish the project before moving out. Reasor stated that he did not remove the ceiling fan, but that one blade just fell off. Reasor admitted removing the old air conditioning unit and replacing it with his own unit. The hole in the sheetrock was caused because there was not a doorstop on the baseboard of the wall. Ambrosio testified that most of the damage done to the house was her fault, and that Fusco was a demanding landlord. She stated that she removed the cabinet doors in order to paint them and did not replace them because she vacated the house suddenly after Fusco walked in on her while she was in the shower.
Reasor maintains that the dispute between him and Fusco was civil in nature and that the damages described by Fusco were of the sort anticipated by the lease agreement, and covered by the security deposit. Further, he asserts the State's contention that the damages were between $50 and $500 indicates that the $500 security deposit was sufficient to cover the alleged damages. Reasor essentially asks this court to hold that when a civil remedy is available to a victim of a crime, the victim may not pursue criminal redress. We decline to do so.
Additionally, Reasor argues that the evidence that he committed criminal mischief was legally insufficient because the State failed to offer adequate proof on the element of pecuniary loss and merely relied on Fusco's personal estimate of the cost of repairs. See Barnes, 248 S.W.3d at 220; Elomary, 796 S.W.2d at 193 (without further evidence, "off-the-wall" lay opinion testimony or a mere estimate of cost of repair is insufficient to prove the cost of repairs for a criminal mischief conviction). In finding that Reasor committed the offense of criminal mischief, the trial court was entitled to assess the witnesses' credibility and the weight to be given to the *134 evidence. See Jackson v. State, 915 S.W.2d 104, 105-06 (Tex.App.-San Antonio 1996, no pet.). The trial court could have chosen to believe Fusco and disregarded Ambrosio's testimony that the damage to the home was her fault. Furthermore, the trial court was free to disbelieve both Reasor and Ambrosio's testimony that they removed the cabinet doors with the intent to replace them. The intent to repair the damage is immaterial so long as there was intent to damage or destroy in the first instance. See Athey v. State, 697 S.W.2d 818, 820 (Tex.App.-Dallas 1985, no pet.) (upholding conviction for criminal mischief even though appellant denied removing cabinets, sheetrock, and floor tiles with intent to damage or destroy rental house because "[a]ny intent appellant may have had to repair the damage and then restore whatever loss he may have caused the owner is immaterial"). Furthermore, Fusco's testimony that he had already spent more than $50 repairing the damage is sufficient evidence of the amount of pecuniary loss given the lesser preponderance of the standard used in revocation proceedings. Accordingly, on this record, we conclude that the evidence created a reasonable belief that Reasor committed the offense of criminal mischief, and therefore the trial court did not abuse its discretion in revoking Reasor's community supervision. Reasor's first issue is overruled.
Because proof of a single probation violation is sufficient to support a revocation, we need not address the remaining alleged violations. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.-San Antonio 2006, no pet.). Likewise, it is unnecessary to address Reasor's eighth and ninth issues involving evidentiary challenges related to the remaining alleged probation violations.
Restitution
In Reasor's sixth issue, he contends the trial court's order recommending that Reasor pay $15,053 in restitution as a condition of parole is unlawful and must be set aside. At the March 30, 2007 revocation hearing, the following exchange occurred after the trial court revoked community supervision and sentenced Reasor to six years' imprisonment:
State: Would you order the original restitution to Ms. Hill and Mr. Fusco as a condition of sentence?
...
Court: Are we clear on what the restitution is for Mr. Fusco?
State: I guess it would be whatever you decide it to be.
Defense: I think it would be [Fusco's] loss.
State: The checks you found true, it would be theI guess the $10,000 that he agreed on and then the 14
Court: I will order whatever original restitution was in place
State: Okay.
Court:and as to only those allegations that I found true. I believe there was one allegation that was not true. Okay?
The judgment revoking supervision recites:
The court finds that $15,053.00 restitution is due and owed to the victim of this felony offense. Restitution payments should be forwarded to the Board of Pardons and Paroles, for the victim, whose name and address the court determines should not, in the interest of justice, be included in this judgment.
In a timely filed motion for new trial, Reasor complained in Grounds Five and Six that the trial court erred in ordering him to pay restitution to Jennifer Hill and Nick Fusco as a condition of parole because *135 Hill and Fusco were not victims of the underlying offense for which community supervision was imposed. See Idowu v. State, 73 S.W.3d 918, 921-22 (Tex.Crim. App.2002) (complaint regarding restitution order may be raised for first time in motion for new trial). A challenge to a restitution order is reviewed under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex.Crim.App. [Panel Op.] 1980); Lemos v. State, 27 S.W.3d 42, 45 (Tex.App.-San Antonio 2000, pet. ref'd). The court abuses its discretion when it acts in an arbitrary or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (op. on reh'g).
A trial court may impose restitution only for the victim of the offense for which the defendant was convicted. Martin v. State, 874 S.W.2d 674, 677 (Tex. Crim.App.1994). Reasor was convicted of possession of cocaine. Subsequent to being placed on probation for the possession offense, Jennifer Hill obtained a civil judgment against Reasor related to incomplete home improvement work, and Nick Fusco is the landlord who accused Reasor of damaging his rental home and writing hot checks. Clearly, neither Hill nor Fusco were victims of Reasor's original offense of convictionpossession of cocaineas statutorily required. See TEX.CODE CRIM. PROC. ANN. art. 42.037(a) (Vernon Supp.2008) (sentencing court may order defendant to make restitution to any victim of the offense). Accordingly, the trial court abused its discretion in recommending that restitution be paid to Hill and Fusco as a condition of Reasor's parole for the possession offense. See Campbell v. State, 5 S.W.3d 693, 697 (Tex.Crim.App.1999) (noting that "trial court may not order restitution to any but the victim or victims of the offense with which the offender is charged"); Gordon v. State, 707 S.W.2d 626, 630 (Tex.Crim.App.1986) (holding that the trial court is without authority to order appellant to make restitution for losses caused by an offense for which he was not criminally responsible); Lemos, 27 S.W.3d at 49 (holding that award of restitution to compensate victim's wife and mother was improper because they were not victims as defined by article 42.037).
Because the trial court lacked the authority to recommend that Reasor pay restitution to Hill and Fusco as a condition of parole, the appropriate remedy is to delete the restitution from the judgment of the trial court. See id. (deleting condition of community supervision that ordered appellant to pay restitution to non-victims of charged offense). This court has authority to modify judgments when we have the necessary information to make a correction. See TEX.R.APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993). Accordingly, we sustain Reasor's sixth issue and modify the trial court's judgment to delete that portion of the judgment imposing restitution.
Findings of Fact and Conclusions of Law
Finally, in his seventh issue, Reasor contends the trial court denied him procedural due process by failing to provide him with a written "statement as to the evidence relied on, and the reasons for revoking his community supervision" despite numerous requests to the trial court. See Ex parte Carmona, 185 S.W.3d 492, 495 (Tex.Crim.App.2006) (U.S. Constitution protects persons who are released on community supervision from re-incarceration without due process of law). Reasor argues he was harmed by the court's failure to enter formal findings of fact and conclusions of law because the State "argued various theories of theft ... general theft, theft of services, presumption of theft by check," and if the court had made *136 findings as to which theft theory it believed, it would have made Reasor's "challenges on appeal more focused [and] would have facilitated this Court's review." Because this complaint pertains to the several instances of theft alleged as grounds for revocation, and because we resolve this appeal on the criminal mischief ground, it is not strictly necessary to address this issue; however, in the interest of thoroughness, we will examine whether Reasor was entitled to written findings of fact and conclusions of law.
Due process in the revocation context requires: (1) a hearing; (2) written notice of the claimed violations; (3) disclosure of the evidence against the defendant; (4) an opportunity to be heard and to present witnesses and documentary evidence; (5) a neutral hearing body; and (6) "a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation." Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). When a defendant timely requests the entry of specific findings of fact upon which revocation is based, the trial court errs in failing to enter such findings of fact. Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim. App.1977); Joseph v. State, 3 S.W.3d 627, 639 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The failure to make the requested findings may require reversal if their omission impedes appellate review of the revocation. Joseph, 3 S.W.3d at 639 (citing Ford v. State, 488 S.W.2d 793, 795 (Tex.Crim.App.1972)). However, the trial court is not required to issue separate findings if the judgment or revocation order discloses the grounds for revocation found by the court. See Joseph, 3 S.W.3d at 640 (concluding that handwritten notations on the revocation order sufficed).[1]
Here, the record reflects that the trial court orally specified the particular probation conditions violated, and their factual basis, at the end of the revocation hearing, finding all of the alleged violations "true" except for one which was found "not true." The court's written judgment recites, "[t]he Court, after hearing all of the evidence for the State and the Defendant and argument of counsel, is of the opinion and finds that the Defendant violated the conditions of the Defendant's community supervision as stated above;" the judgment listed the conditions violated by paragraph number and further referenced them "as set out in the State's motion to revoke." Thus, the record shows Reasor was afforded adequate notice of the grounds underlying the court's revocation, and his ability to prosecute an appeal was not diminished by the absence of further findings. Accordingly, Reasor's seventh issue is overruled.
*137 CONCLUSION
Based on the foregoing analysis, the trial court's judgment is modified to delete the payment of restitution, and, as modified, the judgment revoking Reasor's community supervision is affirmed.
NOTES
[1] See also Payne v. State, No. 04-00-00659-660-CR, 2001 WL 540303, at *3 (Tex.App.-San Antonio May 23, 2001, no pet.) (not designated for publication) (judgment stating that "condition number one was violated" provided the information necessary to determine the basis of revocation, which satisfied due process); Rivera v. State, No. 04-99-00119-CR, 2000 WL 566989, at *1 (Tex.App.-San Antonio May 10, 2000, pet. ref'd) (not designated for publication) (judgment finding that defendant violated probation conditions "as set forth in State's Motion to Revoke Probation" and attaching copy of State's list of eight violations was sufficient to comply with request for findings); McMahon v. State, No. 07-06-0091-CR, 2007 WL 1323373, at *2 (Tex.App.-Amarillo Oct. 10, 2007, pet. ref'd) (not designated for publication) (findings were sufficient where trial court orally specified conditions violated at end of revocation hearing, and memorialized the violations in the written judgment); Renteria v. State, No. 08-02-0329-CR, 2004 WL 883176, at *2-3 (Tex.App.-El Paso Apr.22, 2004, no pet.) (not designated for publication) (holding judgment was sufficient where it specified the conditions of probation violated, and the factual assertions underlying each violation). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578643/ | 958 S.W.2d 853 (1997)
Robert Ferdinand FOWLER, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-96-190-CR.
Court of Appeals of Texas, Waco.
November 26, 1997.
Discretionary Review Granted March 11, 1998.
*856 William D. Stoneburner, Belton, Walter M. Reaves, Jr., West, for appellant.
John W. Segrest, Crim. Dist. Atty., Beth Toben, Asst. Crim. Dist. Atty., Waco, for appellee.
Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.
OPINION
VANCE, Justice.
Robert Fowler was indicted for and charged with the offense of aggravated kidnapping. TEX.PEN.CODE ANN. § 20.04 (Vernon Supp.1997). Following a jury trial, Fowler was found guilty and withdrew his election for the jury to assess punishment. The court sentenced him to life in prison. Fowler appeals on five points of error. His first three points argue that the court erred *857 in admitting the testimony of Donna Gregory, a family violence counselor, when such testimony was not shown to be reliable, bolstered the testimony of the victim, was not relevant to any issue in the case, and was not on a subject beyond the experience and knowledge of most jurors. His fourth point complains of egregious harm resulting from the submission of a theory in the charge which was not alleged in the indictment. Finally, Fowler asserts that the finding that he did not voluntarily release the victim was against the great weight and preponderance of the evidence. We will affirm the judgment.
FACTS
Robert and Carol Fowler married in June of 1994. After filing for divorce in October of 1995, Carol attempted a reconciliation with Fowler. Determining that their marriage would not work, Carol left him again on December 3. On Tuesday, December 5, Fowler followed her to work, honking his horn and driving recklessly while trying to run her off the road. When she finally stopped her vehicle, he forced her to leave it behind and get into his truck. He continuously threatened Carol's life, hitting her and scaring her with a shotgun. It was his goal, he told Carol, that they die together. Once he began to calm down, Fowler threw the gun out of the truck and drove to the Bellmead Police Department. He offered to let Carol go, but she did not leave for fear, she testified, that he would run over her once she got out of the truck. Fowler eventually drove to a motel where he intended for them to stay overnight before leaving town. The next morning, they were awakened by a phone call from the police indicating that they were surrounded and requesting that Fowler release Carol. He begged Carol to tell the police that she was with him willingly, but she refused. Fowler eventually opened the door and surrendered, leaving Carol alone in the motel room.
THE CHARGE
In his fourth point, Fowler asserts that the trial court erred in submitting a theory in the charge that was not alleged in the indictment. See Gooden v. State, 576 S.W.2d 382 (Tex.Crim.App.1979). We agree. Section 20.03 of the Penal Code defines kidnapping as intentionally or knowingly abducting another person. Abduction occurs by restraining a person with intent to prevent his liberation by 1) secreting or holding him in a place where he is not likely to be found or 2) using or threatening to use deadly force. Tex.Pen.Code Ann. § 20.01(2) (Vernon 1994). Kidnapping is aggravated when the defendant:
(a) intentionally or knowingly abducts another person with the intent to:
(2) use him as a shield or hostage; ...
(5) terrorize him or a third person; ...
(b) intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
Id. § 20.04. The indictment alleged in pertinent part:
[Fowler] did then and there with intent to use Carol Fowler as a hostage and to terrorize [her], and did then and there intentionally and knowingly abduct Carol Fowler by restricting [her] movements ... without her consent, so as to interfere substantially with her liberty, by moving her from one place to another, with the intent to prevent her liberation by secreting and holding her in a place where she was not likely to be found,
DEADLY WEAPON ALLEGATION
And it is further presented to said Court that during the commission of the above described felony, the said Defendant did use and exhibit a deadly weapon, to-wit: a firearm, that in the manner of its use and intended use was capable of causing death and serious bodily injury.
The charge instructed the jury that aggravated kidnapping was kidnapping "committed with the intent to use [the victim] as a hostage, or to terrorize her; or if the actor uses or exhibits a deadly weapon in the commission of the offense." Thus, the application paragraph authorized a conviction if the jury found that Fowler used or exhibited a deadly weapon when he abducted Carol. This was *858 improper. Although each of these are theories supported by the penal code under which one could be convicted of aggravated kidnapping, the indictment fails to charge Fowler with using or exhibiting a deadly weapon and, as a result, he could not be convicted on this basis.
Because the deadly weapon allegation was not included as part of the substantive offense in the indictment, i.e. it was not listed as an element of the crime, it could not support a conviction if the jury found Fowler used or exhibited a deadly weapon, but did not find that he used Carol as a hostage or terrorized her. Rather, the deadly weapon assertion in the second paragraph of the indictment served only to put Fowler on notice of the State's intention to seek a finding under Article 42.18 of the Code of Criminal Procedure.[1]
A defendant is entitled to some form of notice that the use of a deadly weapon will be a fact issue at trial. Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App. 1989). In a jury case, the court is authorized to enter an affirmative finding as to whether a deadly weapon was used or exhibited during the commission of a felony in only three situations: when the jury has (1) found guilt as alleged in the indictment and the deadly weapon has been specifically pled as such using "deadly weapon" nomenclature in the indictment; (2) found guilt as alleged in the indictment but, though not specifically pled as a deadly weapon, the weapon pled is per se a deadly weapon; or (3) affirmatively answered a special issue on deadly weapon use. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim.App.1995). Although due process does not require that such notice appear in the indictment, it "probably should appear there." Ex parte Patterson, 740 S.W.2d 766, 776 (Tex.Crim.App.1987). Thus, to ensure that the defendant receives adequate notice, it is advisable to allege the use or exhibition of a deadly weapon in the indictment. In the present case, the indictment has been used for dual purposes. On one hand, it is the written statement of the grand jury accusing Fowler of aggravated kidnapping under section 20.04(a) of the Penal Code. See id at 775. On the other hand, the indictment gives Fowler notice of the State's intention to seek a finding under Article 42.18 of the Code of Criminal Procedure. Because the indictment did not allege aggravated kidnapping by using a deadly weapon as is authorized under 20.04(b), but rather alleged only that Fowler kidnapped Carol with the intent to terrorize her, or use her as a hostage, the charge should have been limited to those theories.
Because there was no objection to the charge, we must review the record to see if the charge errorauthorizing a conviction on a theory not alleged in the indictmentwas so egregious that Fowler was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 160 (Tex.Crim.App.1984). In Ross v. State, a similar question was held to be "fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair trial." 487 S.W.2d 744, 745 (Tex.Crim.App.1972). The court went on to say that the harm required reversal because the evidence was insufficient to support a conviction under the allegations in the indictment. Id. However, in Lang v. State the Dallas Court reached a different result under Almanza[2] when the evidence was found to be sufficient to support the conviction under the allegations of the indictment. Lang v. State, 698 S.W.2d 223, 226 (Tex.App.Dallas 1985, no pet.).
We find the evidence sufficient to support a conviction of the offense alleged in the indictment. First, the evidence that Fowler intended to terrorize Carol is overwhelming. There is Carol's corroborated testimony that Fowler forced her off the road and into his *859 truck. She testified that he threatened to kill her multiple times, claiming that they were going to die together, that she would never see her children again, and that her brains would be "splattered all over the place" if she resisted. Second, there is sufficient evidence to warrant a finding that Fowler intended to use Carol as a hostage. Once the police had him surrounded, Fowler spent approximately forty-five minutes with Carol trying to convince her to tell the police she was there voluntarily. During this entire time, he refused to let Carol speak with the police or leave the room. Both the hostage theory and the theory that he terrorized her are supported by the evidence.
Recently, the Court of Criminal Appeals held in Malik v. State that the sufficiency of the evidence should be measured by the elements of the offense as defined by the "hypothetically correct jury charge for the case." 953 S.W.2d 234, 239 (Tex.Crim.App. 1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Using this analysis, we would reach the same answer. The evidence is sufficient to sustain the conviction for the indicted offense using a hypothetically correct charge.
One other factor requires examination. In Lang, the Dallas Court held that having determined the evidence to be sufficient was not enough. "[F]urther analysis is required because the converse of the Ross holding does not necessarily follow: a charge authorizing conviction on a theory not alleged in the indictment is not necessarily free from egregious error, even though the evidence is sufficient to support the allegations of the indictment." Lang, 698 S.W.2d at 225. The Lang opinion then addressed the appellant's claim that he was denied notice of and an opportunity to defend against the theory submitted in the charge. Fowler does not, however, complain of any lack of notice or opportunity to defend, rather, he suggests that the fact that there was no dispute as to the presence of a weapon allowed the jury to avoid the truly contested issue of whether Carol went with him and stayed with him voluntarily. He asserts that merely because the verdict may have been based on the improperly submitted theory, he has suffered egregious harm.
When determining whether a defendant suffered egregious harm, we must examine whether the error affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected his defensive theory. Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App.1996). We believe that because the evidence is sufficient to support a conviction under the indictment, it cannot be said that the basis of the case was affected nor that Fowler was deprived of a valuable right. Id; Lang, 698 S.W.2d at 226. Egregious harm could have occurred only if Fowler's defensive theory was affected. We find that it was not. Because he could not dispute the presence of the gun, Fowler's only line of defense was to attack Carol's credibility, whether the charge included the additional theory or not. Thus, any harm he suffered as a result of the erroneous charge was not egregious and does not require reversal. Almanza, 686 S.W.2d 157. Point four is overruled.
SUFFICIENCY OF THE EVIDENCE OF RELEASE
After the jury found Fowler guilty, the court assessed his punishment at life in prison. In his fifth point, Fowler suggests that the court's failure to find that he voluntarily released the victim is against the great weight and preponderance of the evidence. We disagree. Section 20.04 of the Penal Code provides that "at the punishment phase of a trial, a defendant may raise the issue of whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." Tex.Pen.Code Ann. § 20.04. The proper standard is whether "considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust." Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App.1990); *860 Moranza v. State, 913 S.W.2d 718, 724 (Tex. App.Waco 1995, pet. ref'd).
Once the police surrounded the motel in which Fowler and Carol were staying, they demanded that Fowler release Carol and surrender. After approximately thirty to forty-five minutes, Fowler opened the door and came out, leaving Carol unharmed but crying inside the room. We believe this evidence is sufficient to support a finding that Fowler never "released" the victim. The police asked him to release her, but he did not. When he finally surrendered, the police found Carol in the motel room. Because there was no release, Fowler cannot be said to have voluntarily released her. Point five is overruled.
EXPERT WITNESS TESTIMONY
Fowler's first three points complain that the trial court erred in allowing Donna Gregory, a family violence counselor, to testify as an expert witness. He initially argues that admitting the testimony was error because it improperly bolstered Carol's testimony. He did not object on this basis at trial and, as a result, waived review of this point. See Cook v. State, 858 S.W.2d 467, 474 (Tex.Crim.App.1993); Webb v. State, 899 S.W.2d 814, 818 (Tex.App.Waco 1995, pet. ref'd) (An objection on one legal theory will not support a point of error on a different theory). Fowler's second and third points question the relevancy and the reliability of the expert's testimony, where the State did not attempt to establish the admissibility of the evidence under Kelly v. State. 824 S.W.2d 568 (Tex.Crim.App.1992). We will address these points simultaneously.
THE DISPUTED EVIDENCE
Gregory, the State's expert, testified regarding domestic violence and the problems it creates for the victims generally, and also about the specific counseling she had done with Carol Fowler. Her education and experience consisted of an M.A. in Psychology, a two-thousand hour internship at the Family Abuse Center in Waco, and one year of private practice. She also indicated that she had attended several workshops and seminars. After answering questions regarding her education and experience, Gregory began her testimony regarding family violence, the common long-term responses to that violence, and whether Carol Fowler exhibited those responses. It appears from the record that her testimony was based solely on personal experience.
STANDARD FOR ADMISSIBILITY UNDER RULE 702
Rule 702 of the Rules of Criminal Evidence, which governs the admission of expert testimony, provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
TEX.R.CRIM.EVID. 702 (emphasis added). It is identical to Federal Rule 702 and Texas Rule of Civil Evidence 702.
This rule contains three requirements for the admission of expert testimony: (1) the witness must be qualified; (2) the proposed opinion testimony must be grounded in "scientific, technical, or other specialized knowledge"; and (3) the testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." Id.; Robinson, 923 S.W.2d 549, 556 (Tex.1995) (referring to the Texas Rules of Civil Evidence). The Court of Criminal Appeals has held that testimony regarding scientific evidence offered pursuant to Rule 702 of the Rules of Criminal Evidence must be relevant and reliable. See Kelly, 824 S.W.2d at 573.
The threshold determination for a trial court to make regarding the admission of expert testimony based on "scientific knowledge" is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Id. at 572. Once it is determined that the proffered evidence will assist the trier of fact, the trial court must determine whether the testimony is relevant. Id. To be relevant, the proposed testimony must be "sufficiently tied to the facts of the case that it will assist the trier of fact in resolving a factual dispute." *861 Robinson, 923 S.W.2d at 556. Next, the trial court must establish that the evidence is sufficiently reliable to help the jury in reaching accurate results. Kelly, 824 S.W.2d at 573. The proponent of scientific evidence has the burden of proving its relevancy as well as the scientific reliability by clear and convincing evidence. Id. Unreliable scientific evidence simply will not assist the jury to understand the evidence or accurately determine a fact in issue; such evidence obfuscates rather than leads to an intelligent evaluation of the facts. Id. If the judge determines that the testimony is both relevant and reliable, he must then determine whether its probative value is outweighed by the "danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."[3]Robinson, 923 S.W.2d at 557; see Kelly, 824 S.W.2d at 572.
To satisfy his reliability burden, the proponent of the evidence must make a technical showing, outside the presence of the jury, demonstrating: (1) a valid underlying scientific theory, (2) a valid technique applying the theory, and (3) that the technique was properly applied on the occasion in question. See Kelly, 824 S.W.2d at 573. Additionally, there are several factors that may influence a trial court's determination of reliability. These include: (a) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if ascertainable; (b) the qualifications of the expert testifying; (c) the existence of literature supporting or rejecting the underlying theory and technique; (d) the potential rate of error of the technique; (e) the availability of other experts to test and evaluate the technique; (f) the clarity with which the underlying theory and technique can be explained to the court; and (g) the experience and skill of the person who applied the technique on the occasion in question. See id.[4]
PRESERVATION OF COMPLAINT
In Kelly, the Court states that once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility. The State urges us to find that Fowler never properly objected, the State never had a burden to demonstrate admissibility under Kelly, and error was not properly preserved.
Fowler first raised the admissibility question in a motion in limine, requesting that the court order the State "not to call any expert witness before the jury until the Court has had an opportunity to determine qualifications and such competency of the witness to testify." His motion was granted.
The State attempted to offer Gregory's testimony during its case-in-chief. Fowler objected that she had limited experience, had only testified a few times, and that her testimony referred to family abuse. The State responded that Fielder and Duckett both recognize the use of experts to explain behavior that would not be ordinarily understandable to the jury. See Fielder v. State, 756 S.W.2d 309 (Tex.Crim.App.1988); Duckett v. State, 797 S.W.2d 906 (Tex.Crim.App.1990).[5]
The court then indicated reservations about whether the subject matter of Gregory's testimony was outside the understanding *862 of the jury and expressed concern about its admissibility. Fowler agreed. At this point, the State withdrew its offer of the evidence. On rebuttal, the State re-offered the testimony and Fowler objected to relevancy, hearsay, denial of due process, prejudice, and competency of the evidence.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely objection stating the specific grounds for the objection, if the grounds are not apparent from the context. Tex.R.App.P. 33.1. All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the court is in a position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). Although his objection was far from model, using this test we believe that Fowler sufficiently relayed his objections to the court. Regarding Gregory's lack of experience and the testimony's inability to assist the jury, Fowler made clear objections. Likewise, he properly objected to the relevancy of the evidence. Essentially, we believe Fowler's objection preserved his complaint about the admissibility of Gregory's testimony under Kelly.
SCIENTIFIC KNOWLEDGE VS. SPECIALIZED KNOWLEDGE
Some have suggested that we distinguish between "scientific knowledge" and "specialized knowledge." The testimony in question in this case, should a distinction be necessary, would be categorized as "specialized knowledge." The State urges us to accept the proposition that Kelly does not apply to psychological sciences, as they are not susceptible to the same scrutiny as the "hard sciences" and thus, fall out of the category of "scientific knowledge."[6] Testimony of behavioral sciences, the State claims, may be necessary to assist the trier of fact with the significance of behavior that the jury may not understand. This testimony, it argues, is more like the expert testimony in Duckett and Fielder, where it was offered to rehabilitate another witness. Duckett, 797 S.W.2d at 920; Fielder, 756 S.W.2d at 320. The State also urges that, under Duckett, the evidence has greater probative value as rebuttal evidence after the victim has been impeached. However, in Duckett, the Court of Criminal Appeals held that the proper inquiry was whether the testimony was "otherwise admissible" under the rules of evidence. Id. Because Kelly was decided post-Duckett, we must examine the evidence in light of Kelly.
Additionally, relying on Justice Daughinot's concurrence in Forte v. State, the State urges that "testimony on subjects such as domestic violence, battered spouse syndrome, and sexual assaults, is not amenable to the Kelly test." 935 S.W.2d 172 (Tex.App.Fort Worth 1996, pet. ref'd). However, in both Forte and Jordan v. State a majority of the Fort Worth court addressed the issue differently. Id; 950 S.W.2d 210 (Tex.App.Fort Worth 1997, pet. filed) (both cases dealt with the admissibility of expert testimony regarding the reliability of eyewitness testimony). In Jordan, because the case was on remand with a directive to "determine whether the testimony was sufficiently reliable under Rule 702," the court assumed that the Court of Criminal Appeals intended Kelly to apply, since it "applies to all scientific evidence offered under Rule 702."[7]Id. at 212. We likewise believe that this was the intention of the Court of Criminal Appeals. Knowing that the testimony in question regarded the reliability of eyewitness testimony, the Court detailed the history of Rule 702, including Kelly, Daubert, and Robinson. The State, nevertheless, argues that there is no basis *863 for conducting a reliability hearing for psychological evidence because it is unlike scientific knowledge, which must be derived by the scientific method and appropriately validated and no such method is used in the psychological context. Nations v. State, 944 S.W.2d 795 (Tex.App.Austin 1997, pet. filed); Daubert, 509 U.S. at 590, 113 S.Ct. at 2796. We find this argument to be unpersuasive.
In Nations, the Austin Court was directed by the Court of Criminal Appeals to reconsider the exclusion of expert testimony regarding the reliability of eyewitness testimony in light of its remand of Jordan v. State, 928 S.W.2d 550 (Tex.Crim.App.1996). The Austin Court recognized that Rule 702 places the trial judge in the role of a "gatekeeper" who must ensure that scientific testimony is not only relevant but reliable, but questioned whether "under the current law in this state interpreting Rule 702 ... it is appropriate to conduct a hearing on the reliability of evidence from the field of psychology." Nations, 944 S.W.2d at 800. However, after questioning whether this type of evidence should undergo a Kelly analysis, the court in fact subjected it to such an analysis. See id. at 801-02.
Additionally, we believe the Court of Criminal Appeal's decision in Jordan dictates that Kelly applies to "specialized knowledge," specifically the field of psychology. 928 S.W.2d 550. Likewise, Daubert, the federal equivalent of Kelly, has been applied to psychological testimony. In Gier v. Educational Service Unit No. 16, the Eighth Circuit Court of Appeals affirmed the trial court's limitation of expert testimony regarding evaluation of mentally retarded students, holding that the testimony was unreliable under Daubert. 66 F.3d 940 (8th Cir.1995). "Under Daubert, a district court must engage in an assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 943. Similarly, in State v. Foret the Louisiana Supreme Court adopted the Daubert standard where a child psychologist testified to "Child Sexual Abuse Accommodation Syndrome." 628 So. 2d 1116 (La. 1993). "Psychodynamic theories on the explanation of human behavior is, at best, a science that is difficult to impossible to test for accuracy. This untestability comes from its very nature as an opinion as to the causes of human behavior, and the fact that the methods for testing the results of psychoanalysis are rife with the potential for inaccuracy." Id. at 1125. "This type of evidence is of highly questionable scientific validity, and fails to unequivocally pass the Daubert threshold test of scientific reliability." Id. Similarly, in Forte v. State, Kelly was applied to determine the reliability of expert testimony regarding eyewitnesses. 935 S.W.2d 172. In concluding that the testimony was not reliable, the court held:
[A]ppellant in the instant case did not meet his burden of proving either the validity of the scientific theories underlying [the] expert testimony or the validity of the method used for applying the theories. There is no evidence that the theories underlying [the] expert testimony are accepted as valid by the relevant scientific community, or that the alleged existing literature on the theories support or reject these theories. Although [the witness] stated that there was a `very large body' of literature concerning eyewitness identification, he only mentioned the name of one other person who purports to be an expert in the field and he failed to identify or produce the scientific literature that he allegedly relied on to reach his conclusions.
We can find no reason why evidence regarding the "soft sciences" is not susceptible to Kelly. Rule 702 applies to all testimony given by experts. What the trial court's screening for reliability accomplishes is the elimination of an unsubstantiated, unsupported opinion, i.e., one person's opinion. We cannot legitimately exclude certain expertise from the reliability requirement merely because some critics feel "the criteria used to evaluate scientific testimony cannot be properly applied to fields of expertise which are not based on the scientific method." Nations, 944 S.W.2d at 800; see Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997) (Rule 702 applies to all scientific evidence, not just "novel" scientific evidence). The fact that it may be more difficult to assess *864 the reliability of testimony regarding the "soft sciences" does not justify eliminating the reliability requirement. We believe that the rule itself extends the responsibility of the trial court as "gatekeeper" to screening evidence from the soft sciences for reliability. See Nations, 944 S.W.2d at 800. Whether such evidence will assist the jury in making an intelligent evaluation of the facts rather than obfuscating them depends largely on the reliability of the testimony. See Kelly, 824 S.W.2d at 573.
Rule 702 makes no distinction between scientific, technical, or specialized knowledge. The evidence under the rule is treated collectively. Thus, until we are directed (1) how to differentiate between "scientific knowledge" and "specialized knowledge," and (2) what is the appropriate standard for reviewing testimony from an expert with "specialized knowledge," we are not persuaded that this is a necessary distinction. If the specialist who is testifying cannot explain to the court a theory used to reach his or her conclusions, the way that theory is applied by others with the same "specialized knowledge," and the way it will be applied in the present case, why should such evidence be said to be reliable enough that it will assist a jury? In making this determination about scientific evidence, Kelly lists seven nonexclusive factors for the trial court to consider. We acknowledge that each of the factors may not be satisfied by the proponent of the evidence. Indeed, all may not apply. There may be others. We believe that if at least some of the Kelly factors cannot be satisfied, then the testimony should be excluded.
We conclude that the court should have required that Gregory explain her theory, her technique, and how she applied that technique under the Kelly reliability test.
APPLICATION OF KELLY
Our review of the record reveals that the State failed to present sufficient evidence of the validity of the scientific theories underlying Gregory's testimony and the validity of the techniques used to apply the theories. Apart from establishing her qualifications and experience, not a single Kelly factor was met. The evidence does not show whether Gregory's theories are accepted as valid, nor whether a single piece of literature has been written to support her testimony. Likewise, whether Gregory has ever conducted research to test the validity of her theories or been subjected to peer review does not appear in the record. Whether or not the underlying theory and technique could be clearly explained is also unknown, considering that no attempt was made. In short, we find that the State, as the proponent of this evidence, failed to make an adequate showing of a valid underlying scientific theory, a valid technique applying the theory, or that any technique at all was applied in the present case. As a result, we find that the expert testimony fails to meet the Kelly test for admissibility and thus was improperly admitted.
HARM ANALYSIS
Having found that there was error in the admission of the testimony, we must determine whether or not it was harmless. Rule of Appellate Procedure 44.2 governs how harm is assessed after error is found in criminal cases.
CONSTITUTIONAL ERROR
Subsection (a) governs constitutional error, where "the court of appeals must reverse ... unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." TEX. R.APP.P. 44.2(a). Chapman v. California, which governed the harm analysis under former Rule 81(b)(2) still applies under Rule 44.2(a). 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Harm is assessed as set forth in Harris v. State, 790 S.W.2d 568, 583-88 (Tex.Crim.App.1989).
NON-CONSTITUTIONAL ERROR
Subsection (b) provides: "Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX.R.APP.P. 44.2(b). The language in 44.2(b) mirrors that found in Federal Rule of Criminal Procedure 52(a).[8]*865 The United States Supreme Court thoroughly considered Rule 52(a) in Kotteakos v. United States, adopting a standard used by federal courts when doing a harm analysis. 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). Because of the similarity of the rules, we turn to Kotteakos and its progeny for guidance in applying our new standard.
In applying the test for "harmless error," our primary question is what effect the error had, or reasonably may have had, upon the jury's decision. We must view the error, not in isolation, but in relation to the entire proceedings. Id. at 764, 66 S.Ct. at 1247; United States v. Brown, 692 F.2d 345, 350 (5th Cir.1982); United States v. Rea, 958 F.2d 1206, 1220 (2nd Cir.1992). An error is harmless if the reviewing court, after viewing the entire record, determines that no substantial rights of the defendant were affected because the error did not influence or had only a slight influence on the verdict. See United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.1994) (citing United States v. Flenoid, 949 F.2d 970, 973 (8th Cir.1991)). Stated another way, an error is harmless if the court is sure, after reviewing the entire record, that the error did not influence the jury or had but a very slight effect on its verdict. Id.; United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980); United States v. Underwood, 588 F.2d 1073, 1076 (5th Cir. 1979); United States v. Arias-Diaz, 497 F.2d 165, 171 (5th Cir.1974).
The true inquiry, as stated in Kotteakos, is not whether there has been a variance of proof, but whether there has been such a variance as to "affect the substantial rights" of the accused. 328 U.S. at 756, 66 S.Ct. at 1243 (citing Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 630, 79 L. Ed. 1314 (1935)).
If, when all is said and done, the [court] is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of [the legislature]. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
O'Neal v. McAninch, 513 U.S. 432, 436-38, 115 S. Ct. 992, 995, 130 L. Ed. 2d 947 (1995) (citing Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248).
The error must have affected the outcome of the lower court proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993); see Bank of Nova Scotia v. United States, 487 U.S. 250, 255-57, 108 S. Ct. 2369, 2373-74, 101 L. Ed. 2d 228 (1988). That is to say, if we have "grave doubts" about whether an error did not affect the outcome, we must treat the error as if it did. United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986). "Grave doubt," means that, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." O'Neal, 513 U.S. at 433-36, 115 S.Ct. at 994. The uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a "substantial and injurious effect or influence in determining the jury's verdict"). Id.
WHO HAS THE BURDEN?
To answer this question, we look to the way other harm analyses are conducted.
In considering harm flowing from trial error, the United States Supreme Court and the Court of Criminal Appeals have used similar standards. On habeas review of constitutional trial errors, both have applied the Kotteakos standard instead of the greater Chapman standard because of the nature and purpose of collateral review. See Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248; Chapman, 386 U.S. at 24, 87 S.Ct. at 828 (the standard for determining whether a conviction must be set aside because of federal *866 constitutional error is whether the error "was harmless beyond a reasonable doubt"). Practically, the burden of proving that the error contributed to the conviction or punishment requires the habeas petitioner to show harm by a preponderance of the evidence. See Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 1717, 123 L. Ed. 2d 353 (1993); O'Neal, 513 U.S. at 433-38, 115 S.Ct. at 994-5; Ex parte Fierro, 934 S.W.2d 370, 372 (Tex.Crim.App.1996).
Harm flowing from constitutional trial errors on direct review has been considered under the Chapman standard, with both courts placing the burden of demonstrating harmlessness on the prosecution. See Brecht, 507 U.S. at 630, 113 S.Ct. at 1717; Ex parte Fierro, 934 S.W.2d at 372. Thus, we look to the federal courts for guidance in placing the burden under our new standard for direct review of non-constitutional trial errors. The United States Supreme Court intentionally phrased the issue of reviewing such errors in terms of "grave doubt." O'Neal, 513 U.S. at 433-38, 115 S.Ct. at 994-5. "The case before us does not involve a judge who shifts a burden to help control the presentation of evidence at a trial, but rather involves judges who apply a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect." Id. at 436-38, 115 S.Ct. at 995. The judge should ask, "Do I, the judge, think that the error substantially influenced the jury's decision?" and not try to put the same question in terms of proof burdens. Id. Thus, we believe that neither party should have a burden under Rule 44.2(b).
SUMMARY
In summary, when we assess harm under Rule 44.2(b) flowing from non-constitutional error, we review the entire record to determine whether the error had more than a slight influence on the verdict. If we find that it did, we must conclude that the error affected the defendant's rights in such a way as to require a new trial. If we have grave doubts about its effect on the outcome, we should find that the error was such as to require a new trial. Otherwise, we should disregard the error.
APPLICATION OF THE HARM ANALYSIS
The admission of Gregory's testimony was a non-constitutional error. Applying the new harm analysis, we conclude that the introduction of Gregory's testimony did not have more than a slight influence on the verdict; thus, Fowler's substantial rights were not affected. TEX.R.APP.P. 44.2(b). We recognize that under the old standard, we would reach a different result. Prior to the adoption of new Rule 44.2(b), we would have been compelled to determine beyond a reasonable doubt that the admission of Gregory's testimony made no contribution to the conviction or to the punishment. See TEX. R.APP.P. 81(b)(2) (repealed 1997). Because Fowler's sole defense was to impeach Carol's credibility, and the expert testimony served to bolster her testimony, we could not say beyond a reasonable doubt that the testimony did not contribute to the conviction. However, in applying the less stringent new rule, we reach a different result.
We cannot say that the outcome would have been different without Gregory's testimony because the evidence of Fowler's guilt is overwhelming. Even without the expert testimony, there was sufficient corroborating evidence to support a jury determination that Carol was credible when she testified that she did not go with Fowler voluntarily. Two witnesses testified that they observed Fowler driving in a dangerous and reckless manner. CTeresa Kirkpatrick testified that she saw Fowler cut across the lanes of traffic and run Carol off the road. Joseph Stephens testified that he observed Fowler's pickup and Carol's car in his driveway, with Fowler leaning in the driver's side of Carol's car, "pulling and jerking on someone" and yelling "get out of the car, get out of the car now!" He testified that he could hear a female voice inside saying "no" over and over again. Stephens stated that he went inside to call 9-1-1, and when he returned, the two people were gone, the pickup was gone, and the car was left in the middle of the driveway. Finally, there was the testimony of multiple peace officers that it was their belief that Fowler was holding Carol against her will at the motel and that Carol was not there voluntarily. *867 The officers testified that their experience with Fowler indicated that he would not allow Carol to leave the motel room, although he did eventually surrender.
The jury was also aware that Fowler attempted to and in fact did escape from jail while awaiting trial. From this information, the jury could have deduced "consciousness of guilt." Likewise, testimony that Fowler was soliciting someone to convince Carol not to testify against him was introduced.[9] The jury could have accepted this action as evidence of guilt. After a thorough review of the record, we cannot say that Gregory's testimony had more than a slight influence on the verdict. We find that Fowler's substantial rights were not affected; thus, no harm was suffered. Tex.R.App.P. 44.2(b). Points two and three are overruled.
The judgment is affirmed.
NOTES
[1] Article 42.18, section 8(b)(3) of the Code of Criminal Procedure reads in relevant part:
if the judgment contains an affirmative finding under [Article 42.12(3g)(2)], [a prisoner] is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or thirty calendar years, whichever is less, but in no event shall he be eligible for release on parole in less than two calendar years.
TEX.CODE CRIM.PROC.ANN. art. 42.18 (Vernon Supp. 1997).
[2] The harm test under Almanza had not yet been determined when Ross was decided.
[3] We note that the Supreme Court does not appear to require a Rule 403 objection prior to the trial court balancing the probative value against unfair prejudice, confusion of the issues, etc. It appears that a Rule 403 balancing test is required in order for the trial court to determine if the testimony will assist the jury.
[4] This is the same standard used by the United States Supreme Court and the Texas Supreme Court. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90, 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469 (1993); E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). In Daubert, the Court stated that Rule 702 of the Federal Rules of Evidence requires scientific expert testimony to be relevant and reliable. Rule 702, the Court noted, requires the proffered testimony to be: (1) "scientific knowledge" (2) which will "assist the trier of fact to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. To constitute "scientific knowledge," the proffered testimony must be reliable, and to be helpful to the trier of fact, the evidence must be relevant, i.e., have a valid scientific connection to the pertinent inquiry. Id.
[5] Both Fielder and Duckett were decided prior to Kelly.
[6] In considering whether Daubert applies to the soft sciences, a look at pre-Daubert decisions shows that the United States Supreme Court made no distinction between soft and hard scientific evidence. "There is nothing in the decisions of the United States Supreme Court which indicates that expert testimony concerning human motivation and behavioral sciences, or what some call `soft' scientific evidence, is subject to a set of rules different from other expert testimony." Charles Bleil, Evidence of Syndromes: No Need for a "Better Mousetrap," 32 S.Tex.L.J. 37, 74 (1990).
[7] See Jordan v. State, 928 S.W.2d 550 (Tex.Crim. App.1996).
[8] Federal Rule 52(a) states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." See FED. R.CRIM.P. 52(a).
[9] A letter written by Fowler was introduced. The letter read in part:
I wish you would kick her a__! But what good will that do? What we need to accomplish is getting her not to testify in court. If she don't go to court then they don't have no case. Or if she won't proceed with this, then they have no case. That's why you have to talk to her. Convince her to let me off the hook and I will never go near her again. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1194062/ | 550 P.2d 1199 (1976)
David HELLBUSCH, Respondent,
v.
Marvin RHEINHOLDT and Sonya J. Rheinholdt, Husband and Wife, Appellants,
First Federal Savings & Loan Association of Salem, Oregon, an Oregon Corporation, et al., Defendants.
Supreme Court of Oregon.
Argued and Submitted May 3, 1976.
Decided June 17, 1976.
*1200 Neil R. Bryant, Bend, argued the cause for appellants. With him on the brief were William M. Holmes, and Gray, Fancher, Holmes & Hurley, Bend.
Max Merrill of Merrill & O'Sullivan, Bend, argued the cause and filed a brief for respondent.
Before O'CONNELL,[*] C.J., and McALLISTER, DENECKE,[**] TONGUE and BRYSON, JJ.
Argued and Submitted at Pendleton May 3, 1976.
BRYSON, Justice.
Plaintiff brought this suit to foreclose a mechanic's lien on defendants' dwelling for the balance due on the construction contract. Defendants appeal from a decree in favor of plaintiff. We review de novo.
In November, 1972, defendants contacted plaintiff regarding the construction of a home for them in Bend, Oregon. They had no plans or specifications. By March of 1973 defendants had a designer prepare the plans and elevation drawings but no specifications. In the latter part of May, 1973, defendants asked plaintiff "to get started on the foundation on a cost plus basis." Defendants did not submit specifications for materials or fixtures and plaintiff could not submit a firm price. The parties did not execute a written contract, and none was prepared.
Plaintiff claims there was an oral contract to build on "cost plus." Defendants claim there was an oral contract to build for a fixed price of $49,798.45. This price is based on plaintiff's "Contractor's Estimate Sheet" submitted to defendants so they could apply for a construction loan. Subsequently, plaintiff, at defendants' request, prepared a form, "Description of Materials." The estimate is itemized in a scanty manner on a printed form and obviously does not include all building items contemplated by the parties, and particularly defendants.
The Contractor's Estimate Sheet, on which defendants claim a fixed contract price for construction, concludes as follows:
"TOTAL COST $49798.45
PROFIT _________
COMPLETE BID _________"
Neither the Contractor's Estimate Sheet nor the description of materials form is signed by the parties.
Plaintiff testified:
"A * * * We really never came to a full itemized spec list, specification sheet [description of materials].
"* * *.
"A * * * But he didn't have it spec'd out. He didn't have fixture numbers, he didn't have carpet, he didn't have all these items that I would need to know, what type of finished number goes into it, all these things that are hard to hard to bid a house unless you have them.
"And since I did not have those, I continually when he would bring me a new item that he wanted to add or a change in the house, and we work out a an approximate cost of what this would be in addition to what we had originally been working with. And over a period of this two or three months, we *1201 we just kept the house kept growing. And I never did come to a final figure."
As the house was built, defendants continued to make numerous minor and major changes. The defendants didn't have the funds to pay plaintiff's final billing and the lien was filed, based on an oral contract to build on a cost-plus basis, showing:
"Labor and Materials in construction
of home $60686.85
Less payments made 42789.57
Costs: Preparation of Lien Notice 5.00
Balance Due Claimant: 17902.28"
This suit to foreclose followed.
The defendants contend the court erred "in formulating a cost plus contract between the parties." The court's letter opinion found:
"The principle [sic] bone of contention is whether this was a `cost plus' contract or a contract for a firm price of $50,000. The evidence satisfies the court that the parties contracted for construction on a `cost plus' basis. All the circumstances of their dealings are completely inconsistent with a firm price contract e.g. lack of a written contract, no provision for change orders, defendant's free access to plaintiff's subcontractors and defendant's incursions into the day-to-day decisions of construction. Further, defendant's own admissions establish his understanding of the nature of the contract as being one of `cost plus.'
"Although the parties did, in my view have a meeting of the minds as to the nature of the contract, they did leave an ambiguity by stating `cost plus' without further definition. * * * Although there was some discrepancy in the witnesses testimony as to what percentage `plus' was, in addition to cost, all the witnesses agreed inferentially, the percentage would be at least five percent the approximate amount added to cost by the plaintiff."
The plaintiff testified that his original understanding of the contract was cost plus 10 percent, which would have amounted to approximately $6,000. However, before the filing of the lien he reduced his claim to cost plus 5 percent, or a profit of $3,000, in order to reach a settlement with the defendants, when defendants' loan would not cover the total construction cost of the dwelling as completed. Plaintiff testified:
"A And I chose at the final moments to get the thing settled up to drop my thing [cost-plus percentage] to $3,000."
The ambiguity in the oral contract was the amount of percentage to be applied as "cost plus" in arriving at plaintiff's profit. Certainly the parties did not contemplate that plaintiff would build the house for defendants at no profit. The evidence shows the defendants asked plaintiff to excavate and construct the foundation at "cost plus." Mr. Betts, a subcontractor, and Mr. Kearns, who inspected the house, both testified that Mr. Rheinholdt told them that plaintiff was building the house for him on a cost plus basis. Defendants argue that the percentage of profit to be applied cannot be determined by custom and usage.
"Usage may be important in three different aspects:
"(1) To aid in the interpretation of the meaning of the express language of an agreement, or the meaning of the parties' other manifestations of intention;
*1202 "(2) To annex terms to the agreement in accordance with the usage, provided they are consistent with the express language or other manifestations of intention, though they may contradict or vary implications which otherwise would be drawn from the written or oral expression of the parties. * *
"(3) To make inapplicable to an agreement rules of law otherwise applicable." 5 Williston, Law of Contracts 1-4, § 648 (Jaeger 3d ed 1961). (Footnotes omitted.)
"The terms `usage' and `custom' are commonly used interchangeably, though there is a recognized distinction in the meaning of the two words. Usage is a fact and not opinion or rule of law. It may be defined as habitual or customary practice among a certain class of people, or in a trade, a neighborhood or a large geographical area. Thus, the courts have said that when a usage `has become uniform in an actively commercial community, that should be warrant enough for supposing that it answers the needs of those who are dealing upon the faith of it. I cannot see why judges should not hold men to understandings which are the tacit presupposition on which they deal.'
"Custom is such a usage as has by long and uniform practice become the law of the matter to which it relates: `A custom has the force of law, and furnishes a standard for the measurement of many of the rights and acts of men. It must be certain, or the measurements by this standard will be unequal or unjust. It must be uniform; for, if it vary, it furnishes no rule by which to mete. It must be known, or must be so uniform and notorious that no person of ordinary intelligence who has to do with the subject to which it relates, and who exercises reasonable care, would be ignorant of it; * * *.'" 5 Williston, Law of Contracts 7-11, § 649 (Jaeger 3d ed 1961). (Footnotes omitted.)
See Green Mt. Log Co. v. C. & N.R.R.R., 146 Or. 461, 471, 30 P.2d 1047, 86 A.L.R. 1228 (1934); ORS 41.270. The question of determining the custom or usage is for the trier of facts. Andrews Equip. Service v. Heintz Constr., 241 Or. 28, 29, 403 P.2d 774 (1965).
Defendant Marvin Rheinholdt is in the electrical and television business. Rheinholdt first met plaintiff when Rheinholdt was making installations at the Inn of the Seventh Mountain near Bend, Oregon. Plaintiff was completing some construction work on the same project. Rheinholdt testified that he had dealt with suppliers and materialmen. On cross-examination he testified that he had never heard of the term "cost plus." The trial court did not accept this testimony and in light of all of the testimony, we reach the same conclusion. From the testimony, it is clear that defendants had reason to know of the custom in the industry and that a builder would charge at least 5 percent profit, based on his costs of construction.
Defendants also contend that plaintiff was not registered with the "Builder's Board" pursuant to Chapter 701, ORS, and therefore, the court erred in allowing this foreclosure. ORS 701.065(1) provides:
"(1) A builder may not file a lien or bring or maintain in any court of this state a suit or action for compensation for the performance of any work or for the breach of any contract which is subject to this chapter, unless he was registered under this chapter at the time he filed the lien or commenced the suit or action.
"* * *."
The evidence shows that plaintiff was registered with the Builder's Board as Hellbusch Construction Co. The court allowed plaintiff's registration card, which showed his registration number as a "Homebuilder," to be received in evidence. Plaintiff did business as an individual under the name Hellbusch Construction Co. The purpose of Chapter 701, *1203 ORS, is to protect the party for whom the construction work is performed. It requires a surety bond to be posted and a procedure of filing complaints, claims, the investigation of complaints, and the satisfying of claims from the bond. There is no provision that requires a builder such as plaintiff to register both in his individual name and the name under which he does business, and we can see no practical reason for so providing. We conclude that the evidence was properly received, showing that the plaintiff was registered as required by law. Further, the defendants did not raise this issue by any pleadings.
Finally, the defendants contend that "[t]he evidence does not support the finding that the plaintiff is entitled to a judgment in the sum of $14,851.13."
The defendants filed a list of complaints with the Builder's Board and one of their inspectors made an investigation and recommendation. Most of the numerous complaints were minor in nature. There is testimony that there is a "hump" in the floor of the master bathroom; that the wrong tile was used in one of the bathrooms; that one of the three fireplaces was to be white brick rather than "painted white"; and that a "heatalator" was to have been installed in one of the fireplaces.
As to the "hump," the plaintiff testified:
"A I can't do anything about that. I have worked on that. And when you're talking about a hump, it's not what I'd normally call a hump. Because lumber is not perfect. And it's not because the post is too high or anything like that, because I went down under that house, took out the post. It's it has to be a flaw in the lumber. And you're only talking an eighth to a quarter of an inch at the very most. * * *"
We have examined all of the testimony and the trouble with placing the responsibility on the plaintiff arises from the fact that the defendants dealt individually with several of the subcontractors who performed the tile, brick, and fireplace work. It is difficult to determine whose fault, if any, resulted in the complaints submitted by the defendants. The testimony shows that plaintiff and his subcontractors performed their work in a good, workmanlike manner. Witnesses who inspected the premises for the Builder's Board estimated it would take one to three days' work to complete most of the objectionable items. The record discloses that the plaintiff agreed to make any reasonable correction. The trial judge did not allow the full amount of the lien and made an additional allowance of $205 to cover the correction of specific items.
From our review of the evidence we reach the same conclusion as the trial judge, and the plaintiff is entitled to judgment in the amount of $14,851.13.
Affirmed.
NOTES
[*] Chief Justice when the case was argued.
[**] Chief Justice when the case was decided. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574823/ | 253 S.W.2d 269 (1952)
STATE
v.
BUSH et al.
No. A-3888.
Supreme Court of Texas.
December 10, 1952.
Price Daniel, Atty. Gen., J. Milton Richardson, John Davenport and Clyde B. Kennelly, Asst. Attys. Gen., for relators.
Henry Klepak and John P. Koons, Dallas, for respondents.
GRIFFIN, Justice.
This is a proceeding on behalf of the State of Texas, the Texas Liquor Control Board, and its Administrator, wherein a writ of mandamus is sought against Billy & Johnny's Barbecue, Inc.; Ray Donihoo, who is the owner of a controlling interest in the corporation, and Honorable Paine L. Bush, Judge of the 68th Judicial District at Dallas, Texas. Billy & Johnny's, Inc. (hereinafter referred to as applicant) was the owner of a permit issued by the Liquor Control Board (hereinafter referred to as the Board) and dated October 8, 1951 to sell, at retail, wine and beer. On October 6, 1952, Coke R. Stevenson, Jr., as Administrator of the Board, issued an order rejecting the application of Billy & Johnny's for a renewal of such wine and beer permit, and requiring the applicant "to file its application *270 before the County Judge of its residence and submit to a hearing thereon before the said County Judge as in the case of an original application for a license or permit, etc." On October 17, 1952, the Judge of the County Court at Law No. 2 for Dallas County, Texas, held a hearing on the application for a wine and beer permit filed before such Judge by the applicant. The Judge of the County Court at Law No. 2, Dallas, Texas, entered his order that the Board had never in fact cancelled the permit and that the applicant was by said Board required to file its application before "this Court" for a hearing on a renewal of such permit. The Judge of said County Court at Law No. 2 thereupon granted the application for renewal of the wine and beer permit and ordered the Board to issue a renewal to applicant instanter.
On November 7, 1952 applicant filed its petition in the 68th District Court in Dallas, Texas, in which it sought a temporary restraining order and a temporary injunction restraining the Board from interfering with the business of said corporation in any way and from seizing wine and beer of applicant offered for sale in its place of business, and also for renewal of its permit. The Judge of the 68th District Court on the 7th day of November, 1952, issued a temporary restraining order against the Board, its officers and agents restraining them from confiscating beer and wine from applicant's premises or from harassing, annoying or molesting plaintiff (applicant herein) in the lawful operation of its business until further orders of the court. A hearing was had on November 10, 1952 on the merits of applicant's petition and the Board's answer and motion to dissolve. The Judge of the 68th District Court, after hearing evidence, took the matter under advisement and required the attorneys for both parties to submit briefs on the law questions involved, and continued "until the further orders of the Court" the restraining order against the Board, its officers and agents, and permitted applicant to continue the sale of wine and beer. The State of Texas, acting by and through its Attorney General, joined by the Board and its Administrator, filed this application for mandamus before us.
The issuance of a permit to sell wine and beer is controlled by certain provisions of the Liquor Control Act, Articles 666-1 et seq., and 667-1 et seq., Vernon's Texas Penal Code.
Article 666-4(a) provides that it shall be unlawful for any person to sell, possess for the purpose of sale, etc., any liquor in wet areas without first having procured a permit of the class required for such privilege. Article 667-3 provides that it shall be unlawful for any person to sell any beer, or to possess any beer for the purpose of sale within this State without having first obtained appropriate license as provided in the Act. Article 666-15 classifies the various kinds of permits to be issued by the Board. Paragraph (17) of this Article provides for "Wine and Beer Retailer's Permit", and authorizes their issuance by the Board or Administrator. It further provides that "* * * All such permits shall be applied for and issued, unless denied, and fees paid, upon the same procedure and in the same manner and upon the same facts and under the same circumstances, and for the same duration of time, and shall be renewable in the same manner, as required and provided to govern application for an issuance of Retail Beer Dealer's Licenses under Article II of this Act * * *." Article II referred to is Article 667-1 et seq., Vernon's Texas Penal Code. Section 5 et seq. of Article 667 requires that the application be filed with the County Judge of the county in which the applicant desires to engage in such business; that the County Judge before whom an application is filed shall set a hearing not less than five days nor more than ten days from filing of same, and notice of hearing is to be given as the law provides. After a hearing before the County Judge, if the judge grants the application, he enters an order to such effect and the applicant files a copy of the County Judge's order with the tax collector of the county and pays the statutory license fee. The collector reports to the Board that the application for license has been approved and all fees paid and attaches a copy of the original application to his report, and it is prescribed that the Board or Administrator shall issue the license accordingly, *271 if it is found applicant is entitled to a license. There is a proviso that the Board or Administrator may refuse to issue any such license if in possession of information from which it is determined that any statement contained in the application therefor is false, untrue, or misleading, or that there are other legal reasons why a license should not be issued. In the event the County Judge denies the application, or there is a denial by the Board or Administrator, a judgment accordingly shall be entered, and applicant has 30 days thereafter to appeal to the District Court of the county where the application is made, where the appeal is conducted in accordance with Article I Section 14, art. 666-14. In the event judgment of the District Court is favorable to the applicant and an appeal is taken by the Board, or any interested party, "a certified copy of the judgment shall be presented to the assessor and collector of taxes who shall thereupon accept the fees required and make report to the Board in the manner required upon like orders issued by the county judge." Subdivision (g), art. 667-6, provides: "No person shall be authorized to sell beer during the pendency of his original application for a license, and no official shall advise or suggest that such action would be lawful or permitted." Article 667-5, Subdivision (E) provides:
"If the County Judge approves the application for a license as a Retail Dealer of beer, then the Board or Administrator may refuse to issue a Retailer's License to any applicant for any one (1) or more of the reasons which would have been legal ground for the County Judge to refuse to approve the application for such a license."
Subdivision (H) of the same Article provides:
"The Board or Administrator may, upon application for renewal of a Retail Dealer's License, without a hearing, refuse to issue a license to any person under the restrictions of this Section, as well as under any other pertinent provisions of this Act, and require such applicant to make an original application."
Article 666-11(15) provides:
"The Board or Administrator shall be vested with discretionary authority to refuse or grant such permits under the restrictions of this Section, as well as under any other pertinent provision of this Act."
The Texas Liquor Control Board is an administrative branch of the state government, and to the Board has been delegated by law certain functions, such as determining in the first place to whom and when certain privileges to sell liquors should be extended, and whether or not a permit should be renewed, and whether or not persons so favored have breached the conditions under which such privilege has been granted.
The term of a wine or beer license is prescribed by Article 667-7(a) to be one year from date issued, and no license shall be issued for a longer term than one year. This same subdivision provides for application to renew a license. The holder of a license duly issued under the provisions of the Act shall make written application to the assessor and collector of taxes not less than 5 days nor more than 30 days prior to the date of expiration of the license held by him; such application shall be in the form prescribed by the Board and accompanied by the appropriate license fee. The assessor and collector of taxes shall transmit to the Board a copy of said application for renewal, together with a certificate that all required fees have been paid; and upon receipt of this report and certificate "* * the Board or Administrator may in its discretion issue the license applied for, or may within five (5) days after receipt of such application reject the same and require that the applicant for renewal file application with the county judge and submit to hearing before such county judge in the manner required of any applicant for the primary or original license. * * *"
The record before us does not show that an application for a license or permit to sell wine and beer was filed before the County Judge of Dallas County, Texas since October 6, 1952 by applicant herein, nor has the County Judge had a hearing or *272 made any orders on any application filed by applicant.
Applicant contends that the Judge of the County Court of Dallas County, at Law No. 2 had a right to act on this application and cites Articles 1970-3, 1970-4 and 1970-16, Vernon's Annotated Civil Statutes as authority for this contention. Article 1970-3 gives the County Court of Dallas County at Law "original and concurrent jurisdiction with the County Court of Dallas County in all matters and causes, civil and criminal, original and appellate, over which, by the general laws of the State, county courts have jurisdiction * * *." Article 1970-4 provides for the retained jurisdiction of the County Court of Dallas County, and states "* * * All ex officio duties of the county judge shall be exercised by the said judge of the County Court of Dallas County except in so far as the same shall, by this Act, be committed to the judge of the County Court of Dallas County, at Law." Emphasis has been placed where applicant has placed it in its brief. A sufficient answer to applicant's contention that the Judge of the County Court of Dallas County at Law, No. 2, is given authority to pass on application for licenses under the Liquor Control Act, should be that nowhere in Article 1970-3 or 1970-4, or any other provision of Article 1970-1 et seq., do we find the Judge of County Court at Law given any right or duty to pass upon applications for licenses under the Act.
The filing of an application for a license and the hearing and action thereon is not a civil or criminal cause. The power and authority granted to the Board, Administrator and County Judge with regard to issuance, denial, cancellation or supervision of such permits is merely the exercise of an administrative function and duty imposed by the Act. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; State v. De Silva, 105 Tex. 95, 145 S.W. 330; Bradley v. Texas Liquor Control Board, Tex.Civ. App., 108 S.W.2d 300, no writ history; Texas Liquor Control Board v. Jones, Tex. Civ.App., 112 S.W.2d 227, no writ history; Texas Liquor Control Board v. Floyd, Tex. Civ.App., 117 S.W.2d 530, no writ history. The Act itself repeatedly refers to the "county judge" as the person who shall take various forms of action in the granting or refusing of permits or licenses under the Act. We have been cited to no statute or case which gives the judge of a county court at law any authority to act in such matters. Section 2 of Article 666, Vernon's Texas Penal Code, provides:
"This entire Act shall be deemed an exercise of the police power of the State for the protection of the welfare, health, peace, temperance, and safety of the people of the State, and all its provisions shall be liberally construed for the accomplishment of that purpose."
In our opinion to hold that these applications could be filed with a judge of the County Court at Law, as well as, or in the place of the county judge, would violate the above provisions of the law, and would lead to endless confusion and delay, and impede the very purpose for which the Liquor Control Act was passed. We therefore hold that the filing of the application in the County Court of Dallas County and the hearing held by the Judge of the County Court at Law No. 2, and his action thereon was of no force and effect, in so far as it might bring about either the granting of a new license or the renewal of the old license possessed by applicant. Therefore, applicant stands before this Court without any license to sell wine and beer, and without having filed any legal application to renew its old license.
By force of the Act the license applicant possessed expired on October 7, 1952; also, by force of the Act, it cannot lawfully sell wine and beer without a license to so sell. Therefore, it has been violating the law in this regard on each and every sale made since October 7, 1952 at midnight, the date its old license expired.
Applicant is apparently laboring under the mistaken belief that its property rights have been invaded by virtue of the action of the Board in not issuing it a renewal license or issuing a new license to it. *273 The full and complete answer to that is found in the Act itself. Article 666-13(b) specifically provides that "Any permit or license issued under the terms of either Article I or Article II [Penal Code, Articles 666-1 et seq. and 667-1 et seq.] of this Act shall be purely a personal privilege * * * and shall not constitute property * * *." This has long been the holding of all the cases which have passed upon the nature of such permits or licenses and the rights thereunder. Jones v. Marsh, supra; Texas Liquor Control Board v. Warfield, Tex.Civ.App., 122 S.W.2d 669, no writ history; Louder v. Texas Liquor Control Board, Tex.Civ.App., 214 S.W.2d 336, writ ref. n. r. e.; and many other cases that could be cited.
In the case at bar the Administrator acting for the Board and under the plain provisions of Section (H) of Article 667-5, and Subdivision (a) of Article 667-7, as above set out, refused the renewal of the license and required the applicant to begin before the County Judge, the same as if applying for an original license.
It follows from what we have said above the neither the Judge of the 68th District Court, nor any other judge of any district court, had, or has, any authority to issue the restraining orders issued in this case; nor can any judge issue a license or permit to sell wine and beer. Therefore, his action is wholly void, and being so, we have authority to grant the relief prayed for. The provisions of the Liquor Control Act cannot be set aside in such manner, nor can the enforcement of its penal provisions be thus interfered with. State v. Ferguson (State v. Kirby), 133 Tex. 60, 125 S.W.2d 272.
The relief prayed for in Relator's petition (The State of Texas, the Texas Liquor Control Board and Administrator) is granted, and the clerk will issue the appropriate writs.
SMEDLEY, J., did not participate in the decisions of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574855/ | 253 S.W.2d 559 (1952)
RANEY et al.
v.
GUNN et al.
No. 4-9805.
Supreme Court of Arkansas.
June 23, 1952.
Dissenting Opinion January 12, 1953.
Arthur Sneed, Piggott, for appellants.
E. G. Ward, Piggott, for appellees.
GRIFFIN SMITH, Chief Justice.
Plaintiffs and defendants each own eighty acres, forty having a common boundary. A road, constructed over half a century ago, entered defendants' property from a country road on defendants' south boundary describing an arc across defendants' property and passing a dwelling on plaintiffs' land.
In August, 1951, defendants closed gates on the road and attempted to extinguish it. Plaintiffs sought injunctive relief as members of the public entitled to benefits of prescriptive right to the road. The Chancellor denied the petition, finding that the public had abandoned.
Appellants contend that Act 666 of 1923, Ark.Stats. §§ 37-109, 110, prevents private control or possession of a public thoroughfare from ripening into title.
Witnesses testified that the road had been in public use prior to 1926, for an indeterminate period. At that time defendants' property was owned by a predecessor.
There was evidence that the road was laid out more than 62 years ago, and that it was formerly used as a mail route.
In 1928 two gates were erected on the portion of the road crossing defendants' land. These were maintained by defendants or their predecessors. The wife of a former owner,an owner who erected the gates-testified that they were built to exclude stock from a pasture. Plaintiff likewise testified that the gates were used for the purpose of keeping cattle and stock from "mixing up".
There is no dispute that the gates have been maintained since 1928 and that they restricted the hitherto permissive right of the public to use the road. The question is whether Act 666 made it legally impossible for the prescriptive right to be lost by abandonment.
Our decisions adhere to the view that such rights can be lost by non-use, and that the owner of the fee may re-enter and acquire the fee after lapse of the statutory period for adverse possession. Whether this rule is changed, in circumstances here present, by Act 666, is the issue. This Act has not been construed.
*560 Appellant argues that abandonment, if present here, resulted in nothing but adverse possession by defendants, which under Act 666 could not effect a re-investiture of title.
It should be noted that Act 666 prevents acquisition of title to a public thoroughfare by adverse occupancy. Being in derogation of the common-law rule, a strict construction is required. Applying this exactitude of construction, we are not able to say it was the intention of the General Assembly to prevent title to an abandoned thoroughfare, created by prescription, from reverting to the owner of the fee after lapse of the statutory period.
The public's use of this road was based on its passage over the property, not by dedication through a governmental or quasi-governmental agency. When the landowner restricted such use by erecting gates in 1928 and maintaining them subsequently, members of the general public ceased to use the road. This constituted an abandonment. Appellees' rights were not dependent upon affirmatively establishing adverse possession. Instead, appellants had the burden of proving that a prescriptive right to use the road still existed, and they failed.
Appellants urge that presence of the gates was not evidence of public abandonment, but was rather an invitation to the public to use the road with an implied understanding that the gates would be closed.
After the gates were erected public use of the road became permissive. Prescription ceased and no move was made to preserve it. Acquiescence became abandonment and the public right expired.
Affirmed.
McFADDIN, J, dissents.
McFADDIN, Justice.
My dissent is because I am unable to find any way to keep from applying Act No. 666 of 1923. That Act was captioned: "An Act to Prohibit the Acquiring of Public Property by Adverse Possession, and for Other Purposes"; and, as now found in Sec. 37-109 et seq, Ark.Stats, reads in part:
"Hereafter no title or right of possession to any public thoroughfare, road, highway or public park, or any portion thereof, shall or can be acquired by adverse possession or adverse occupancy thereof, and the right of the public or of the proper authorities of any county to open or have opened any such public thoroughfare, road(,) highway or park, or parts thereof, shall not be defeated in any action or proceeding by reason of or because of adverse possession or adverse occupancy of any such public thoroughfare, road, highway or park, or any portion thereof, where such adverse possession or occupancy commenced or begun after the passage of this act."
Apparently this Act has been overlooked until the present time. Certainly it was not referred to in any of the following cases: Stoker v. Gross, 216 Ark. 939, 228 S.W.2d 638; Kennedy v. Crouse, 214 Ark. 830, 218 S.W.2d 375; Mount v. Dillon, 200 Ark. 153, 138 S.W.2d 59; and Porter v. Huff, 162 Ark. 52, 257 S.W. 393. Yet the plain language of the Actas I read itsays that when a road has become a public road, its public nature cannot be lost by adverse possession or adverse occupancy. In the case at bar, the trial court held that the road in question was a public road in 1926 and that it was not until 1928 that gates were first placed across the road. Under said Act No. 666 of 1923, the only way a public road can cease to be a public road is by something other than mere abandonment or adverse possession.
Act No. 666 of 1923 is strikingly similar to Act No. 426 of 1907, as now found in Sec. 19-3831, Ark.Stats, which relates to streets in cities and towns. Prior to the said Act No. 426 of 1907, this Court held, in El Dorado v. Ritchie, 84 Ark. 52, 104 S.W. 549, tkat there could be adverse possession of a street in an incorporated town. To overcome that holding, the Legislature passed Act No. 426 of 1907; and in Madison v. Bond, 133 Ark. 527, 202 S.W. 721, this Court recognized that if the street had been an open street in 1907, then it remained an open street.
*561 In the case at bar, the road here involved was an open road in 1926 and there was no attempt to close it until 1928. I think it still remains an open road, and that the way to close a public road is by order of the County Court, as contained in Sec. 76-918 et seq, Ark.Stats. I regard it as unfortunate that Act No. 666 of 1923 was not called to the attention of the Court in earlier cases, but I cannot "get around" the plain wording of the Act; and, to me, it means once a public road, always a public road, until closed by proper order.
Therefore, I respectfully dissent from the majority holding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585072/ | 187 P.3d 269 (2008)
163 Wash.2d 1039
STATE
v.
HALL.
No. 80746-9.
Supreme Court of Washington, Department I.
June 3, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585108/ | 187 P.3d 270 (2008)
163 Wash.2d 1039
INTERNATIONAL SLEEP INSTITUTE OF WASHINGTON, INC.
v.
INTERNATIONAL SLEEP, INC.
No. 80806-6.
Supreme Court of Washington, Department II.
June 4, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574497/ | 17 So.3d 1232 (2009)
PORTER
v.
STATE.
No. 2D09-3013.
District Court of Appeal of Florida, Second District.
August 28, 2009.
Decision without published opinion. Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/462660/ | 780 F.2d 533
*U.S.v.LeBer
85-1224
United States Court of Appeals,Fifth Circuit.
12/26/85
1
W.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1919952/ | 91 B.R. 808 (1988)
In re Charles Lee TROTT, Debtor.
William B. LOGAN, Jr., Trustee of the Bankruptcy Estate of Charles Lee Trott, Plaintiff,
v.
COLUMBUS POSTAL EMPLOYEES CREDIT UNION, INC., et al., Defendants.
Bankruptcy No. 2-87-01340, Adv. No. 2-87-0283.
United States Bankruptcy Court, S.D. Ohio, E.D.
July 20, 1988.
William B. Logan, Jr., Luper, Wolinetz, Sheriff & Neidenthal, Columbus, Ohio, trustee/plaintiff.
Jack L. Johnson, Columbus, Ohio, for defendant Columbus Postal Employees Credit Union, Inc.
Stephen E. Schafer, Columbus, Ohio, for defendant Charles Lee Trott.
Charles M. Caldwell, Office of the U.S. Trustee, Columbus, Ohio, Asst. U.S. trustee.
Robert H. Farber, Jr., Columbus, Ohio, for debtor.
F. Richard Heath, Hite & Heath, Utica, Ohio, for Cambridge PCA.
Frank M. Pees, Worthington, Ohio, Chapter 13 trustee.
Michelle T. Sutter, Baker & Hostetler, Columbus, Ohio, for trustee.
OPINION AND ORDER
R. GUY COLE, Jr., Bankruptcy Judge.
I. Preliminary Statement
This matter is before the Court upon the Complaint for Preference filed by William B. Logan, Jr., the duly-appointed Chapter 7 trustee ("Trustee") in this case. The defendants herein, the debtor Charles Lee Trott and Columbus Postal Employees Credit Union, Inc. ("Credit Union"), have filed timely answers to the Trustee's Complaint. All parties have agreed to submit this matter for decision on the basis of stipulations of fact.
The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this judicial district. This is a core proceeding which the Court is empowered to hear and determine in accordance with 28 U.S.C. § 157(b)(1) and (2)(F). The following opinion constitutes the Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052.
II. Factual Findings
The Court hereby adopts as its factual findings the stipulations of fact ("Stipulation") *809 jointly submitted by the parties. The Stipulation is set forth verbatim below:
1. On March 11, 1987, Charles Lee Trott, a member of the Defendant credit union applied for a loan to purchase an automobile and executed the attached "Disclosure Form, Promissory Note and Security Agreement" (Exhibit 1). Said loan was approved by Defendant, Columbus Postal Employees Credit Union, Inc. ("Credit Union").
2. On March 13, 1987 the subject automobile was delivered to Charles Lee Trott by Taylor Chevrolet, Inc. in accordance with the attached contract between Trott and Taylor Chevrolet dated March 11, 1987 (Exhibit 2).
3. On March 19, 1987 the State of Ohio Certificate of Title to the subject automobile was issued by the Franklin County Clerk of Courts (Exhibit 3). This Certificate of Title was subsequently delivered to Defendant Credit Union.
4. On March 23, 1987 Defendant Credit Union issued its check in the amount of $10,750.00 to Taylor Chevrolet (Exhibit 4). On March 24, 1987 Defendant Credit Union delivered the proper documents for a lien notation to the Franklin County Clerk of Courts together with the required fee. On March 24, 1987 the Clerk of Courts noted the lien of Defendant Credit Union on the Certificate of Title (Exhibit 5) and delivered a receipt for the notation fee to Defendant Credit Union (Exhibit 6).
5. On April 2, 1987 Charles Lee Trott filed his voluntary petition in bankruptcy under 11 U.S.C. Chapter 7 in this Court. On April 7, 1987 Plaintiff was appointed Interim Chapter 7 Trustee, and became the Trustee in this case, by operation of law, on May 11, 1987.
6. It is further stipulated that if the Defendant's lien had never been noted on the title, Defendant would be a general unsecured creditor, and in this case or in a hypothetical Chapter 7 liquidation, would receive less than it would be entitled to receive as a secured creditor by virtue of the notation of the lien on the Certificate of Title.
7. The value of the automobile here in question, a 1988 Chevrolet Corsica, on the date of the filing of the bankruptcy filing was at least $11,500.00. The amount due to the Defendant under the terms of the loan contract is $11,997.55.
8. The parties agree that these stipulated facts are all the facts to be considered by the Court unless additional facts are provided to the Court upon request by the Court. The parties agree that additional facts will be provided, upon request, and that a hearing may be set if there is any dispute as to a fact to be provided to the Court pursuant to such request.
9. It is stipulated between the parties that all exhibits attached to the Stipulation of Facts are admissible into evidence in this proceeding.
10. It is stipulated between the parties that the Trustee has met his burden of proof on all elements required to be proven by a bankruptcy trustee in order to avoid a preferential transfer under the provisions of 11 U.S.C. § 547(b) except the element as to the meaning or legal interpretation of the meaning of the word "possession" as used in said section [sic]; and the effect of Ohio Revised Code § 4505.04 on Section 11 U.S.C. § 547(b) [sic] and the meaning or legal interpretation of the word "possession" as used in said § 547(b) [sic].
11. It is further stipulated that in the event that the preference of defendant credit union [sic] is deemed to be avoidable, that said lien shall be preserved for the benefit of the bankruptcy estate pursuant to 11 U.S.C. § 551.
12. It is further stipulated that the only issue in this case is the legal meaning of the word "possession" as used in 11 U.S.C. § 547(b) [sic] in conjunction with Ohio Revised Code 4505.04, and more specifically the question is: On what date did the debtor receive "possession" of the automobile as that word is used in the provisions of § 547(b) [sic] and Ohio Revised Code 4505.04?.
13. The parties stipulate that this issue shall be determined by the Court, *810 based upon the applicable provisions of the Bankruptcy Code, the provisions of Ohio Revised Code Section 4505.04, and any other applicable law, with the Court to determine what law applies under the facts of this case and the interpretation of the word "possession" as used by the Bankruptcy Code and the Ohio Revised Code.
III. Legal Discussion
At the outset, the Court notes that the parties' reference in the Stipulation to § 547(b) of the Bankruptcy Code is erroneous. The issue at bar arises from conflicting interpretations of the word "possession" contained in § 547(c)(3)(B) of the Code.
Neither the Trustee nor the Credit Union disputes that all the elements of a preferential transfer are present in this case. The transfer of the security interest in debtor's automobile was made to, or for the benefit of, the Credit Union, on account of an antecedent debt, while the debtor was insolvent, within 90 days of the filing of the bankruptcy petition and enabled the Credit Union to receive more than it would realize in a Chapter 7 liquidation. Accordingly, the Trustee may avoid the Credit Union's lien on the automobile unless the transfer is excepted from avoidance under one of the subsections of § 547(c) of the Code.
The Credit Union's defense is based upon § 547(c)(3)(B) the so-called "enabling loan" exception to the Trustee's avoiding powers. Section 547(c)(3)(B) provides as follows:
(c) The trustee may not avoid under this section a transfer
. . . .
(3) that creates a security interest in property acquired by the debtor
(A) to the extent such security interest secures new value that was
(i) given at or after the signing of a security agreement that contains a description of such property as collateral;
(ii) given by or on behalf of the secured party under such agreement;
(iii) given to enable the debtor to acquire such property; and
(iv) in fact used by the debtor to acquire such property; and
(B) that is perfected on or before 10 days after the debtor receives possession of such property;. . . . (Emphasis added).
The Credit Union submits that perfection of its security interest did occur within ten days after the debtor received possession of the subject automobile as required by § 547(c)(3). The Credit Union's argument is premised upon its interpretation of the word "possession" contained in § 547(c)(3)(B). Debtor's possession of the automobile, the Credit Union states, should be deemed to commence on March 19, 1987, the date the State of Ohio issued a certificate of title to debtor. According to the Credit Union, because its lien was noted on debtor's certificate of title on March 24, 1987, a mere five days after the date the certificate of title issued, the enabling loan exception of § 547(c)(3) precludes the Trustee from avoiding the Credit Union's lien. The Trustee argues that possession of the automobile, within the meaning of § 547(c)(3)(B), occurred when the debtor took delivery of the automobile from Taylor Chevrolet on March 13, 1987. Since perfection of the Credit Union's security interest through notation of its lien on the certificate of title did not occur until March 24, 1987, eleven days after debtor received delivery of the automobile, the Trustee submits that the Credit Union may not invoke the enabling loan exception in this case.
The lynchpin of the Credit Union's argument is that, by operation of Ohio Revised Code ("O.R.C.") § 4505.04, the debtor could not have possibly obtained possession of the automobile until a certificate of title was issued to him. O.R.C. § 4505.04 provides as follows:
No person acquiring a motor vehicle from the owner thereof, whether such owner is a manufacturer, importer, dealer, or otherwise, shall acquire any right, title, claim, or interest in or to said motor vehicle until such person has had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer's or importer's certificate for it; *811 nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title, or manufacturer's or importer's certificate for said motor vehicle, for a valuable consideration.
No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:
(A) By a certificate of title or a manufacturer's or importer's certificate issued in accordance with sections 4505.01 to 4505.19, inclusive, of the Revised Code.
(B) By admission in the pleadings or stipulation of the parties.
According to the Credit Union, possession, as the term is used in § 547(c)(3)(B), is synonymous with a "right, title, claim or interest," which, under O.R.C. § 4505.04, cannot be acquired until a certificate of title issues.
The argument advanced by the Credit Union has no basis in law or logic. The Credit Union has cited no persuasive authority in support of its position. The unreported decision cited by the Credit Union In re Scott Thomas Kinsbury, Adv. Pro. No. 2-85-0046 (Bankr.S.D.Ohio April 25, 1986)[1] was decided under a former version of 11 U.S.C. § 547(c)(3)(B) (which is discussed infra) and, therefore, has no precedential value in the present case. Aside from its citation of the unreported, inapposite Kinsbury decision, the Credit Union has offered no other authority in support of its position.
The Credit Union's argument is also analytically flawed: it is based upon the Credit Union's confusion of the concepts of possession and ownership. The Credit Union submits that these concepts are essentially synonymous. The Court disagrees. Although possession is not defined within the Bankruptcy Code, in interpreting this term there is simply no reason for the Court to depart from the definition of the word possession which has gained acceptance throughout the law:
The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.
Black's Law Dictionary 1047 (5th ed. 1979). Under the foregoing definition, it is readily apparent that one may exercise control or manual custody over property without having an ownership interest therein. In addition, although the precise issue before the Court does not appear to have been addressed in a reported decision, the courts applying the enabling loan exception (as amended in 1984) have, at least implicitly, interpreted the word possession in § 547(c)(3)(B) as meaning physical control or custody of the collateral, as opposed to the acquisition of a right of ownership therein. See, e.g., Ledford v. Avco Finance (Matter of Durham), 56 B.R. 145, 147-48 (Bankr.S.D.Ohio 1985); In re Millerburg, 61 B.R. 125 n. 2 (Bankr.E.D.N.C. 1986); In re Scoviac, 74 B.R. 635, 636-638 (Bankr.N.D.Fla.1987). Hence, Credit Union's contention that the debtor could not have taken possession of the automobile until he acquired ownership rights therein through the issuance of a certificate of title must be rejected.
Further, the construction of the word possession urged by the Credit Union would effectively negate Congress' 1984 amendment of § 547(c)(3)(B)'s enabling loan exception. Prior to the Bankruptcy *812 Amendments and Federal Judgeship Act of 1984, 11 U.S.C. § 547(c)(3) read as follows:
(c) The trustee may not avoid under this section a transfer
(3) of a security interest in property acquired by the debtor
(A) to the extent such security interest secures new value that was
(i) given at or after the signing of a security agreement that contains a description of such property as collateral;
(ii) given by or on behalf of the secured party under such agreement;
(iii) given to enable the debtor to acquire such property; and
(iv) in fact used by the debtor to acquire such property; and
(B) that is perfected before 10 days after such security interest attaches;. . . . (Emphasis added).
Subsequent to the 1984 amendments, subsection (B) of § 547(c)(3) was changed to: "that is perfected on or before 10 days after the debtor receives possession of such property." 11 U.S.C. § 547(c)(3)(B) (emphasis added). Judge Waldron, in Ledford v. General Motors Acceptance Corp. (Matter of Lorandos), 58 B.R. 519 (Bankr. S.D.Ohio 1986), discussed the policies underlying the 1984 amendment of the enabling loan exception as follows:
No legislative history can be found to explain the reasoning behind the change. It has been suggested that it was to comport with Uniform Commercial Code § 9-301(2) which gives a purchase money secured creditor a ten (10) day grace period to file the financing statement, computed from the date the "debtor receives possession of the collateral," to gain priority over a lien creditor whose rights "arise between the time the security interest attaches and the time of filing." See Countryman, The Concept of a Voidable Preference in Bankruptcy, 38 Vand.L.Rev. 713, 780 (1985) and Kaye, Preferences Under the New Bankruptcy Code, 54 Am.Bankr.L.J. 197, 205 (1980) (discussing pitfalls between the U.C.C. and the Bankruptcy Code as a result of the change from the Bankruptcy Act to the Bankruptcy Code in 1978). Another possible reason for the change is to ensure uniformity in the granting of exceptions to the preference statute . . . [T]he time of attachment varies according to state law. For example, in Ohio, attachment does not occur until three events take place:
"(1) The collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral . . .; and
(2) Value has been given; and
(3) The debtor has rights in the collateral."
Ohio Rev.Code Ann. § 1309.14 (Page Supp.1984). But a debtor cannot acquire rights in the case of a motor vehicle until a Certificate of Title is issued. Ohio Rev.Code Ann. § 4505.04 (Page Supp. 1985); In re Stump, 51 B.R. [482] at 484 (Bankr.S.D.Ohio 1985). This contrasts with the law in Pennsylvania, where a security interest attaches upon the debtor signing the security agreement, the giving of value by the secured party and the debtor acquiring rights in the collateral which can be accomplished by the debtor taking possession of the automobile. In Pennsylvania, therefore, a debtor does not need to have a Certificate of Title to acquire rights in the collateral, although for the security interest to be perfected, a notation of the lien must be made on the Certificate of Title. Union Bank & Trust Co., Erie v. Baker (In re Tressler), 771 F.2d 791, 793 (3rd Cir. 1985).
The absence of cases interpreting the current enactment of 11 U.S.C. § 547(c)(3)(B) may result from the clearer factual test that would in most cases eliminate the need for judicial decision.
58 B.R. at 522-23. See also, 4 Collier on Bankruptcy ¶ 547.11 at 547-46 to 547-47 n. 2 (15th ed. 1988).
As Judge Waldron noted in Lorandos, the 1984 amendment of § 547(c)(3)(B) was intended to permit uniform application of the enabling loan exception by providing a clear factual test for ascertaining when the ten-day perfection period commences. The *813 Credit Union's interpretation of the word possession would stand § 547(c)(3)(B) on its head, resulting in reversion to an enabling loan exception that measures the ten-day perfection period by reference to the time of attachment (which varies from state to state) as opposed to the time when possession of the collateral is taken. Such an interpretation would destroy the uniformity in application of the enabling loan exception sought to be achieved by the 1984 amendments. In short, neither decisional law nor policy supports the argument advanced by the Credit Union in the case sub judice.
Based upon the foregoing, the Court hereby ORDERS that judgment in favor of the Trustee on the Complaint for Preference be entered forthwith.
IT IS SO ORDERED.
NOTES
[1] The Credit Union's citation of the unreported Kinsbury case, without attachment thereof, violates LBR 5.9, which provides:
If unreported opinions are cited, copies of the opinion shall be attached to the pleadings, briefs or memoranda and shall be furnished to opposing counsel, and such attachments shall be an exception to the twenty (20) page limitation of LBR 5.8. Failure to submit such attachments may be grounds for striking the pleading. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585045/ | 187 P.3d 752 (2008)
STATE
v.
HIATT.
No. 80471-1.
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/1918163/ | 101 B.R. 547 (1988)
In re Terry L. WINTERLAND, Judith D. Winterland, Debtors.
Bankruptcy No. 87-71831.
United States Bankruptcy Court, C.D. Illinois.
March 29, 1988.
Mark T. Dunn, Bloomington, Ill., for debtor.
Tim Swaim, Peoria, Ill., Marilyn E. Anderson, Washington, D.C., for FDIC.
William F. Costigan, Bloomington, Ill., for creditors.
Robert L. Sullivan, Bloomington, Ill., trustee.
OPINION
LARRY L. LESSEN, Chief Judge.
The issue before the Court is whether the automatic stay of 11 U.S.C. Sec. 362 should be lifted so that the Federal Deposit Insurance Corporation ("FDIC") may proceed against the Debtor and other Defendants in a lawsuit pending in the Federal District Court.
The Debtor, Terry Winterland, served as a member of the Board of Directors of the First National Bank of Danvers ("Bank") from January 10, 1978, to June 1, 1983. He served as President of the Bank from February 1, 1978, to June 1, 1983. He was also the Bank's primary loan officer during this time.
There was a significant increase in loan volume at the Bank in 1978. From 1978 to 1983, the net loans increased from $900,000.00 to $9,000,000.00, and the net loans to total deposit ratio increased from 17.3% to 71.25%.
Serious loan delinquencies began to appear at the Bank in 1980. Almost $600,000.00 in loans were charged off between 1980 and 1983.
In October 1981, the Bank and the Office of the Comptroller of Currency of the United States of America ("OCC") entered into a Memorandum of Understanding. The Bank operated under the close scrutiny of the OCC from this point until August 5, 1983, when the OCC declared the Bank insolvent and closed it. The FDIC was appointed receiver and OCC transferred possession of the Bank's assets, including existing claims and causes of action, to the FDIC in its capacity as receiver. The FDIC, in its capacity as receiver of the Bank, then sold the Bank's claims and choses in action to the FDIC in its corporate capacity.
Two weeks before the closing of the Bank, the Bank filed a suit against the Debtor in state court alleging negligence, lending violations, and breach of duty to exercise a high degree of care. On August 26, 1983, the FDIC filed a motion to be substituted as party Plaintiff and a separate motion to voluntarily dismiss the pending *548 complaint against the Debtor. Both motions were granted on September 14, 1983.
On June 13, 1986, the FDIC filed a six-count complaint against John Yoder, Bernard Argo, John Stuckey, Patricia Yoder, and the Debtor, as former Directors and officers of the Bank. The complaint alleges negligent lending practices, lending limit violations, violations of the oath required of directors by the National Bank Act, breach of fiduciary duties and breaches of both an expressed contract and an implied contract. The FDIC claims that the alleged negligence of the officers and Board of Directors lead to the failure of the Bank. The FDIC seeks damages of $2.7 million dollars.
The Debtor filed his petition pursuant to Chapter 7 of the Bankruptcy Code on October 29, 1987.
On November 25, 1987, the FDIC filed a motion to lift the automatic stay for the purpose of allowing the FDIC to proceed against the Debtor in Federal District Court to the extent that there is insurance available to cover the liability of the Debtor. The FDIC does not seek to collect any judgment personally from the Debtor. The FDIC asserts that if the Debtor is absent from the District Court actions, the other Defendants might shift the blame to the Debtors. If the other Defendants succeeded in shifting the blame to the Debtor, and the Debtor were not a Defendant in the case, then the FDIC would recover nothing. On the other hand, if the Debtor remained a Defendant in the case, then even if the other Defendants persuaded the jury that the Debtor alone was responsible for the Bank's losses, a judgment against the Debtor alone would still be covered by the available insurance.
The Debtor opposes the lifting of the automatic stay. The Debtor argues that he will suffer substantial prejudice if the stay is lifted because he will be forced to participate in continued litigation regarding a debt that is clearly dischargeable, but he may have no insurance coverage or other means to pay for his defense. The Debtor states that the insurance carrier has reserved its rights under the insurance policy based on several reasons, including lack of proper notice and lack of timely notice. Thus, although defense costs are provided under the policy if coverage is established, the Debtor argues that he may have to repay the insurance carrier for any fees advanced on his behalf if it is subsequently established that there was no insurance coverage.
In determining whether the automatic stay should be lifted, the Court must balance the prejudice to the Debtor or the Debtor's estate from the continuation of the civil action against the hardship that the creditor will suffer from a continuation of the automatic stay. In re Holtkamp, 669 F.2d 505, 508 (7th Cir.1982.). As Judge Altenberger recently explained:
"[T]he test is whether or not: a) any `great prejudice' to either the bankruptcy estate or the Debtor will result from continuation of the civil suit, b) the hardship to the plaintiff by maintenance of the stay considerably outweighs the hardship to the Debtor, and c) the creditor-plaintiff has a probability of prevailing on the merits of his case.
In prior decisions, the Courts have considered a variety of factors which affect the balancing of the interest. Of predominant importance in these decisions have been the hardships to the plaintiff of protracted litigation and the expense of time and money to the Debtor-in-Possession in defending these actions. A number of Courts have attributed a considerable weight to the fact that a plaintiff, by having to wait, may effectively be denied an opportunity to litigate. The aging of evidence, loss of witnesses, and crowded court dockets are factors which contribute to these hardships. The opinions reflect that the Courts have regarded the opportunity to litigate the issue of liability as a significant right which cannot be easily set aside, despite the existence of a bankruptcy proceeding. They have also considered as significant the judicial economy of continuing existing actions rather than beginning the suit anew in another form.
*549 The Courts have not, however, ascribed much significance to the fact that the Debtor will be required to participate in their defense, especially when the debtor's insurer is obligated to provide counsel. This position has been sustained despite the fact that the debtor was uninsured and was required to assume the costs of his own defense. Although one Court has held that the cost and time barriers of continued litigation were sufficient so as to justify a maintenance of the stay, the exceptional enormity of that case mandated a conclusion different than those in prior decisions. (Citations omitted.)"
In re Parkinson, 102 B.R. 141, 142 (Bankr.C.D.Ill.1988), quoting In re Bock Laundry Mach. Co., 37 B.R. 564, 566-67 (Bankr.N.D.Ohio 1984).
In the case at bar, the FDIC has demonstrated cause for lifting the automatic stay. As recognized in Parkinson, "[s]eparating the actions against the Debtor and the other Defendant might lead to attempts by each Defendant to shift the blame to the other and thereby deny Plaintiff any relief". In re Parkinson, slip op. at p. 2. This "blame shifting" problem is clearly evident in this case. As the Bank's primary loan officer, the Debtor had direct contact with the Bank's customers. As President, he was also responsible for the day to day operation and administration of the Bank. The Debtor's Codefendants, who were Directors of the Bank, have attempted to absolve themselves of liability by asserting that the Debtor alone was responsible for the Bank's losses. If this finger-pointing defense is successful and the Debtor is not a Defendant, the FDIC would recover nothing and the insurance company would have a great windfall. Under these circumstances, the Court finds that the FDIC has demonstrated cause for lifting the automatic stay.
The Court is not convinced by the Debtor's argument that lifting the stay would constitute "great prejudice" to him. The FDIC seeks to lift the stay only to the extent that there is insurance coverage. The Debtor will not have to pay any judgment out of his personal funds.
The Debtor notes that the insurance policy provides that defense costs are included within the policy definition of "loss". Thus, any sums advanced for the Debtor's defense will reduce the amount of insurance money which is available to satisfy a judgment in favor of the FDIC. Based on these facts, it is difficult to follow the Debtor's argument that he will be prejudiced if the costs of his defense increase. If defense costs are deducted from the available insurance, the amount available to the FDIC is reduced. The Debtor is not prejudiced by the fact that some of the available insurance is consumed by defense costs. Any loss in the available insurance belongs to the FDIC, not to the Debtor.
The Debtor also argues that he will be greatly prejudiced by his participation in "years of continued litigation". Courts have generally not ascribed much significance to the fact that a Debtor will have to participate in litigation. See, In re Bock Laundry Mach. Co., supra, 37 B.R. at 567. This Court agrees that mere participation in a civil suit does not constitute great prejudice.
The Debtor next argues that he may be potentially liable to repay the insurance company the defense costs if it is subsequently determined that there is no insurance coverage, and that this would constitute great prejudice to him. The Court recognizes that a large number of cases have held that the high cost of defending an action in another Court does not constitute great prejudice which would preclude modifications of the stay. In re UNR Industries, Inc., 54 B.R. 266, 269 (Bankr.N.D. Ill.1985); In re Unioil, 54 B.R. 192, 195 (Bankr.D.Col.1985); In re Rabin, 53 B.R. 529, 532 (Bankr.D.N.J.1985); In re Bock Laundry Mach. Co., 37 B.R. 564, 567 (Bankr.N.D.Ohio 1984); In re Steffens Farm Supply, Inc., 35 B.R. 73, 75 (Bankr. N.D.Iowa 1983); In re McGraw, 18 B.R. 140, 142 (Bankr.W.D.Wis.1982); In re Terry, 12 B.R. 578, 582 (Bankr.E.D.Wis.1981). These cases are readily distinguishable from the case at bar. UNR, Unioil, Rabin, *550 and Bock were all Chapter 11 reorganization cases. Terry was a Chapter 13 case. The issue in those cases was whether the claim was going to be liquidated in the nonbankruptcy forum or estimated by the Bankruptcy Court. In either case, the debtor would have had to pay an attorney to represent the interests of the estate. See, In re Rabin, supra, 53 B.R. at 531. Thus, the defense costs of the nonbankruptcy action would not constitute a substantial additional burden to the debtor. Similarly, if the claims pending in the nonbankruptcy forum also constituted the basis for a nondischargeability complaint or an objection to discharge in the Bankruptcy Court, the defense costs in the nonbankruptcy forum would not be an additional burden on the Debtor. See, In re Parkinson, supra. It would simply be a question of paying a lawyer to handle the claim in the nonbankruptcy forum or in the Bankruptcy Court. Either way, the debtor still has to pay an attorney. The case at bar is a Chapter 7, no asset case and the claim in the nonbankruptcy forum is clearly dischargeable in the bankruptcy. Thus, the Debtor would not have to incur personally attorney fees to handle this issue in the Bankruptcy Court. It therefore follows that the Debtor should not have to incur attorney fees to defend himself in the District Court action.
The holding is not inconsistent with McGraw and Steffens Farm Supply. In both McGraw and Steffens, the plaintiff needed a judgment against the debtor in order to prevail over the nonbankruptcy codefendants. In McGraw, the plaintiff sought recovery from the debtor's former employer under the doctrine of respondant superior. Without the debtor, the plaintiff could not establish the requisites of respondant superior, or satisfy the comparative negligence requirements of Wisconsin law. In Steffens Farm Supply, Inc., the plaintiff alleged a violation of Article 6 of the UCC when the debtor transferred in bulk its assets to the codefendant. Without a judgment against the debtor, the plaintiff could not pursue the codefendant. In the case at bar, the FDIC does not need a judgment against the Debtor in order to get full relief from the Codefendants. The liability of the Codefendants is not dependent on the liability of the Debtor. Thus, the Debtor is not a necessary party to the action against the Codefendant. Rather, as a matter of trial tactics, the FDIC wants the Debtor to be present as a Defendant in the District Court action in order to avoid the previously discussed blame shifting problem. Since the FDIC wants the Debtor in the District Court action as a matter of its trial tactics, the FDIC should be prepared to reimburse the Debtor for his reasonable attorney's fees in the event that the fees are not covered by insurance.
In reaching this conclusion, the Court notes that this is not a case where the Debtor may draw upon the efforts of his Codefendants in defending himself against the FDIC action. See, In re Unioil, supra, 54 B.R. at 195. The Codefendants in this case are pointing the finger at the Debtor and blaming the Debtor for the Bank's failure. They will not be a likely source of help for the Debtor at the trial.
Moreover, although the FDIC may not collect any judgment personally from the Debtor and it does not appear that there are any criminal implications in the FDIC lawsuit, the Court believes the Debtor is entitled to an attorney to represent his interests. A judgment against the Debtor could have a profound impact on the Debtor's reputation and future earning power.
The final consideration for the Court is whether the FDIC has a probability of prevailing on the merits of its case. A review of the FDIC's complaint in the District Court action indicates that the Bank was declared insolvent in 1983. The complaint alleges that the Defendant failed to follow sound and prudent lending policies which could have prevented or reduced the problems which led to the Bank's insolvency. These allegations set forth a cause of action which offers a chance of some recovery.
For the foregoing reasons, the Court concludes that the automatic stay of 11 U.S.C. Sec. 362 should be modified to allow the FDIC to proceed against the Debtor and other Defendants in FDIC v. Yoder, et al., *551 No. 86-3189 (C.D.Ill.Spfld.Div.), but that the FDIC is barred and enjoined from collecting from the Debtor, the Debtor's property, or property of the bankruptcy estate any judgment awarded in the District Court action. The Court further finds that in the event that the Debtor's attorney's fees are not covered by insurance, the FDIC will be directed to reimburse the Debtor for his reasonable attorney's fees and court costs.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919867/ | 660 So.2d 597 (1995)
Johnnie Sue MARDIS
v.
John Wesley MARDIS.
AV93000599.
Court of Civil Appeals of Alabama.
January 6, 1995.
Rehearing Denied February 10, 1995.
Certiorari Denied April 28, 1995.
Randall W. Nichols, of Boyd, Fernambucq & Nichols, P.C., Birmingham, for appellant.
Sheldon Perhacs, Birmingham, for appellee.
Alabama Supreme Court 1940708.
L. CHARLES WRIGHT, Retired Appellate Judge.
The parties were divorced in 1988. Two daughters were born of the marriage. Incorporated *598 into the final judgment of divorce was an agreement of the parties concerning child custody. The parties agreed that they would share joint custody of the children, rotating physical custody weekly.
In November 1992 the mother filed a petition, which, among other things, requested a modification of custody. She alleged that the joint custody arrangement was no longer feasible. She asked that she be awarded sole custody of the children. Following lengthy proceedings and numerous continuances, the trial court heard the matter in February 1994. The following month it entered an order awarding custody of the 16-year-old daughter to the mother and custody of the 10-year-old daughter to the father.
The mother appeals and asserts that the trial court erred in granting custody of the 10-year-old child to the father.
The record reflects that in 1992 the parties began to experience difficulty with the joint custody arrangement. The father's relationship with the older daughter had fully disintegrated by that year. After March 1992, the older daughter lived solely with her mother and has had little contact with her father since that time.
The younger daughter continued the weekly rotation between parents until September 1992. At that time she became angry with her mother and moved in with her father. The father enrolled her in a school within his district. He did so while the mother was out of the country. There has been previous litigation involving this issue. It, however, is not germane to the disposition of this appeal.
The younger child lived with her father until November 1993, at which time she resumed weekly rotation between her parents. The mother testified that during the separation with her younger daughter, the father made it difficult for her to visit the child. The father denied that he interfered with the mother's visitation.
The father is remarried and owns a gymnastics school. His second wife has three children from a previous marriage. He testified that the 10-year-old daughter has a good relationship with his new wife and her stepsisters.
The mother is a realtor. She has a steady friend of the opposite sex. She traded houses with this friend in order to keep the older daughter in her appropriate school district. The 16-year-old daughter testified that her mother's friend goes on vacations with them and occasionally sleeps at their house on the couch.
The record reflects that both daughters are exceptional students. The custodial difficulties have not caused the children any academic problems. The record reflects that the sisters have a good relationship.
The 16 year old testified that she did not want to live with her father because she does not get along with him or his new wife. The daughter and the father have made no efforts toward reconciliation.
The 10-year-old daughter testified in chambers, with only the trial court present. She stated that she wanted to live with her mother and visit her father. When the court asked her why, she responded:
"Well, It's just that I haven't seen her in a year, and I realize that I love her. And I like to be over there a bunch of times. And I still like my dad, but I just prefer to be over there because sometimes I just don't feel like I'm treated right at my dad's.
". . . .
"I mean, like sometimes my stepmother acts like she likes my stepsisters better and stuff."
The record reflects that the parties' relationship since the divorce has not been harmonious. The parties rarely communicate and the police have been called on several occasions.
On appeal the mother asserts that the trial court erred in awarding custody of the 10 year old to the father. She insists that the evidence failed to disclose any "compelling reasons" which would justify separating the two sisters.
Where there is no prior order granting exclusive physical custody to one parent, the "best interests and welfare of the children" standard applies. Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990). *599 Moreover, on appeal to this court, we will not reverse the trial court's judgment unless we determine from the evidence that it is plainly and palpably erroneous. Kennedy v. Kennedy, 517 So.2d 621 (Ala.Civ.App.1987).
Factors to be considered by the trial court in determining what is in the best interests of the child include the sex, age, and health of the child; the child's emotional, social, moral, and material needs; and the parties' ages, character, stability, health and home environment. Johnson v. Sparks, 437 So.2d 1308 (Ala.Civ.App.1983).
Two maxims of law that are relevant to the facts of this case are that siblings should not be separated in the absence of compelling reasons, Kennedy; Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986); Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App. 1979); Pettis v. Pettis, 334 So.2d 913 (Ala. Civ.App.1976); and, while not dispositive, the preference of a child with regard to its custody is entitled to much weight. Brown v. Brown, 602 So.2d 429 (Ala.Civ.App.1992).
While the record reflects that both parties have been guilty of failing to control their tempers and in failing to communicate with one another, the trial court obviously felt that both parties were fit to exercise custody. We agree that both parties are capable of fulfilling their parental obligations.
In this instance the trial court was faced with essentially two choices: award custody of both children to the mother or separate the children. The second choice stems from the fact that the father made no efforts to obtain custody of the older daughter.
In a situation such as this, where both parents are fit to exercise custody, we find it extremely important that the trial court consider whether there is a "compelling reason" to separate the siblings. We cannot find that "compelling reason" from our review of the record.
Furthermore, the younger daughter testified that she preferred to live with her mother. While not dispositive, we find that in this fact situation, such a preference should be carefully considered.
With full recognition and appreciation of the presumption of correctness of the judgment of an outstanding trial judge, we reverse that judgment because we find no "compelling reason" to separate these siblings. We direct entry of a judgment granting custody of both children to the mother, with an order of support by the father.
The mother's request for attorney fees on appeal is granted in the amount of $700. The father's request for attorney fees is denied.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.
REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT ACCORDING TO THIS OPINION.
ROBERTSON, P.J., and YATES, J., concur.
THIGPEN, J., concurs in result only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919882/ | 91 B.R. 1 (1988)
In re Sondra Lee KENT, Debtor.
Bankruptcy No. 085-50798-21.
United States Bankruptcy Court, E.D. New York.
September 19, 1988.
Sherman, Citron & Karasik, P.C., by Robert Kolodney, New York City, for debtor.
Macco, Hackeling & Stern, by Richard L. Stern, Huntington, N.Y., for claimant Jacob Parker.
OPINION
CECELIA H. GOETZ, Bankruptcy Judge:
The debtor and debtor-in-possession in this Chapter 11 proceeding, Sondra Lee Kent, has objected to the claim filed by Jacob Parker. Mr. Parker has filed a claim in the total amount of $143,349.00 for "Breach of contract for sale of real property owned by debtor and consequent damages." His claim is based upon the fact *2 that Mrs. Kent was not permitted to assume the contract into which she had entered with him, pre-petition, to sell her real property to him for the amount of $230,000.
The Court refused to permit the contract to be assumed because the evidence indicated that the contract price was far less than the market value of the property. Events bore this out. At public auction, the property was sold for $367,000. One of the participants in the auction was Mr. Parker. It was partially due to his bidding that the price reached the figure it did. Subsequently, Mr. Parker bought the property from the successful bidder. His claim is for $137,000, the difference between the price at which the property was sold to the successful bidder and the contract price, plus the fee he paid his attorneys, $3,550.00, the cost of a "bridge loan", $2,799, and clean-up costs, $851.00.
The debtor's grounds for objecting to the claim are that Mr. Parker is entitled to nothing because it was not the debtor who rejected the contract, but the Court which did not permit her to assume it; that the claimant increased the damage claim by participating in the auction bidding and that by so involving themselves they have "given up their rights (sic) to seek any damages from the sale."
The contention that participation in the auction forfeited Mr. Parker's right to damages for loss of his advantageous contract is too frivolous to merit consideration. More serious is the contention that no damages should be allowed because it was not Mrs. Kent who was to blame for the fact that the contract was not performed, but the Court which withheld approval of its assumption by her. The argument confuses the common law right of action for breach of contract with the statutorily created right to compensation for the rejection of an executory contract by a debtor in bankruptcy One of the by-products of filing under Chapter 11 is that the party filing is "empowered by virtue of the Bankruptcy Code to deal with its contracts and property in a manner it could not have employed absent the bankruptcy filing." N.L.R.B. v. Bildisco and Bildisco, 465 U.S. 513, 528, 104 S.Ct. 1188, 1197, 79 L.Ed.2d 482 (1983). The power given the debtor is to be exercised to carry out the policies of the bankruptcy court. To ensure that it is so exercised, the debtor may not either assume or reject an executory contract without the approval of the Court. § 365(a). It is inherent in the statutory scheme that the debtor's wishes will not be dispositive, that the debtor may want to assume contracts which the Court may conclude should be rejected and vice versa. By filing under Chapter 11, a debtor loses its autonomy with respect to its affairs.
The other party to the contract is not ignored by the Code. The Code, which empowers the debtor to reject an executory contract that a non-debtor could be specifically ordered to perform, provides the other party with a limited remedy. Cf., Lindermuth v. Myers, 84 B.R. 164 (D.S.D. 1988). It gives the non-debtor party a claim for breach of contract as of the date immediately preceding the filing of the petition.
11 U.S.C. § 365(g) provides:
. . . the rejection of an executory contract . . . of the debtor constitutes a breach of such contract . . . (1) if such contract or lease has not been assumed under this section . . . immediately before the date of the filing of the petition . . .
11 U.S.C. § 502(g) provides:
A claim arising from the rejection, under section 365 of this title . . . of an executory contract . . . of the debtor that has not been assumed shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection (d) and (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.
Based on these two provisions, the failure to assume an executory contract gives rise to a non-administrative pre-petition claim measured by the damages suffered.[1]*3 Under the statute and practically speaking, the reason why the contract is not assumed is immaterial. It makes no difference whether the failure to assume the contract is due to a decision by the debtor, to the objections of creditors or to the refusal by the Court to permit an assumption. The consequences are the same. To draw a distinction based on whether the debtor, the creditor or the Court stopped the assumption of an executory contract would be destructive of the statutory scheme.
Accordingly, the fact that Mrs. Kent wanted to assume the contract is irrelevant. Mr. Parker's right to damages for breach of contract is not based on anything Mrs. Kent did or did not do, post-petition, it is based on the fact that the statute says that his contract was automatically breached when it was not assumed. The damages to which Mr. Parker is entitled are precisely those he could claim if his contract had been breached the day before the petition was filed which was when Mrs. Kent lost the ability to carry it out without the approval of the bankruptcy court. This is the difference between the contract price and the fair market value of the property. Since no effort has been made to show that the fair market value as of the date the petition was filed was any different from the fair market value of the property at the time of the auction, the damages are the difference between the contract price and the auction price.
Mr. Parker is not entitled to his attorney's fees or the other elements of his claim. They constitute no part of the statutory claim arising from the rejection of an executory contract. Accordingly, his claim is allowed in the amount of $137,000, the difference between the contract price and the auction price, but it is expunged as to the balance.
It may not be inappropriate to point out that all Mrs. Kent's creditors have been paid which means that the only one who would benefit from any reduction in Mr. Parker's claim would be Mrs. Kent. The equities lie with Mr. Parker. The money in question is the excess realized by the Court, acting in the interest of her creditors, over the price Mrs. Kent had agreed with Mr. Parker to take for her property. Had she had her way, the excess would not exist. To turn it over to Mrs. Kent would simply represent an unlooked for, and undeserved, windfall.
An Order consistent with this Opinion has already been entered.
NOTES
[1] In deciding whether a contract should be assumed or rejected, one consideration is the size of the claim to which rejection will give rise. However, even where the damage claim is, as here, exactly equal to the higher realization possible if the contract is rejected, rejection may still be in the interest of the creditor body. A large estate with more claims against it may be preferable to a smaller, or even non-existent, estate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2760494/ | Illinois Official Reports
Appellate Court
Woods v. City of Berwyn, 2014 IL App (1st) 133450
Appellate Court JOHN MICHAEL WOODS, Plaintiff-Appellant, v. THE CITY OF
Caption BERWYN, THE BOARD OF FIRE AND POLICE
COMMISSIONERS OF THE CITY OF BERWYN, BERWYN FIRE
DEPARTMENT, FIRE CHIEF DENIS J. O’HALLORAN, RALPH
REYNA, Commissioner, ROGER MONTORO, Commissioner, and
RICHARD TOMAN, Commissioner, Defendants-Appellees.
District & No. First District, Third Division
Docket No. 1-13-3450
Filed October 29, 2014
Held On appeal from a decision of defendant board of fire and police
(Note: This syllabus commissioners to discharge plaintiff from his position as a fire
constitutes no part of the lieutenant for making threats against his superiors, the appellate court
opinion of the court but upheld the board’s decision, since the collective bargaining agreement
has been prepared by the did not give plaintiff the right to arbitration, the board did not violate
Reporter of Decisions plaintiff’s rights by hearing the charges, and the board’s factual
for the convenience of findings, including the decision to reject plaintiff’s theory that he was
the reader.) being framed by a fellow lieutenant, were not against the manifest
weight of the evidence and supported the decision to discharge
plaintiff.
Decision Under Appeal from the Circuit Court of Cook County, No. 2011-CH-32916;
Review the Hon. Neil H. Cohen, Judge, presiding.
Judgment Affirmed.
Counsel on Golan & Christie, LLP, of Chicago, and Harry C. Lee, of Law Office
Appeal of Harry C. Lee, of Chicago, for appellant.
Joseph M. Gagliardo and Jeffrey S. Fowler, both of Laner Muchin,
Ltd., of Chicago, for appellees.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Lavin concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff John Woods appeals the decision of defendant Board of Fire and Police
Commissioners of the City of Berwyn (the Board) discharging him as a fire lieutenant. Woods’
discharge stems from certain threats he allegedly made against superiors. He argues that: (i) his
due process rights were denied when he was not allowed to arbitrate his grievance; and (ii) the
decision to terminate was against the manifest weight of the evidence. We disagree and affirm,
finding that conditions precedent to arbitration were not satisfied, that the Board’s findings
were not against the manifest weight of the evidence, and that its decision to terminate was
reasonable.
¶2 BACKGROUND
¶3 Woods began working for the Berwyn fire department in 1988. He was promoted to fire
lieutenant in 2008. Woods had a clean disciplinary record until 2009, when he received a
24-hour suspension without pay for a confrontation with a firefighter to whom Woods said,
“You stay out of my life.” The firefighter asked Wood’s three times, “Is that a threat?” Woods
answered, “Yeah, leave me alone.”
¶4 In October 2010, Woods volunteered to become the department’s training officer. But,
over time, he felt he received inadequate training for the job and that his superiors were overly
critical of his work. He described his supervisors’ treatment as “harassment.”
¶5 In mid-May 2011, Deputy Chief Sam Molinaro spoke to Woods at a pub. Woods told
Molinaro that he was extremely stressed about his job, and the stress was starting to affect his
family life. Molinaro advised Woods to speak to the fire chief and request a reassignment. He
also told him that, with 14 new firefighters in the department, it was important that Woods did
his job well. Woods responded he could handle the job, but insisted his superiors picked on
him.
¶6 By month’s end, Woods changed his mind. He met with Assistant Chief Dick Swade and
Chief Denis O’Halloran. The chief asked Woods whether he wanted to remain in the training
officer position. Woods said, “No, I do not.” Woods further stated that he was tired and not
sleeping, and would go home at night, sit in his chair, and have “bad thoughts.” The chief told
Woods, “Okay, you’re out.”
¶7 As a result of the meeting, a 14-day notice was posted seeking a lieutenant to take over the
training officer vacancy, and if no lieutenant volunteered, the most junior lieutenant would be
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assigned the job. Lieutenant Ronald Hamilton was the most junior lieutenant in the
department. The chief discussed the prospect of becoming the training officer with Hamilton,
and Hamilton was not happy.
¶8 A few days later, Woods met with his supervisor, Deputy Chief Greg DiMenna, to turn in
lesson plans. The deputy chief complimented Woods on his work, and Woods responded
saying he wanted to continue as training officer. The deputy chief said he would ask his
superiors if Woods could stay on as training officer. The deputy chief asked the chief whether
Woods could remain in his position, and the chief said, “Absolutely not.” The deputy chief did
not tell Woods the chief’s response.
¶9 On June 3, 2011, Lieutenant Hamilton was on duty at the south end firehouse in Berwyn.
While returning from a call, Hamilton saw Woods on the firehouse driveway. Woods and
Hamilton were friends, having socialized a number of times outside of work. Woods asked
Hamilton to talk. According to Hamilton, Hamilton started the conversation, saying, “Mike
[Woods], you have a good heart. You have a heart of gold, but you never take responsibility for
your actions.” Woods asked, “What do you mean?”
¶ 10 Hamilton responded, “Because of you not doing your job, it doesn’t just affect you now. If
nobody signs the transfer sheet to go into the training office, it’s going to be me going in there,
and I just want you to know that it does affect me and my family also.” As a fire lieutenant,
Hamilton worked 24-hour shifts followed by 48 hours off. The training officer works from 7
a.m. to 3 p.m., Monday through Friday.
¶ 11 Woods said he felt everyone was out to get him and nobody helped him in his job. He
mentioned an incident where the deputy chief’s wife got his wife fired. Then he said, “I’d like
to kill them. Kill them all.” Woods also said that his children wanted “addresses” so they could
go “tune them up.” Hamilton assumed “them” referred to the fire department management.
Hamilton said, “Mike, you know that sounds crazy, right? Your kids, there’s no way they can
get away with that.” Woods later said that he sometimes sat at home thinking of ways of
hurting himself, and he thought he needed psychiatric help.
¶ 12 Woods recollected the conversation differently. Hamilton started the conversation, saying,
“Mike, shut up. I want you to keep your mouth shut and let me talk.” Hamilton said, “Mike,
you always got an excuse for everything.” Woods asked for an example. Hamilton could not
provide one, but told Woods that he was going to ruin Hamilton’s family life and financial
position. “You screwed up your life, now you’re screwing up mine,” Hamilton said, according
to Woods, “I won’t be able to do my job. I won’t be able to spend time with my family.”
¶ 13 Woods told Hamilton that he had spoken with Deputy Chief DiMenna and was going to try
to stay in the training officer position. Woods did not know that the chief had already rejected
his request. Woods said, “Relax. Everything will work out.” Woods also said that he might stay
in the training officer position until another lieutenant retires so that Hamilton would not be the
most junior candidate. Hamilton asked, “Did you tell [Chief] O’Halloran that?” Woods
responded, “No. That was [Deputy Chief] Greg DiMenna’s job.” Woods told Hamilton that
everything would be fine, shook his hand, and left. He denied that he threatened anyone or said
that he wanted to hurt himself.
¶ 14 Bothered by the conversation, Hamilton called the vice president of the union and told him
about what Woods had said. The vice president advised him to call the union president, who
told Hamilton to tell Deputy Chief Molinaro. The deputy chief asked Hamilton to prepare a
written statement, which he did, and told the chief and assistant chief about Hamilton’s
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conversation with Woods. The chief placed Woods on administrative leave. He also asked the
Berwyn police to check on Woods. Woods told the police he did not threaten anyone and had
no intention of harming himself or others.
¶ 15 As part of the fire department’s investigation, the deputy chief questioned Woods on
June 5. Woods denied threatening anyone. A few days later, the chief ordered Woods to
undergo a psychological evaluation. The psychologist reported that Woods “denied that he had
made such threats to any person *** we did judge him to be honest and forthcoming in the
evaluation.” The psychologist found no evidence of a major psychiatric disorder and
concluded Woods was capable of returning to work.
¶ 16 In July 2011, the chief filed charges against Woods before the Board of Fire and Police
Commissioners of the City of Berwyn, which included: (i) conduct unbecoming of a
firefighter; (ii) fighting and verbal abuse; (iii) providing false information; and (iv) violation of
the law. Woods responded with a grievance and requested to proceed before a labor arbitrator.
The union voted not to refer Woods’ grievance to arbitration. Hamilton, a member of the
union’s executive board, abstained from the vote.
¶ 17 Regarding disciplinary action, the collective bargaining agreement between the city and
union, at section 9, provided that while the fire chief and the Board had various statutory
authority over employees, nevertheless section 9 supplemented the fire chief and Board’s
authority “by providing non-probationary employees with the right to choose between having
a dispute as to disciplinary action resolved through a hearing before an arbitrator selected
according to the grievance/arbitration procedure of this agreement or by hearing conducted by
the Board.” The section then sets out the grievance procedure, including, “If no grievance is
filed or the Union does not refer the grievance to arbitration, the charges shall proceed to
hearing and determination shall be made by the Board.”
¶ 18 In August 2011, the Board held a hearing on the fire chief’s charges. At the hearing,
Woods’ counsel raised the issue of his right to arbitrate under the collective bargaining
agreement. Counsel admitted that the union had disallowed Woods’ grievance, but noted that,
“By participating in the hearing against Lieutenant Woods’ wishes, because he wants to
arbitrate, we’re not waiving any rights to litigate federal claims or any other state law claims.
We’re only litigating this issue of disciplinary charges brought by the department.” Woods
then participated in the hearing.
¶ 19 The Board found that the chief met his burden of establishing, by a preponderance of the
evidence, that Woods was guilty of the charges and that there was cause for his termination.
Woods sought an administrative review of that ruling in the circuit court. The circuit court
remanded the case to the Board to make factual findings. The Board made factual findings,
crediting Hamilton’s testimony and noting that Woods had a motive to be “less than truthful.”
Woods again sought administrative review from the circuit court, and the circuit court upheld
the Board’s decision. This appeal followed.
¶ 20 ANALYSIS
¶ 21 Woods argues: (i) the Board’s refusal to arbitrate violated his due process rights under the
Illinois Municipal Code (65 ILCS 5/1-1-1 et seq. (West 2010)) and the collective bargaining
agreement; (ii) the Board’s findings were against the manifest weight of the evidence; and (iii)
the Board’s decision to terminate Woods was not supported by the evidence.
-4-
¶ 22 Woods’ Right to Arbitration
¶ 23 Whether a party’s procedural due process rights were violated presents a legal question,
which we review under the de novo standard. Lyon v. Department of Children & Family
Services, 209 Ill. 2d 264, 271 (2004).
¶ 24 The Illinois Municipal Code provides that a firefighter may not be discharged without
notice and a hearing, or impartial arbitration if so provided under a collective bargaining
agreement. 65 ILCS 5/10-2.1-17 (West 2010). A collective bargaining agreement is a contract,
and as such, we interpret it consistent with the plain meaning of its terms. Board of Education
of Du Page High School District No. 88 v. Illinois Educational Labor Relations Board, 246 Ill.
App. 3d 967, 975 (1992). The law creates a presumption in favor of arbitrating disputes under
collective bargaining agreements that contain arbitration clauses and, when in doubt, courts
favor arbitration. Champaign Police Benevolent & Protective Ass’n Unit No. 7 v. City of
Champaign, 210 Ill. App. 3d 797, 802 (1991). But, where a collective bargaining agreement
establishes a grievance and arbitration procedure, those procedures are the exclusive mode of
redress for enforcing the employment contract unless the parties expressly agree otherwise.
Meeks v. South Bend Freight Lines, Inc., 85 Ill. App. 3d 755, 758 (1980).
¶ 25 The collective bargaining agreement applicable to Woods provides “non-probationary
employees with the right to choose between having a dispute as to disciplinary action resolved
through a hearing before an arbitrator selected according to the grievance/arbitration procedure
of this agreement or by hearing conducted by the Board.” The agreement sets forth the
following procedure for arbitration: (i) when the fire chief files charges with the Board, he
must give notice to the effected employee and the union; (ii) the employee or the union may
then “file a grievance contesting the just cause of the disciplinary action” within a certain
period of time; and (iii) the grievance “may be referred to arbitration.”
¶ 26 The collective bargaining agreement further states, “[i]f the grievance is referred to
arbitration by the Union” certain conditions must be fulfilled, including a signed statement
from the accused waiving all rights to a hearing before the Board. (Emphasis added.) “If no
grievance is filed or the Union does not refer the grievance to arbitration, the charges shall
proceed to hearing and determination shall be made by the Board.” (Emphasis added.)
¶ 27 These procedures create a condition precedent to arbitration–the union must refer a
grievance to arbitration. See Amalgamated Transit Union, Local 900 v. Suburban Bus Division
of the Regional Transportation Authority, 262 Ill. App. 3d 334, 338 (1994) (“A condition
precedent is one which must be performed either before a contract becomes effective or which
is to be performed by one party to an existing contract before the other party is obligated to
perform.”). The collective bargaining agreement sets forth several steps before arbitration: the
fire chief must file charges with the Board, then the affected employee may file a grievance.
The union must then decide whether to refer the grievance to arbitration. Woods filed a
grievance in response to the fire chief’s charges, but the union declined to refer his grievance to
arbitration. Accordingly, a condition precedent to arbitration was not met, and the Board did
not err in proceeding to hear the charges against Woods.
¶ 28 Woods argues that his right to arbitration is unconditional. He points to the language in the
collective bargaining agreement intending to give “non-probationary employees *** the right
to choose” between arbitration and a hearing before the Board. But the plain meaning of the
collective bargaining agreement belies Woods’ reading. We must read the agreement as a
-5-
whole. Speed District 802 v. Warning, 242 Ill. 2d 92, 136 (2011). And Woods’ interpretation
makes the procedures set out in the agreement surplusage.
¶ 29 The agreement sets out two steps before arbitration: first, a grievance filed by the
employee, and second, a referral of the grievance to arbitration “by the Union.” If the union
refers the grievance to arbitration, the union must give notice and include a waiver of the
employee’s right to a Board hearing. The matter then goes to an impartial arbitrator. The
collective bargaining agreement does not provide for an employee to directly refer a grievance
to an arbitrator. If the union and the city wanted to allow an employee–without union
approval–to take a grievance to arbitration, the collective bargaining agreement would have
said so. While the collective bargaining agreement often uses the passive voice in the
arbitration provisions (“If the grievance is filed, it may be referred to arbitration”; “If the
grievance is referred to arbitration by the Union”), reading the provisions as a whole, it is clear
the decision to arbitrate a grievance belongs to the union alone.
¶ 30 Woods further argues that he may refer his grievance to arbitration under the clause stating,
“If no grievance is filed or the Union does not refer the grievance to arbitration,” the Board
shall hear the charges. Woods is essentially turning the clause inside out so it in effect reads,
“If a grievance is filed or the Union refers the grievance to arbitration, then the Board shall not
hear the charges.” Under the clause, contrary to Woods’ misreading, if either of the conditions
precedent to arbitration (grievance or union referral) is not present, then the Board hears the
charges.
¶ 31 Accordingly, Woods had no right to arbitration under the collective bargaining agreement
and suffered no due process violation when the Board proceeded to hear the charges against
him.
¶ 32 The Board’s Factual Findings
¶ 33 Woods next argues that the Board’s factual findings–that (i) Woods threatened his
supervisors and their families; and (ii) Hamilton testified consistently and credibly–are against
the manifest weight of the evidence. We disagree.
¶ 34 We review the findings of the Board under the manifest weight of the evidence standard,
and will reverse only if the opposite conclusion is clearly evident from the evidence as a whole.
Bowlin v. Murphysboro Firefighters Pension Board of Trustees, 368 Ill. App. 3d 205, 210
(2006); Blunier v. Board of Fire & Police Commissioners, 190 Ill. App. 3d 92, 102 (1989) (“A
review of the entire record is required in order to determine whether the manifest weight of the
evidence, as a whole, warrants a different conclusion ***.”). Generally, if the record contains
evidence to support the findings and decision, we will affirm. Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).
¶ 35 The Board’s decision to terminate Woods turns on Hamilton’s testimony. Hamilton
testified that Woods said he wanted to kill his superiors and that Woods’ sons wanted to hurt
their families. Woods denied saying anything of the sort. That the Board chose to believe
Hamilton and disbelieve Woods is not contrary to the manifest weight of the evidence. See
Taylor v. Police Board, 62 Ill. App. 3d 486, 492 (1978) (holding reliance on conflicting
testimony does not provide basis for reversal).
¶ 36 Woods points to numerous weaknesses in Hamilton’s testimony, including: (i)
discrepancies between his testimony and his written statement made soon after the incident;
-6-
(ii) Hamilton’s failure to immediately report Woods’ threat to fire department management or
police, instead calling the union; and (iii) Hamilton’s motive to lie and frame Woods so that
Hamilton would not have to become the department training officer. Woods also points to
aspects of his own testimony that bolster his credibility and show he was not a threat, namely,
(i) after allegedly threatening fire department management, he went home to his family; (ii) the
police who visited Woods the night of the incident did not arrest him or even warn him; and
(iii) a psychologist believed that Woods was not a threat to himself or others.
¶ 37 Inconsistencies are bound to occur in testimony due to the passage of time, which affects
perceptions and memories. All the inconsistencies cited by Woods in Hamilton’s testimony are
minor and none indicate Hamilton fabricated his version of the conversation with Woods. See
Feliciano v. Illinois Racing Board, 110 Ill. App. 3d 997, 1004 (1982) (holding assessment of
credibility is for trier of fact who observed testimony and reviewing court will not reverse
assessment without something more than mere conflicting testimony); People v. Talach, 114
Ill. App. 3d 813, 820 (1983) (minor inconsistencies in testimony do not destroy credibility and
any variations in testimony for trier of fact to weigh). Accordingly, the Board’s decision to
credit Hamilton’s testimony is not against the manifest weight of the evidence.
¶ 38 Woods also notes that Hamilton had motive to lie, namely, to frame Woods so that
Hamilton would not have to become the new training officer. Woods’ theory is one that the
Board heard and rejected. During closing arguments, Woods argued that Hamilton had a
motive to fabricate Woods’ threat. While Hamilton’s motive does cast a pall on his version of
the facts (see People v. Herman, 407 Ill. App. 3d 688, 705 (2011)), it was for the Board to
determine how his motive affected the weight of his testimony. See Hurst v. Department of
Employment Security, 393 Ill. App. 3d 323, 329 (2009) (“It is the responsibility of the
administrative agency to weigh the evidence, determine the credibility of witnesses, and
resolve conflicts in testimony.”); Gregory v. Bernardi, 125 Ill. App. 3d 376, 383 (1984) (“if the
issue is merely one of conflicting testimony and credibility of a witness, the agency’s
determination should be sustained”).
¶ 39 Thus, the Board’s factual findings are not against the manifest weight of the evidence.
¶ 40 The Board’s Decision to Terminate
¶ 41 Woods next argues that defendants failed to demonstrate just cause for his discharge. We
disagree. We will not reverse the Board’s decision to discharge an employee unless it is
arbitrary, unreasonable, or unrelated to the requirements of service. Krocka v. Police Board,
327 Ill. App. 3d 36, 46 (2001).
¶ 42 “Cause” refers to some substantial shortcoming that makes an employee’s continued
employment detrimental to the discipline and efficiency of the service and something which
the law and a sound public opinion recognize as good cause for the employee no longer
occupying the office. Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d
303, 311 (1984). “[A] single instance of misconduct can constitute cause for discharge where
the misconduct is serious.” Hermesdorf v. Wu, 372 Ill. App. 3d 842, 853 (2007).
¶ 43 Woods told Hamilton that he “would like to kill them,” “[k]ill them all” and that his sons
wanted to “tune them up,” referring to the fire department’s managerial staff and their families.
The Board found that this statement constituted a threat against fire department personnel and
provided cause for Woods’ termination. A reasonable conclusion. Not only do threats
undermine the public’s confidence in a firefighter’s good judgment and maturity (cf. Walsh v.
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Board of Fire & Police Commissioners, 96 Ill. 2d 101, 106 (1983) (holding unnecessary
display of firearm reflected poorly on ability and good judgment of police officer)), but, also,
allowing the firefighter to remain on the job may erode the discipline and efficacy of the
service, lowering morale and fostering distrust among the ranks. The city need not wait until
that threat manifests as serious violence before seeking a discharge. Cf. Williams v. Illinois
Civil Service Comm’n, 2012 IL App (1st) 101344, ¶¶ 12-13 (upholding discharge for frustrated
employee’s minor act of violence).
¶ 44 Woods further argues that evidence cannot sustain the four charges pressed against him. A
finding of guilt under any of the charges would provide sufficient basis for removal. See
Roman v. Cook County Sheriff’s Merit Board, 2014 IL App (1st) 123308, ¶ 100 (noting guilty
finding on any minor charges provides basis for suspension).
¶ 45 As to the second charge, “fighting/verbal abuse,” the rules bar a member of the department
from engaging “in fights or verbal disputes.” There is no evidence that Woods and Hamilton
fought or engaged in a verbal dispute. As to the fourth charge, violation of the law, the Board
did not find that Woods violated any law. Accordingly the evidence did not support a finding
of guilt under that charge.
¶ 46 Nevertheless, Woods’ guilt under the first and third charges is sufficient to uphold his
discharge. The department’s rules and regulations define the first charge, “conduct
unbecoming,” as a breach of “the ordinary rules of good behavior observed by law-abiding
citizens.” Woods’ expression of a desire to kill his supervisors is conduct unbecoming of a fire
lieutenant. Woods’ guilt under the third charge, making a false report about a matter related to
the department, flows from denials he made during the fire department’s official investigation.
The Board’s finding that Woods lied about his statements to Hamilton supports a guilty finding
under the third charge.
¶ 47 The evidence well supports the Board’s decision to remove Woods.
¶ 48 Affirmed.
-8- | 01-03-2023 | 12-12-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1574557/ | 308 S.W.3d 778 (2010)
Courtney D. WILKINS, Appellant,
v.
STATE of Missouri, Respondent.
No. SD 29954.
Missouri Court of Appeals, Southern District, Division One.
April 28, 2010.
*779 Mark A. Grothoff, Columbia, for appellant.
Chris Koster, Atty. Gen., Jamie Pamela Rasmussen, Asst. Atty. Gen., Jefferson City, for respondent.
ROBERT S. BARNEY, Judge.
Courtney D. Wilkins ("Movant") appeals the motion court's denial following an evidentiary hearing of his postconviction relief motion filed pursuant to Rule 29.15.[1] In his sole point on appeal, Movant, who was granted the right to represent himself at trial, maintains he received ineffective assistance of counsel from his previously appointed counsel in that his counsel "failed to act as a reasonably competent attorney ... by failing to conduct an adequate investigation and failing to adequately prepare for trial...." He asserts such ineffective assistance prejudiced him and "ultimately forced [Movant] to proceed pro se to trial unprepared and without necessary evidence and witnesses." We affirm the judgment and findings of the motion court.
The record reveals Movant was arrested on November 18, 2002, and he was thereafter charged with the following crimes: one count of the unclassified felony of forcible rape, a violation of section 566.030, RSMo Cum.Supp.2006; one count of the Class A felony of kidnapping, a violation of section 565.110; and one count of the Class B felony of assault in the first degree, a violation of section 565.050.[2] Attorney Rod Hackathorn ("Attorney Hackathorn") was appointed to represent Movant on November 27, 2002, and he represented Movant at the preliminary hearing on these charges. On January 22, 2003, Attorney Michaelle Tobin ("Attorney Tobin") entered *780 her appearance and she began to represent Movant thereafter.
In February of 2003, Movant filed several pro se motions despite the fact that he was being represented by Attorney Tobin. Then in March of 2003, he filed a "Motion to Dismiss or Withdraw Appointed Counsel" in which he insisted he would not accept an attorney from the public defender's office because such attorneys "employ[] practices that would prevent [Movant] from receiving effective assistance of counsel and a future appointment of counsel from that office will prevent [Movant] from receiving a fair and impartial trial." He also filed a "Motion to Proceed Pro Se" on June 10, 2003.
The trial court held a hearing on these pro se motions on July 7, 2003, and Movant related at that hearing that his appointed counsel had only spoken with him on two occasions and had not properly investigated his case as he had requested. The trial court discussed with Movant the dangerous nature of a defendant proceeding to a jury trial pro se and ultimately denied all of Movant's pro se motions.
Movant then filed another motion to proceed pro se on October 14, 2003, and a hearing was held on this matter on October 28, 2003. At the hearing, Movant again complained about Attorney Tobin's lack of investigation and her choice of trial strategies; however, he did admit that he had met with her a number of times since the last hearing. Further, Attorney Tobin informed the trial court that she had tracked down six of the seven witnesses recommended to her by Movant. At the conclusion of the hearing, the trial court denied Movant's motion to proceed pro se.
On May 12, 2004, Movant filed a "Motion to Withdraw" in which he requested the trial court dismiss Attorney Tobin as his counsel. This was followed on July 28, 2004, by another motion to proceed pro se; thereafter, on November 22, 2004, Attorney Tobin filed a motion to withdraw as Movant's counsel. A hearing was held on these motions on November 24, 2004. The trial court examined Movant about his desire to proceed pro se and Movant asserted he wanted to proceed pro se because he was more familiar with the facts of his case than Attorney Tobin was; he understood the charges against him and the procedures involved in a jury trial; he understood he would be signing a written waiver of counsel and agreed to do so; he knew what it meant to be charged as a prior offender and he was aware of the possible sentences he might incur; he had no mental defects or other issues that would affect his abilities to represent himself; he understood he would have to follow the procedural rules of evidence as an attorney is required to do; and he understood how juries were selected, that he would have to call his own witnesses, and that he had the right to object to evidence offered by the State. He informed the trial court that he had an associates degree in paralegal studies and asserted he understood that if he were convicted he could not bring an ineffective assistance of counsel claim against himself. The trial court then found Movant knowingly and voluntarily waived his right to counsel; permitted Attorney Tobin to withdraw; and appointed the public defender's office "to act as standby counsel, to be available to represent [Movant] in the event that [Movant] so requests or the court finds it necessary to terminate [Movant's] self-representation."
Thereafter, Movant filed numerous motions in which he sought help with his defense including a "Request to Modify Order of Standby Counsel and Request to Compel Request to Modify Order of Standby Counsel." A hearing was held on January 7, 2005, at which time Movant informed the trial court that he wanted *781 "assistance of counsel" from the public defender's office, but wanted no "representation" of counsel from that office. The trial court, inter alia, denied Movant's request to modify the trial court's previous order appointing standby counsel. However, another hearing was held on January 20, 2005, and at this hearing the public defender's office requested to withdraw from Movant's case completely. Movant continued to assert he wanted the resources the public defender's office could offer him in the way of preparation for his trial and that he wanted "at a minimum [to] have the assistance of the [p]ublic [d]efender's [o]ffice, not necessarily the representation." The trial court denied the public defender's request to withdraw; made arrangements with officials at the jail to explore some options for Movant regarding phone privileges, access to visitors, and other matters; and otherwise denied Movant's requests.
On January 27, 2005, Movant filed a pro se motion requesting the trial court reconsider its ruling on his request to modify the order for standby counsel. A hearing was held on this matter on February 2, 2005. The trial court interpreted Movant's requests in his motion as a request for the reappointment of counsel and the trial court reappointed the public defender's office to represent Movant.
The following week, on February 14, 2005, Movant filed yet another motion to proceed pro se and a hearing was held on this matter on February 16, 2005. At the hearing Movant explained to the trial court that he wanted to proceed pro se and that his motions to modify the appointment of the public defender's office as standby counsel had been based on his erroneous interpretation of "assistance of counsel" versus "representation by counsel." He was again questioned in relation to his understanding of the charges against him, his experience in dealing with the law and legal situations, his understanding of the jury trial process, his recognition of the difficulty and dangers of self-representation, his understanding that his investigation would be hampered by his incarceration, and the fact that by representing himself he was waiving his right to assert ineffective assistance of counsel upon conviction. After affirming two additional times that he desired to represent himself at trial without standby counsel, the trial court found Movant's waiver was knowing and voluntary and the matter was set for a jury trial.
A jury trial was held February 22, 2005, through March 1, 2005. Movant appeared pro se. At the conclusion of the evidence, the jury convicted Movant of the three crimes set out above. He was then sentenced to the following consecutive terms: life imprisonment on Count I, twenty years on Count II, and thirty years on Count III. Movant filed a direct appeal and his convictions and sentences were affirmed in State v. Wilkins, 229 S.W.3d 204, 210 (Mo. App.2007).
On October 9, 2007, Movant filed a pro se Rule 29.15 motion. Movant was then appointed counsel and his counsel filed a statement in lieu of an amended motion on January 9, 2008.
An evidentiary hearing on Movant's motion was held on February 11, 2009.[3] The only testimony offered at the hearing was that of Movant. Movant testified that he was arrested in November of 2002 and at that time Attorney Hackathorn was appointed *782 to represent him. Thereafter, Attorney Tobin entered her appearance, and Movant testified she did not meet with him until March of 2003 at which time Movant gave her a list of about 30 witnesses to contact and a list of possible evidence to be gathered including phone records, certain medical records, and information from his home computer.[4] He was unable to inform the motion court as to what these uncontacted witnesses would have added to his case and, instead, centered his complaints on Attorney Tobin's lack of contact with the witnesses. He stated no investigation into his case occurred by his appointed counsel until June of 2003. He further testified that in November of 2004 when he was finally granted permission to represent himself, there had still been little or no investigation completed by any of his appointed attorneys; however, he admitted Attorney Tobin's files revealed she had contacted some of his proposed witnesses. Further, despite his lack of help from Attorney Tobin, he admitted that he called four witnesses to testify at trial and that he had been able to obtain subpoenas as needed during his preparation for trial. He maintained that during his self-representation he was hindered by his appointed counsel's failure to investigate because key evidence was lost and witnesses were unable to remember certain events due to the passage of time. He further related that his appointed counsel's inattentiveness and lack of investigation "affected [his] ability to effectively represent [him]self at trial."
On June 29, 2009, the motion court entered its "Order Denying Movant's Motion to Vacate, Set Aside, or Correct Judgment and Sentence Under Rule 29.15." The motion court found Movant "failed to prove that his attorney was ineffective for allegedly failing to investigate witnesses and evidence" in that Movant "failed to specifically describe the information and the witnesses his attorney allegedly failed to investigate;" he "was unable to list any names or potential contact information for these witnesses nor did he prove how these witnesses would have helped his defense;" and he "was very vague as to the evidence [Attorney] Tobin was alleged to not have investigated." Accordingly, the motion court denied Movant's request for postconviction relief under Rule 29.15. This appeal by Movant followed.
Movant's sole point relied on asserts the motion court erred in denying his Rule 29.15 motion "because a review of the record leaves a definite and firm impression that [Movant] was denied effective assistance of counsel ..." in that "his appointed counsel failed to act as a reasonably competent attorney would under the same or similar circumstances by failing to conduct an adequate investigation and failing to adequately prepare for trial." He maintains he was "prejudiced by his appointed counsel's failures in that important witnesses and evidence were not located and brought to the attention of the court and the jury, and counsel's inadequate investigation and preparation ultimately forced [Movant] to proceed pro se to trial unprepared and without necessary evidence and witnesses."
Our review of the denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). The motion court's findings and conclusions are *783 clearly erroneous "only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made." State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992); Marschke v. State, 185 S.W.3d 295, 302 (Mo.App.2006). Additionally, "[c]redibility of [a] witness is a determination to be made by the motion court [and][t]his Court must defer to the motion court's determination on matters of credibility." Berry v. State, 225 S.W.3d 457, 462 (Mo.App.2007) (internal quotations omitted).
A movant bears the burden of proving, by a preponderance of the evidence, that he received ineffective assistance of counsel. Rule 29.15(i). To establish ineffective assistance of counsel, a movant must show that: (1) "counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney;" and (2) counsel's poor performance prejudiced the defense. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To satisfy the first prong, a movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. "The reviewing court presumes that the trial attorney's conduct was reasonable and was not ineffective." Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). The second prong of the Strickland test is met when a movant shows that his attorney's errors affected the judgment. Strickland, 466 U.S. at 691, 104 S. Ct. 2052. A movant can prove that the judgment was affected when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. Movant must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).
At the outset we note that "[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). For example, "a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'" Id. at 834 n. 46, 95 S. Ct. 2525; see State v. Tyler, 622 S.W.2d 379, 385 (Mo.App.1981) (holding that Faretta, 422 U.S. at 834, 95 S. Ct. 2525, "does not guarantee [a] defendant that his self-representation must be effective and, indeed, warns that a defendant who conducts his own defense relinquishes many benefits associated with the right of counsel").
Here, the State cites this Court to Gaye v. State, 576 S.W.2d 554 (Mo.App.1978), and urges that Movant cannot bring an ineffective assistance of counsel claim for any reason, even against his pretrial counsel, based on the simple fact that he chose to represent himself at trial. In Gaye, 576 S.W.2d at 556, the movant represented himself at trial due to a finding by the trial court that his "adamant refusal of assistance by his employed counsel, an able member of the bar, constituted a waiver of representation." State v. Gaye, 532 S.W.2d 783, 790 (Mo.App.1975). The movant was convicted and brought a motion for postconviction relief under Rule 27.26.[5]Gaye, 576 S.W.2d at 556. One of the *784 claims in his motion was that prior to his self-representation his last appointed counsel failed to properly "conduct a pretrial investigation." Id. The reviewing court found:
[t]his ground is general and conclusional. It does not specify what information, facts, evidence or witnesses might have been disclosed if an investigation had been made. It does not demonstrate that the alleged neglect of counsel resulted in some prejudice to his position and deprived him of certain substantial rights that would affect the trial of his case. Furthermore, [the] movant waived a claim of ineffective assistance of counsel when he sought and was allowed to represent himself. This contention has no merit.
Id. (internal citations omitted) (emphasis added).
We agree with the State that the present situation is akin to that found in Gaye, 576 S.W.2d at 556. As in Gaye v. State, Movant repeatedly, affirmatively and clearly expressed his desire to the trial court to represent himself and to waive his right to counsel. In addition, at two separate hearings he informed the trial court that he understood that by proceeding pro se he was "giving up [his] right to any [postconviction] relief based on ineffective assistance of counsel" and that by waiving counsel he would "not be able to come back ... and complain that [his] lawyer did not do an adequate job of representing [him]."[6]See id. at 556. Furthermore, the record does not support the proposition that any waiver of counsel was done under duress. See Leady v. State, 733 S.W.2d 502, 505 (Mo.App.1987). It is clear from the record that Movant voluntarily waived his right to counsel and that he did so with the understanding that he would not be able to raise a claim of ineffective assistance of counsel. See Gaye, 576 S.W.2d at 556. The motion court's ruling denying his request for relief was not clearly erroneous. Point denied.
The findings, conclusions of law and judgment of the motion court are affirmed.
BATES, P.J., and BURRELL, J., Concur.
NOTES
[1] All rule references are to Missouri Court Rules (2008).
[2] Movant was also charged as a prior offender under section 558.016. Unless otherwise stated, all statutory references are to RSMo 2000.
[3] At the hearing, Movant filed a "notice of conflict with appointed counsel" in which he requested the motion court take judicial notice of the fact that he was "not in agreement with appointed counsel's position" on the issues raised in his pro se Rule 29.15 motion. The motion court noted Movant's assertions would be reflected in the record.
[4] Movant contended that certain pictures on his home computer would prove that the victim in his underlying criminal case had a motive to make up the allegations against him and that the phone records would reveal he was on the telephone at the time of the crimes.
[5] "`Rules 29.15 and 24.035, effective January 1, 1988, replaced Rule 27.26.'" Brown v. State, 179 S.W.3d 404, 408 n. 1 (Mo.App. 2005) (quoting Fincher v. State, 795 S.W.2d 505, 506 (Mo.App. 1990)).
[6] We note Movant has not expressly challenged the actions of standby counsel. In this connection, we observe that a "[d]efendant cannot adamantly waive his right to trial counsel and then complain that counsel failed to actively participate at trial." State v. Davis, 867 S.W.2d 539, 546 (Mo.App. 1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574577/ | 308 S.W.3d 19 (2009)
Brian Pak CYR, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-08-00771-CR.
Court of Appeals of Texas, San Antonio.
December 16, 2009.
*21 Lori O. Rodriguez, Chief Public Defender, San Antonio, TX, for Appellant.
Enrico B. Valdez, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
OPINION
Opinion by: KAREN ANGELINI, Justice.
Brian Pak Cyr was found guilty of murdering Corey Baxter and was sentenced to imprisonment for ninety-nine years and a $10,000 fine. On appeal, Cyr argues that (1) he suffered egregious harm from the trial court's failure to instruct the jury that the witness Dane Batterton was an accomplice as a matter of law; (2) the trial court erred in denying his request for juror information; and (3) the trial court erred in failing to hold a hearing on his motion for new trial. We affirm.
BACKGROUND
In the early morning hours of March 5, 2007, Corey Baxter was brought to the garage of a house on Chelmsford Street in San Antonio, Texas. He was then severely beaten by several different individuals. He was hit over the head with a baseball bat and a brick, which caused him to suffer severe head injuries. Baxter was hog-tied and wrapped in a rug and blanket. Dane Batterton, who had been beaten in the *22 same garage earlier after being accused by Cyr and others of stealing from a woman, was then called into the garage from the house, handed a gun, and told to shoot Baxter in the head. Batterton picked up the gun and shot Baxter. Batterton testified that he did so only because he was afraid that he would "end up in the same spot Corey's in." Batterton then handed the gun back and left the garage.
One of the individuals in the garage recorded video images and photos on a cell phone that Batterton later identified as one he had given Cyr. The video clips each last about fifteen seconds. The first one shows Baxter walking into the garage, surrounded by several people, and then being hit in the face, causing blood to run down his cheek. One video clip shows a man standing behind Baxter, holding something similar to a baseball bat. The man appears to be about to swing the bat toward Baxter. Another video clip shows Baxter lying on the garage floor, bloodied, and with severe injuries to his head. Yet another video clip shows individuals hogtying Baxter and wrapping him in a rug. Still another video clip shows a blanket shoved in Baxter's mouth as "duck" tape is being wrapped around Baxter's head and blanket. Cyr's voice can be heard on the video clips.
Clifford Vansycke, an accomplice witness, testified that he was frequently called by Cyr and others to help them "discipline" certain individuals and considered himself, at 6' 4" and 330 lbs., to be "the unofficial enforcer of the group." On the day of the murder, Vansycke was using crystal methamphetamines with Rudy Hettler, Bobby Cruz, Terry Adams, and a few others. According to Vansycke, Adams told him that Corey Baxter "had confided in him [Adams] that he [Baxter] was hired by ... Rudy Hettler to take out Bobby Cruz."[1] About forty-five minutes later, Vansycke saw Adams talking with both Hettler and Cruz. According to Vansycke, Adams was "telling them the story." Vansycke testified that both Hettler and Cruz were upset:
We're all a group of friends. We all hung out together. We all did dope together. We all did a lot of things together. But all of a sudden now one guy is claiming that he's supposedly you know, supposedly some one person is supposed to be taking out another person. That's just not what happens with friends. That's not supposed to happen with friends.
According to Vansycke, "[t]here was talk about about disciplining [Baxter]." When Vansycke, Hettler, and another man named Justin Berban got to the house on Chelmsford, Corey Baxter and Lupe Villarreal were standing at the front door of the house. John Boyer opened the door, and everyone went straight to the garage because "[t]hat's where we always hung out." On his way to the garage, he noticed Batterton in the living room. According to Vansycke, Batterton looked like he had been beaten: one of his eyes and his cheeks were swollen.
Cruz, Michael Yaws, and Yaws's girlfriend Michelle were already in the garage. Cyr then came in with a large group of people. Vansycke testified that at that point, he thought that they were going to "discipline" Baxter and that he was going to be the person to do it:
Well, I started circling around. I guess it's right at the point I was getting ready to start hitting on [Baxter] ... when the door opened up and in walked [Cyr] and everybody else. That's when *23 the whole group showed up. And at that point, that's when I decided I didn't need to have anything to do with this. I went ahead you know, I had taken my jacket off, taken my shirt off. I was in a tank top. I was like to getting ready to beat on him. When everybody walked in, I was like, no, no. This ain't me. I'm not going to do anything. I'm not going to touch this dude ... I've been around. I've seen what happens when groups get into a frenzy. ... And I didn't feel that was necessary. I mean, one person beating up on a guy... I mean, he wasn't a very big guy. That's one thing. But a whole group beating up on him? Wasn't needed.
According to Vansycke, the first person he saw hit Baxter was Villarreal. Villarreal hit Baxter on his right cheek. As Vansycke was putting his shirt back on, he saw "Bobby Cruz pick up a baseball bat." Vansycke heard the hit and turned to see Baxter on the ground. "It sounded kind of like a golfball being struck." According to Vansycke, Baxter was looking at him with his eyes "glazed over" "the lights were on but no one was home."
From the video clips, Vansycke identified Cyr as the person with black clothing, yellow shirt, and white shoes. Vansycke testified that a voice heard on the video clips belonged to Cyr. According to Vansycke, on the video clips, Cyr made the following audible statements: "You're a bitch, bro"; "It's not between you and him"; "Tony Montana, say hello to my little friend"; and "Hey, look at me, bitch. We spit on our enemies." Vansycke also testified that a still from one of the video clips depicts Cyr's hands in latex gloves holding a rope.
According to Vansycke, when Michael Yaws started hog-tying Baxter, he and Hettler left. Vansycke also testified that one of the video clips shows Cyr with his left foot on Baxter's head as Yaws is tying Baxter up.
Vansycke testified that a few hours after he and Hettler had left the house on Chelmsford, they returned because they had Justin Berban's truck and Berban had called saying he was hungry. Vansycke went into the garage and gave Berban a hamburger. When he went into the garage, Vansycke noticed that Baxter had been moved from right by the door leading to the house to the big garage door. According to Vansycke, Baxter was on a "carpet or tarp or something" and looked significantly worse, but was still alive. Besides the bat, Vansycke thought that a brick in the garage had been used on Baxter:
I had been asked to hold another video a little video recorder. And on it, it showed Michael Yaws throwing that brick. Winding up and then throwing it directly at his face. And [Baxter] was already on the ground. I mean, he was tied up. There was no way he could come close to defending himself.
According to Vansycke, Hettler asked him to hold on to the recording "as insurance" for a little while. He then left with Hettler, Berban, and Cruz.
Baxter's body, still hog-tied and wrapped in rugs, was later discovered in a lot next door to a fruit stand. Cyr, along with many others, was indicted for Baxter's murder. Cyr was confined in jail pending his trial, and his former cellmate, Billy Schaef, testified at trial. According to Schaef, Cyr told him about Baxter's murder. Cyr said that Hettler used a blow torch on Baxter; Cruz used a baseball bat; and Batterton shot Baxter. Cyr said that he made Batterton shoot Baxter:
[Cyr] said that he went and got the gun from Bobby [Cruz]. He gave [Cruz] a hug. He pulled the gun out of [Cruz's] pocket. [Cruz] didn't know [Cyr] got *24 the gun, but [Cyr] pulled the gun out of [Cruz's] pocket. [Cyr] said he went back into the garage, pulled out his gun, put that gun on the thing and told Dane [Batterton], "You shoot him. And if you don't shoot him, you're not leaving this garage." Dane [Batterton] picked up the gun, shot [Baxter], put the gun down and said, "Can I go?"
Schaef testified that the gun Batterton used was later found on Cruz and that Cruz did not know his gun had been used to shoot Baxter.
At trial, the medical examiner testified that Baxter died as a result of a blunt-force injury to his head and neck, and a gunshot wound to his head. According to the medical examiner, she could not distinguish whether it was the blunt-force injury or the bullet wound that caused Baxter's brain injury. The medical examiner testified that a gunshot wound to the brain is usually bloodier than Baxter's was, which indicated that Baxter had very low blood pressure and had maybe even been in physiologic shock before he was shot.
At trial, Cyr was found guilty of murder. He now appeals.
ACCOMPLICE AS A MATTER OF FACT OR AS A MATTER OF LAW?
Cyr argues that the trial court erred in failing to instruct the jury that Dane Batterton was an accomplice as a matter of law. With respect to Batterton, the trial court instructed the jury that it should determine whether Batterton was an accomplice:
Now, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, Dane Batterton, was an accomplice, or you have a reasonable doubt whether he was an accomplice, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of Dane Batterton unless you first believe that the portion of the testimony of Dane Batterton [that] ascribes guilt to the defendant is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the evidence of Dane Batterton, tending to connect the defendant with the commission of the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.
Because Cyr failed to object to the charge, to be entitled to reversal of the judgment, Cyr must show that an erroneous charge resulted in egregious harm. Druery v. State, 225 S.W.3d 491, 504 (Tex.Crim. App.), cert. denied, 552 U.S. 1028, 128 S. Ct. 627, 169 L. Ed. 2d 404 (2007).
"One who participates with the defendant before, during or after commission of the crime for which the defendant is on trial is an accomplice as a matter of fact." Ex parte Zepeda, 819 S.W.2d 874, 875-76 (Tex.Crim.App.1991) (emphasis added); see Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App.2006) ("An accomplice is an individual who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental stated."), cert. denied, 549 U.S. 1287, 127 S. Ct. 1832, 167 L. Ed. 2d 332 (2007). One who is indicted for the same offense with which the defendant is charged, or indicted for a lesser-included offense based upon alleged participation in commission of the greater offense, is an accomplice as a matter of law. Id. at 876. A witness is also an accomplice as a matter of law when the evidence is uncontradicted or so one-sided that a *25 reasonable juror could not disagree with the determination that the witness is an accomplice. See Silba v. State, 161 Tex. Crim. 135, 136, 275 S.W.2d 108, 109 (1954) (explaining that (1) if all the evidence shows that the witness is answerable to the law as a principal or accomplice to the crime or if he has been indicted as such, then he is an accomplice witness as a matter of law; (2) if there is a conflict in the evidence, then the question of whether the witness is an accomplice should be submitted to the jury; and (3) if there is not sufficient evidence to support a charge against the witness as either a principal or accomplice, then he is not an accomplice witness). Thus, when the evidence clearly shows that the witness is an accomplice witness as a matter of law, the trial court has a duty to so instruct the jury. See Druery, 225 S.W.3d at 498. However, if the evidence presented by the parties is conflicting and there is doubt about whether a witness is an accomplice, the trial court has no duty to instruct the jury that a witness is an accomplice witness as a matter of law. See id. Instead, the trial court "should allow the jury to decide whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term `accomplice.'" Id. at 498-99. And, if there is doubt about "whether a witness is an accomplice witness, the trial court may submit the issue to the jury even though the evidence weighs in favor of the conclusion that the witness is an accomplice as a matter of law." Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986).
We cannot say from the record before us that the evidence without doubt shows that Batterton was an accomplice witness as a matter of law or that the jury was unreasonable in concluding that Batterton was not an accomplice witness. See Arney v. State, 580 S.W.2d 836, 839 (Tex. Crim.App.1979) (holding that the trial court did not err because the evidence did not show without doubt that the witness was an accomplice witness as a matter of law or that jury was unreasonable in concluding that witness was not an accomplice), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245 (Tex. Crim.App.1998); Gallardo v. State, 281 S.W.3d 462, 470 (Tex.App.-San Antonio 2007, no pet.) (holding (1) because the witness was not charged and the evidence did not clearly show that she could have been indicted for the same offense, she was not an accomplice as a matter of law, and (2) the trial court properly instructed the jury to decide whether the witness was an accomplice witness because although there was some evidence the witness may have committed an act that promoted the commission of one of the offenses, a reasonable jury could have found that the witness did not participate in, solicit, encourage, direct, or aid in the commission of the offenses, or did not do so with the required intent). First, Batterton was not charged with murder or any lesser-included offense. Second, although Batterton admitted that he shot Corey Baxter in the head, he claimed that he did so because he feared for his own safety and that of his family.[2] When a witness claims his complicity in a crime was due to coercion or duress, a factual question is presented for the jury regarding whether the witness is an accomplice. See Marlo v. State, 720 S.W.2d 496, 500 (Tex.Crim.App.1986) ("[I]f a *26 State's witness implicates himself, his statement that his participation was compulsory raises the issue of fact as to whether his testimony is or is not that of an accomplice witness.") (quoting Easter v. State, 536 S.W.2d 223, 226 (Tex.Crim.App. 1976)); State v. Trevino, 930 S.W.2d 713, 715 (Tex.App.-Corpus Christi 1996, pet. ref'd) (recognizing that "while it is true that a witness who claims his complicity in a crime was due to coercion or duress is not necessarily an accomplice," coercion or duress did not apply to the facts of the case because coercion or duress must include "force or threat of force"); Alexander v. State, No. 01-98-00506-CR, 1999 WL 977815, at *4 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (holding that the trial court did not err in failing to instruct the jury that the witness was an accomplice as a matter of law because whether a witness "acted under duress, and therefore whether he was an accomplice, was a fact question") (not designated for publication).
Here, Batterton testified that on March 4, 2007, he was twenty-five years old and had been using methamphetamine since he was fifteen years old. He had been living with an older woman named Jean Ball and other people who also used methamphetamine. According to Batterton, "[i]t was kind of like an open door type of thing." Batterton testified that on the morning of March 4, 2007, Jean's laptop, $800 in cash, and a couple of digital cameras were missing, which made Jean upset and caused her to spend a couple of hours looking for them. Batterton had to leave to pick up his daughter, but he told Jean before he left that he did not take anything and asked her not to believe he had because he was leaving. Late that night at about 2:00 a.m., Batterton was at a friend's apartment sitting on the couch after smoking marijuana when he heard a knock on the door. His friend answered the door and then told Batterton some people where there for him. Batterton testified that Cyr, John Boyer, and J.C. were at the door and began asking him about Jean's missing computer, cash, and cameras. Cyr wanted to know where Jean's belongings were and told Batterton that he had "stole from the wrong lady." Cyr, Boyer, and J.C. took Batterton to the house on Chelmsford and escorted Batterton into the garage. Telling Batterton that he was a bad guy and had stolen from a crippled old lady, the men, who had now been joined by Lupe Villarreal, began beating Batterton with their fists and kicking his head. Michael Yaws then came into the garage with another man. Cyr told Yaws that Batterton had stolen from a little old lady. According to Batterton, Yaws "is carrying like some kind of at one point he brought some kind of like metal pole inside a wooden stick." "Sometime shortly after that, guns start to appear," and "[t]hings are starting to get a little more intense." Somebody raised Batterton's arm above his head so Yaws "could take a few good shots at [his] rib cage." Batterton was then "hit over the back of the head with something [he didn't] think was a fist, but [he] didn't see it coming and [he] hit the floor." Bobby Cruz appeared at one point and took turns with someone else hitting Batterton. When Batterton was lying on the floor, Yaws's girlfriend said, "He doesn't look like he's going to take much more of this." "[T]hat's when they decided to tie [Batterton's] hands behind [his] back, feet tied together, and then tie those together ... hog-tied." Batterton testified that Cyr then put a gun to his head and threatened him:
It was the thing that came out of it was well, since because I don't have the computer, and I don't have the money, and I don't have the cameras, and they had to put in work to come get me and beat me up and do all this stuff, that *27 I owe each one of those guys [who were] there $500, plus the money for the computer, which is about a thousand dollars. And it came to a total of $5,000.
Cyr told Batterton that if he did not come up with $5,000 in twenty-four hours, he "was dead."
John Boyer then took Batterton upstairs to clean up and take a shower. Batterton's shirt and jeans had his blood all over them, so they took his clothes and gave him some clean clothes. They then put Batterton on the couch downstairs, telling him to start working on coming up with $5,000. Batterton thought about escaping, but decided not to because he did not know the area very well, it was the middle of the night, he had no money and no phone, and even if he ran out of the home, he did not have a ride. Batterton testified, "I don't have any way to get out of that part of town, and I'm going to be found and it's going to be even worse." Further, according to Batterton, he was also in and out of consciousness from his head injuries. After sleeping for about three hours, he called his daughter's mother who said she would try to find him some money. Batterton called his father who said he would not help. Yaws then took Batterton to a grocery store and told him to fraudulently cash a money order:
[T]he people just looked at me at the customer service center at [the grocery store] like I was an idiot. I'm beat up and bruised, and with an I.D. that's not mine you can tell it's not me trying to cash a money order. So, that's not working at all.
Batterton then remembered that a friend owed him money, so Cyr took Batterton to the friend's house. The friend gave Batterton a phone with six months or a year's worth of service on it. Batterton asked Cyr if he would take the phone in lieu of some of the money owed. Cyr said that he would deduct $500 from the total amount owed. This phone was the one that was found by police and contained images of Baxter being beaten.
Cyr then took Batterton to a hotel room where Bobby Cruz asked him how he was going to get the rest of the money. Batterton eventually ended up back on the couch at the Chelmsford house in the early evening hours of March 5, 2007. Cyr, Villarreal, Hettler, John Boyer, Yaws, and Yaws's girlfriend were in the garage. At some point, Batterton saw Baxter and Cruz come into the house and head straight for the garage. Batterton testified that he was the only one in the house, but every once in a while someone would come in from the garage to see what he was doing. Batterton then fell asleep on the couch. When he awoke, he wanted a cigarette and walked towards the garage door. As he was getting close to the door, it opened and Villarreal came in and told him that he could not go into the garage. Batterton heard raised voices coming from the garage. He asked Villarreal if he could have a cigarette. Villarreal went back into the garage and got Batterton a cigarette. Batterton then smoked a couple of cigarettes on the back porch and went back to sleep on the couch.
Batterton testified that he did not leave the house because even though someone was not "keeping a direct eye on [him] at that point," he was completely out of options. He did not want to bring any more harm to anyone else and did not want his family involved: "At this point, I've already involved my mom, my dad, my daughter, my daughter's mom, and I didn't want it to go any further."
Batterton was awakened by Villarreal who told him to come into the garage. According to Batterton, when he stepped into the garage, he saw blood everywhere and Baxter lying on the ground being *28 rolled into a carpet by Villarreal and Yaws. Batterton testified that he could hardly recognize Baxter because there was blood all over his beaten face. Baxter was not talking, but was making gurgling sounds like he could barely breathe. Cyr, with a gun on his lap, was sitting on a bench seat that had been removed from a Suburban or van and was giving directions, "like he was the boss telling his employees what to do." Batterton testified that Cyr then told Yaws to give the gun to Batterton because Batterton was going to shoot Baxter. Batterton thought to himself, "I better do it or I'm I'm not going to make it out of this garage." Villarreal was "holding the carpet up at an angle and like squeezing around where [Baxter]'s head [was] ... to get him to stop making those noises." Yaws pointed to a box of gloves and told Batterton to put one on in case blood sprayed out. Batterton put on one of the latex gloves, but Cyr told him to take the glove off because he wanted Batterton "to feel it." Yaws had the gun in his hand and told Batterton to come over there. Yaws put one bullet in the chamber. Batterton grabbed the gun and stuck his hand "towards the opening of the carpet where [he] assumed [Baxter]'s head was." Yaws then grabbed his hand and pushed it further down. Batterton then pulled the trigger, and the gun fired. Batterton turned around, and Cyr had this "grin on his face kind of looked like, `Well, how did that make you feel? Did that did it feel good?'"
And I sure wasn't going to say, "Oh, no, it felt horrible." Because I'm thinking if I'm going against what's happening in this garage, I'm going to end up in the same spot he's in, [Baxter]'s in. So rather than say anything, I just kind of shrugged. You know, like it wasn't anything to me. That's not how I felt.
Batterton testified that he shot Baxter because he "didn't want to end up next to him in the same position." Batterton later helped Cyr, Villarreal, and Yaws load Baxter's body into the Suburban. Cyr, Villarreal, and Yaws discussed where to leave the body, and Cyr said, "I've got a spot." They then left, and someone stayed to watch Batterton. After about ten minutes, Cyr, Yaws, and Villarreal returned to the house:
At that point, the sun is starting it's real early in the morning. ... Nobody has money for gas; nobody has money for drugs; nobody has money for anything. So the day's going to be, again, about me getting this money. And [I] went to [a store] once, I think, to try to cash one of them money orders. Just anything to get the money is basically what [I] was being told. You know, scam [the store], cash a bad money order, whatever the case may be, till that evening.
Then, according to Batterton, they took him to a shopping center where they said that someone was going to meet them. Batterton's friend, Travis, and another man, Dan, met them at the shopping center. Batterton testified that Dan was the one who had stolen the computer. Yaws and Villarreal went with Dan to get Jean Ball's computer. Cyr, J.C., and Batterton returned to the house to wait:
And at that point ... I'm off the hook because they figured out that Jean had just kind of revved up their engine and got them going, thinking I stole something that I didn't steal. So now their their view of it now is that I don't owe them money; Jean should pay them because Jean had them go do some stuff that they didn't really have to do.
Everyone then went to Jean Ball's house to give her the computer back. Cyr and Yaws told Jean that she owed them money for their trouble. Afterwards, Cyr and *29 Yaws apologized to Batterton for beating him up and asked him if he wanted to "hang out." Batterton had talked to his daughter's mother, who had told him that she would pay for a bus ticket for him to come to Houston. His daughter's grandmother, who lived in San Antonio, then picked him up and drove him to the bus station.
Under Batterton's version of events, he shot Baxter under duress. He had been beaten, hog-tied, and told, with a gun to his head, that if he did not come up with $5,000 within twenty-four hours he would be killed. He then saw Baxter come into the same house and go into the same garage where Batterton had been beaten earlier. Later when Batterton was called into the garage, Baxter was lying on the floor and being rolled into a carpet. He was bloodied, also hog-tied, and was making gurgling sounds. Cyr then ordered Batterton to shoot Baxter. Batterton testified that he shot Baxter because Cyr would have killed him if he did not do so. Whether Batterton acted under duress, as he testified, or whether he was an accomplice, was a fact question for the jury. Hence, the trial court did not err in failing to instruct the jury that Batterton was an accomplice as a matter of law.
JUROR INFORMATION CARDS AND MOTION FOR NEW TRIAL HEARING
In two separate issues, Cyr argues that the trial court erred in denying his request to review juror information cards and in denying his motion for new trial without conducting a hearing. We disagree.
After the trial, Cyr filed a motion for new trial and a motion to view juror information. Attached to Cyr's motion for new trial was his counsel's affidavit in which his counsel affirmed the following:
I was informed that one of the jurors in this case approached the media and alleged that she "was not comfortable with her verdict." I confirmed the information with a representative of the media who substantiated that the information was true. Additionally, I was informed that the juror believed that the defendant was not guilty but later changed her verdict during jury deliberations for an unknown reason. A hearing is necessary to determine if that individual juror's verdict was changed for any reason contrary to the instructions of this Court or law. Such a verdict would therefore not be a fair expression of that juror's opinion.
Emphasizing the information contained within his counsel's affidavit, Cyr argued in his motion for new trial that the jury's verdict was decided in a manner other than a fair expression of a juror's opinion. In his request to view juror information, Cyr argued that he needed the juror information cards "to fully identify the juror and confer with the juror, if she is willing to communicate with counsel." According to Cyr, "[t]he communication with the jury is necessary for counsel to determine if any reversible error occurred and if anew trial may be necessary." The trial court denied both motions without holding a hearing.
Article 35.29 of the Texas Code of Criminal Procedure prohibits personal information about jurors from being disclosed after trial unless good cause is shown. See TEX.CODE CRIM. PROC. ANN. art. 35.29 (Vernon Supp. 2009). "On a showing of good cause, the court shall permit disclosure of the information sought." Id. Here, Cyr failed to show good cause. In his request for disclosure, Cyr argued that a juror had told a member of the media that she "was not comfortable with her verdict," and that the member of the media had been able to identify the juror only as "Lisa." Thus, Cyr argued the "information contained on the juror's information cards tendered to *30 counsel at the time of voir dire is necessary for counsel to fully identify the juror and confer with the juror, if she is willing to communicate with counsel." Such allegations, however, are not sufficient to show good cause.
What constitutes good cause must be based upon more than a mere possibility that jury misconduct might have occurred; it must have a firm foundation. Esparza v. State, 31 S.W.3d 338, 340 (Tex.App.-San Antonio 2000, no pet.). That a juror was "uncomfortable" with her verdict does not constitute a firm foundation that jury misconduct occurred. See Castellano v. State, No. 04-06-00524-CR, 2007 WL 2935399, at *3 (Tex.App.-San Antonio 2007, no pet.) (holding that defendant had "reason to believe" juror misconduct had occurred was not sufficient to show good cause); Garza v. State, No. 04-02-00599-CR, 2003 WL 23008845, at *10 (Tex. App.-San Antonio 2003, pet. ref'd) (holding that testimony of defendant's mother that juror was distant relative of defendant and was prejudiced against him was insufficient to show good cause because mother also admitted that she could not remember juror's first name, did not know how juror was related to defendant, and had no personal knowledge of the juror's feelings toward defendant). Therefore, the trial court did not err in denying Cyr's request for juror information.
Cyr also argues that the trial court erred in denying his motion for new trial without holding a hearing. We review the trial court's denial of a hearing on a motion for new trial for abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.App.2009).
The purpose of a hearing on a motion for new trial is to (1) decide whether a cause should be retried and (2) prepare a record for presenting appellate issues if the motion is denied. Id. at 338. Such a hearing is not an absolute right and is not required when the matters raised in the motion for new trial are determinable from the record. Id. Here, Cyr has alleged juror misconduct, which is a matter not determinable from the record. However, even though Cyr has raised a matter not determinable from the record, because requiring a hearing on all matters not determinable from the record could lead to "fishing expeditions," he would not be entitled to a hearing on his motion for new trial unless he established the existence of "reasonable grounds" showing that he could be entitled to relief. Id. at 339.
Because Cyr must show reasonable grounds exist for a new trial, as a prerequisite to a hearing, his motion had to be supported by an affidavit, either of himself or someone else, specifically setting out the factual basis for the claim. Id. The affidavit need not establish a prima facie case, or even reflect every component legally required to establish the relief requested. Id. "It is sufficient if a fair reading of it gives rise to reasonable grounds in support of the claim." Id.
The State argues that the affidavit in support of Cyr's motion for new trial, affirmed by Cyr's counsel, is insufficient because it does not reflect that Cyr's counsel had personal knowledge and was instead based on hearsay. "It is well established that a motion for new trial complaining of jury misconduct must be supported by the affidavit of a juror, or some other person who was in a position to know the facts, or must state some reason or excuse for failing to produce the affidavits." Baldonado v. State, 745 S.W.2d 491, 493 (Tex.App.-Corpus Christi 1988, pet. ref'd) (emphasis added); see also Dugard v. State, 688 S.W.2d 524, 528 (Tex.Crim. App.1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802 (Tex. Crim.App.1989); Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App.1983). Counsel's affidavit does not reflect that he *31 was in a position to know the facts. Instead, his affidavit affirms that a member of the media told him that a juror had told him that she was "uncomfortable" with the verdict. Thus, the affidavit was deficient, and the trial court did not err in failing to hold a hearing. See Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.1994) (holding that because affidavit was conclusory in nature and thus deficient, motion for new trial was not sufficient to put trial court on notice that reasonable grounds existed).
Moreover, even if the affidavit had been sufficient, the trial court still did not err in failing to hold a hearing because the affidavit did not establish the existence of reasonable grounds showing Cyr could be entitled to relief based on jury misconduct. See Smith, 286 S.W.3d at 339. To demonstrate jury misconduct, a defendant must show that (1) the misconduct occurred and (2) the misconduct resulted in harm to the movant. Jennings v. State, 107 S.W.3d 85, 90 (Tex.App.-San Antonio 2003, no pet.). The affidavit at issue here merely states that a juror "was not comfortable with her verdict" and that said juror "believed that the defendant was not guilty but later changed her verdict during jury deliberations for an unknown reason." Being uncomfortable with the verdict and changing your vote during jury deliberations for an unknown reason does not establish that reasonable grounds existed for Cyr to be entitled to a new trial based on jury misconduct. Therefore, the trial court did not err in denying Cyr's motion for new trial without holding a hearing.
CONCLUSION
We affirm the judgment of the trial court.
NOTES
[1] Vansycke also testified that Cruz was upset with Baxter because he believed Baxter was the reason his little brother had been beaten by some other gang members.
[2] Pursuant to section 8.05 of the Texas Penal Code, an actor who commits a criminal offense under duress has an affirmative defense to prosecution. See Tex. Penal Code Ann. § 8.05(a) (Vernon 2003). One acts under duress if he "engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578281/ | 351 N.W.2d 6 (1984)
Robert Harding GUNDERSON, Respondent,
v.
COMMISSIONER OF PUBLIC SAFETY, Petitioner, Appellant.
No. C9-83-271.
Supreme Court of Minnesota.
July 6, 1984.
Hubert H. Humphrey, III, Atty. Gen., Norman B. Coleman Jr., Joel A. Watne, Sp. Asst. Attys. Gen., St. Paul, for appellant.
Brian L. Weber, Dodge Center, for respondent.
Considered and decided by the court en banc without oral argument.
YETKA, Justice.
This is an appeal by the Commissioner of Public Safety from a 2-1 decision of a three-judge district court appeal panel reversing an order of the county court which upheld the revocation of Robert Harding Gunderson's driver's license under Minn. *7 Stat. § 169.123 (1980) for refusing to submit to chemical testing. We reverse the order of the district court and reinstate the decision of the county court.
Early on September 24, 1981, a sheriff's deputy in Dodge County lawfully stopped Mr. Gunderson and lawfully arrested him for driving while under the influence of alcohol. The deputy read the provisions of the implied consent law to Mr. Gunderson. Mr. Gunderson, after talking with his attorney on the telephone, agreed to take a breath test. Unfortunately, the testing machine malfunctioned and did not give a reading on the breath sample. It was later discovered, when the machine was taken in for repairs, that there was a piece of plastic preventing a certain electrical contact from taking place. When the deputy realized that the machine was not working, he explained to Mr. Gunderson and his attorney, who had arrived at the station, that the machine was not working. He then asked Mr. Gunderson if he would submit to either a blood test or a urine test. On his attorney's advice, Mr. Gunderson refused to submit to either test.
In State, Department of Public Safety, v. Held, 311 Minn. 74, 246 N.W.2d 863 (1976), the driver, when asked to submit to a blood or breath test, replied that he had already taken a breath test. On appeal from the order sustaining his license revocation, the driver claimed that the police officer did not attempt to clear up the confusion. Citing State, Department of Public Safety, v. Lauzon, 302 Minn. 276, 224 N.W.2d 156 (1974), we stated that if that was true, then the defendant's argument that his refusal was reasonable would have merit. However, we stated that the record showed that the police officer did attempt to clear up the defendant's confusion by informing him several times that the test he had taken was a preliminary screening test and that he still had to take either a blood test or breath test if he wanted to avoid having his license revoked.
In Lauzon, cited in Held, the driver contended on appeal that his license could not be revoked because his refusal to submit to testing was reasonable in that he was merely following the advice of counsel. We stated, "For such an argument to succeed it would have to appear that the police misled the driver into believing that somehow a refusal of this sort was reasonable or that police made no attempt to explain to a confused driver that regardless of what his lawyer said, he must permit testing or lose his license." 302 Minn. at 277, 224 N.W.2d at 157.
Mr. Gunderson does not contend that the deputies misled him into thinking that his license would not be revoked simply because his counsel advised him not to take the test. He does argue, however, that he was confused about his obligation to submit to an alternative test and about the consequences of failing to do so after he was told that the breath test machine had malfunctioned. The trouble with this argument is that Mr. Gunderson did not testify at the revocation hearing and there is no evidence in the record to support the conclusion that he in fact was confused or that the deputy should have realized that he was confused. Further, Mr. Gunderson was free to consult with and did consult with his attorney who was present in the room when he made his decision not to submit to either of the other two tests available.
The district court did not address the issue of whether a driver who submits to a breath test is obligated to submit to a blood or urine test if the breath testing machine does not work. We hold that the county court correctly held that a driver is obligated to do so in such a situation if he does not want to lose his license.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578648/ | 958 S.W.2d 915 (1997)
Bradley Spencer RUE, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-95-1463-CR.
Court of Appeals of Texas, Houston (14th Dist.).
December 11, 1997.
*916 Mary F. Masterson, Houston, for appellant.
S. Elaine Roch, Houston, for appellee.
Before LEE, AMIDEI and ANDERSON, JJ.
OPINION
AMIDEI, Justice.
Appellant entered a plea of guilty pursuant to a plea agreement to the offense of possession of cocaine. Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp.1997). The trial court found him guilty and assessed punishment at two years confinement in a state jail facility, suspended by community service for five years, and a $500 fine. In his sole point of error, appellant contends the trial court abused its discretion in overruling his motion to suppress evidence of a crack pipe and cocaine residue because the crack pipe and cocaine residue were discovered and seized in a search incident to an illegal arrest. We affirm.
At a hearing on a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the weight given their testimony. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App.1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1561, 137 L. Ed. 2d 707 (1997). Therefore, an appellate court must view the record and draw all reasonable inferences therefrom in the light most favorable to the trial court's ruling. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Furthermore, the appellate court must sustain the trial court's ruling if it is *917 reasonably supported by the record and is correct on any theory of law applicable to the case. Id.
At the suppression hearing, Harris County Deputy Sheriff Johnson testified he and his partner observed appellant sitting on the steps of an dilapidated and neglected apartment complex in an area known for drug transactions about five o'clock in the morning. From its appearance, Johnson thought the apartment complex was abandoned and condemned and that trespassers were not welcome. The apartment complex had no lights, electricity or operative plumbing. Windows and doors of several units were boarded. No cars were parked in the complex parking lot and a no trespassing sign was posted on the unit nearest the street.
Johnson further testified he thought appellant was trespassing and sought to detain or arrest him. Johnson, in full uniform, identified himself and asked appellant to step toward him for questioning. Appellant took a few steps toward Johnson and then turned and ran into an apartment. Johnson pursued him through an open door and found appellant sprawled on the kitchen floor where Johnson observed appellant throw a glass crack pipe containing cocaine residue.
Appellant contends Johnson's attempt to detain him for questioning was illegal because Johnson lacked reasonable suspicion that appellant was committing criminal trespass. Because the detention was illegal, appellant argues, Johnson lacked probable cause to arrest him for evading a lawful detention. Furthermore, appellant maintains, no exigent circumstances existed to justify Johnson's entry into his residence. Because Johnson lacked probable cause and justification to pursue appellant into his residence, appellant asserts, his arrest was illegal. Consequently, appellant claims, Johnson obtained the crack pipe and cocaine residue as an incident to an illegal arrest; therefore, they are inadmissible under the Article 38.23 of the Texas Code of Criminal Procedure. The exclusionary rule of Article 38.23 provides that evidence obtained unlawfully by a police officer is inadmissible against the accused in a criminal trial. Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon Supp.1997).
A law enforcement officer is as free as anyone else to ask questions of their fellow citizens. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995). An officer may briefly stop a suspicious individual to determine his identity or to maintain the status quo momentarily while obtaining more information. Gurrola v. State, 877 S.W.2d 300, 302 (Tex.Crim.App.1994). Only when the questioning becomes a detention, however, brief, must it be supported by reasonable suspicion. Holladay v. State, 805 S.W.2d 464, 467 (Tex.Crim.App.1991). To justify an investigative stop, the officer must have specific and articulable facts from which he can reasonably surmise that the detained person may be associated with a crime. Davis v. State, 829 S.W.2d 218, 219 (Tex.Crim.App. 1992). In other words, the officer must reasonably suspect that (1) some activity out of the ordinary is occurring or has occurred; (2) the detained person is connected with the unusual activity; and (3) the activity is related to a crime. Gurrola, 877 S.W.2d at 302. Circumstances which raise a suspicion that illegal conduct is taking place need not themselves be criminal. Reyes v. State, 899 S.W.2d 319, 324 (Tex.App.Houston [14th Dist.] 1995, pet. ref'd). They only need to include facts which render the likelihood of criminal conduct greater than it would be otherwise. Id. (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991)). Nevertheless, where an officer bases his suspicion on events as consistent with innocent activity as with criminal activity, the detention is unlawful and any evidence seized subsequent to such detention is inadmissible. Gurrola, 877 S.W.2d at 302.
The circumstances surrounding appellant's presence at the apartment complex support Deputy Johnson's assertion of reasonable suspicion that appellant was committing criminal trespass. A person commits criminal trespass if he enters or remains on property or in a building of another without effective consent and he had notice that the entry was forbidden or he received notice to depart but failed to do so. Tex. Penal Code Ann. § 30.05 (Vernon 1994). At the time *918 Johnson observed appellant, the appearance of the complex and the sign posted on the unit nearest the street suggested that the apartments were vacant, uninhabitable, and closed to the public. Consequently, appellant's early morning presence on grounds, where a sign warned against trespassing, warranted Johnson's belief that appellant was trespassing and that appellant was aware that he was trespassing. Appellant's flight when approached by Johnson also contributed to Johnson's belief that appellant was engaged in criminal conduct. See Reyes, 899 S.W.2d at 324 (stating flight from show of authority is a factor in support of finding reasonable suspicion of criminal activity).
Appellant's flight from Deputy Johnson also provided justification for his arrest. In Texas, warrantless arrests are authorized only if probable cause exists with respect to the seized individual and the arrest falls within one of the exceptions set forth in Chapter Fourteen of the Texas Code of Criminal Procedure. Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App.1989). The State bears the burden to prove a warrantless arrest is based on probable cause and that the arrest meets one of the statutory exceptions to the warrant requirement. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim.App.1991). Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense. Torres v. State, 868 S.W.2d 798, 801 (Tex.Crim.App.1993). To determine whether probable cause exists, we look to the objective facts known to the officer at the time of the arrest. Amores, 816 S.W.2d at 415.
Here, Deputy Johnson had probable cause to believe that appellant was evading arrest or detention. A person evades arrest or detention if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or to detain him. Tex. Penal Code Ann. § 38.04(a) (Vernon Supp.1997). A peace officer may arrest an offender without a warrant for any offense committed in the officer's presence or within the officer's view. Tex.Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). Because Johnson sought to lawfully detain appellant for questioning regarding criminal activity trespassand appellant evaded the lawful detention, appellant committed an offense in the presence of Deputy Johnson that justified appellant's arrest.
A law enforcement officer, however, may not enter a residence to make a warrantless arrest unless the resident consents to his entry or exigent circumstances require the officer making the arrest to enter the residence. Tex.Code Crim. Proc. Ann. art. 14.05 (Vernon Supp.1997). An officer's hot pursuit of an offender seeking to avoid arrest is an exigent circumstance justifying nonconsensual entry into the offender's residence. See Curry v. State, 831 S.W.2d 485, 488 (Tex.App.Houston [14th Dist.] 1992, pet. ref'd) (quoting United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976)). Here, appellant's attempt to evade a lawful detention, which required Johnson to pursue appellant into his apartment, was an exigent circumstance justifying Johnson's entry into appellant's residence.
Appellant also claims that suppression of the evidence is mandatory because Deputy Johnson's warrantless entry onto the property constituted criminal trespass. Appellant maintains Johnson obtained the evidence illegally as a result of his criminal trespass; therefore, the evidence is inadmissible under Article 38.23. In support of his claim, appellant relies upon State v. Hobbs, 824 S.W.2d 317 (Tex.App.San Antonio 1992, pet. ref'd) and Kann v. State, 694 S.W.2d 156, 160-61 (Tex.App.Dallas 1985, pet. ref'd). Appellant's reliance on Hobbs and Kann is misplaced. Unlike the present case, Hobbs and Kann concern police officers who act upon a tip and make an unlawful entry on the suspect's property to secure enough evidence to obtain a search warrant. See Hobbs, 824 S.W.2d at 318 (surveillance of field); Kann, 694 S.W.2d at 158 (surveillance of curtilage). Unlike the officers in Hobbs and Kann, Johnson entered the property in *919 pursuit of one who had just committed a crime in his presence.
Section 30.05(c) of the criminal trespass statute provides a defense to prosecution for criminal trespass for firefighters and emergency medical personnel "acting in lawful discharge of an official duty under exigent circumstances." TEX. PENAL CODE ANN. § 30.05(c) (Vernon 1994). Article 30.05(c) provides no such protection for law enforcement officers. See Rosalez v. State, 875 S.W.2d 705, 716-17 (Tex.App.Dallas 1993, pet. ref'd) (discussing reasons legislature did not provide a defense to prosecution for police officers). Nevertheless, a police officer's actions are justified if the officer reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process. TEX. PENAL CODE ANN. § 9.21 (Vernon 1994). In this case, Johnson testified he was on routine patrol in a high drug traffic area when he saw appellant sitting on the steps "of a boarded up abandoned apartment complex." After observing the state of the complex and the no trespassing sign, Johnson's first thought was that appellant was trespassing. Consequently, Johnson stopped, exited the patrol car and called appellant, asking him to step forward for questioning. When appellant fled, Johnson pursued him on foot. Johnson's testimony supports a conclusion that he reasonably believed his entry onto the property was required to carry out his statutory duty to suppress crime and prevent offenses against the property of another. See TEX.CODE CRIM. PROC. ANN. art. 2.13 (Vernon 1977), art. 6.06 (Vernon Supp. 1997). As such, his conduct was justified under section 9.21 and the crack pipe and cocaine residue were not obtained as a result of an unlawful trespass.
Evidence that is legally obtained is admissible and does not contravene Article 38.23. State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim.App.1995). Because Deputy Johnson obtained the crack pipe and cocaine residue as an incident of a lawful arrest, the evidence was admissible. The trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's sole point of error is overruled.
Accordingly, the judgment of the court below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578663/ | 958 S.W.2d 607 (1998)
Elda J. JONES, Appellant,
v.
Dennis F. JONES, Respondent.
No. WD 53579.
Missouri Court of Appeals, Western District.
Submitted October 22, 1997.
Decided January 27, 1998.
*609 W. Douglas Thomson, Maryville, for appellant.
Dennis F. Jones, pro se.
Before ULRICH, C.J., P.J., and SMART and ELLIS, JJ.
PER CURIAM.
Elda J. Jones and Dennis F. Jones were married for approximately twenty-four years. Elda is appealing the judgment entered in the action dissolving that marriage. She claims that the trial court erred in failing to impute income to Dennis in calculating and awarding child support. She also contends the court erred in establishing an inappropriate benchmark for college education costs, in failing to consider Dennis's squandering of marital assets, and in setting aside a $7,044.00 loan as Elda's nonmarital property. The judgment of the trial court is affirmed.
Elda J. Jones and Dennis F. Jones were married October 20, 1972 in Denver, Colorado. Three children were born of the marriage: Gregory, born July 7, 1976; Gretchen, born January 23, 1978; and Jenny, born January 4, 1980. Until December, 1995, the couple owned a hardware store in Idaho Falls, Idaho. The store opened in 1981. Before opening the hardware store, Dennis worked as a bank auditor, and as a loan *610 officer. He also had taught banking at the University of Alaska.
As of June, 1993, the hardware store was worth approximately $240,000.00. Shortly thereafter, the business began to decline. Dennis attributed the decline of the store to the fact that the area's largest employer laid off over 6000 people. He also blamed the fact that a 120,000 foot home center opened a half mile from the hardware store, providing competition.
In August 1994, the family moved back to Missouri because Elda's mother, who lived in Missouri, had become ill. Dennis stayed in Idaho to run the business, returning to the family every six weeks or so. Dennis testified that from the time that the family moved to Missouri until the time that Elda filed for divorce on September 13, 1995, he provided at least $18,000.00 in support for the family's needs. He testified that he made car trips between Idaho and Missouri to bring the family's belongings to Missouri during this time. Dennis stated that he was not able to mind the business as much because of the time that he was spending in Missouri. Dennis tried to find a buyer for the business, but was unsuccessful. Dennis testified he was sinking deep into debt, while trying to send money to his family in Missouri. He also contacted a liquidating company but concluded that he would not get a great deal for the business if it were liquidated, and that there would still be a problem with his lease. He testified that he was working a seven-day, twelve-hour-a-day week. Finally, he said, he could not take the pressure any longer. He wrote letters to the bank and to his creditors to take the business. The Jones's home and airplane hangar were sold, and proceeds were applied to the couple's debts.
The two oldest children were both in college at the time of trial. Greg attends Webster University, a private college in St. Louis, Missouri. Although Greg had received grants to go to college and earned money for tuition through a work-study program, Elda testified that her out-of-pocket expense for Greg's education for the school year was $6,200.00. At the time of the trial, Gretchen was entering school as a freshman at Missouri Western on a full scholarship. The youngest child, Jenny, was a junior in high school. Dennis had not paid for any of the children's educational expenses. He did not begin to pay child support until ordered to by the trial court.
Dennis testified that prior to opening the store, he had always earned between $20,000.00 to $30,000.00 per year in his employment endeavors. At the time of trial he was earning very little. Dennis had moved to Oklahoma City, Oklahoma. When he arrived in Oklahoma he went to work for Home Depot, but quit because he could not do the work because of an incisional hernia. He decided to get a real estate license. Dennis is in the process of trying to build up a business in real estate in Oklahoma City. He is also working part time for Sears at a sales job paying minimum wage plus commission. His monthly income at the time of trial was about $500.00 per month. Dennis testified that he did not have any money and was living off of his credit cards.
Elda testified that from the time that the petition was filed until June, 1996, Dennis had not paid anything to support the children. She stated that she had borrowed $7,044.00 from her sister. She testified that some of the money was used to pay utilities and for payments on a life insurance policy associated with the loan on the Idaho business. The rest of the money was used to pay for expenses related to the children, including college expenses.
The trial court held two hearings on the matter. The first hearing was held on June 7, 1996. The second hearing was held after Elda filed a motion to amend the judgment, on September 25, 1996. The trial court entered an amended motion on October 1, 1996. The order provided, inter alia, that pursuant to Rule 88.01 and Form 14, Dennis' support payment would amount to $240.00 per month. The court determined the appropriate monthly gross income for Dennis was $750.00 per month. The court used the figure of $1,550.00 per month for Elda. The trial court also ordered that Dennis and Elda would each be required to pay one-half of the children's college expenses, pursuant to the following:
*611 6. After considering all relevant factors, the parties shall each pay 50% of the cost each year for the minor children to attend a post-secondary college, university or vocational/technical school, state or private, subject to the following limitations:
(a) "Costs" shall include tuition, fees, books, and dormitory costs for room and board. It does not include room and board while residing with either parent.
(b) The 50% each party is to pay shall be the actual cost to the child, i.e., if the child receives a scholarship or other aid which reduces the cost, the "cost" does not include the amount of such scholarship or aid. For this purpose, loans to the student shall not be considered a "scholarship or other aid."
(c) The child must carry at least a minimum number of credit hours each semester which, according to the institution the child attends, constitutes a full load.
(d) The maximum cost which each party shall be responsible for in any given school year will be 50% of the then cost for tuition, fees, books and dormitory costs for room and board at Missouri Western State College, St. Joseph, Mo, regardless of what institution the child attends.
(e) The respondent/petitioner shall not be responsible for paying for more than eight semesters at a college or university.
(f) The petitioner/respondent shall pay the aforementioned sums directly to the minor child at such time as respondent/petitioner receives statements therefore.
(g) This provision relating to post-secondary costs shall apply to each of the three children.
Elda filed another motion for new trial or, in the alternative, to amend the judgment. A hearing on that motion was held November 13, 1996. At that hearing, the trial court considered the issues that Elda has raised in this appeal and denied relief. Elda appeals.
We must sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Deference is given to the trial court's determinations as to credibility. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We view the evidence and inferences flowing therefrom in the light most favorable to the decree. Id. Cases involving issues of imputation of income necessarily require the exercise of the sound discretion of the trial court and cannot be considered a mechanical process. Absent a manifest abuse of discretion, we will not substitute our judgment for that of the trial court. Elliott v. Elliott, 920 S.W.2d 570, 574 (Mo.App.1996). We will set aside the judgment of the trial court only upon the firm belief that it is wrong. DeCapo v. DeCapo, 915 S.W.2d 343, 346 (Mo.App.1996).
IMPUTATION OF INCOME
In her first point, Elda contends that the trial court erred in failing to impute significant income to Dennis for the purpose of calculating child support. She maintains that the evidence shows that Dennis could earn a substantial wage in several fields but chose not to use his existing talents in the most productive way. She argues that the trial court's decision was against the weight of the evidence. She points out that Dennis had fourteen years in the hardware business and had experience in banking. She claims that his new venture of selling real estate and his part-time work at Sears indicate that he is not making his best effort to become adequately employed. She also contends that Dennis' testimony that his real estate business is "coming" and that he feels "real positive about it" serves as evidence that his present low income is merely temporary. Elda claims that the trial court should have imputed future earnings to Dennis.
Where one of the parties is not employed or is underemployed, the trial court may attribute income to that party in the context of a Form 14 calculation depending on the factual circumstances. Cuda v. Cuda, 906 S.W.2d 757, 761 (Mo.App.1995). The *612 issue is whether the evidence supports the trial court's action in the calculation of child support pursuant to Form 14.
In determining the appropriate calculation as to an issue of imputation of income, the court applies the considerations and procedures which have been stated as follows:
In determining the financial condition of the father at the time an award is made, consideration may be given to his past and present earnings and his anticipated future earning capacity. Mueller v. Jones, 583 S.W.2d 222, 224 (Mo.App.1979), Murray v. Murray, 538 S.W.2d 587, 589 (Mo.App. 1976); In re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976); Tatham v. Tatham, 657 S.W.2d 717, 719 (Mo.App. 1983); Nunn v. Nunn, 644 S.W.2d 370, 372 (Mo.App.1982). He may not escape his responsibility by voluntarily declining to work, Boyer v. Boyer, 567 S.W.2d 749, 751 (Mo.App.1978), by deliberately limiting his work to reduce his income, Butler v. Butler, 562 S.W.2d 685, 687 (Mo.App.1977), Goodwin v. Goodwin, 746 S.W.2d 124 (Mo. App.1988), or by otherwise disabling himself financially. Smith v. Smith, 558 S.W.2d 785, 789 (Mo.App.1977). A court may, in proper circumstances, impute an income to a husband according to what he could have earned by the use of his best efforts to gain employment suitable to his capabilities. Foster v. Foster, 537 S.W.2d 833, 836 (Mo.App.1976); Overstreet v. Overstreet, 693 S.W.2d 242 (Mo.App.1985). See also Morovitz v. Morovitz, 743 S.W.2d 893 (Mo.App.1988).
AlSadi v. AlSadi, 823 S.W.2d 123, 126 (Mo.App.1992), citing MoBar CLE, Family Law, Child Support Maintenance, § 14.7. The directions for completion of Form 14 embody these principles:
[C]hild support may be calculated in appropriate circumstances based on a determination of potential income. To determine potential income, the court or administrative agency may consider employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, prevailing job opportunities in the community....
Civil Procedure Form No. 14. Although a court is permitted to impute the income to a parent that he or she earned in the past, an award of child support must always be supported by evidence of the parent's ability to pay. Walker v. Walker, 936 S.W.2d 244, 248 (Mo.App.1996). "Proof that a parent has previously made more money ... is not alone a sufficient basis upon which to impute income at those levels," as the amount imputed must be based on the types of evidence discussed in the Form 14 instructions. Id.
State ex rel. O.A. by Atkinson v. Anthony, 947 S.W.2d 832, 834-35 (Mo.App.1997).
There is substantial evidence in the record supporting the conclusion that Dennis did not intentionally reduce his income to avoid his responsibility toward his children. Dennis testified that the family hardware store lost business and became valueless due to changes in competition and because of the time he spent with his family after they had moved to Missouri. There was also evidence that because of a medical condition he was no longer employable at some positions. He testified that he could not retain his position at Home Depot, and that he decided to get a real estate license after he had determined he was not physically able to do some jobs. While it is likely that, in the short run, Dennis could have obtained employment paying more than he is currently earning in real estate, the trial judge must be allowed some latitude in judging how much imputation of income is appropriate in a given set of circumstances. Where the record does not establish an attempt to evade parental responsibilities, courts have some discretion to set child support at a figure which will not be so great as to destroy incentive or impair the position of the non-custodial parent. See Jensen v. Jensen, 877 S.W.2d 131, 137 (Mo. App.1994). In view of the fact that Dennis' resources were exhausted, the court in its discretion could have believed it was best to allow Dennis some breathing room, believing that he would get back on his feet financially. When Dennis does so, of course, nothing would prohibit Elda from obtaining a modification *613 under § 452.370. Thus, we cannot say that the trial court's decision to allow Dennis some financial footing was clearly wrong. The amount of $750.00 is extremely low, however, because it is not even minimum wage-level earnings. We would be reluctant to approve any level of attribution below minimum wage for a person capable of full-time employment. Here, if the trial court had not also required Dennis to share in the thousands of dollars of the children's post-secondary educational costs, we would be shocked at this decision, and would find an abuse of discretion for failure to attribute at least minimum wage earnings to Dennis. However, in view of the court's decision as to the educational costs as to Greg and Gretchen, both currently in college, and Jenny, who will enter college shortly, we cannot say that we have a "firm belief" that the trial court's judgment is wrong. DeCapo v. DeCapo, 915 S.W.2d 343, 346 (Mo.App.1996).
COLLEGE COSTS
In Point II, Elda argues that the trial court erred in setting Missouri Western State College as the benchmark for college educational costs. She reasons that the decision was against the weight of the evidence since the evidence shows that the child attending Missouri Western incurs no costs as a results of scholarships and that the other child, attending Webster College, a private institution, has more costs associated with his education. Greg, the child attending Webster College, has received scholarships and is in a work study program. Elda complains that using the trial court's formula and subtracting the scholarships received, Dennis would not have to pay anything toward Greg's education. We fail to see how Elda has arrived at this conclusion. Under the terms of the judgment, Dennis will pay one-half of "the actual cost to the child" for his or her education. The amount that Dennis must pay, however, is capped. The judgment provides that "[t]he maximum cost which each party shall be responsible for in any given school year will be 50% of the then cost for tuition, fees, books and dormitory costs for room and board at Missouri Western State College, St. Joseph, Mo, regardless of what institution the child attends." The trial court's order is clear. Dennis will pay the one-half of the actual cost of Greg's education, after Greg's scholarships have been deducted from his tuition costs. The amount that Dennis pays, however, is not without limit. That limit is clearly spelled out in the trial court's judgment. It is not limited to Grethchen's cost of attending Missouri Western but to the actual costs charged by Missouri Western.
We presume that the trial court's order is correct; Elda has the burden of demonstrating that it is not. DeCapo, 915 S.W.2d at 348. The trial court is in the best position to make a determination concerning a parent's financial ability to assist in the support of his or her child, including expenses associated with a college education. Leahy v. Leahy, 858 S.W.2d 221, 226 (Mo. banc 1993). The trial court balances the ability of the non-custodial parent to pay these expenses against the needs of the child. DeCapo, 915 S.W.2d at 349. The record reflects that the trial court properly considered these factors when making its decision. At the hearing on Elda's second motion to amend judgment, counsel for both sides had an opportunity to argue the issues presented by Elda in the instant case. The court, in commenting upon the educational issue, stated:
As to the seven thousand forty-four dollar debt that was incurred by the petitioner, I did not find that to be marital property, I found that to be a separate debt incurred by the petitioner for her own benefit although she used this from her testimony to pay expenses for the education. This court does not find that that education was justified and those expenses justified. I think the parties have an obligation to try to live within their means. And I think there were disastrous financial occurrences with this family, there's tremendous personal problems that exist between them and obviously a lot of the bitterness between the petitioner and the respondent and also it is evidenced by the conduct of the children. There's very little the court can do to solve any of that. But I don't think it is realistic to expect someone to pay things which are not necessary *614 and just not affordable. I think a private education is certainly a luxury and it's something that can be accomplished if they have the wherewithal and the student has the initiative to see it continues. I don't think that is a parent's obligation.
It is apparent that the trial court considered the ability of both parents to pay for Greg's private school tuition and concluded that private education was a luxury given the parties' financial situation. The trial court did not excuse Dennis entirely from paying these expenses, but crafted an order based upon evidence of what it deemed appropriate. We find no error in these provisions. Point II is denied.
SQUANDERING OF ASSETS AND FINANCIAL MISCONDUCT
In her third point, Elda contends that the trial court erred in failing to consider Dennis' squandering of assets and financial misconduct which she alleges caused a reduction in the value of the marital property. Elda claims that Dennis just packed up and left the business to his creditors without first trying to contact other retailers or without attempting to make a reasonable, systematic liquidation attempt. She further claims that the business assets were not the only assets "squandered" by Dennis, pointing to sales of the Dennis' truck and the airplane hangar. Elda argues that the assets were squandered in anticipation of the dissolution action.
The trial court has broad discretion in making determinations concerning issues relating to the squandering of assets. Ray v. Ray, 877 S.W.2d 648, 651 (Mo.App. 1994). Therefore, where a court hears evidence showing that a spouse has secreted or squandered a marital asset in anticipation of a dissolution action, the court may hold that spouse liable for the squandered asset. Witt v. Witt, 930 S.W.2d 500, 505 (Mo.App.1996). The spouse alleging that property has been squandered must present evidence on the issue or squandering will not be found and reimbursement will not be ordered. Lawrence v. Lawrence, 938 S.W.2d 333, 338 (Mo. App.1997). "[T]here is no rule which mandates the trial court to include in its division of property the value of all marital property which was disposed of prior to the hearing for division of property." Stratman v. Stratman, 948 S.W.2d 230, 239 (Mo.App.1997).
We find no abuse of discretion. The trial court heard evidence that Dennis contacted various people concerning his decision to sell the business, including liquidators and auctioneers. During the period where the business was failing, Dennis was working seven days a week. Before the dissolution proceedings were filed, he provided financial support for the family and spent time in transit between Idaho and Missouri, hauling various family possessions to Missouri. He testified that he made reasonable efforts to sell the business. He also explained that there was a problem in that the lease he had on the building had two years more to run. Besides the checking that he did with the liquidators and auctioneers, Dennis consulted a member of the board of directors of the Better Business Bureau who was in the liquidation business who told him, "Dennis, I think you'll be lucky if you get ten cents on the dollar to be honest with you." He never received a bona fide offer to purchase the business. He also testified that he got the best price that he could for his truck and that he took the best offer on the airplane hangar.
The trial court may accept Dennis' testimony within the exercise of its discretion. Lawrence, 938 S.W.2d at 338. It is in the best position to determine Dennis' credibility and we defer to its determination. Ray, 877 S.W.2d at 651. The trial court did not err in failing to find that Dennis squandered marital property. Point is denied.
LOAN AS NONMARITAL PROPERTY
Elda, in her final point, contends that the trial court erred in setting aside a $7,044.00 loan as her nonmarital property. She claims that the loan was used during the pendency of the dissolution proceeding to protect marital property and to support the minor children during a period where no support was provided by Dennis. She claims that the decision of the trial court was not supported by substantial evidence and was against the weight of the evidence.
*615 Elda sites Klaus v. Klaus, 918 S.W.2d 407, 409 (Mo.App.1996) for the proposition that if marital assets are used to increase the value of nonmarital assets, the marital assets may be recovered to the extent of the contribution made. She reasons, therefore, that a nonmarital debt used to protect and preserve marital assets should be recoverable from the marital estate. At the very least, she contends, the amount should be considered marital property and apportioned between the parties for repayment.
The trial court found that the loan was used to pay educational expenses and was a loan made for Elda's personal benefit. It was within the trial court's discretion to so categorize it. The trial court has great discretion in determining how property and debts should be divided. Stratman, 948 S.W.2d 230, at 236. Even if this court might have reached a different result, we will not substitute our judgment for that of the trial court. Id. In addition, even were the debt to be considered a marital debt, the trial court has no obligation to distribute the debt, although the debt should be considered in determining whether the division of marital property is fair. Carter v. Carter, 940 S.W.2d 12, 17 (Mo.App.1997). This is because debts incurred during the marriage are not considered marital property. Id. Also, it is acceptable that marital debt be unequally divided absent an abuse of discretion on the part of the trial court. Lawrence, 938 S.W.2d at 337. Elda does not demonstrate any abuse on the part of the trial court.
Elda also cites State ex rel. Division of Family Servs. v. Standridge, 676 S.W.2d 513, 515 (Mo. banc 1984) as support for the proposition that the noncustodial parent has the primary duty and obligation to support his children and, when he does not supply them with necessities, he is liable to a third party who provides them, unless they are furnished gratuitously. Elda argues that if the State can seek restitution from a noncustodial parent, she too ought to be able to be repaid for necessities.
There are several problems with these arguments. Initially, we note that Elda, in her brief, states that the bulk of the loan went to college expenses for the two older children. The trial court found that the debt was not marital property, but "a separate debt incurred by the petitioner [Elda] for her own benefit although she used this from her testimony to pay expenses for the education." The trial court found that the education was not justified and was a luxury. Hence the education was not a "necessity." Point IV is denied.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3037085/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-2-2008
USA v. Long
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3549
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Recommended Citation
"USA v. Long" (2008). 2008 Decisions. Paper 922.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-3549
UNITED STATES OF AMERICA
v.
RODERICK LONG,
Appellant
SUR PETITION FOR PANEL REHEARING
______________________________
Present: SMITH, and NYGAARD, Circuit Judges, and STAFFORD, District Judge*
The petition for panel rehearing filed by appellant in the above-entitled case having been
submitted to the judges who participated in the decision of this Court is GRANTED.
BY THE COURT:
/s/ D. Brooks Smith
Circuit Judge
DATED: July 2, 2008
*Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District
of Florida, sitting by designation. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2440184/ | 427 S.W.2d 371 (1968)
STATE ex rel. Joseph Franz ARBEITER, Relator,
v.
Honorable Franklin REAGAN, Judge of the Circuit Court of the City of St. Louis, Respondent.
No. 52923.
Supreme Court of Missouri, In Banc.
April 8, 1968.
Rehearing Denied May 13, 1968.
*372 John H. Haley, Jr., John E. Bardgett, James T. Williamson, James P. Finnegan, Jr., St. Louis, for relator.
James S. Corcoran, Circuit Attorney for City of St. Louis, for respondent.
EAGER Judge.
This is an original proceeding in prohibition instituted in this Court. It seeks to prohibit the judge of the Assignment Division for Criminal Causes in the City of St. Louis from enforcing an order for a subpoena duces tecum and from disclosing the contents of certain juvenile court records to the Circuit Attorney. We issued our provisional rule, return was filed and the case has been argued and briefed here. There are no controversies as to essential facts.
Joseph Franz Arbeiter, 15 years of age, was arrested by the St. Louis police on Dec. 3, 1963, suspected of certain criminal offenses. He was questioned at some length by the police, and his statements indicated that he had killed a woman who had been stabbed very recently in her apartment by an intruder. After the interrogation, and around midnight on Dec. 3, the boy was turned over to the juvenile authorities. He was detained in its detention facilities until approximately Dec. 30, when the juvenile court entered an order certifying him to the criminal courts for trial under the general criminal law, and dismissed the petition filed in the juvenile court. He was then indicted for first degree murder, tried, convicted, and sentenced to imprisonment for life. Upon appeal, the judgment was reversed by this Court, solely upon the ground that his detention and interrogation by the police and the admission in evidence of his statements to the police were in violation of those provisions of the juvenile code which required that he be taken "immediately and directly before the juvenile court or delivered to the juvenile officer * * *." Section 211.061, RSMo 1959, V.A.M.S. (to which revision all statutory citations will refer). Further facts are shown in our prior opinion, which appears at State v. Arbeiter, 408 S.W.2d 26. Upon reversal, the case was remanded for another trial.
On Jan. 6, 1967, the Circuit Attorney filed a motion in respondent's (criminal) *373 court for the issuance of a subpoena duces tecum to the custodian of the records of the juvenile division for the production of any and all records of the juvenile; it was alleged in the motion that he had been certified to the criminal court for trial for murder and that the movant verily believed that he, Arbeiter, had made statements and admissions to the personnel of the juvenile division concerning the murder, which would be shown in the records; also, that such would be admissible in evidence. The prayer was for production, with permission to inspect and copy, except for those statements made at any formal hearing. The prayer also asked for the names and addresses of all personnel who had questioned the juvenile or witnessed any statements.
Appointed counsel for the defendant (who have at all times been most diligent and effective) filed objections to that motion which we need not detail, for substantially the same issues are discussed at length in their present briefs. On March 17, 1967, respondent, having previously held an evidentiary hearing, entered an order that the subpoena be issued returnable on April 5, 1967, and it then set the criminal case for trial on April 17, 1967. The present petition for prohibition was filed on March 28, 1967, which has suspended all further proceedings. At the hearing on Feb. 15, 1967, the principal testimony was that of a juvenile officer who had produced the records, and the testimony was, in substance, as follows: that he had brought with him the "social file" of this juvenile which contained their investigative reports, the police reports, correspondence, and a summary by a deputy juvenile officer; that these dealt generally with the type of person involved, with any need for psychiatric reports, and any "collateral" contacts with an outside agency; that the summary is regularly presented to the court at the time of hearing; that when a juvenile officer talks with a juvenile he usually makes notes which may be incorporated into the summary; that this file did not include a record of any hearing before the juvenile judge, and that the "legal file" was kept in the clerk's office; that the chief purpose of assembling the present file was for presentation to the judge, for his use in the disposition of the matter; that, until recently (and in 1963) a juvenile was not advised that what he said might be used against him in a criminal action, nor of any constitutional rights, and that they felt that the juvenile should be "at ease"; that the juvenile was ordinarily told that what he said was for the purpose of the juvenile hearing; that at the hearings the entire file would be submitted to the judge, but there might also be oral testimony; that the file which he had produced was really the substantive file, the other being "legal papers"; that a transcript was taken at hearings only if counsel or the judge so directed, and that the present file contained none.
Following the order for the subpoena, the respondent notified the parties that he would on April 5, unless prohibited, open the juvenile records for inspection by the Circuit Attorney "in the preparation and prosecution" of the murder charge. We thus arrive at the point of controversy. We have omitted the legal contentions set out in the petition for the writ and those included in the return, for the same basic issues are raised in the briefs and will be discussed.
We shall first state the fundamental contentions of the parties. The relator asserts that the purpose and intent of the juvenile code (§§ 211.011-211.431) is that all files and records of that court are confidential and privileged, that the juvenile court retains jurisdiction thereof even after a juvenile is certified for trial under the general law, that the records are compiled in an atmosphere of confidential relationship, and that the production and disclosure of such records would be in violation of sundry constitutional rights of the juvenile (Federal and State), including due process, the prohibitions against self-incrimination, and the right to counsel. More or less incidentally, *374 he makes the point that the respondent has no authority to issue a subpoena duces tecum for these records because such is a "discovery process" and that there is no authority for this by statute or rule. The respondent answers: that he does have the power and authority to issue the subpoena and to disclose the contents of the records, first, because Rule 25.19, V.A.M.R. so permits, and, secondly, because the juvenile code contemplates that when that court dismisses its pending proceedings and transfers a juvenile for trial in the criminal courts under the criminal law, the juvenile has thus been relegated for all purposes to the operation of the general law and that the prior privilege of his records is no longer effective; or, in other words, that the juvenile court has the power to thus waive and has waived the privilege formerly attendant upon its files and records, and that its jurisdiction has entirely ceased.
We deal, first, with the more or less incidental contention that the Court has no power to issue a subpoena duces tecum under Rule 25.19 because it is not a rule of "discovery"; this consideration is entirely apart from the question of privilege. It is true that it has been said, rather broadly, in State v. Kelton, Mo., 299 S.W.2d 493, and State v. Engberg, Mo., 377 S.W.2d 282, that this rule was not intended as a rule of discovery. In Engberg, the precise question was a ruling on a motion seeking a blanket inspection of all papers in the possession of the police and the prosecuting attorney. The motion there was not within the stated purpose of the rule. The Court there said, however, referring to the rule at loc. cit. 286: "* * * the court may direct the production and inspection of the designated documents or objects before the court prior to trial or their being offered in evidence if by doing so the trial of the case will be expedited. State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85, 89[1]; State v. Kelton, Mo., 299 S.W.2d 493, 497[10]."
In State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85, at loc. cit. 89, the Court said: "We hold that our Rule 25.19 is not intended as a rule of discovery. Rather, its purpose is to enforce production of documents or objects at the trial that contain evidence material and relevant to the issues and to require prior production and inspection of such records or objects if prior production and inspection will expedite the trial." (Italics ours.)
The wording of the rule itself is, in pertinent part, as follows: "The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys." We need not indulge in an exercise in semantics concerning the meaning of "discovery." The intent of this rule should not be limited too narrowly when we consider that there is no broad system of discovery in criminal cases in Missouri. Rule 25.19 plainly says that in issuing a subpoena duces tecum the Court may order the papers or objects produced prior to the trial and may permit them to be inspected by the parties and their attorneys. The production of these files and records and the consideration of the questions arising therefrom during the trial could only cause confusion and delay. Rule 25.19 does not permit unlimited discovery, nor should it be construed to do so. It is doubtful, to say the least, whether the subpoena duces tecum issued here constitutes "discovery," but we need not quibble over that. Under the very terms of the rule the respondent had the general power to issue the subpoena and require the production of the records before it prior to the trial.
Counsel for relator has briefed at length not only the right of respondent to disclose the contents of the records to the circuit attorney, but the admissibility at the trial of *375 any statements made by the juvenile to personnel of the juvenile court. We do not propose to rule the latter question in this proceeding, for it is not involved.
Relator's essential position is that the juvenile code, considered in its entire context, places a shroud of confidentiality over all relations and communications between the juvenile and all juvenile court personnel, and that this status attaches to all files and records and continues indefinitely (and probably permanently) even after a juvenile is transferred to the criminal courts for trial; this, with the exception of "peace officers' records" to be referred to later. Counsel argue that, as indicated by the evidence here, the juvenile is encouraged to be "at ease," to talk only for the benefit of the juvenile authorities and court, and that he was not (in 1963) advised of any of the constitutional rights legally attendant upon the interrogation of an adult. Further, counsel say that since Arbeiter's constitutional protections were thus more or less traded for the confidential status inherent in the proceedings, those rights would be impaired if the court now violates the confidence; and also that in such event much of the juvenile code may be unconstitutional. We shall not pursue these latter intricate problems, for they will become material only if and when evidence from the juvenile files is offered in evidence at the trial. The rights of juveniles, including those of due process, the right against self-incrimination, and equal protection, have been extensively treated in the cases cited by relator, including Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84; Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527; Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161; Edwards v. United States, 117 U.S.App. D.C. 383, 330 F.2d 849. Kent, involved the validity of an order transferring a juvenile for trial in the criminal courts, and the basic constitutional requirements for the making of such an order; Harling, involved the admissibility of prior statements of a juvenile at his criminal trial; Edwards, involved the admissibility of evidence gathered as the result of a confession of the juvenile; Gault, dealt at great length with the steps constitutionally necessary to the making of a valid order committing a juvenile to a training school because of delinquency, with some discussion as to the general admissibility of the juvenile's statements. None of these cases touched upon our present problem. One may readily see from an examination of these opinions that the substitution of the "parens patriae" relationship (criticized in Gault, supra) of the juvenile authorities for the right of the juvenile to constitutional protections, has been considerably shaken; however, juvenile proceedings are not criminal proceedings. State ex rel. Matacia v. Buckner, 300 Mo. 359, 254 S.W. 179; State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37; and the juvenile court need not, as yet, proceed with all the formalities of a criminal court; Kent, supra. We forego further discussion of this subject here; those principles will require careful study if and when any statements of Arbeiter are offered in his criminal trial, or perchance considered in pretrial proceedings.
Counsel for relator rely particularly upon §§ 211.271 and 211.321 in support of their contentions that there should be no disclosure. Insofar as material here, § 211.271 is as follows: "2. No child shall be charged with a crime or convicted unless the case is transferred to a court of general jurisdiction as provided in sections 211.011 to 211.431. 3. Evidence given in cases under sections 211.011 to 211.431 is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding except in subsequent cases under sections 211.011 to 211.431." Section 211.321 is in full as follows: "1. The proceedings of the juvenile court shall be entered in a book kept for that purpose and known as the juvenile records. These records as well as all information obtained and social records prepared *376 in the discharge of official duty for the court shall be open to inspection only by order of the court to persons having a legitimate interest therein.
"2. Peace officers' records, if any are kept, of children, shall be kept separate from the records of persons seventeen years of age or over and shall not be open to inspection or their contents disclosed, except by order of the court. This subsection does not apply to children who are transferred to courts of general jurisdiction as provided by section 211.071.
"3. During the month of January in each year, the court may make an order to destroy all social histories and information other than the official court file, pertaining to any person who has reached the age of twenty-one years."
By Section 211.031 the juvenile court is given jurisdiction when a child "is alleged to have violated a state law or municipal ordinance." Section 211.071 is, in its pertinent parts, as follows: "In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, * * * the petition may be dismissed and such child or minor may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child or minor is not a proper subject to be dealt with under the provisions of sections 211.011 to 211.431." No attack has been made here upon the proceedings by which Arbeiter was transferred to the criminal court.
The essential issue here is whether the order of the juvenile court relinquishing and transferring jurisdiction is legally the equivalent of an order of that court permitting the inspection of the records of the juvenile court by the parties in the criminal cause. Or to put the issue in slightly different form, it is whether thereby the juvenile court transferred to the criminal court the right to open the records for inspection. If such was the effect, the contemplated procedure cannot be a violation of the statutes. It has been held, generally, that the jurisdiction of the juvenile court ceases upon the making of a transfer order. Ex parte Bass, Banc, 328 Mo. 195, 40 S.W.2d 457. The file that has been produced on subpoena is the "social" file, previously referred to. Counsel for relator make the point that § 211.321(1) treats the social records differently from the "Peace officers' records," § 211.321(2) in that the latter are subject to inspection upon transfer without an order of the juvenile court, whereas the former may only be inspected by an order of the Court. Counsel further suggest that the file in question was a part of the "evidence given" before the juvenile judge and, therefore, inadmissible under the express terms of § 211.271. As already suggested, we have not yet reached the question of the admissibility of any evidence. It has been ruled in several Missouri cases that proceedings held in a juvenile court and the disposition of a juvenile therein, may not be shown later in evidence by way of impeachment, when the juvenile is a witness. State v. Coffman, 360 Mo. 782, 230 S.W.2d 761; State v. Tolias, Mo., 326 S.W.2d 329, 333; State v. Cox, Mo., 263 S.W. 215. That theory has been criticized. 3 Wigmore on Evidence 3rd Ed., § 1041, but in any event that is not the issue here. Generally speaking,"The object of the waiver decision is to weed out those children who cannot benefit from juvenile court treatment." 79 Harvard Law Rev., p. 793, and see also State v. Van Buren, 29 N.J. 548, 150 A.2d 649.
We may and do assume that after the transfer of jurisdiction, the Circuit Attorney is one "having a legitimate interest" in the juvenile records; their contents could have been released expressly to him upon order of the juvenile court at the time of transfer, or before or after that time. We are cited to no case, in Missouri or *377 elsewhere, which rules our precise question. The writer has examined texts, annotations, and law review articles in an independent research and has found nothing directly in point. We are thus relegated to a consideration of general principles and a construction of our statutes. We deem it unnecessary to discuss in any detail the broad purposes of the juvenile laws. One object is to effect, if possible, rehabilitation instead of punishment; another is to protect the juvenile from the stigma which would attach to his prosecution as a lawbreaker in the criminal or municipal courts. We are told, however, that in practice juvenile records are widely circulated to law enforcement officers, social agencies, the FBI and even to prospective employers. Harvard Law Rev., supra. loc. cit. 800; 67 Columbia Law Rev. 286-287; and see particularly the discussion in Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, at loc cit. 1442, 18 L. Ed. 2d 527, where the Court said that the claim of secrecy "is more rhetoric than reality." In the present case no possible secrecy remains. Arbeiter has been tried once for murder in the criminal court, with the attendant publicity; he has been convicted and given a life sentence and his conviction has been reversed on appeal and the cause remanded. The case is reported in the Southwestern Reporter. At the trial his various incriminating statements to the police were disclosed in evidence, although the case was reversed for that reason. As a practical matter, the only possible objective of the relator in seeking to maintain now the supposed secrecy of his juvenile files, is to prevent the use of any admissions or incriminating statements which the juvenile may have made. There may be such in the files and there may not; there may also be other information material and vital to the prosecution and wholly unrelated to any such statements. The juvenile court has not declined to open the files to the Circuit Attorney, for it is not shown that any such application was made.
The ultimate purpose of the transfer of a juvenile, such as was made here, is to protect the public in those cases where rehabilitation appears impossible. In State v. Van Buren, supra, the Court said, at 150 A.2d loc. cit. 654: "Thus a case may be referred to the prosecutor when the circumstances indicate that, if the charge is ultimately established, society would be better served by the criminal process by reason of the greater security which may be achieved or the deterring effect which that process is thought to accomplish." The seriousness of such matters to the public, as well as to the juvenile, is well illustrated in the following language contained in the separate opinion of Mr. Justice Harlan in Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, at loc. cit. 1465-1466, 18 L. Ed. 2d 527: "No more evidence of the importance of the public interests at stake here is required than that furnished by the opinion of the Court; it indicates that `some 601,000 children under 18, or 2% of all children between 10 and 17, came before juvenile courts' in 1965, and that `about one-fifth of all arrests for serious crimes' in 1965 were of juveniles. The Court adds that the rate of juvenile crime is steadily rising. All this, as the Court suggests, indicates the importance of these due process issues, but it mirrors no less vividly that state authorities are confronted by formidable and immediate problems involving the most fundamental social values." In a few states original jurisdiction of juveniles between certain ages is vested initially in the criminal court which may then, in its discretion, transfer the person to the juvenile court or retain jurisdiction. 67 Columbia Law Rev., loc. cit. 311-312. In Illinois, the power of transfer is vested initially in the prosecuting attorney. Illinois Ann.Stat., Ch. 37, §§ 702-7(3).
It is our conclusion that when the juvenile court relinquished its jurisdiction over this juvenile and transferred all further proceedings to the criminal court (i. e., respondent, for our purposes) it thereby vested the latter court with the *378 power and authority to open the juvenile files and records for inspection by "persons having a legitimate interest therein," and that such "persons" certainly include the Circuit Attorney and relator's counsel. This ruling does no violence to the differing references in § 211.321(1) and (2) to juvenile records generally and to peace officers' records, for any and all may be inspected upon proper order; we hold that respondent may properly make the order. This is not to infer, however, that any such files and records are to be disseminated generally to other persons, and the limits of the inspection should be rigidly enforced. We hold that such disclosure is not contrary to the intent of our juvenile statutes, and further that no constitutional question is thereby involved. The "confidentiality" of such records is primarily a legislative matter and purely a matter of state concern. Nor is it necessary, in the present posture of this case, to pass upon the constitutionality of any part of our juvenile code.
We emphasize again that we do not rule, directly or indirectly, upon the admissibility of any admissions or statements which may conceivably be found in the juvenile records. There will be time for mature consideration of that question when and if any such material is offered. Counsel for relator has cited substantially all of the controlling cases, including Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84; Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527; Haley v. State of Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224; Gallegos v. State of Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325; Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161; Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
The provisional rule in prohibition is quashed and respondent is directed to proceed as indicated in this opinion.
HOLMAN, C. J., and STORCKMAN, J., concur.
FINCH, J., concurs in separate concurring opinion filed.
HENLEY and DONNELLY, JJ., concur and concur in separate concurring opinion of FINCH, J.
SEILER, J., dissents in separate dissenting opinion filed.
CONCURRING OPINION
FINCH, Judge.
I have concluded to concur in the principal opinion herein. It does not hold that anything disclosed as a result of an examination of the juvenile court file is admissible and may be used against the defendant. That issue very carefully and explicitly is reserved until such time as there is an attempt to offer in evidence against defendant any of the information contained in said file or obtained as a result of inspection of that file.
To rule otherwise would be to conclude that § 211.271(3), RSMo 1959, V.A.M.S., creates an absolute privilege in favor of the juvenile with respect to juvenile court files in his case and with reference to any witnesses used against him in the juvenile court. This seems to be the contention of defendant and the philosophy expressed in the dissenting opinion herein.
I cannot agree that the statute creates such an absolute privilege. In the first place, the statute authorizes the juvenile court, by order, to open the file to interested persons. This, in and of itself, shows that the file is not absolutely privileged. Furthermore, although the statute says that evidence given in the juvenile proceedings is not lawful or proper evidence against the child for any purpose whatsoever, that does not necessarily mean, in my judgment, that the lips of one who testified in the juvenile proceeding are sealed so that he may not be a witness in a subsequent criminal proceeding.
*379 Likewise, the statute does not necessarily mean that any statement given by the juvenile himself may not be used against him in a criminal proceeding. If, for example, a juvenile is given all of the constitutional rights required by Gault,[*] and he voluntarily and knowingly makes a confession, the fact that such information was used in the juvenile proceeding would not necessarily mean that evidence of such confession could not be offered in a criminal trial. Certainly, constitutional standards would have been complied with in such a situation.
The test in each case will be whether the particular evidence offered is or is not admissible, considering constitutional standards as well as the provisions of the Juvenile Code. These questions properly are left open under the majority opinion, to be determined in the light of the particular facts at that time presented.
Dissenting Opinion
I respectfully dissent. It seems to me that the effect of the majority opinion is that the state can have its cake and eat it, too, which I do not think was the intention of the legislature in adopting the juvenile code. In this case, the state, through the juvenile court, prior to transfer of the juvenile, obtains information from him at a time when a non-adversary type of relationship exists between it and the juvenile, where the juvenile is being held in custody not as a criminal, but as a juvenile, primarily for purposes of reform and rehabilitation, if possible, rather than for punishment.[1] The statute, § 211.271, subd. 3, RSMo 1959, states "Evidence given in cases under [the juvenile code] is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding * * *" (emphasis supplied). Relator offered to prove at the hearing before respondent that the attorney who was appointed to represent relator in juvenile court did not advise relator not to communicate or speak with the juvenile officers because the attorney was of the opinion that whatever was said by the juvenile to the juvenile officers could not be used against him in any other place. It now turns out that the prosecuting authorities are to be furnished this information to use against him. Entirely aside from the constitutional questions involved in using evidence obtained from the juvenile under these circumstances against him in a criminal prosecution, it seems to me that § 211.271, subd. 3, supra, gives the juvenile a substantive right not to have such evidence used against him "for any purpose whatever in a civil, criminal or other proceeding", and we cannot change the substantive law by our rule 25.19, see Art. V, § 5, 1945 Constitution.[2]
*380 Also, we should consider the effect which the use we are permitting to be made of our court-made rule 25.19 will have on the work of the juvenile court in what has been described as "the specialized field of handling neglected and delinquent children in modern times" and what it will do to the techniques which have been worked out for handling juveniles.[3] Gone, it seems to me, will be the opportunity to establish in the juvenile a feeling of trust and confidence in the juvenile court authorities and a willingness by the juvenile based on this trust and confidence to make a full disclosure of the facts, especially when to do so may involve him in a crime or put him in a bad light. Anyone who has had any experience with children knows how important it is to corrective action to get at the truth and to have the confidence and respect of the child.[4] Henceforth, however, any adviser of a juvenile who knows of this decision lawyer, minister, relative, teacher, friend, or whoever it may bewill advise a juvenile that no matter what assurances he receives from the juvenile authorities he cannot safely tell them the truth if it involves him in a criminal act, because it may well turn out that what he tells them will wind up in the hands of the prosecuting authorities "for the purpose of inspection, copying and for use in the preparation of trial" against him. This decision delivers a further blow to the rehabilitative aspect of juvenile court work. It will keep juveniles from speaking freely. Admittedly the present case is a difficult one, because the record in the first trial, State v. Arbeiter (Mo.Sup.) 408 S.W.2d 26, shows that this particular defendant made outright statements of his guilt to the police and there is a natural reaction that he should not escape punishment if in fact he is guilty, but this does not change the juvenile code or its application.
Nor does it seem the fact mentioned in the majority opinion that it is public knowledge that this juvenile is involved in a murder charge and has made incriminating statements (which came about because of error in the first trial in admitting statements made to the police and corrected on appeal in State v. Arbeiter, supra) is material, because there is nothing in the opinion which limits its operation to cases where the aura of confidentiality surrounding juvenile matters has already been lost, or which will keep it from operating against future juveniles indiscriminately.
For the foregoing reasons I believe the provisional rule herein should be made absolute.
Turning now to the objection raised by relator that rule 25.19 is not to be used as a rule of discovery, the court has many times said categorically that the rule is not so to be used.[5] Here the entire purpose of *381 the state is discovery. What the state is seeking here are statements or admissions of the relator, if any, and the names of juvenile personnel who took or witnessed such statements. This is precisely what the state's motion for the subpoena duces tecum asks for. The state argues in its brief that these are necessary as a part of its case against relator on the criminal charge. Respondent ordered production of the records to be turned over to the circuit attorney "for the purpose of inspection, copying and for use in the preparation of trial." The circuit attorney, in his brief for respondent, states "The issuing of the subpoena is for the purpose of discovery".
It is not actually known by respondent or the circuit attorney whether there are any such documents or material in existence. At the hearing before respondent the juvenile officer, who was the only witness who knew anything about the records, testified he had not personally reviewed the file. There was no testimony that the records actually contained a statement by relator. The contents of the records were not shown to anyone at the hearing. What the juvenile officer testified to was what was usually done with a juvenile and what information and summary were usually prepared. The circuit attorney wants to see everything in the file and use whatever he finds which is helpful. This is understandable on his part, but it is nevertheless discovery, pure and simple, just as much as inspecting hospital records for whatever is useful to a defendant in a defense of a damage suit is discovery.
There is no contention here that there is in existence a burdensome mass of documents, such as numerous cancelled checks, or invoices, or receipts of the kind to be expected, for example, in a criminal prosecution involving a good deal of paper work, where it would expedite the trial if these could be assembled, sorted out, and marked as exhibits ahead of time. This is an illustration of what I have understood the prior decisions to say rule 25.19 should be used for, because thereby "the trial of the case will be expedited" ("Expedite" means to execute promptly or to hasten; it does not mean to locate or turn up.). The same type of procedure is frequently used to shorten the length of civil trials. The other use of rule 25.19 which the courts have mentioned is to obtain a subpoena to insure that if some person has a designated document or object which either the state or the defendant wants to be certain remains subject to the jurisdiction of the court or which will be produced only under compulsion of process, a subpoena duces tecum under rule 25.19 can be served on such person to be sure that he and the particular document or object are on hand for the trial date. The witness and the object are "put under subpoena". But in the present case the court is going much beyond what has heretofore been permitted. And it may well be that discovery in criminal cases should be expanded,[6] but if rule 25.19 is to be used for "fishing expedition" purposes, as is being permitted here, then I think we should plainly say so and overrule those portions of the cases cited in footnote 5 which hold to the contrary.
NOTES
[*] Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527.
[1] The juvenile officer testified that the practice was never to advise the juvenile that whatever he said to the juvenile officer would be used against him in a criminal action; that "for us to be effective", it "would be a necessary thing, yes", for the juvenile to be at ease, to be able to communicate and give information to the juvenile officer; that "they were not advised of their constitutional rights"; that the juvenile was ordinarily advised that what he says is for the purpose of the hearing at the juvenile court, not beyond that.
[2] It is true the majority opinion carefully reserves the matter of the admissibility against relator at the trial of any statements made to the juvenile court. However, this gets into the trial practice field and depends upon the right objection being made by counsel at the right time, a matter which is not entirely in the control of the defendant, as illustrated by State v. Price, (Mo.Sup.) 422 S.W.2d 286, 289, where a valid ground existed, but was lost because of an insufficient objection. The statute does not say that the evidence cannot be used against the juvenile if proper objection is made to its use. It states flatly that such evidence is not "lawful" or "proper" against him in a criminal proceeding. If it is not lawful or proper evidence, it is difficult to see how it should be produced against him in the first place. Nor do I see anything in the portions of the juvenile code giving the juvenile court authority to open the records to inspection "to persons having a legitimate interest therein" which diminishes the force of § 211.271, subd. 3. The majority opinion says the records could have been released to the circuit attorney either before or after transfer. Perhaps so, but it would seem a prosecuting attorney would be in conflicting positions if he were inspecting the records with a view to helping the court handle the juvenile as a juvenile, yet at the same time getting ready to use the records to prosecute him as an adult. See State v. Crockett (Mo.Sup.) 419 S.W.2d 22, 29.
[3] "It was felt that confession and self-examination embodied important therapeutic values: `the youth should be encouraged to speak openly both about himself and the offense'; `in order to rehabilitate a child, he must first admit his crime and so be aware that he is in need of rehabilitation' * * *." 67 Columbia Law Review, supra, at 331. "* * * The rehabilitative devices of the adjudication stagedismissal, continuance and qualificationare all predicated upon a youth's willingness to discuss freely his offense and social condition. * * *" Id. at 332.
[4] Unquestionably the assurance heretofore provided by § 211.271, subd. 3 has been an important factor in getting the cooperation of the juvenile and his advisers.
[5] State v. Blevins (Mo.Sup.) 421 S.W.2d 263, 268; State v. Spica (Mo.Sup.) 389 S.W.2d 35, 51; State v. Aubuchon (Mo. Sup.) 381 S.W.2d 807; State v. Engberg (Mo.Sup.) 377 S.W.2d 282, 286; State v. Simon (Mo.Sup. banc) 375 S.W.2d 102, 104; State v. Kelton (Mo.Sup.) 299 S.W.2d 493, 497; State ex rel. Phelps v. McQueen (Mo.Sup. banc) 296 S.W.2d 85, 89.
[6] See the interesting article, "Criminal Discovery in Missouri", Rabbitt, St. Louis Bar Journal, Spring 1966, pp. 11-29. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/391832/ | 652 F.2d 223
107 L.R.R.M. (BNA) 3090, 91 Lab.Cas. P 12,873
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BOSTON BEEF CO., INC., Respondent.
No. 80-1836.
United States Court of Appeals,First Circuit.
Argued June 3, 1981.Decided July 9, 1981.
Ruth Ihne, New York City, with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and W. Christian Schumann, Washington, D. C., were on brief, for petitioner.
Robert Weihrauch, Worcester, Mass., with whom Gerald E. Norman, Worcester, Mass., was on brief, for respondent.
1
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, MAZZONE, District Judge.*
2
MAZZONE, District Judge.
3
This case is before us upon application of the National Labor Relations Board (Board) under section 10(e) of the National Labor Relations Act (Act), 29 U.S.C. § 160(e), for enforcement of its order issued against the Employer, Boston Beef Co., Inc., on September 30, 1980, and reported at 252 N.L.R.B. No. 101. The Board ordered Boston Beef to cease and desist from violating sections 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. §§ 158(a)(1) and (a)(5), bargain with the Union,1 and post appropriate notices.
I.
4
The action arises out of a representation election involving certain employees of Boston Beef, a wholesale meat distributor located in Worcester, Massachusetts. On October 18, 1979, the Union filed a representation petition with the Board's Regional Office in Boston, seeking certification as the collective bargaining representative of employees at the Employer's plant. On November 6, 1979, the Union and the Employer entered into a stipulation for certification upon consent election, authorizing a representation election in a unit consisting of the following employees:
5
All full-time and regular part-time employees including drivers, loaders, shippers, receivers, packers, maintenance employees, shipping clerks, head shippers, head receivers and plant clericals of the Employer's plant located at Lafayette and Franklin Streets, Worcester, Massachusetts, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.
6
The Acting Regional Director approved this stipulation on November 15, 1979.
7
In the election, which was held December 5, 1979, fifteen votes were cast in favor of the Union and twelve against it. In addition, there were four challenged ballots, a sufficient number to have potentially affected the outcome of the election. Only one of the challenged ballots, however, that of Thomas Westerberg, is at issue here.2 The Union challenged Westerberg's ballot on the ground that he was a "casual" rather than a "regular part-time" employee as provided in the stipulation, and therefore not entitled to vote in the representation election.
8
The Regional Director recommended that the Board sustain the challenge to Westerberg's ballot. A three member panel agreed, and on May 19, 1980, the Board certified the Union as the exclusive representative of employees in the stipulated unit.
9
Thereafter, the Employer refused to bargain with the Union, claiming that the Board incorrectly excluded Westerberg from the relevant bargaining unit. The Union filed unfair labor practice charges, and on June 30, 1980, the Regional Director issued a complaint. On August 29, 1980, the Board transferred the case to itself and, in the order issued September 30, 1980, granted the General Counsel's motion for summary judgment. The Board held that the Employer's refusal to bargain with the Union violated sections 8(a)(1) and 8(a)(5) of the Act, and ordered the remedial actions outlined above.
II.
10
The facts underlying this controversy are not materially disputed. Thomas Westerberg began working for Boston Beef in June, 1979. During the summer, he worked an average of three nights a week, eight hours per night, loading trucks. At the end of the summer, Westerberg was laid off and returned to complete his final year of high school.
11
Westerberg was rehired in October, 1979, to do "display work" for the Employer at certain supermarkets in which Boston Beef had previously agreed to maintain display coolers for its products. He replaced another employee who left the respondent's employ due to illness. The display work involved replacement of old stock and rotation of Boston Beef products in the display coolers. Identical work is performed at other supermarkets by Westerberg's father, a full-time salesman for Boston Beef.3
12
Westerberg spent approximately five hours a week doing display work, and was paid a flat rate of fifty dollars per week. While performing this work, Westerberg did not spend time on the Employer's premises, and had no contact with unit employees. The record indicates that if Westerberg had any questions concerning his display work, he asked his father for assistance.
13
On November 1, 1979, some five weeks before the election, Westerberg began unloading trucks at the Employer's beef division on Thursday nights. Each week, Westerberg's father inquired as to whether sufficient work were available for his son on the upcoming Thursday night shift. Westerberg was not required to work Thursday nights, nor was he penalized for failing to appear for work. In fact, during the five weeks prior to the election, Westerberg worked only three Thursday nights. On the remaining Thursday nights, Westerberg did not work because of a conflict with his participation in his high school football program. When Westerberg did work the Thursday night shift, he generally worked for three hours and was paid by the hour. He worked alongside unit employees, took the same breaks, and had the same supervision.
14
On these facts, the Regional Director and the Board concluded that Westerberg was not a "regular part-time" employee, and was therefore excluded from the relevant bargaining unit.
III.
15
The Employer concedes, and we conclude, that the Board's order should be enforced if it properly sustained the Union's challenge to Westerberg's ballot. Summa Corp. v. N.L.R.B., 625 F.2d 293, 295 (9th Cir. 1980). Our standard of review is restricted to an analysis of whether the Board abused its discretion in sustaining the challenge and certifying the election. N.L.R.B. v. New England Lithographic Co., Inc., 589 F.2d 29, 31 (1st Cir. 1978), quoting N.L.R.B. v. S. Prawer & Co., 584 F.2d 1099, 1101 (1st Cir. 1978).
16
The Employer first contends that the Board erroneously applied a "community of interest" test in determining that Westerberg was not a regular part-time employee. The community of interest standard is one traditionally relied on by the Board in determining whether an individual employee or job classification should be included in a particular collective bargaining unit. The test includes a consideration of whether the employee works at regularly assigned hours a substantial number of hours per week; performs duties similar to those of unit employees; and shares the same supervision, working conditions, wages, and fringe benefits as the unit employees. See Westchester Plastics of Ohio, Inc. v. N.L.R.B., 401 F.2d 903, 907-08 (6th Cir. 1968). Boston Beef concedes that application of these principles is appropriate where the Board determines the appropriate bargaining unit in the first instance. However, it argues that community of interest principles are inapplicable where the Union and Employer have agreed upon a definition of the relevant unit prior to the election. In such cases, the Employer contends, the Board's only function is to ascertain the intent of the parties. See The Tribune Company, 190 N.L.R.B. 398 (1971). The Board may not rely upon community of interest principles to override a clear expression of the parties' intent. Tidewater Oil Company v. N.L.R.B., 358 F.2d 363, 366 (2d Cir. 1966).
17
The Board contends that the phrase "regular part-time employees" is a phrase of art in the field of labor law. By including the phrase in the stipulation, it argues, the parties manifested their intent to resolve any dispute concerning unit membership according to the Board's established principles for determining "regular part-time" status, which includes a consideration of community of interest principles.
18
Although there is some support for the Board's contention that the phrase "regular part-time" employees has an established meaning in the labor context, see, e. g., N.L.R.B. v. Sandy's Stores, Inc., 398 F.2d 268, 272 (1st Cir. 1968), we think the record in this case is unclear on the meaning the parties intended to give the phrase. More precisely, in view of his rather unique employment status, it is unclear whether the parties intended to include Westerberg in the category of "regular part-time employees" at the time the stipulation was drafted.
19
Under these circumstances, however, resort to the community of interest principles was nevertheless appropriate. While concededly the Board may not rely upon the community of interest test to subvert the clear intent of the parties, where the intent is unclear or the stipulation ambiguous the Board may properly rely upon community of interest principles to help resolve the ambiguity. N.L.R.B. v. Mercy College, 536 F.2d 544, 548 at n. 11 (2d Cir. 1976); Knapp-Sherrill Co. v. N.L.R.B., 488 F.2d 655, 659-60 (5th Cir.), cert. denied, 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53 (1974); see New England Lumber v. N.L.R.B., 646 F.2d 1, 3 (1st Cir. 1981). Accordingly, we find no error in the Board's use of the community of interest test in determining whether Westerberg should have been considered a regular part-time employee.IV.
20
Turning to the Board's substantive conclusion, the Employer argues that the Board abused its discretion in concluding that Westerberg was not a regular part-time employee. Concededly, there are facts in the record which arguably support the Employer's position, notably the fact that Westerberg's employment was not limited to a fixed period, and the fact that his working conditions during the Thursday night shift were substantially identical to those of the unit employees.
21
The Board has frequently attempted to define the circumstances under which student employees will be considered regular part-time employees. Our review of the cases indicates that the Board has often reached opposite conclusions on the basis of seemingly minor factual differences. Compare San Francisco Art Institute, 226 N.L.R.B. 1252 (1976); Highview, Inc., 223 N.L.R.B. 646, 649 (1976), enforced in pert. part, 590 F.2d 174, modified, 595 F.2d 339 (5th Cir. 1979); Pawating Hospital Association, 222 N.L.R.B. 672, 672-73 (1976); and California Inspection Rating Bureau, 215 N.L.R.B. 780, 782-83 (1974) (part-time students excluded from units which included, inter alia, regular part-time employees) with Dick Kelchner Excavating Co., 236 N.L.R.B. 1414, 1415 (1978); Femco Machine Co., 238 N.L.R.B. 816, 826 (1978); Hearst Corp., San Antonio Light Division, 221 N.L.R.B. 324 (1975); Serv-U-Stores, Inc., 225 N.L.R.B. 37, 39 (1976); and Dee Knitting Mills, Inc., 214 N.L.R.B. 1041, 1048-49, enforced, 538 F.2d 312 (2d Cir. 1975) (students regarded as regular part-time employees). While concededly, the Board's application of the community of interest standard in this context has not always been a model of consistency, see generally, Malin, Student Employees and Collective Bargaining, 69 Ky.L.J. 1, 5-15 (1980), we are especially reluctant to substitute our judgment for that of the Board on an issue, such as this, where the Board possesses significant expertise and minor factual differences are so important, so long as there is substantial evidence to support the Board's conclusion.
22
In this case there is ample support in the record for the Board's conclusion that Westerberg did not share a community of interest in wages, hours, and working conditions with the remaining unit employees, and thus was properly not regarded as a regular part-time employee. To begin with, Westerberg's display work was performed at a geographically remote location, under the general supervision of his father, a non-unit employee. He was paid a flat weekly salary, as opposed to an hourly wage, for the display work. While performing the display work, Westerberg had no contact with unit employees.4
23
Turning to the Thursday night work, the Board could reasonably have placed great reliance upon the small number of hours Westerberg spent engaged in that work; the fact that he was not required to work Thursday nights and was not penalized in any way for failing to work; and the fact that he skipped work two out of the five weeks immediately preceding the election, in order to participate in his high school's football program. Compare Sandy's Stores, 398 F.2d at 273 (reversing the Board's finding of regular part-time status where employee, a high school student, worked only one day a week and missed work twenty per cent of the time).
24
Having found substantial evidence in the record to support the Board's conclusion that Westerberg was a casual rather than a regular part-time employee, and therefore properly excluded from the relevant bargaining unit, we affirm the Board's finding that the employer's refusal to bargain constituted an unfair labor practice and enforce its September 30, 1980 order in its entirety.
25
Enforcement granted.
*
Of the District Court of Massachusetts, sitting by designation
1
Local No. 170, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America
2
The Board sustained a challenge to the ballot of one employee on the ground that he was no longer employed by Boston Beef. The Employer does not challenge that determination. The Board did not rule on the Union's two other challenges pending determination of this case because they would only become critical if we reversed and an evidentiary hearing would be necessary to resolve them
3
It is undisputed that the Union and the Employer intended to exclude salesmen from the relevant bargaining unit
4
The Employer attempted, in its brief and at oral argument, to characterize Westerberg's display work as being similar to the Thursday night loading work. The record clearly indicates significant differences in almost every aspect of the two jobs | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/422050/ | 713 F.2d 61
113 L.R.R.M. (BNA) 3686, 98 Lab.Cas. P 10,334
ROSSLYN CONCRETE CONSTRUCTION COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 82-1426.
United States Court of Appeals,Fourth Circuit.
Argued April 14, 1983.Decided July 28, 1983.
Robert G. Ames, Robert A. Rapp, Baltimore, Md. (Venable, Baetjer & Howard, Baltimore, Md., on brief), for petitioner.
Christine Weiner, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Washington, D.C., on brief), for respondent.
Before WINTER, Chief Judge, and RUSSELL and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
1
The Rosslyn Concrete Construction Company ("the Company") has petitioned this court to set aside an order of the National Labor Relations Board finding the Company in violation of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), and directing the Company to bargain with the Washington Building and Construction Trades Council, AFL-CIO ("the Union"). The Board has cross-petitioned for enforcement of its order. We now grant enforcement.
I.
2
In February, 1980, the Union petitioned the Board for certification as exclusive bargaining representative of the Company's construction workers. The Union and the Company subsequently reached a stipulation on the certification election which described the employees in the appropriate bargaining unit as
3
All employees employed by the [Company] performing construction work in the Washington, D.C. Metropolitan Area excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act.
4
The election was held under Board supervision on April 11, 1980. Out of 151 ballots cast, 66 were for the Union, 68 against it, and 17 were challenged and subsequently investigated by the Board's Regional Director.
5
Two sets of challenges to the election are still at issue. First, the NLRB election supervisor challenged thirteen ballots because the persons who cast them were not on the eligibility list supplied by the Company. Three of these persons were convicted felons who were at the time in the custody of the Department of Corrections of the District of Columbia, and were employed by the Company pursuant to that department's work release and training programs. In addition, the Union challenged the ballots of three individuals employed as "timekeepers." These timekeepers work almost exclusively on construction sites. About half of their time is spent collecting payroll and cost analysis information for the main office by observation and consultation with construction workers. The rest of their time is spent preparing the information gathered, carrying out general duties at the sites' trailer-offices, and running errands for project superintendents. Unlike construction workers, timekeepers are paid a salary rather than hourly wages, and have a fringe benefit package. Like employees receiving hourly wages, timekeepers are eligible for overtime. At the evidentiary hearing, the Company's president conceded that the timekeepers are primarily answerable to the main office and not to their nominal superior, the project superintendent, and that other than their peculiar duties, "there are very few things a timekeeper can do on a job site." In response to a question by the Company's attorney, the Company's president speculated that "it is possible that in a tight situation" the timekeepers might have to do some actual construction work. There was no evidence that this had ever occurred.
6
After the hearing on the unresolved challenges, the Board's hearing officer concluded that the challenge to the employees not on the eligibility list, specifically including the three inmate-employees on work release, was invalid, and that the Union challenge to the timekeepers was correct because the timekeepers were not within the appropriate and stipulated bargaining unit. On July 15, 1981, the Board adopted the hearing officer's recommendations, and ordered a recount of the ballots, with the following result: 73 for the Union, 71 against, and 7 challenged ballots not counted. On July 30, the Board certified the Union.
7
The Company, however, refused to bargain with the Union,1 which therefore filed an unfair labor practice complaint with the Board. General Counsel for the Board issued a complaint to which the Company responded with the argument that the certification of the Union had been improper. On May 7, 1982, the Board granted the General Counsel's motion for summary judgment.
II.
8
The first set of challenges now before us involves the ballots of the three inmate-employees. These ballots were originally questioned by the Board's election representative because the men were not on the Company's list of eligible employees. Their absence from the list was due to the fact that they and others had been laid off before the voter eligibility date and had returned to work after that date. Subsequent to that challenge, the Company challenged the three inmates' ballots specifically on the ground that as prison inmates they did not share a community of interest with other employees. Before this court, the Company also seeks to raise other issues, claiming that it is not their "employer" within the meaning of the statute, that they are not "employees" under the statute, and that certification of a bargaining unit including prisoners is against public policy. Because these contentions were not presented to the Board, we are without jurisdiction to hear them. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398, 414-15, (1982). The only issue to be decided with regard to the inmates, therefore, is whether the Board properly included them within the bargaining unit despite their supposed lack of a community of interest with the other construction workers.
9
In the proceedings below, the Company stipulated that under the usual standards, see Methodist Home v. NLRB, 596 F.2d 1173 (4th Cir.1979), the inmates share a community of interest with other, eligible Company employees: they work side-by-side with other employees, receive commensurate wages, and share identical working conditions. Two of the three men were at the time in halfway houses rather than prison proper and were virtually unrestricted in their ability to work overtime. The third man had to take a 10 p.m. bus back to the prison unless the Company notified the prison and provided alternate transportation.
10
The Company's attempt on appeal to circumvent its earlier stipulation is predicated on the notion that the restrictions on the inmates imposed by the prison work release program undermine their ostensible community of interest with other employees. However, as the Board points out, most of the program's rules either concern offwork activities of the inmates or generally require them to behave responsibly. Two rules prohibit participation in strikes, strike-breaking, or demonstrations, but permit participation in other concerted union activity.
11
The Company counters that the prison officials' power to monitor inmate-employees and to terminate their employment sets the latter apart from normal employees. However, the Board found that these powers do not "interfere with the [Company's] operation or affect the employee during the day." Since "[t]he test as to whether an employee shares a community of interest with his fellows ... depends on his status while in the employment relationship and not what ultimate control he may be subjected to at other times," Winsett-Simmonds Engineers, Inc., 164 NLRB 611, 612 (1967), the NLRB concluded that the inmate-employees were properly included in the bargaining unit. These findings and conclusions are based on substantial evidence and on the Board's consistent precedents, see also Georgia-Pacific Corp., 201 NLRB 760 (1973), and must be upheld.
III.
12
The second set of ballot challenges still in contention involve the ballots of the three timekeepers which the NLRB ruled out on the recount. Relying on the established rule that " 'where the parties stipulate that the appropriate unit will include [or exclude] given jobs, the Board may not alter the unit; its function is limited to construing the agreement according to contract principles, and its discretion to fix the appropriate bargaining unit is gone,' " Methodist Home, 596 F.2d at 1176 (citation omitted) (brackets in original), the Company contends that the NLRB improperly applied its community of interest test to exclude the timekeepers in disregard of the stipulation on the bargaining unit's scope. The Company argues first that the stipulation's plain language, that the bargaining unit should include "[a]ll employees ... performing construction work," clearly includes the timekeepers, whose tasks are directly related to the Company's construction and who spend virtually all of their work-time at Company construction sites. The Company next contends that the stipulation's express exclusion of "office clerical workers, professional employees, guards and supervisors" implies the inclusion of the timekeepers by virtue of the maxim expressio unius est exclusio alterius.
13
In the alternative, the Company argues that a proper application of the community of interest test dictates inclusion of the timekeepers, who share similar "wages," hours and working conditions with the undisputed construction workers; who occasionally perform undeniable construction tasks; and who are functionally integrated into the construction site crews. The Company also cites J. Ray McDermott and Co., 240 NLRB 864 (1979), in which the NLRB held that a construction company's timekeepers were "plant clericals" properly included in a bargaining unit.
14
The Company's arguments, plausible on their face, collapse under scrutiny. We cannot accept the Company's claim that the stipulation's plain language mandates inclusion of the timekeepers in the bargaining unit. The stipulation refers to employees "performing construction work," something which, by the Company's president's own admission, the timekeepers do not do. Nor does the invocation of Latin doggerel aid the Company: the Board's argument is persuasive that the timekeepers, whose work centers on and takes place primarily within the construction site trailer-offices, and which is an adjunct of the operations of the Company's main headquarters, are "office clerical workers" specifically excluded from the bargaining unit.
15
The Company does no better by conceding ambiguity in the stipulation and applying the community of interest test. That test as described by this court " 'consists of examining and comparing a number of factors (e.g., similarity of work performed, similarity of scale of earnings and other benefits, similarity of qualifications and skills, etc.)....' " Methodist Home, 596 F.2d at 1176 n. 1 (citation omitted). Application of this test supports the Board's position. Although the Company suggests otherwise, it is clear that the timekeepers do not receive the same "wages" or "benefits" as bona fide construction workers. Unlike the latter, the timekeepers are on salary and receive a fringe benefit package similar to that provided professional employees. The testimony of the Company's president showed that the timekeepers' duties, both official and in practice, were almost totally dissimilar to the jobs of construction workers. Timekeepers, unlike the carpenters, masons, and other craft practitioners who were included in the bargaining unit, do not practice a recognized skilled trade.
16
Finally, the Company misconstrues its supposed authority, the McDermott case. Although the employer in that case was primarily engaged in construction, the corporate division actually involved in the labor dispute was a manufacturing facility making pipe and other products. Therefore the Board correctly applied the principles used in manufacturing industry unit cases, not those used in construction industry cases. In construction industry situations, such as here, but not in McDermott, the Board pays great heed to the traditionally recognized building trades as evidence of the proper limits of a bargaining unit. See, e.g., R.B. Butler, Inc., 160 NLRB 1595 (1966). The appropriate unit may consist of a single craft, or, as here, of all employees engaged in construction activities proper. See New Enterprise Stone & Lime Co., 172 NLRB 2157 (1968). By contrast, in manufacturing situations, plantwide bargaining units are accepted which cross trade or skill lines or which encompass workers who are not employed directly in manufacturing activities. See, e.g., Century Electric Co., 146 NLRB 232 (1964). We therefore conclude that the Board's finding that the timekeepers should not be included in the bargaining unit is supported by substantial evidence and comports with existing law.
IV.
17
The Company's petition to set aside the Board's order is denied. The Board's cross-petition for enforcement is granted.
18
ENFORCEMENT GRANTED.
1
This was, of course, the Company's proper path to judicial review of the Board's election decision. See Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1574604/ | 17 So.3d 142 (2009)
Corey AUCOIN, Appellant,
v.
STATE of Mississippi, Appellee.
Corey Aucoin, Appellant,
v.
State of Mississippi, Appellee.
Nos. 2007-CA-02004-COA, 2007-CA-02295-COA.
Court of Appeals of Mississippi.
March 24, 2009.
Rehearing Denied June 30, 2009.
Certiorari Denied September 17, 2009.
*143 Raymond Osborn Boutwell, attorney for appellant.
Office of the Attorney General by Laura H. Tedder, attorney for appellee.
EN BANC.
ROBERTS, J., for the Court.
¶ 1. Corey Aucoin filed two separate petitions for post-conviction relief in the Lincoln County Circuit Court, challenging the legality of his convictions and sentences after entering guilty pleas to four criminal charges. The circuit court summarily denied both petitions. Aucoin now appeals, alleging that the circuit court erred in (1) denying his petitions without an evidentiary hearing, (2) accepting the plea of guilty when no factual basis existed, (3) ordering a single sentence for three of the four charges, and (4) ordering him to pay restitution to non-victim entities.
¶ 2. We find merit to Aucoin's argument that there was no factual basis for his guilty pleas. Although the remainder of Aucoin's issues are rendered moot by that conclusion, we further note for instructive purposes that the circuit court erred when it gave Aucoin a single sentence for three separate charges. Therefore, we reverse the judgment of the circuit court and remand these matters to the active trial docket of the Lincoln County Circuit Court.
FACTS AND PROCEDURAL HISTORY
¶ 3. Aucoin was indicted in Cause No. 04-232 for possession of less than one-tenth of a gram of methamphetamine. He pled guilty to that charge, and the circuit court sentenced him to serve four years in the custody of the Mississippi Department of Corrections (MDOC). Aucoin also was indicted in Cause No. 05-166 on three counts: possession of at least one-tenth of a gram but less than two grams of methamphetamine, possession of two or more *144 precursor chemicals with intent to manufacture methamphetamine, and the manufacture of methamphetamine. Aucoin also pled guilty to those charges. The circuit court accepted Aucoin's guilty pleas and sentenced him to serve thirty years in the custody of the MDOC, with six years to serve followed by twenty-four years of post-release supervision. The circuit court ordered that the sentence in Cause No. 05-166 was to run concurrently with the sentence in Cause No. 04-232. The circuit court also ordered Aucoin to pay a fine in the amount of $14,000 and restitution to several entities in the total amount of $754.05.
¶ 4. Aucoin later filed two separate petitions for post-conviction relief-one for each of the previously mentioned cause numbers. As stated, the circuit court summarily denied both petitions. Aggrieved, Aucoin appealed both denials, which have been consolidated for resolution.[1]
STANDARD OF REVIEW
¶ 5. The standard of review of a trial court's denial of a petition for post-conviction relief is well settled. "When reviewing a lower court's decision to deny a petition for post[-]conviction relief [an appellate court] will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Lambert v. State, 941 So.2d 804, 807(¶ 14) (Miss. 2006) (quoting Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). However, questions of law are reviewed de novo. Id.
ANALYSIS
I. DENIAL OF EVIDENTIARY HEARINGS
¶ 6. Aucoin argues in both cause numbers that the circuit erred in denying his petition for post-conviction relief without conducting an evidentiary hearing. He claims that his guilty pleas were involuntary as a matter of law because they were not freely, intelligently, and voluntarily made and because there was no factual basis to support them. Consequently, Aucoin argues that he was denied due process of law as guaranteed by the Fourteenth Amendment. He further asserts that persons are entitled to an in-court opportunity to prove constitutional claims when there has been a denial of a constitutional state or federal right.
¶ 7. Under Mississippi Code Annotated section 99-39-11(2) (Rev.2007), the circuit court has the authority to summarily dismiss a defendant's petition for post-conviction relief, "[i]f it plainly appears from the face of the [post-conviction relief] motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]"
A. Voluntariness of Aucoin's Guilty Pleas
¶ 8. The law is well settled in this state that certain prerequisites must be met before a defendant's guilty plea may be adjudicated to have been given freely, knowingly, and voluntarily. Our supreme court has held:
A defendant must be advised concerning the nature of the charge against her and the consequences of her plea including the minimum and maximum sentences that may be imposed. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be told that her guilty plea waives several constitutional *145 rights including her right to trial by jury, the right to confront adverse witnesses and the right to protection against self-incrimination.
Hannah v. State, 943 So.2d 20, 25(¶ 12) (Miss.2006).
¶ 9. The following excerpt from the plea colloquy reflects the voluntariness of Aucoin's guilty plea:
BY THE COURT: You have a right to a trial by jury, the right to challenge the makeup of the grand jury that indicted you and of the trial jury that will try your case. You have the right to have subpoenas issued through the Circuit Clerk's office to be served on your witnesses so they would be available to testify for you at trial. You have the right that anyone who testifies against you must do so in your presence and the right for your attorney to cross-examine any witness who testifies against you. You have a right to not give any information that would incriminate you or furnish any evidence at all. You have the right to testify as well as the right not to testify and the right to make your own mind up as to whether or not you wish to testify at the trial of your case. You do not have to prove anything. The burden of proof is entirely upon the State to prove your guilt by credible evidence and beyond any reasonable doubt and if the State fails to so prove your guilt beyond a reasonable doubt, the jury would be under a duty to find you not guilty. You have a right that all twelve jurors would have to agree as to any verdict of guilty or not guilty. Even if you were found guilty by the verdict of the jury, you would still have the right to appeal to the Mississippi Supreme Court. Do you understand each of those rights?
BY MR. AUCOIN: Yes, Your Honor, I do.
BY THE COURT: On the possession of less than .1 gram of methamphetamine, the minimum sentence is one year. There is no minimum fine. The maximum sentence is four years and the maximum fine is $10,000. On the possession of more than .01 of a gram but less than 2 grams, the minimum is 2 years. There is no minimum fine. The maximum sentence is 8 years. The maximum fine is $50,000. On the possession of two or more precursors with intent to manufacture, no minimum sentence, no minimum fine; maximum sentence is 30 years, maximum fine is $1M dollars. On the manufacture of methamphetamine, no minimum sentence, minimum fine $5,000; maximum sentence 30 years, maximum fine $1M dollars. So the maximum sentence is 72 years and the maximum fine is $2,060,000.00. Do you understand those maximum penalties?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Do you understand that a guilty plea waives all these rights that we've gone over and places you in a position where you can be sentenced by the Court up to the maximum penalty provided by law?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Has anybody threatened, abused, or promised you anything to cause you to want to plead guilty?
BY MR. AUCOIN: No, Your Honor.
BY THE COURT: Are you pleading guilty because you are guilty and for no other reason?
BY MR. AUCOIN: Yes, Your Honor.
. . . .
*146 BY THE COURT: Have you fully understood all of your rights?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: To each of these charges, how do you plead?
BY MR. AUCOIN: Guilty, Your Honor.
¶ 10. The above colloquy contradicts the allegations in Aucoin's petitions for post-conviction relief that his guilty pleas were not voluntarily and knowingly given. The colloquy contains sworn testimony by Aucoin which clearly demonstrates that he freely and knowingly entered the guilty pleas in question. Therefore, the circuit court was not required to conduct an evidentiary hearing based on the alleged involuntariness of Aucoin's guilty pleas, as it plainly appears from the transcript of the plea qualification hearing that Aucoin was not entitled to any relief based on the allegation of the involuntariness of his guilty pleas. This contention of error is without merit.
B. Factual Basis for Aucoin's Guilty Pleas
¶ 11. Next, Aucoin asserts that the circuit court erred in denying his petitions for post-conviction relief on the ground that there was no factual basis to support his guilty pleas. Aucoin relies on Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court. "Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea." URCCC 8.04(A)(3). A defendant may establish a factual basis for his guilty plea simply by pleading guilty; however, his plea "must contain factual statements constituting a crime or be accompanied by independent evidence of guilt." Hannah, 943 So.2d at 26-27(¶ 16) (emphasis added). In other words, "a factual basis is not established by the mere fact that a defendant enters a plea of guilty." Id. Rather, the record must contain those facts which are "sufficiently specific to allow the court to determine that the defendant's conduct was within the ambit of that defined as criminal." Lott v. State, 597 So.2d 627, 628 (Miss.1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984)). Finally, we are not limited to a review of a defendant's plea transcript when determining if a factual basis existed for his guilty plea, but we may review the record as a whole for evidence of such. Boddie v. State, 875 So.2d 180, 183(¶ 8) (Miss.2004).
¶ 12. The transcript of the guilty pleas to the four separate felonies presently at issue encompasses only eight pages of the record. During those guilty pleas, no one recited the facts and circumstances under which Aucoin committed any of the four crimes. The only references that even remotely touch on a factual basis whatsoever for Aucoin's guilty pleas during the hearing occurred when the circuit court asked Aucoin whether his attorney went over the indictments with him, whether his attorney explained the elements of the crimes to which he was pleading guilty, whether he was pleading guilty because he was guilty and for no other reason, and whether he was satisfied that the prosecution could prove beyond a reasonable doubt that he was guilty-presumably of all four charges. Aucoin responded affirmatively to all of those questions. The prosecution never explained the evidence that it was prepared to present if Aucoin would have proceeded to trial. The circuit court never asked Aucoin to elaborate on the factual details of any of the four offenses alleged in the two indictments. The record contains no sworn plea petition, no copy of Aucoin's indictments, no "know your rights" form, nor any other evidence from which an appellate court can glean any facts relating to the crimes.
*147 ¶ 13. A defendant waives his constitutional right to remain silent when he pleads guilty. It is not an unreasonable burden for a circuit court judge, as a preliminary matter to accepting a guilty plea, to require that a defendant detail exactly what he or she did that constitutes the crime to which the defendant is pleading guilty. Should a defendant fail or refuse to admit sufficient facts for the circuit court to conclude that the defendant committed the crime for which he or she is accused, the circuit court must either refuse to accept the guilty plea or fully satisfy the requirements of an Alford best interest plea as detailed by the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
¶ 14. Furthermore, the requirement of a factual basis for a defendant's plea is not a mere formality of the plea process, but it is required as part of a "constitutionally valid and enforceable decision to plead guilty." Carter v. State, 775 So.2d 91, 98(¶ 28) (Miss.1999) (quoting Lott, 597 So.2d at 628). Before a circuit court judge is authorized to accept an accused's plea to a felony offense and thereafter potentially deprive the accused of years of his liberty, the judge and any reviewing court must be able to ascertain from the record those facts which are "sufficiently specific to allow the court to determine that the defendant's conduct was within the ambit of that defined as criminal." Lott, 597 So.2d at 628.
¶ 15. The dissent relies on the Mississippi Supreme Court's opinion in Boddie, 875 So.2d at 183(¶ 8). However, the facts in this case are completely different from the facts in Boddie. In that case, the supreme court found that there was an adequate and sufficient factual basis for the petitioner's guilty plea. Id. at 183-84(¶ 9). The supreme court reached its decision after finding that "[w]hile the transcript of the guilty plea hearing contain[ed] no specific reference to a factual basis for the charge of transfer of cocaine, Boddie made a statement, which the trial court ruled to be admissible, in which he admitted to the crime alleged in the indictment." Id. at 183(¶ 8). Accordingly, the supreme court's finding of a sufficient factual basis in Boddie was based on matters that did not occur during the plea hearing. In particular, the supreme court concluded that Boddie's admission, which became a matter of record prior to Boddie's guilty plea, was sufficient to create a factual basis for Boddie's plea. Id. at 183-84(¶ 9).
¶ 16. In Aucoin's case, there are no extraneous matters from which we can find a sufficient factual basis for Aucoin's four guilty pleas. There was no evidentiary hearing that established a factual basis such as the one that occurred in Boddie. As previously mentioned, the record does not contain either of the indictments, a petition to plead guilty, or even the familiar "know your rights" form. The absence of a factual basis for any of Aucoin's guilty pleas in this case is striking.
¶ 17. We find that the facts preserved in the record presently before us simply do not establish, by any standard, that Aucoin committed any of the felonies charged in the indictments. As such, we find that no factual basis existed for any of Aucoin's guilty pleas. Consequently, we reverse the circuit court's decision to deny Aucoin's petitions for post-conviction relief, set aside his guilty pleas, and remand these matters to the active trial docket of the Lincoln County Circuit Court.
II. THE LEGALITY OF THE SENTENCE IN CAUSE NO. 05-166
¶ 18. Although this issue is rendered moot by our conclusion of the previous issue, we address it briefly for instructive purposes. Aucoin asserts that the *148 sentence for Cause No. 05-166 is general and, therefore, illegal. He argues that since separate sentences were not imposed for each charge, the sentence ordered by the court should be vacated. We agree.
¶ 19. In criminal cases, multiple offenses, which are triable in the same court, may be charged in the same indictment with a separate count for each offense. Miss.Code Ann. § 99-7-2(1) (Rev.2007). However, trial courts are required to impose separate sentences for each conviction. Miss.Code Ann. § 99-7-2(3) (Rev. 2007). Accordingly, the imposition of a general sentence is illegal. It is well settled that the right to be free from an illegal sentence has been found to be a fundamental right. Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999).
¶ 20. Aucoin was convicted of three separate offenses in Cause No. 05-166. However, the court imposed a general sentenceone that did not distinguish the time to be served for each count. Specifically, the circuit court sentenced Aucoin to serve thirty years in the custody of the MDOC with six years to serve followed by twenty-four years of post-release supervision. Specific sentences for each conviction were required. We remind circuit courts to be mindful of this requirement of sentencing offenders convicted of multiple counts.
III. THE LEGALITY OF THE RESTITUTION
¶ 21. Finally, Aucoin alleges that certain restitution ordered by the circuit court does not fall within the statutory definition of "restitution." He further alleges that a defendant may be taxed with the costs, but the expenses of criminal prosecutions are the responsibility of the county. Miss. Const. art. 14, § 261. Based on our resolution of Aucoin's factual basis issue, this issue is moot. For brevity's sake, we will not address it for instructive purposes.
CONCLUSION
¶ 22. Although we find that Aucoin's guilty pleas were voluntarily entered, we conclude that there was not an adequate factual basis in the record for any of the pleas. Accordingly, we reverse the circuit court's denials of Aucoin's petitions for post-conviction relief and remand these matters to the active trial docket of the Lincoln County Circuit Court. Additionally, we remind sentencing courts to render specific and individual sentences incident to multiple-count offenders, rather than a single sentence for multiple counts.
¶ 23. THE JUDGMENTS OF THE LINCOLN COUNTY CIRCUIT COURT IN CAUSE NO. 04-232 AND IN CAUSE NO. 05-166 DENYING THE PETITIONS FOR POST-CONVICTION RELIEF ARE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.
KING, C.J., GRIFFIS, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY, LEE AND MYERS, P.JJ., AND BARNES, J.
IRVING, J., Dissenting:
¶ 24. Corey Aucoin was indicted in separate indictments for a total of four felonies: possession of less than one-tenth of a gram of methamphetamine, possession of at least one-tenth of a gram but less than two grams of methamphetamine, possession of two or more precursor chemicals with intent to manufacture methamphetamine, and the manufacture of methamphetamine. The aggregate maximum penalty for these felonies is seventy-two years *149 incarceration in the Mississippi Department of Corrections and a fine of $2,060,000. He pleaded guilty to the charges, and the circuit court convicted him on his pleas. Thereafter, the circuit court sentenced him to serve four years on the charges in the first indictment and thirty years on the charges in the second indictment, with six years to serve in incarceration and the remaining twenty-four years on post-release supervision. The sentences were ordered to run concurrently, resulting in Aucoin having to serve only six years.
¶ 25. The majority finds that the circuit court erred in accepting Aucoin's guilty pleas on the charges because the court lacked a factual basis for accepting the pleas. I disagree. Therefore, I dissent.
¶ 26. First, I should point out that Aucoin does not contend here, and did not contend in the circuit court, that he is not guilty of the charges. In Cause No. 04-232, he sought relief only from the sentencing order.[2] I set forth verbatim the gravamen of his petition:
The judgment for which the Petitioner seeks relief is the sentencing order entered on the 16th day of May, 2005, and filed on the 19th day of May, 2005 in the case styled, "In the Circuit Court of Lincoln County, Mississippi, State of Mississippi versus Corey Aucoin, Cause No. 04-232 MS." A copy of the sentencing order is attached hereto as Exhibit A. The grounds for relief to vacate the judgment are as follows:
That Petitioner's plea was involuntary as a matter of law. The judgment of conviction was entered without due process of law in violation of the Fourteenth and Fifth Amendments to [t]he United States Constitution and Article 3, Section 14 of [t]he Mississippi Constitution. There was no factual basis for the plea as mandated by Rule 8.04A.3. and Rule 8.04A.4.b. of the Uniform Rules of Circuit and County Court Practice. There was no determination that the conduct of the Petitioner constitutes the offense charged. The transcript of the plea and sentencing is attached as Exhibit B.
(Emphasis added).
¶ 27. In Cause No. 05-166, Aucoin also sought relief from the sentencing order only.[3] I set forth verbatim the gravamen of his petition:
The judgment for which the Petitioner seeks relief is the sentencing order entered on the 16th day of May, 2005, and filed on the 19th day of May, 2005 in the case styled, "In the Circuit Court of Lincoln County, Mississippi, State of Mississippi versus Corey Aucoin, Cause No. 05-166 LT-LS." A copy of the sentencing order is attached hereto as Exhibit A. The grounds for relief to vacate the judgment are as follows:
1. That Petitioner's plea was involuntary as a matter of law. The judgment of conviction was entered without due process of law in violation of the Fourteenth and Fifth Amendments to The United States Constitution *150 and Article 3, Section 14 of The Mississippi Constitution. There was no factual basis for the plea as mandated by Rule 8.04A.3. and Rule 8.04A.4.b. of the Uniform Rules of Circuit and County Court Practice. There was no determination that the conduct of the Petitioner constituted each of the offenses charged. The transcript of the plea and sentencing is attached as Exhibit B.
2. That the sentence imposed was an illegal sentence, indefinite, and cannot be corrected without passing a new sentence. Therefore, the judgment is void and Petitioner should be discharged on habeous [sic] corpus.
3. The sentence did not distinguish between the three counts for which Petitioner was charged and cannot be corrected without passing a new sentence.
4. That the sentence is illegal as it includes restitution that is in violation of Petitioner's rights under the due process clause of the Fourteenth Amendment and Fifth Amendment to The United States Constitution and Article 3, Section 14 of The Mississippi Constitution. Restitution is only allowed to the victim as defined in Section 99-37-1 Mississippi Code Annotated 1972 and, if required, under Section 99-37-3 Mississippi Code Annotated 1972. All restitution ordered in this case would amount to an excessive fine under Article 3, Section 28 of The Mississippi Constitution. That the restitution ordered is in violation of Article 14, Section 261 of The Mississippi Constitution.
(Emphasis added).
¶ 28. The Mississippi Supreme Court has stated that in deciding whether there is a sufficient factual basis for a plea, "[i]n the end there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged, `that the defendant's conduct was within the ambit of that defined as criminal.'" Corley v. State, 585 So.2d 765, 767 (Miss.1991) (quoting United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)).
¶ 29. In Boddie v. State, 875 So.2d 180, 181(¶ 1) (Miss.2004), our supreme court was faced with the same issue that we are faced with todaywhether there was a factual basis to support a defendant's guilty plea. Franklin Rashad Boddie was convicted of the transfer of cocaine, after he pleaded guilty to the crime. Id. In his petition for post-conviction relief, Boddie sought to vacate his conviction and sentence on the ground that there was no factual basis for his plea. Id. In finding that a factual basis existed, the Boddie court stated:
[T]his Court is not limited to the transcript of Boddie's guilty plea hearing, but we are allowed to review the record as a whole. While the transcript of the guilty plea hearing contains no specific reference to a factual basis for the charge of transfer of cocaine, Boddie made a statement,[4] which the trial court ruled to be admissible, in which he admitted to the crime alleged in the indictment. Boddie also acknowledged at his guilty plea hearing that he was satisfied that the State could prove, beyond a reasonable doubt, that he was guilty of *151 the crime of transfer of cocaine. Thus, based on the totality of the evidence, there existed a factual basis for Boddie's plea of guilty to transfer of cocaine.
Id. at 183(¶ 8) (internal citations omitted and footnote added).
¶ 30. During Aucoin's guilty plea hearing, the circuit court went over the elements of the crimes and also the maximum and minimum penalty for each crime. After doing so, the following exchange took place between the circuit court and Aucoin:
BY THE COURT: Are you pleading guilty because you are guilty and for no other reason?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Are you satisfied that the State can prove beyond a reasonable doubt that you are guilty?
BY MR. AUCOIN: Yes, Your Honor.
* * * * * *
BY THE COURT: To each of these charges, how do you plead?
BY MR. AUCOIN: Guilty, Your Honor.
¶ 31. In my opinion, a factual basis existed to support Aucoin's guilty pleas. Similar to the defendant in Boddie, Aucoin stated during his plea qualification hearing that he was satisfied that the State could prove him guilty of the crimes beyond a reasonable doubt. Additionally, Aucoin admitted during the hearing that he was guilty of the crimes that were alleged in the indictments. Further, the record reflects the following exchange between Aucoin and the circuit court:
BY THE COURT: Have the attorneys gone over the indictments with you and the elements of the crimes?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Do you understand the elements of the crimes?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Did the attorneys go over the discovery material, the police reports and whatnot provided from the district attorney's discovery file with you?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Have the attorneys answered all of your questions?
BY MR. AUCOIN: Yes, Your Honor.
BY THE COURT: Are you satisfied with your attorneys' representation?
BY MR. AUCOIN: Yes, Your Honor.
¶ 32. In my view, the pertinent facts here are very similar to the facts in Boddie. While it is true that the Boddie court, in reaching its determination that a factual basis existed, referred to an out-of-court statement that Boddie made to the police, a closer look at, and analysis of, that statement reveals little more than what we have here.
¶ 33. Boddie "was indicted for the crimes of transfer of cocaine and aggravated assault. Boddie filed a motion to quash the indictment, alleging that the grand jury did not have sufficient evidence to indict him." Boddie, 875 So.2d at 181(¶ 2). During the hearing on the motion to quash the indictment, the following occurred:
The State informed the court that in order to prove that Boddie transferred cocaine, the prosecution intended to introduce the alleged expert testimony of the drug addict to whom the cocaine was delivered. The trial court held that the "opinion of a drug user that the substance is cocaine is not sufficient." The trial court further stated that "[t]o allow prosecution for the transfer of cocaine indictment when the court has made this ruling, would be improper. The parties have stipulated as to what the proof would be and therefore, this court feels comfortable in granting what is in effect a directed verdict." The trial court also *152 ruled that the statement made by the defendant that he did in fact transfer the cocaine could be used against him to prove motive under the aggravated assault indictment.
Id. at 181-82(¶ 3).
¶ 34. The trial court entered an order embodying the contents of the quoted passage but did not quash the indictment. Id. However, after entry of the order, plea negotiations continued between the State and Boddie, and ultimately, Boddie entered a plea of guilty to the transfer charge. Id. at 182(¶ 4).
¶ 35. Sometime after the plea, Boddie obtained new counsel and filed a petition for post-conviction relief, wherein he alleged "that he should not have been allowed to plead guilty to the charge of transfer of cocaine because the trial court's ruling effectively dismissed the charge against him." Id. at (¶ 5). In denying the petition, the trial court held:
[I] basically was giving an opinion that with that evidence I didn't think the State would prevail, because if they didn't have the substance then the case law was against it, even armed with that ruling the defendant chose to plead guilty to the offense of transfer of cocaine. So, it would just be [an] injustice to allow that to happen. It would defy reason and logic, and the defendant was very well aware of the circumstances, as was his attorney and his [m]other who signed off on the Know Your Rights Form.
Id.
¶ 36. It is, therefore, clear that in Boddie, the issue of the existence vel non of a factual basis arose not in the context of whether the trial court adduced enough information at the plea qualification hearing to support the guilty plea, but in the context of whether there was any evidence to support the guilty plea because of the prior ruling of the trial courta ruling that, in the trial court's own words, was tantamount to the granting of a "directed verdict" in Aucoin's favor. Also, in that same ruling, as we have previously noted, the trial court had emphatically stated that to allow prosecution for the transfer of cocaine indictment when the court has made this ruling, would be improper.
¶ 37. Against the factual backdrop as detailed above, the Boddie court held that the trial court, which had granted what was tantamount to a directed verdict on the charge and had declared that it would be improper to allow prosecution to proceed on the State's evidence, still had a sufficient factual basis for accepting Boddie's guilty plea. As previously noted, in making that determination, the Boddie court relied in part upon a statement made outside of court by Boddie to police "in which he admitted to the crime alleged in the indictment." Id. at 183(¶ 8). The other plank undergirding the Boddie court's ruling with respect to the factual basis was Boddie's acknowledgment during the plea qualification hearing "that he was satisfied that the State could prove, beyond a reasonable doubt, that he was guilty of the crime of transfer of cocaine." Id.
¶ 38. As to the pertinent facts, our case is not only on all fours with Boddie, it is arguably stronger because of one point: here Aucoin acknowledged at the plea hearing that his attorneys had gone over with him all of the discovery materials tendered by the district attorney and that his attorneys had answered all of his questions. He further acknowledged that he was satisfied with his attorneys' performance. No such acknowledgments exist in Boddie. In fact, one of the allegations in Boddie was "that he should not have been allowed to plead guilty." Id. at 182(¶ 5). I fail to discern how the admission by Boddie to the police that he was guilty of the crime charged in the indictment carries or *153 should carry greater weight in the factual-basis analysis than Aucoin's admission in court that he was guilty of the crimes charged in the indictment. In fact, it seems to me that Aucoin's admission should carry greater weight because an admission before, and to, a judge is not likely to be influenced by any degree of intimidation that may occur when a defendant is being interrogated by an armed policeman investigating a crime. In any event, I am satisfied that Aucoin's acknowledgment at the plea hearing that he and his attorneys had gone over the discovery materials provided by the district attorney provides as much undergirding for the existence of a factual basis as did Boddie's statement to the police. As already noted, Aucoin does not allege here, and did not allege in the circuit court, that no factual basis exists for his guilty pleas. Rather, he simply alleges that one was not presented to the trial court, either by him or by the State at the plea hearing. However, in Boddie, Boddie alleged that no factual basis existed because the trial court had ruled that the evidence upon which the State was relying was insufficient as a matter of law.
¶ 39. I would find on the bases of Boddie, and on the additional facts that are attendant here, that a factual basis exists for Aucoin's guilty pleas. I would affirm the judgment of the circuit court denying post-conviction relief in Cause No. 04-232. However, I would affirm the conviction in Cause No.05-166 and remand for proper sentencing, as I find that the general sentence for three separate felonies is not permitted by our law.
LEE, AND MYERS, P.JJ., AND BARNES, J., JOIN THIS SEPARATE OPINION.
NOTES
[1] Cause No. 2007-CA-02004-COA is the appeal of the denial of post-conviction relief emanating from the conviction and sentence in Cause No. 04-232, and Cause No. 2007-CA-02295-COA is the appeal of the denial of post-conviction relief emanating from the convictions and sentence in Cause No. 05-166.
[2] He was sentenced to four years for his conviction in this cause number. The sentencing order recites that Aucoin pleaded guilty on a former day of the regular term of the court and addresses only Aucoin's sentence, not his conviction.
[3] In this cause, Aucoin was sentenced to thirty years with twenty-four years to be served on post-release supervision. He was also sentenced to pay a fine and ordered to make certain restitution. As is the case with the sentencing order in Cause No. 04-232, the sentencing order recites that Aucoin pleaded guilty on a former day of the regular term of the court and addresses only Aucoin's sentence, not his conviction.
[4] Prior to the guilty plea hearing, Boddie made a statement that he did in fact transfer the cocaine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/461147/ | 777 F.2d 701
Hamiltonv.McCotter
84-1319
United States Court of Appeals,Fifth Circuit.
11/15/85
N.D.Tex.,772 F.2d 171 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/8304528/ | PORTRUM, J.
The plaintiff sues the defendant to recover for the death of J. B. Jarnigan, an employee, for 'the benefit of his wife and child. Jarnigan, at the time of his injury, from which he died, was employed as a flagman and watchman and was stationed at Susong’s Bluff on the line of the Southern Railway to watch for slides and fallen rocks upon the track, and to take measures to stop approaching trains’in either direction. While engaged in this duty he was struck by a moving interstate train, Saturday night, June 10, 1928. This was a rainy night and the fog was so dense that one could see, with the aid of a light, only a distance of about ten feet. The track was constructed on the side of this overhanging bluff and on the banks of Nollichuckey River; the roadway was a comparatively new roadway, only having been constructed -for five or six years, and during rainy weather the overhanging rock would become dislodged and fall upon the track, and the bank would sometimes slide, so that it was necessary that the railway company maintain a watchman at this point after rains and so long as the danger of slides and falling rock continued. The deceased was a member of a section crew that had this portion of the road under its supervision and upkeep; as a section hand he worked on the section crew during the day of eight hours, and.when it rained he was assigned at night to flag this section of the roadway. He was required to work throughout the night if there was necessity for a watchman.
This new line of railroad ran from Bulls Gap, Tennessee to Lead-vale, Tennessee and was constructed to shorten the distance between these two points and avoid the necessity of running through Morris-town, which was at the apex of a triangle, the new line running upon the base. It was not used for passengers or local service, being only ten or fifteen miles long, but was used for the moving of interstate trains from the coal fields to the Carolinas and the south. One in*525terstate coal train passed over this track from Bulls Gap to Lead-vale on the night of the accident, passing the place of the accident at 10:35 p. m. The injured employee was not discovered upon the' right-of-way until 2:00 a. m. ,on Sunday morning. He was found to be alive some time after, his discovery and finally was removed to the hospital at Morristown, Tennessee, where he died on the same day. At the place of the accident the roadbed is upon a curve which would tend to deflect the headlights of an approaching engine away from the track and across the river; near this .place there is a shoal in the river which creates noise and tends to obscure noise made by an approaching train.
On this Saturday night three young men of the neighborhood had been out on a trip of pleasure; they were returning to their home along the track near two o’clock in the morning, when they came upon a hat in the middle of the track with two holes cut in it; one of the boys picked up the hat and examined it and threw it over on the bank. They paid little attention to the hat but when they had proceeded only a few feet they came upon a human foot severed from the body, between the rails of the track; a shoe was torn away from the foot and lay a short distance from it; the boys became agitated at this sight; one of them, who was carrying a flash-light, flashed his light to the side of the track and near-by saw the body of a man lying there. At this sight the three became greatly frightened and excited and broke into a run down the track, the one carrying' the flash-light outstripping his companions in the race. They rushed into- the first house and informed the owners of their grewsome find, and then they went to other places and informed others. They described the man as a large powerful man. Within an hour these men had gathered at the place of the accident and re-viewed the body, which they thought to be a dead body. ■ No one would touch it, nór attempt to arouse the man in order to see if in fact he were dead. The man was not a large man, as he had been described to be, but was a tall, ipuseular man. While these men stood there in the. early dawn looking at this injured man, with his head lying near the end of the ties and his body broken and bleeding, he opened his eyes and the spectators were aware that he was alive. They then became exceedingly active and inquired of him if he -wanted water; he attempted to talk, but could not make himself understood, and then indicated with his hands the places where he was injured by pointing towards his shoulder and his foot — -between his groans— and a pillow was procured and he was placed upon a lever car and removed to the hospital. His broken lantern was found a few feet from the place where he was found. A butcher knife was lying on the bank opposite him and a few cracker crumbs were on the ground a short distance from him, which he may have dropped when *526eating his midnight lunch. The tracks at this point were four feet from the hank of the high cliff of overhanging rock. On the opposite side of the bank was a dirt road and this road could have been used in safety for flagging trains had it not been for the dense fog which made it necessary for the flagman to cross the track and inspect it from that side; he had been instructed by his foreman to stay off of this four foot space between the bluff and the track in order to avoid dislodged overhanging rock. The foreman stated in case of a falling rock it would have been necessary for the employee to have crossed the track to inspect the place where the rock fell, though it is reasonable to infer that it was necessary to walk upon this side of the track and upon the track to see if there were any fallen rocks and at the same time avoid being hit by an overhanging rock. It is reasonable to say that at the time he was struck he was at a place where his duty called him to inspect the track, but this would not relieve him from his duty to look and listen for approaching trains. However, it was his duty to flag trains approaching from either direction and in the dense fog he may have been diligent in looking for a train approaching in one direction when he was hit by a train approaching from the other. The train crew did not see the flagman;’they learned of the accident after-they had travelled eighty-seven miles.
The circuit judge was of the opinion that the deceased’s employment pertained to and had connection with interstate commerce, and the accident was one under the Federal Employer’s. Liability Act; he was of the further opinion that the employee assumed the risk of his employment. So, at the conclusion of the evidence of the plaintiff, and upon a motion made by the defendant for a directed verdict he sustained it. The circuit judge was in error in this if the defendant was precluded from relying upon the defense of assumption of risk; and it was precluded from relying upon this defense if it had violated any act of Congress made for the safety of the employee and the public generally, in event the violation proximately contributed to the injury. The declaration does not charge in express words that any statute made for the protection of the employee, or the public, was violated; however, the facts stated in the second count of the declaration show a violation of the hours of Service Act of Congress. This is sufficient. (For instance, Moore & McSerren v. Fletcher, 145 Tenn., 97, 236 S. W., 942.) Therefore, in our consideration of the assignment that there is no evidence to support the verdict, and that the judge erred in sustaining the motion for a directed verdict, we are confronted with this question. This calls for a partial construction of the act and a review of the evidence in the record pertaining to its violation:
*527“An act to promote the safety of employees and travellers upon railroads by limiting the hours of service. of employees thereon.
(The first section of the act pertains to identification, and it is not necessary to define the jurisdiction.) • '
“Section 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act, to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen (16) consecutive hours, and whenever such employee of such common carrier shall have been continuously on duty for sixteen hours, -he shall be relieved and not required or permitted to again go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours, off duty;
“Section 3. (As amended May 4, 1916) (1) That any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be or remain on duty in violation of such section thereof shall be liable to a penalty of not less than one hundred nor more than five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by attorneys in the District Court of the United States that has jurisdiction in the locality where such violation shall have been committed. . . . ” (March 4, 1907, Chapter 2939, Section 1, 34 Statutes 1415.)
This statute is to be given a liberal construction.
“The hours of service act is a highly remedial statute, and although a penalty is provided for such violation, it should be liberally construed in order that its purpose may be effective, for the public as well as the employees themselves are vitally interested in its enforcement. 'Whereas the purpose of the statute is to prevent accidents to trains and consequent injuries to passengers and employees, it is the duty of the court to construe it liberally in order to accomplish the purpose of its enactment.
“ ‘The act is remedial and in the public interest, and should be construed in the light of a humane purpose.’ ” Roberts Federal Liability of Carriers (2 Ed.), volume 2, section 533, page 1070.
‘ ‘ The purpose of Congress in the enactment of the hours of service act was to prevent the dangers which must necessarily arise to employees and to the public from continuing men in a dangerous and hazardous business for a period as long as to render them unfit to give that service which is essential to the protection of themselves and those entrusted to their care; for it is common knowledge that the passage of this statute was induced by the many casualties in railroad transportation which resulted from requiring tired and exhausted employees to discharge the arduous duties of their employment. *528The statute recognizes that there is a limit to human endurance, that hours of rest and recreation are needed for the health and the efficiency of men engaged in railroading. 'In this legislation’ said Judge Cook 'Congress had in view the many serious railroad accidents caused by the unfitness for duty of men engaged in, or having to do with the movement of trains, who had endured a certain period of continuous, unbroken service, without intervals for rest. The remedy adopted was by limiting the maximum of the hours of service and the minimum for the intervals between. It was thought futile to attempt to control the employees in their use of their time off; therefore, it was deemed more tactful and efficient, if demand was made upon and confined to those who gave them employment in their regular occupation.’ ” Id. Section 600.
Was this law violated? The deceased was required to work on the section crew eight hours each day and to work as watchman and flagman throughout the night following his day’s work. The section crew ended its work for the day at four o’clock in the afternoon when the employee resumed work as flagman and watchman at seven o’clock in the evening. The men were .given an hour off for dinner at the noon hour, which was not included in their time, and as a result they were upon the work nine hours in place of eight. The widow testified that her husband was required to fill both of these positions. She stated she objected to .this, but was not permitted to say more. The deceased worked as watchman during wet weather, and had worked two nights and days in succession. The foreman of the section crew, who was introduced as a witness by the plaintiff, testified that the deceased had been engaged in this work for a period of a year; he had worked on Friday and did not work Friday night, he reported for work at seven o’clock Saturday morning, and was dismissed from the section crew at three o’clock, but was given time until four, or the whole of eight hours; the section foreman states that the deceased had done extra work entitling him to this extra hour. When he quit work as a section hand he was directed to go upon the road as watchman at seven o’clock and to watch until twelve, and if the weather conditions justified he was to remain throughout the night as watchman and he was to be the judge of whether conditions required his continuing service. He was paid full time for his labor as a section hand and time-and-a-half for over-time as his services as a night watchman and flagman. His hours of service appears upon the time-books and the pay-rolls of the company, and did for a period of at least one year before the night of the accident. He had put in service for twenty hours in a period of twenty-four on repeated occasions; on the night of the accident he was required to serve until twelve and from seven in the morning until twelve in the night made a *529period of seventeen hours, and lie was made to be the judge of whether it was his duty, because of weather conditions, to continue in the service until morning. lie was shown to have been injured at 10:35, twenty-five minutes before the expiration of sixteen hours, counted from seven o’clock in the morning. However, he remained at his station of duty until he was discovered at two o ’clock and until he was removed at about four o ’clock in the morning, but he was incapacitated from performing further duties after the accident.
These facts make pertinent several inquiries: (a) Was the employee engaged in the actual movement of an interstate train or connected with the actual movement so as to bring him within the definition of an employee as contemplated by the act? (b) Did the fact that the employee -was laid off between four o ’clock in the afternoon (or three o’clock) and seven o’clock in the evening, together with the noon hour, break the continuity of his service? (c) Did the fact that the employee was injured twenty-five minutes before the expiration of the sixteen hour period on that particular night .relieve the company from its violation of the act in requiring the employee to remain upon the work for seventeen hours and for a further period if the conditions of the weather required it?
(A) We think the deceased was actually engaged and connected with the actual movement of an- interstate train, and within the definition of an employee as contemplated in the act. The fact that he ivas not engaged in the actual movement of an interstate train, or connected therewith, and that.he was -working as a section hand would not affect his status if at the time of his injury he was then engaged in connection with the movements of an interstate train. The statute was enacted to better insure the safety of those operating, or connected with the operation, of interstate trains, against physical exhaustion of those employed in the operation of the trains. It makes no difference if the employee was exhausted in other work if thereafter he had undertaken the work in connection with the movement of trains. The danger then immediately arose. The object was to guard against the dangers, caused by the excessive employment of men, and the danger was there so long as an employee was required or permitted to engage in this service after the maximum of employment.
A watchman and flagman, stationed to guard against slides and falling rock on the track of a railroad used solely for the movement of interstate trains (as it is agreed in this case this traek was used) is connected with the movement of interstate trains. The employee was supplied with a lantern, flags, torpedoes, and flares, and it was his duty in case of slides or falling rocks to place these warnings at each end of the track to stop approaching trains from either direction. His duties were as responsible as a sentinel for the protec*530tion of tlie lives of the train crew, and the property of the railroad which was endangered in moving across this stretch of track. A sentinel is shot who sleeps at his post of duty. This watchman was directly connected with the movement of an interstate train; the safety of the crew of the train depended upon his diligence, and the purpose of the act was to better insure the safety of the members of the train crew. In the absence of a watchman, the train ran through this section of the track on slow orders, to better protect the train. The train on this night was running on regular schedule and the service of the watchman increased the speed "of the train, and his services proved as efficient as the coal or steam within the engine, or the engineer in making the time.
“When a train is side-tracked and the crew is laid off to rest because of the sixteen hour law, a fireman who thereafter remains on the engine for the purpose of keeping up the fire and steam and otherwise watching the engine is thereby actually engaged in or connected with the movement of the train within the meaning of the statute. Such work beyond the statutory period is, therefore, a violation of the act.” (Northern Pacific v. United States, 130 C. T. A., 157, 213 Federal 577), Id. Section 607.
The flagman is a quite different employee from one engaged in the unloading of standing cars from interstate trains. Sthweig v. Chicago, Milw. & St. Paul Railway Co., 216 Federal, 750.
(B) “For the purpose of determining when an employee has been at work sixteen hours, as well as to determine whether his services come under the “continuing” or “hazardous” classification, it becomes necessary to consider the effect of their interruption of the work. Short periods off duty will not ordinarily affect the continuity of the service within the meaning of the law. ‘The purpose of the statute is plain’ said the court in the case cited ‘and it must be so construed as to promote this policy. The hours of service of railway trainmen are long at best, leaving only eight hours for rest and recreation, and if this brief period can be broken into fragments the purpose and policy of the law will be entirely frustrated. If a train crew may be laid off for an hour and a half at one time to suit the convenience or necessity of the company, it may be laid off for a like period at another, and the members of the crew will be wholly deprived of any substantial time for either sleep or rest.’
“ ‘There were periods of relief, taken into consideration for the purpose of the law’ says Judge Heyland, in a majority opinion, ‘periods of rest or off duty which the law requires? If there were, then there was not in any case a longer period of service or on duty than sixteen consecutive hours; if, on the contrary, these periods were of such length that, although absolutely relieved from duty, the employee did not receive that rest which it was the policy of the *531law to secure, then tbe periods of relief did not prevent tbe hours of service from being- consecutive and tbe law was violated. . . . Had an employee been absolutely relieved from service is not of controlling importance if tbe time is so short or tbe opportunities for rest are so meager that for all practical purposes an employee does not have the opportunity for rest which tbe law requires. It was decided in Southern Pacific Company v. United States (Circuit Court Appeals, 9th Circuit), 222 Federal, 46, 137 C. P. A., 584, that where the breaks or intermissions in the hours of service are such as the law will recognize depends upon their character as periods of substantial rest, and that the question as to whether the periods of relief gave. opportunity for substantial periods of rest was for the jury, under the evidence in each case. ’" Roberts Federal Liability of Carriers, Sections 604, and 605.
We think the facts of this case make a question for the jury to determine if the continuity in service was broken.
(C) The deceased, under the express terms of his employment, was directed and required to labor throughout the night, if weather conditions justified it and, regardless of weather conditions, he was directed to stay upon the work until twelve o’clock, or a period of seventeen hours. The fact that he was required to* go upon the work and stay upon the work until twelve o’clock was a violation of this act. The act was violated by the railway company when its foreman, the man in charge of the employee, directed him to go upon the work and remain for this length of time. The violation takes place at the time of the order, and not at the expiration of the sixteen hours. When the company violaled this act, at that moment it forfeited its right to plead. the defenses recognized under the Federal Employer’s Liability Act, because this act specially denies the company this right in case it has violated the hours of service law. If this be true, and we think it is, then the company is not relieved of this violation and restored to its right by the fact that the deceased was injured twenty-five minutes under the expiration of the sixteen hour limit if the violation proximately contributed to the injury. The Act says: “To require or permit an employee subject to this act to be or remain on duty;” and the third section says any officer or agent of any common carrier “requiring or permitting any employee to go, be or remain on duty.”
It was a question for the jury to determine if the violation of this act proximate contributed to the injury. Had the employee been permitted to quit work at the expiration of the sixteen hour period, or at eleven o’clock, he may have been more active in the preservation of his own life and the property of the company and the lives of his fellow employees, twenty-five minutes prior to the employment limit. A man with twenty-five minutes to work at the middle *532of the night is inore alert and active than the man who has the night before him; at least some men with reasonable minds may conclude from common experience, or the facts of this case, that he would have been more active had his employment ended at eleven and not continued throughout the night. This made the question one for the jury.
If the hours of service act were violated, the railway company could not rely upon the contributory negligence of the deceased nor the assumption of the risk. Federal Employee’s Liability Act. April 22, 1908, Chapter 149, Sec. 1, C. Statutes 65.
The circuit judge committed error in not submitting this case to the jury; his judgment is reversed, and the. case is remanded for a new trial, at the cost of the defendant in error.
Snodgrass and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1736108/ | 727 N.W.2d 34 (2006)
BILDA
v.
MILWAUKEE COUNTY (BUTLER, J., DISSENTS)
No. 2005AP0052
Supreme Court of Wisconsin
December 5, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1543575/ | 105 F.2d 793 (1939)
EVANGELICAL LUTHERAN SYNOD OF MISSOURI, OHIO, AND OTHER STATES
v.
FEDERAL COMMUNICATIONS COMMISSION (PULITZER PUB. CO., Intervener). In re STATION KFUO.
No. 7224.
United States Court of Appeals for the District of Columbia.
Decided June 26, 1939.
*794 William Stanley and J. Edward Burroughs, both of Washington, D. C., for appellant.
William J. Dempsey, William H. Bauer, Fanney Neyman, William C. Koplovitz, and Andrew G. Haley, all of Washington, D. C., for appellee.
Seth W. Richardson and Donald R. Richberg, both of Washington, D. C., for intervener.
Before GRONER, Chief Justice and EDGERTON and VINSON, Associate Justices.
EDGERTON, Associate Justice.
This is an appeal from an order of the Federal Communications Commission denying appellant's application to increase the hours of operation, and also the power, of its radio station. The Commission is required to grant construction permits, station licenses, and renewals or modifications of station licenses, if it determines that public interest, convenience or necessity would be served thereby.[1]
Stations KFUO, operated by appellant, and KSD, operated by intervener the Pulitzer Publishing Company, are both in or near St. Louis. Each is licensed on a frequency of 550 kilocycles: consequently they cannot operate at the same time. KSD was first licensed in 1922, and is authorized to use power of 1 kilowatt night, 5 kilowatts day. KFUO was first licensed in 1925, and is authorized to use power of 500 watts night, 1 kilowatt day. Under an existing time-sharing agreement, KSD has about 80 per cent and KFUO about 20 per cent of the broadcast time. KSD applied to the Commission for unlimited hours, with the consequent deletion of KFUO. KFUO applied to increase its hours to one-half time, with the consequent partial deletion of KSD, and at the same time applied to increase its power to 1 kilowatt night, 5 kilowatts day. These applications, and applications of both stations for renewal licenses, were heard together. The Commission decided that public interest, convenience and necessity would not be served by granting either of the conflicting applications *795 for increased privileges, but would be served by renewals on the existing time-sharing basis. KSD accepted this decision as within the Commission's discretion. KFUO, the appellant, contends that the Commission should have increased its hours to half time and should, at all events, have granted its application for increased power.
The Commission's grounds for its decision include findings that "1. Each applicant is legally, technically, financially and otherwise qualified to operate as proposed or to continue the operation of its station as presently licensed. 2. The service that has been rendered by each of the applicants has been of an acceptable quality and has served the public interest. It is probable that each applicant will continue to render such service. 3. The equipment used or proposed to be used by each applicant complies with the Commission's Rules and Regulations. 4. The operation of Station KSD unlimited time, the operation of Station KFUO as proposed, or the continued operation of each station as now licensed, would not give rise to such interference with the operation of other stations as could be considered objectionable. 5. Sound reasons in the public interest must exist as a basis for the deletion of a station. This case presents no such reasons." "Deletion," as here used, we understand to refer both to the requested total deletion of KFUO and the requested partial deletion of KSD. The Commission found various underlying facts which tend to support the findings just recited. KFUO's programs are 74% religious, 18% entertainment, and 8% educational. They include some excellent music. KSD's programs are about 88% entertainment and 10% educational. KSD devotes considerable time to broadcasting news and public events. It is the only station in the St. Louis area which broadcasts either Associated Press news or the "Red network" programs of the National Broadcasting Company. KFUO has not been, or heretofore sought to be, self-supporting; it is supported by donations from members of the Lutheran Church. It does not now seek to make a profit, but if its application were granted it would pay its way with advertising contracts. Whether it is unable, or merely unwilling, to earn its way under its present time allotment, the findings do not tell us. If it went on a half-time basis its programs would be 33% religious; 35% educational, cultural, governmental, civic, and entertainment; and 32% commercial.
The statute authorizing appeal to this court provides "That the review by the court shall be limited to questions of law and that findings of fact by the Commission, if supported by substantial evidence, shall be conclusive unless it shall clearly appear that the findings of the Commission are arbitrary or capricious."[2] The court "is not concerned with the weight of evidence or with the wisdom or expediency of the administrative action." Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 277, 53 S. Ct. 627, 633, 77 L. Ed. 1166, 89 A.L.R. 406.
Appellant disputes none of the Commission's findings, except the ultimate findings concerning public interest, convenience, and necessity; but appellant urges that the facts found or proved required a finding in its favor on the ultimate question. We see no basis for this contention. The Commission's decision that the public interest will be served by maintaining the status quo, rather than by switching time from one station to the other, is supported by substantial evidence and is not arbitrary or capricious. The public interest does not necessarily demand that all stations become commercial, or that none be supported by religious bodies. We cannot substitute our judgment for the Commission's as to the relative public importance of the different types of programs offered by KSD and KFUO. Appellant tacitly assumes that the public interest requires, regardless of investments, commitments, and programs, an equal division of time between respectable stations which operate on one frequency in one locality. The assumption is arbitrary. The public interest requires, on the contrary, that existing arrangements be not disturbed without reason. "The cause of independent broadcasting in general would be seriously endangered and public interests correspondingly prejudiced, if the licenses of established stations should arbitrarily be withdrawn from them, and appropriated to the use of other stations."[3] There is no significant *796 difference in this respect between withdrawals of licenses and large withdrawals of broadcasting time. "The installation and maintenance of broadcasting stations involve a very considerable expense. Where a broadcasting station has been constructed and maintained in good faith, it is in the interests of the public and common justice to the owner of the station that its status should not be injuriously affected, except for compelling reasons."[4]
Appellant's requests for increased time and for increased power were made in one application, and the Commission was never clearly advised that appellant desired to have its application for increased power considered separately if its application for increased time was denied. What we have said is without prejudice to its right at any time, upon a proper showing, to apply for an increase of power.
Affirmed.
NOTES
[1] Communications Act, 47 U.S.C. §§ 309(a), 319(a), 47 U.S.C.A. §§ 309(a), 319(a).
[2] 47 U.S.C. § 402(e), 47 U.S.C.A. § 402 (e).
[3] Chicago Federation of Labor v. Federal Radio Commission, 59 App.D.C. 333, 334, 41 F.2d 422, 423.
[4] Journal Company v. Federal Radio Commission, 60 App.D.C. 92, 94, 48 F.2d 461, 463. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1495417/ | 467 Pa. 424 (1976)
358 A.2d 416
COMMONWEALTH of Pennsylvania
v.
Lawrence CULBERSON, Appellant (two cases).
Supreme Court of Pennsylvania.
Argued October 24, 1975.
Decided March 17, 1976.
Rehearing Denied June 24, 1976.
*425 *426 Pepper, Hamilton & Scheetz, William J. O'Brien, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
NIX, Justice.
Appellant, Lawrence Culberson, was tried before a jury and convicted of murder of the first degree, robbery and burglary for the shooting death of one John Morris in the victim's grocery store in the City of Philadelphia. Post-verdict motions were filed and denied. Following imposition of sentence of life imprisonment on the murder conviction, a direct appeal was taken to this Court pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970. P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202.[1]
Appellant first contends that his inculpatory statements to police were the product of an unnecessary delay between arrest and arraignment, and their subsequent admission into evidence violated the mandate of *427 Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Although this suppression hearing occurred a year and a half after our decision in Futch, supra, the issue was not raised either at the suppression hearing or the trial and therefore has not been properly preserved for our consideration.
"We will not pass on this contention, for the issue has not been properly preserved for appellate review. Appellant's suppression hearing took place one year after our decision in Commonwealth v. Futch, supra, but the claim of unnecessary delay was not raised until appellant filed his post-verdict motions. The court below was thus denied the opportunity to protect the trial proceedings from the alleged error. We have consistently held that failure to raise an issue below in a timely manner forecloses review at the appellate stage. Commonwealth v. Tucker, Pa., ___ A.2d ___ (1974); Commonwealth v. Segers, Pa., [460 Pa. 149,] 331 A.2d 462 (1974); Commonwealth v. Johnson, Pa., [457 Pa. 554,] 327 A.2d 632, 634-635 (1974); Commonwealth v. Blagman, Pa., 326 A.2d 296, 300 (1974) (concurring opinion of Roberts, J., speaking for a majority of the Court)."
Commonwealth v. Wright, 460 Pa. 246, 332 A.2d 809, 811 (1975).
Next, it is urged that the confession was involuntary and should have been suppressed. Specifically, appellant maintains that his use of marijuana prior to the time of his arrest and questioning negated his ability to voluntarily and intelligently waive his Miranda[2] rights before making an inculpatory statement. In an analogous situation, this Court has stated "intoxication is a factor to be considered, but it is not sufficient, in and of itself to render the confession involuntary." Commonwealth *428 v. Jones, 457 Pa. 423, 432-33, 322 A.2d 119, 125 (1974). The test is whether there was sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it. Commonwealth v. Smith, 447 Pa. 457, 460, 291 A.2d 103, 105 (1972). We believe this standard is equally applicable to those instances where an accused was allegedly under the influence of drugs or narcotics at the time of his interrogation by police officials. See United States ex rel. Sadler v. United States, 315 F. Supp. 1377, 1378-79 (E.D. Pa. 1970). See also Commonwealth v. Eden, 456 Pa. 1, 317 A.2d 255 (1974).
The burden to prove a valid waiver by a preponderance of the evidence is upon the Commonwealth. Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). A review of the record discloses that at the suppression hearing Detective Porter testified for the Commonwealth that when he arrested appellant and the other suspects, he smelled an odor which he believed to be marijuana but did not observe any of the individuals smoking marijuana. Porter further testified that he was acquainted with the effects of marijuana but appellant exhibited none of the usual symptoms. Rather, the detective stated that Culberson appeared normal, alert and responsive to questions. After both the oral and written statements, appellant informed Porter that the confession was freely given and he was not under the influence of drugs or alcohol. This evidence supports the factual findings of the suppression court and we therefore conclude that the confession was voluntarily given and admissible at trial.[3] See Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). Moreover, the question of voluntariness was again raised at trial and submitted to the jury for their consideration. As the *429 triers of fact they were free to accept or reject, in whole or in part, the testimony of any witness. Apparently, the jury chose to disbelieve appellant's testimony and on appeal, this Court will not disturb that determination. Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (Filed January 1976); Commonwealth v. Hampton, 462 Pa. 322, 325, 341 A.2d 101, 103 (1975).
Third, citing Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967), appellant claims error by the trial court in denying him an opportunity to cross-examine Detective Grace about the identity of an informant. We believe this reliance is misplaced. Carter, supra involved the question of the prosecution's duty to make available to the defense the names of all material eyewitnesses, including confidential informants. In that case, an informant had introduced an undercover agent to appellant and purchased drugs for the agent. In reversing the conviction, this Court held that since the informer was the only material eyewitness to the transaction besides the police and the accused, and the defense consisted solely of appellant's claim of mistaken identity, the privilege of anonymity must yield. Under those specific facts, the Court believed the disclosure of the informant's identity would be relevant and helpful to the defense and was essential to a fair determination of the cause. Carter, supra at 59, 233 A.2d 284. See generally, Commonwealth v. Garvin, 448 Pa. 258, 266-268, 293 A.2d 33, 37-38 (1972).
This case does not present the compelling situation that we were faced with in Carter, supra. First, it was never established that the informant was an eyewitness to the crime. Second, the only information supplied by this informant was that Clarence Owens, a co-defendant in this case, along with two other individuals, was involved in the murder. This informant did not in any way supply information to the police regarding appellant's participation.
*430 Accordingly, we conclude that the failure to identify the anonymous informant did not deprive appellant of a fair trial nor did it prevent him from preparing his defense.
Finally, it is asserted that the trial court erred in refusing appellant's requested points for charge. No objection was raised or exception taken before the jury retired to deliberate. Appellant is now precluded from raising this issue on appeal. Commonwealth v. McDonald, 459 Pa. 17, 326 A.2d 324 (1974); Commonwealth v. Waltington, 452 Pa. 524, 306 A.2d 892 (1973). See also Pennsylvania Rules of Criminal Procedure 1119(b).
Judgment of sentence affirmed.
EAGEN, J., concurs in result.
NOTES
[1] Appellant also received a concurrent five to ten year sentence on the robbery indictment and a suspended sentence on the burglary bill. These matters were appealed to the Superior Court and certified to this Court for consolidation and consideration with the appeal of the murder conviction.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] Appellant also suggests that his confession was involuntary because of physical coercion by police. Our review of the record convinces us that this argument is also without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574652/ | 17 So.3d 1241 (2009)
PARKER
v.
STATE.
No. 5D09-1116.
District Court of Appeal of Florida, Fifth District.
September 8, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/726682/ | 96 F.3d 687
29 Bankr.Ct.Dec. 1018, Bankr. L. Rep. P 77,134
In re TRANS WORLD AIRLINES, INCORPORATED, Debtor.Stanley BERGER, Beverly Berger, Appellants,v.TRANS WORLD AIRLINES, INCORPORATED,Thomas E. Ross, Trustee.In re TRANS WORLD AIRLINES, INCORPORATED, Debtor.LONDON INTERNATIONAL TRAVEL, LTD.; Latin American Travel,Inc., Appellants,v.TRANS WORLD AIRLINES, INCORPORATED,Thomas E. Ross, Trustee.
Nos. 95-7322 to 95-7324.
United States Court of Appeals,Third Circuit.
Argued Jan. 31, 1996.Decided Sept. 25, 1996.
Leonard Komen (argued) Selner, Glaser, Komen, Berger & Galganski, P.C., Clayton, MO, Eric A. Overby, Trans World Airlines, Incorporated, Saint Louis, MO, for Debtor Trans World Airlines, Incorporated.
Henry F. Luepke (argued), The Stolar Partnership, Saint Louis, MO, Anne E. Bookout, Lassen, Smith, Katzenstein & Furlow, Wilmington, DE, for Appellants Stanley Berger, Beverly Berger, London International Travel and Latin American Travel.
Before: GREENBERG, NYGAARD, Circuit Judges, and LAY, Senior Circuit Judge.*
OPINION OF THE COURT
NYGAARD, Circuit Judge.
1
London International Travel, Ltd., Latin American Travel, Inc., and Stanley and Beverly Berger, previously the sole owners of London and Latin, appeal several orders entered in the bankruptcy of the debtor, Trans World Airlines, Inc.
2
The bankruptcy court denied the following motions: 1) the motion to proceed; that is, to recognize their compulsory counterclaim as an informal proof of claim, or alternatively, for leave to file a proof of claim out of time, and for relief from the discharge injunction to prosecute their claims to judgment; and, 2) the motion to bar the claims of TWA against London/Latin and the Bergers. The district court affirmed. We will reverse in part, affirm in part and remand.
I.
3
On January 31, 1992, TWA filed a voluntary Chapter 11 petition. The bankruptcy court set May 15, 1992 as the claims bar date. The Bergers presented no claim by that date. On August 12, 1993, the bankruptcy court confirmed TWA's Second Amended Plan of Reorganization, effective November 3, 1993.
4
On April 7, 1993, TWA sued the Bergers, London and Latin in the United States District Court for the Eastern District of Missouri, asserting a federal RICO claim and several state law causes of action. The Bergers filed a compulsory counterclaim in response on April 22, alleging defamation. TWA filed its answer on May 12.
5
In March 1994, the district court dismissed TWA's RICO claim with prejudice and declined to exercise supplemental jurisdiction over the parties' state law claims. The parties then refiled their respective state law claims in Missouri state court.
6
The Bergers allege that TWA made defamatory statements about them between October 1990 and December 1992. For its part, TWA asserted claims of fraud, money had and received, and breach of contract. TWA filed a motion in state court to dismiss the Bergers' defamation claim, on the ground that the bankruptcy court had discharged TWA from all debts, except as otherwise provided in the Confirmation Order, that the Confirmation Order did not except the Bergers' claim from discharge, and that the Bergers were enjoined by 11 U.S.C. § 524(a)(2) from commencing or continuing their suit. Subsequently, the Bergers and London/Latin moved the bankruptcy court for leave to proceed to judgment on their claims and to bar TWA's. The bankruptcy court denied these motions, and the district court affirmed. In re Trans World Airlines, Inc., 182 B.R. 102 (D.Del.1995). This appeal followed. We have appellate jurisdiction under 28 U.S.C. § 158(d).
II.
7
The Bergers argue that the bankruptcy court should have granted their motion to proceed to judgment in state court because TWA failed to notify them of the confirmation hearing date. They assert that TWA had notice of their status as potential creditors in TWA's bankruptcy once the Bergers asserted their compulsory counterclaim two months before the June 1993 notice of the confirmation hearing. The Bergers argue that, because 11 U.S.C. § 1128 requires notice of the confirmation hearing to all parties in interest, and because they did not receive formal notice, enforcing the discharge as to their claims would violate the Fifth Amendment Due Process Clause.
A.
8
The Berger's state court complaint alleges four instances of defamation: October 22, 1990; January 30 and August 6, 1991; and sometime in December 1992. The complaint recites that the Bergers had entered into a profitable contract to sell their agencies to another concern, Meritek, but that Meritek, upon hearing the alleged defamation, refused to tender the remaining payments due under the contract and dismissed the Bergers from their employment. Meritek also filed suit against the Bergers for fraud, which the Bergers allege they settled on unfavorable terms.
9
Three of the above four instances of alleged defamation occurred before TWA filed its bankruptcy petition on January 31, 1992. As such, they are prepetition claims that were required, absent excusable neglect, to be asserted before the bar date of May 15, 1992. The Bergers failed to assert their claims by that date. They nevertheless argue that the bar date should not be enforced as to them because they received inadequate notice of the proceedings. We reject that argument.
10
The Bergers admit that TWA did not know of their defamation claim until they filed their compulsory counterclaim on April 22, 1993. This admission is fatal. When TWA gave notice of the claims bar date, the Bergers were unknown creditors entitled solely to publication notice. Chemetron Corp. v. Jones, 72 F.3d 341, 348 (3d Cir.1995) ("It is well established that, in providing notice to unknown creditors, constructive notice of the bar claims date by publication satisfies the requirements of due process."); see New York v. New York, New Haven & Hartford R.R. Co., 344 U.S. 293, 297, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). TWA duly published the requisite notices; hence, the Bergers constructively received the notice to which they were constitutionally entitled. We therefore conclude that TWA's discharge in bankruptcy eradicated the Bergers' claims for any prepetition defamation.
11
We acknowledge that the bankruptcy court could allow unknown creditors to assert claims after the bar date upon a showing of excusable neglect. Such creditors would be thereafter entitled to the formal notice accorded other creditors who filed timely claims. The Bergers, however, neither claimed nor demonstrated excusable neglect. Accordingly, the bankruptcy court could not allow their participation in the bankruptcy even after they made known their prepetition claims against TWA. See In re Vertientes, Ltd., 845 F.2d 57, 60 (3d Cir.1982); accord Chemetron, 72 F.3d at 349 ("[B]ecause claimants are unknown creditors and Chemetron's publication notice was sufficient, claimants must show that their failure to file in a timely manner was due to 'excusable neglect;' otherwise, their claims arising pre-petition will be barred."); In re Best Products Co., 140 B.R. 353, 359 (Bankr.S.D.N.Y.1992). The bar date means just that; it is a "drop-dead date" that bars all prepetition claimants who received the required notice. Because the Bergers failed to assert their prepetition claims by the bar date and failed to show excusable neglect, those claims are legally dead.1
12
The Bergers also argue that, inasmuch as TWA knew about their compulsory counterclaim, the bankruptcy court should have treated the compulsory counterclaim as an informal proof of claim in the TWA bankruptcy proceeding. This argument also fails, at a minimum, because the Bergers never asserted their claims before the bar date, and the bankruptcy court could not allow them to file a belated proof of claim absent a showing of excusable neglect.
B.
13
This does not end our inquiry, however. The Bergers also allege that TWA defamed them in or about December 1992, some eleven months after the bankruptcy petition was filed and seven months after the bar date. TWA was on notice of this claim as of April 22, 1993, when the Bergers filed their compulsory counterclaim, yet failed to give the Bergers formal notice of the confirmation hearing scheduled for June of that year.
14
It is well-settled that a known creditor is entitled to formal notice of impending bankruptcy proceedings. Chemetron, 72 F.3d at 346. This is true even where, as here, the creditor has actual knowledge of the pendency of bankruptcy proceedings generally, but is not given formal notice of the confirmation hearing. In re Harbor Tank Storage Co., 385 F.2d 111, 114-15 (3d Cir.1967). A creditor will be deemed to be "known" to the debtor if the debtor has either actual knowledge of its existence or if its identity "can be identified through reasonably diligent efforts." Chemetron, 72 F.3d at 346 (internal quotation marks omitted).
15
In Chemetron, we stated that, while "a vast, open investigation[ ]" is not required, the debtor must undertake a careful examination and diligent search of its own books and records. Id. at 346-47. Here, although the Bergers filed their defamation action as a counterclaim to TWA's fraud suit rather than proceeding in the bankruptcy court, we are convinced that a diligent search of TWA's records by its bankruptcy counsel would, or at least should, have revealed the Berger claims. Hence, the Bergers were known creditors with respect to the postpetition defamation they alleged.
16
That conclusion mandates that we reverse the district court's decision to deny the Bergers' motion to proceed. Because they were not given actual notice of the confirmation hearing, their postpetition defamation claims could not have been discharged in bankruptcy. See Dalton Development Project v. Unsecured Creditors Committee (In re Unioil), 948 F.2d 678, 682-84 (10th Cir.1991); In re Pettibone Corp., 151 B.R. 166, 170-73 (Bankr.N.D.Ill.1993). We emphasize, however, that on remand, the Bergers must prove that a defamatory statement was published in or around December 1992, and that they proximately suffered injury as a result. If the evidence at trial reveals only prepetition tortious conduct, then the Bergers' claims are discharged.
III.
17
Each appellant further argues that TWA's state court claims against the Bergers, London and Latin were not properly included among TWA's assets in bankruptcy so that action on those claims would be barred by res judicata and estoppel. The Bergers, London and Latin separately allege that TWA failed to include its claims against them among its schedules of assets filed with the bankruptcy court. They contend that TWA's failure to disclose those claims bars it from asserting them in the present action. The bankruptcy court found that the claims were properly included. The bankruptcy court specifically found that "(i) the debtor did properly include its said claims among the assets in its schedules although not identifying the movants by name, and (ii) the Order confirming the plan does provide for the debtor to retain the right to collect its assets, which would thus include its claims against movants." These findings are not clearly erroneous; hence we must reject appellants' argument.
IV.
18
The district and bankruptcy courts also erred in another aspect. Without comment or explanation, the bankruptcy court denied the Bergers' motion to set off under 11 U.S.C. § 553. The district court affirmed the bankruptcy court's denial of setoff. In affirming, the district court noted that the confirmation order discharged TWA from all claims arising before the confirmation date. It then observed that 11 U.S.C. § 524(a) might bar a setoff. The district court, however, did not decide whether setoff was available against a discharged debtor. Instead, assuming arguendo that there could be setoff, the district court considered whether the mutuality requirement of § 553 had been satisfied. Ruling on the mutuality of the claims, the district court stated:
19
In their state court petition, the Bergers allege that TWA published "false, defamatory, libelous and slanderous statements, to-wit: that the Bergers dishonestly and fraudulently misappropriated moneys from TWA by shifting market share on non-TWA airlines from London to Latin." This allegation of dishonest and fraudulent misappropriation forms the basis for TWA's count I. If TWA should prevail on count I, the Bergers' defamation claim will be extinguished. The claims, therefore, are not mutual, and any recovery the Bergers might theoretically win for their claim would not be properly characterized a set off.
20
TWA, 182 B.R. at 109 (citation omitted).
21
It is true that if TWA prevails on its fraud count, the Bergers cannot prevail on their defamation claim and there will thus be no defamation recovery to set off. If the Bergers prevail on the defamation claim, TWA will be unable to successfully demonstrate fraud. Were these the only two claims at issue, the lack of mutuality would be apparent. For mutuality to exist, both claims must not be mutually exclusive, so that the creditor's setoff claim can be subtracted from the bankruptcy debtor's claim.
22
The district court failed to address the possibility that TWA might not prevail on Count I (fraud), but might still prevail on Count II (money had and received) or Count III (breach of contract). In such a circumstance, it would be theoretically possible for the Bergers to prevail on their defamation claim. The Bergers might be found to have been defamed without committing fraud, but might still be found liable on the other legal theories alleged by TWA in Counts II and III. The district court must consider whether the Bergers' defamation claim could be deemed mutual with TWA's Count II claim or Count III claim. We will remand to give the district court the opportunity to decide the issue in the first instance.
V.
23
For these reasons, and to the extent we have described, we will reverse in part, affirm in part and remand the cause for further proceedings.
*
The Honorable Donald P. Lay, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation
1
Reliable Elec. Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir.1984), on which the Bergers principally rely, is not contrary to our result. In that case, the court held that a claim of a creditor, which was not given notice of a confirmation hearing, was not subject to a reorganization plan in a situation in which the debtor was put on notice of the claim during the bankruptcy proceedings in time for notice of the confirmation hearing to be given to the creditor. Reliable is distinguishable because the court did not consider the possibility that the creditor's claim could have been precluded as not having been presented by a claims bar date | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1005204/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TRADESOURCE, INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
PLUMBERS AND GASFITTERS, LOCAL
12, of the United Association of
Journeymen and Apprentices of the No. 00-1440
Plumbing and Pipe Fitting Industry
of the United States and Canada,
AFL-CIO,
Intervenor.
BUILDING AND CONSTRUCTION TRADES
DEPARTMENT,
Amicus Curiae.
2 TRADESOURCE, INC. v. NLRB
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
TRADESOURCE, INCORPORATED,
Respondent,
PLUMBERS AND GASFITTERS, LOCAL
12, of the United Association of
Journeymen and Apprentices of the No. 00-1555
Plumbing and Pipe Fitting Industry
of the United States and Canada,
AFL-CIO,
Intervenor.
BUILDING AND CONSTRUCTION TRADES
DEPARTMENT,
Amicus Curiae.
On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board.
(1-CA-37771)
Argued: April 3, 2001
Decided: August 28, 2001
Before TRAXLER and GREGORY, Circuit Judges, and
Lacy H. THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
TRADESOURCE, INC. v. NLRB 3
COUNSEL
ARGUED: Jonathan J. Spitz, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Atlanta, Georgia, for TradeSource. Julie Brock Broido,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. Dinah Susan Leventhal, O’DONOGHUE & O’DONOGHUE,
Washington, D.C., for Intervenor. ON BRIEF: Dion Y. Kohler,
JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Atlanta, Geor-
gia, for TradeSource. Leonard R. Page, General Counsel, Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board. Sally M. Tedrow, O’DONOGHUE &
O’DONOGHUE, Washington, D.C.; Robert M. Cheverie, Thomas
Brockett, ROBERT M. CHEVERIE & ASSOCIATES, P.C., East
Hartford, Connecticut, for Intervenor. Nora H. Leyland, Jonathan D.
Newman, SHERMAN, DUNN, COHEN, LEIFER & YELLIG, P.C.,
Washington, D.C., for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
TradeSource, Inc. petitions this court for review of the March 31,
2000 Decision and Order of the National Labor Relations Board (the
"Board") determining that TradeSource violated § 8(a)(1) and
§ 8(a)(5) of the National Labor Relations Act, see 29 U.S.C.A.
§§ 158(a)(1), (a)(5) (West 1998) (the "Act"), by refusing to recognize
and bargain with the Plumbers and Gasfitters Local 12 (the "Union")
after the Board rejected TradeSource’s challenge to ballots cast by
several voluntary union organizers and certified the Union as the
exclusive bargaining representative. The Board cross-petitions for
enforcement of its Decision and Order. For the reasons stated below,
we deny TradeSource’s petition for review and grant the Board’s
cross-petition for enforcement.
4 TRADESOURCE, INC. v. NLRB
I.
TradeSource is engaged in the business of providing temporary
workers to general contractors and subcontractors in the construction
industry. In March 1998, the Union filed a petition with the Board,
seeking to represent a bargaining unit of "all full-time and regular
part-time plumbers" employed by TradeSource in a specified area sur-
rounding Boston, Massachusetts.
Because the bargaining unit dealt with construction employees who
were subject to sporadic employment, the parties stipulated prior to
the election that the Steiny/Daniel criteria would be used to determine
the eligibility of voters. See Steiny & Co., 308 NLRB 1323, 1324-26
(1992); Daniel Construction Co., 133 NLRB 264, 266-67 (1961), as
modified, 167 NLRB 1078, 1079 (1967). Under this criteria, employ-
ees who were (1) employed by TradeSource for 30 working days or
more within the 12 months preceding the eligibility date for the elec-
tion or (2) had some employment with TradeSource during the 12-
month period, and had been employed for 45 working days or more
within the 24-month period preceding the eligibility date, were eligi-
ble to vote.
In June 1998, the Board conducted the representative election. Of
the twelve eligible ballots cast, three were cast for the Union, four
were cast against the Union, and five were challenged by Trade-
Source on the ground that they were cast by voluntary union organiz-
ers who had sought and obtained employment with TradeSource for
the sole purpose of gaining voter eligibility and organizing the com-
pany for the Union. Consequently, TradeSource asserted, they were
temporary employees who did not share a "community of interest"
with the other unit members, and were ineligible to vote. The chal-
lenged ballots were cast by Union members John Broderick, Joseph
Kierce, John Caissie, John McKenzie, and George Rourke. A hearing
on the challenges was held in August 1998, at which time the parties
stipulated that the ballot cast by Broderick was ineligible under the
Steiny/Daniel criteria.
According to the evidence presented, Union members who had
agreed to act as voluntary union organizers submitted a group applica-
tion for employment with TradeSource in the fall of 1996. They
TRADESOURCE, INC. v. NLRB 5
included Kierce, McKenzie, and Rourke. As part of its union-
organizing efforts, the Union trains its members in the COMET (Con-
struction Organizing Membership Education and Training) program
in which members and others receive training in organizing tech-
niques. Kierce had attended a COMET training program some years
before applying to TradeSource, whereas McKenzie and Rourke
attended a COMET training program after they applied to Trade-
Source. Caissie, who did not become a union employee until after he
was employed by TradeSource, denied having attended such a pro-
gram, but also agreed to act as a voluntary union organizer and
received instructions on how to assist the organizing efforts.
McKenzie was unemployed when he applied for work at Trade-
Source. He was hired in January 1998, and worked intermittently until
early May 1998 when he was laid off. Rourke was also unemployed
when he applied for work at TradeSource, but was not hired until
March 1998. He worked until April 1998, when he went on a prear-
ranged vacation, and was not successfully placed by TradeSource
after his return. Caissie accepted employment with TradeSource in
March 1998, but was laid off in April 1998. After being laid off, each
of the men obtained jobs with union signatory companies and never
returned to work with TradeSource.
There appears to be no dispute that McKenzie, Rourke, and Caissie
were voluntary union organizers; indeed, the Union notified Trade-
Source in March 1998 that the three men were acting as voluntary
union organizers. Generally, union members are not permitted to
work for contractors who do not have a collective bargaining relation-
ship with the Union, but the Union may give its members permission
to do so. In exchange for their agreeing to act as voluntary union
organizers, these men were given permission by the Union to work
for the non-unionized TradeSource. They were not, however, given
direct monetary compensation or other employee-type benefits by the
Union for their organizing efforts, nor did they hold any elected or
appointed position with the Union.1 Upon being hired, none of the
men were given a specified date of termination, nor did they discuss
1
McKenzie served on the Union’s election committee in either 1996 or
1997, for which he received compensation, but was not a paid union
organizer at the time of his hire by TradeSource.
6 TRADESOURCE, INC. v. NLRB
any specific date on which they intended to leave employment. Had
they voluntarily quit their employment with TradeSource, or been
fired for cause prior to completion of their last job, however, they
would not have remained qualified to vote under the Steiny/Daniel
criteria. See Steiny, 308 NLRB at 1326.
At the conclusion of the hearing on the ballot challenges, the hear-
ing officer recommended that the four votes be counted. The Board
agreed, rendering the election 7-4 in favor of unionization. On
November 17, 1999, the Board certified the Union as the exclusive-
collective bargaining representative of all full-time and part-time
plumbers employed by TradeSource in the selected cities and towns
in Massachusetts. TradeSource, however, refused to recognize and
bargain with the Union or furnish information requested by the Union
in its role as bargaining representative, prompting the instant charge
by the Board’s General Counsel alleging violations of §§ 8(a)(5) and
(1) of the Act.2 In response, TradeSource has admitted its refusal to
bargain and to furnish information, but contests the validity of the cer-
tification based upon the ballots of Caissie, McKenzie, and Rourke.3
The NLRB delegated its authority to a panel of the Board, which
granted the General Counsel’s motion for summary judgment by
Decision and Order dated March 31, 2000. TradeSource was ordered,
inter alia, to bargain on request with the Union and to furnish the
Union with the requested information. This appeal followed.
II.
When presented with a representation petition, the Board is
charged with the responsibility, and has broad discretion, to define the
appropriate bargaining unit. See NLRB v. Action Auto. Inc., 469 U.S.
490, 494 (1985); Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531,
534 (4th Cir. 1999). In exercising this authority, the Board has histori-
cally focused on whether the employees sought to be included in a
single bargaining unit share a sufficient "community of interest" to be
2
Because an employer cannot obtain direct review of the Board’s certi-
fication, a refusal to bargain is the "proper path to judicial review of the
Board’s election decision." Rosslyn Concrete Constr. Co. v. NLRB, 713
F.2d 61, 63 n.1 (4th Cir. 1983).
3
TradeSource abandoned the challenge to Kierce’s ballot.
TRADESOURCE, INC. v. NLRB 7
included together. See Sandvik, 194 F.3d at 535. Among other things,
the Board examines whether the employees have similar "employ-
ment benefits, hours of work, and other terms and conditions of employ-
ment."4 Sandvik, 194 F.3d at 535 (internal quotation marks omitted);
Rosslyn, 713 F.3d at 63 (noting that employees share a community of
interest with other eligible employees if "they work side-by-side with
other employees, receive commensurate wages, and share identical
working conditions").
It is widely recognized, however, that "workers who have no rea-
sonable expectation of working in the same workplace in the future
cannot share a community of interest." NLRB v. Trump Taj Mahal
Assocs., 2 F.3d 35, 38 (3rd Cir. 1993). "The Board’s responsibility is
to identify a group of positions such that those serving in the unit can
reasonably be expected to share a community of interest over time."
Id. Thus, for example, casual or temporary employees of an employer
who do not share the requisite community of interest with full-time
or regular part-time employees are ineligible to vote in a representa-
tion election. See Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570,
581 (1st Cir. 1983) (upholding Board’s exclusion of two full-time col-
lege students who worked on a regular part-time basis during the
summer, but had the intention of returning to school in the fall).
4
Specifically, the Board examines twelve equally important factors to
determine whether the employees share a sufficient "community of inter-
est":
(l) similarity in the scale and manner of determining the earn-
ings; (2) similarity in employment benefits, hours of work, and
other terms and conditions of employment; (3) similarity in the
kind of work performed; (4) similarity in the qualifications, skills
and training of the employees; (5) frequency of contact or inter-
change among the employees; (6) geographic proximity; (7) con-
tinuity or integration of production processes; (8) common
supervision and determination of labor-relations policy; (9) rela-
tionship to the administrative organization of the employer; (10)
history of collective bargaining; (11) desires of the affected
employees; (12) extent of union organization.
Sandvik, 194 F.3d at 535 (internal quotation marks omitted).
8 TRADESOURCE, INC. v. NLRB
A.
Although temporary employees and former employees who are not
employed as of the eligibility date are not generally eligible to vote
in a union election, special considerations in determining an appropri-
ate bargaining unit arise in the context of the construction industry.
Construction industry employment is by nature sporadic and tempo-
rary, such that many construction employees work for a number of
different employers in any given year, with their employment ending
with a lay-off or project completion. Thus, the Board adopted the
Steiny/Daniel eligibility formula to ensure that a bargaining unit fairly
represents all employees who have a legitimate "continuing interest
in working conditions which would warrant their participation in an
election to determine a representative for collective bargaining con-
cerning the tenure and conditions of their employment." Daniel, 133
NLRB at 266. The formula enfranchises "all employees in the unit
who have been employed for a total of 30 days or more within the
period of 12 months, or who have had some employment in that
period and who have been employed 45 or more days within the
period of 24 months, immediately preceding the eligibility date for
the election," id. at 267, provided they "have not been terminated for
cause or quit voluntarily prior to the completion of the last job for
which they were employed," Daniel, 167 NLRB at 1081.
Generally speaking, the Steiny/Daniel "formula serves as an easily
ascertainable, short-hand, and predictable method of enabling the
Board expeditiously to determine eligibility by adopting a period of
time which will likely insure eligibility to the greatest possible num-
ber of employees having a direct and substantial interest in the choice
of representatives." Steiny, 308 NLRB at 1325-26 (internal quotation
marks omitted). Thus, for example, application of the formula will
result in the inclusion of those employees who have been laid off in
a reduction of force at the completion of a job but who nonetheless
expect to return to employment when work again becomes available.
By its express purposes, the formula "simply enfranchises employees
who, although working on an intermittent basis, have sufficient inter-
est in the employers’ terms and conditions of employment to warrant
being eligible to vote and included in the unit." Id. at 1328; see NLRB
v. Hondo Drilling Co., 428 F.2d 943, 945-46 (5th Cir. 1970) (reject-
ing challenge to similar eligibility formula calculated to enfranchise
TRADESOURCE, INC. v. NLRB 9
former "roughneck" employees in oil drilling industry who, although
not currently employed by the employer, had a legitimate continuing
interest in the terms and conditions of employment in the bargaining
unit).
B.
Special considerations have also been recognized in the context of
determining the eligibility of individual voters within a bargaining
unit who have sought and obtained employment in their capacity as
union organizers. The Board still applies the "community of interest"
test, but takes into consideration an employee’s underlying motives to
ensure that the employee is not, in reality, one who has sought and
obtained employment on a temporary basis only to achieve the goal
of unionizing the workplace. See Dee Knitting Mills, Inc., 214 NLRB
1041, 1041 (1974) (noting that while "an employee does not lose his
status because he is also paid to organize," he may lose his eligibility
to vote if "the employment itself was solely to organize, so that the
employment is really only temporary, whether the employer knows it
or not"). The exclusion rests upon the logical premise that such a
"‘temporary’ employee [should] not [be] permitted to vote in a Board-
conducted election because he or she does not have any longtime
community of interest with the regular employees." Anthony Forest
Prods. Co., 231 NLRB 976, 977 (1977); see also Multimatic Prods.
Inc., 288 NLRB 1279, 1316 (1988).
Under current Board precedent, paid union organizers have been
excluded from voting "either as ‘temporary employees, or because
their interests sufficiently differ from those of their coworkers." Sun-
land Constr. Co., 309 NLRB 1224, 1229 (1992) (footnote omitted).
If the evidence indicates that the "employment is solely for the pur-
pose of union organizing," the employment is in reality "temporary in
nature, [and] the individual so employed should not be included in the
bargaining unit even though he or she otherwise enjoys the protection
afforded employees by the Act." 299 Lincoln Street, Inc., 292 NLRB
172, 180 (1988) (excluding an employee from the bargaining unit,
and refusing to count his authorization card toward the union’s major-
ity status, because the employment was found to be temporary; the
employee’s "only reason for securing employment . . . was to orga-
nize for the Union from within the work force" and the employment
10 TRADESOURCE, INC. v. NLRB
was "designed to end on the completion of [the] union assignment.");
cf. NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 97 (1995) (not-
ing that, while paid union organizers are employees protected by the
Act, the Board has held that they "may not share a sufficient ‘commu-
nity of interest’ with other employees (as to wages, hours, and work-
ing conditions) to warrant inclusion in the same bargaining unit").
III.
With these precedents in mind, we turn to TradeSource’s chal-
lenges to the ballots cast by Cassie, McKenzie, and Rourke. Trade-
Source does not contest the general scope of the bargaining unit or
that the Union employees met the Steiny/Daniel eligibility criteria
adopted to define that unit. Nor does TradeSource dispute that the
Union employees "work[ed] side-by-side with other employees, rec-
eive[d] commensurate wages, and share[d] identical working condi-
tions." Rosslyn, 713 F.2d at 63. Rather, TradeSource asserts that the
ballots cast by Cassie, McKenzie, and Rourke should be disqualified
because the men sought employment with TradeSource for the sole
purpose of unionizing the plumbers. As such, TradeSource contends,
the men should be regarded as temporary employees who lack the
requisite community of interest with TradeSource’s other employees
which would entitle them to cast a vote on the issue of unionization.
See Sunland, 309 NLRB at 1229; Lincoln, 292 NLRB at 180.
The hearing officer rejected TradeSource’s challenges to the bal-
lots, finding that the men were not temporary employees and did not
lack a community of interest with the other unit employees so as to
render them ineligible to vote in the election. First, the hearing officer
concluded that the employees met the Steiny/Daniel criteria and
should not otherwise be considered temporary because they were
never told that their employment would terminate on any particular
date or upon completion of a finite work project. Second, the hearing
officer opined that the temporary employment standard of Lin-
coln/Sunland only applied to paid union organizers, not voluntary
union organizers. And, finally, the hearing officer found that these
employees were out of work when they applied to TradeSource for
employment and concluded that, because there was insufficient evi-
dence that they sought employment with TradeSource solely to orga-
TRADESOURCE, INC. v. NLRB 11
nize the employer, they should not be considered temporary
employees under the Lincoln/Sunland line of cases.
Although offering no specific indication as to how it would apply
its precedents in this area, the Board adopted the findings and recom-
mendations of the hearing officer, noting that it found no merit to the
contention that Cassie, McKenzie, and Rourke were ineligible to vote
because they served as unpaid union organizers:
The parties stipulated that these employees met the eligibil-
ity standard set forth in [Steiny/Daniel]. In addition, as
found by the hearing officer, the record does not establish
that these employees either were terminated for cause or had
quit voluntarily prior to the completion of the last job for
which they were employed. Thus, the Employer has not met
its burden of showing that these were temporary employees
ineligible to vote in the election.
J.A. 79. n.2 (citations omitted).
The Board is vested with wide discretion to resolve ballot chal-
lenges in a representation election. See Friendly, 705 F.2d at 580 (cit-
ing NLRB v. A.J. Tower Co., 329 U.S. 324 (1946)). Thus, our review
is restricted to an analysis of whether the Board has abused this dis-
cretion in rejecting the ballot challenges and certifying the election.
Id.; see also NLRB v. Boston Beef Co., 652 F.2d 223, 226 (1st Cir.
1981). In doing so, we must uphold findings and conclusions of the
Board if they "are based on substantial evidence and the Board’s con-
sistent precedents." Rosslyn, 713 F.2d at 64; see also Elizabethtown
Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000); NLRB v. Coca-
Cola Bottling Co., 132 F.3d 1001, 1004 (4th Cir. 1997). In other
words, our review is restricted to a determination of whether the
Board abused its discretion or otherwise acted in derogation of its
applicable precedents in concluding that these voluntary union orga-
nizers nevertheless shared a sufficient community of interest with the
other plumbers in the bargaining unit so as to be properly included as
eligible voters in the union election.
A.
We consider first the Board’s assertion that the "community of
interest" test as applied to union organizers in Lincoln and Sunland
12 TRADESOURCE, INC. v. NLRB
does not apply to construction industry employees who are found eli-
gible to vote under the Steiny/Daniel criteria, as well as the related
assertion that TradeSource should be prohibited from arguing that the
men were ineligible to vote under the Lincoln/Sunland inquiry
because it earlier stipulated to the application of the Steiny/Daniel
criteria for voter eligibility and that the three challenged voters met
the criteria.
In Steiny/Daniel, the Board set forth an eligibility formula designed
to enfranchise former employees who have a reasonable expectation
of future employment with the employer, and therefore a community
of interest with the regular employees, but who happen not to be
employed on the eligibility date because of the temporary nature of
construction work. See Daniel, 133 NLRB at 266-67; Steiny, 308
NLRB at 1324-1326. The formula was obviously not intended to
automatically enfranchise an employee who does not in actuality
share a community of interest with other employees simply because
he meets the minimum eligibility requirements. Indeed, a contrary
conclusion would allow a union to pack an employer with employees
whose "only reason for securing employment [is] to organize for the
Union from within the work force," the precise result sought to be
prevented by the Board’s recognition that employees with such a
motive should be disqualified from voting because they in fact lack
the requisite community of interest with the other employees. Lincoln,
292 NLRB at 180. Unions would be able to send members to work
for a non-unionized construction employer, even pulling them off
union jobs with the express direction that they work for the non-union
employer a minimum of 30 days and up to the expected lay-off, for
the sole purpose of gaining eligibility to vote under Steiny/Daniel and,
thereby, potentially force the employer’s regular employees to accept
the Union as their representative. Having reviewed the applicable
Board precedents, we are satisfied that Steiny/Daniel and Lin-
coln/Sunland speak to quite different concerns and that the proffered
application of them is not a reasonable one. Accordingly, we decline
to enforce the Board’s order on the overly-simplistic basis that con-
struction employees who are qualified to vote in a union election
because they meet the Steiny/Daniel formula for eligibility cannot be
otherwise viewed as temporary employees who lack the requisite
community of interest with the regular employees under the Lin-
coln/Sunland inquiry.
TRADESOURCE, INC. v. NLRB 13
B.
We likewise decline to enforce the Board’s decision on the prof-
fered basis that the Lincoln/Sunland line of cases is only applicable
to union organizers who have sought employment for the sole purpose
of unionizing the workplace and who have received pay from a union
for their organizing efforts. We do not read the Board’s precedents so
narrowly, nor the distinction as being a defensible one.
In Lincoln, the Board disqualified a paid union organizer from vot-
ing, not because he received pay for his efforts, but because "[h]is
only reason for securing employment with [the employer] was to
organize for the Union from within the work force" and because his
employment "was designed to end on the completion of his union
assignment." Lincoln, 292 NLRB at 180. In Sunland, the Board noted
that:
In determining whether statutory "employees" are eligible to
vote, the Board applies a traditional "community of interest"
test. Under this test, paid union organizers frequently are
excluded from voting, either as "temporary" employees, or
because their interests sufficiently differ from those of their
coworkers. In short, employee status is not synonymous
with voter eligibility. Accordingly, any concern over unions
packing bargaining units with their paid functionaries is, in
our experience and judgment, misplaced.
Sunland, 309 NLRB at 1229 (citations and footnotes omitted). Thus,
the Board noted that paid union organizers had been excluded from
voting in the past because they were viewed as "temporary" employ-
ees or employees whose "interests sufficiently differ[ed] from those
of their coworkers," id., not simply because they had been "paid" by
a union to organize.
In sum, Lincoln and Sunland dealt with paid union organizers, but
offer no indication that the Board rested the determination of whether
a union organizer shares a community of interest with the other
employees solely upon whether the union organizer receives a pay-
check for his organizing efforts. And, in Dee Knitting, 214 NLRB at
1041, the Board rejected a challenge to the vote of a union organizer
14 TRADESOURCE, INC. v. NLRB
because there was no evidence that she took the job solely to orga-
nize, even though she was paid to organize. The fact that a union
organizer is voluntary should not enfranchise the voter any more than
the fact that a union organizer is paid should automatically disenfran-
chise the voter.
Nor do we view the distinction as a defensible one. Pay is not the
sole motivator for human action. Indeed, in this situation, the union
organizers received permission to work at TradeSource if they agreed
to act as voluntary organizers, allowing them to garner a paycheck for
themselves and continue to advance on the Union’s job referral list
for a higher-paying job should one become available. Consequently,
it could just as easily be said that the union organizers’ "pay" was the
permission to receive at least some income from a nonunion contrac-
tor, without penalty by the Union, while awaiting either an assign-
ment to seek and obtain employment at yet another unorganized
employer or the receipt of the preferred union-referred employment
when it became available.
C.
Finally, although we decline to enforce the Board’s order on the
bases proffered, we are nonetheless constrained to do so on the basis
that TradeSource failed to meet its burden of showing that the sole
motive of the three challenged voters was in fact to gain voter eligibil-
ity and organize TradeSource from within.
TradeSource contends that each challenged voter began employ-
ment with TradeSource with the sole intent to organize the employer
by obtaining voter eligibility and that they intended to quit once orga-
nizing was completed. While conceding that there is no direct evi-
dence to this effect, TradeSource argues that the conclusion is evident
from the fact that the employees stopped working as soon as they had
achieved eligibility and did not return when recalled by TradeSource
after their lay-off.
While we agree that the evidence may be susceptible to a contrary
conclusion, substantial evidence on the whole record also supports the
conclusion that, although these employees were most assuredly moti-
vated to organize the workplace, they did not seek and obtain employ-
TRADESOURCE, INC. v. NLRB 15
ment with TradeSource with the sole motive to do so. When the
organizing campaign at TradeSource began, the challenged employ-
ees were unemployed. They were hired, and legitimately gained eligi-
bility to vote under the Steiny/Daniel criteria, but were ultimately
laid-off from employment by TradeSource. By the time TradeSource
recalled them, each had obtained alternative employment. There is no
evidence that these employees resigned their employment with Trade-
Source or were otherwise instrumental in terminating their employ-
ment relationship with TradeSource. There is no evidence that the
men were out of work and simply refused to return when recalled.
There is no evidence that, had they not been laid off by TradeSource,
they intended to or would have left TradeSource voluntarily as soon
as the election was over. Nor is there any evidence that they would
have refused to return to TradeSource had the election been unsuc-
cessful. And, finally, there is no evidence that these employees had
previously engaged in a practice of moving from one nonunion con-
tractor to another, working only long enough to gain eligibility to vote
and swing the election in the Union’s favor, and then resigning or
refusing to return upon a recall.
In summary, we are satisfied that there was substantial evidence on
the whole record to support the conclusion that the challenged voters
did not accept employment with TradeSource with the sole motive of
organizing the workplace and gaining voter eligibility and, therefore,
that the Board’s order must be enforced.
IV.
For the foregoing reasons, we deny TradeSource’s petition for
review and grant the Board’s cross-application for enforcement.
PETITION FOR REVIEW DENIED, AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041889/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3752
___________
Yoram Raz, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Robert M. Mueller, Director, United * Western District of Arkansas.
States Department of Justice; United *
States of America, * [UNPUBLISHED]
*
Appellees. *
----------------------------------------
Yoram Raz, *
*
Appellant, *
*
v. *
*
United States of America, *
*
Appellee. *
___________
Submitted: February 7, 2007
Filed: February 9, 2007
___________
Before RILEY, HANSEN, and SMITH, Circuit Judges.
___________
PER CURIAM.
Yoram Raz challenges the adverse judgment entered by the district court1 after
a bench trial on Raz’s claims based on the FBI’s alleged campaign of surveillance and
harassment of him. For reversal, Raz argues the district court abused its discretion in
limiting essential discovery, in limiting evidence, and in refusing to sanction the
opposing parties. Following careful review, we find no abuse of the district court’s
discretion with regard to these matters, and we affirm for the reasons cited in the
district court’s thorough memorandum opinion. See 8th Cir. R. 47B.
______________________________
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1574998/ | 17 So. 3d 1180 (2008)
Janice SWANN, individually and as administratrix of the estate of Roger Swann
v.
REGIONS BANK and Melanie Barnett.
2070202.
Court of Civil Appeals of Alabama.
September 12, 2008.
Certiorari Denied March 6, 2009 Alabama Supreme Court 1071727.
*1183 Britt A. Booth and Joe T. Booth III of Booth Law Offices, P.A., Montgomery, for appellant.
Craig A. Alexander of Rumberger, Kirk & Caldwell, P.A., Birmingham, for appellees.
MOORE, Judge.
Janice Swann, individually and as the administratrix of the estate of Roger Swann, appeals from a summary judgment in favor of Regions Bank and Melanie Barnett. We affirm.
Facts and Procedural History
The record reveals the following: On July 9, 2003, Roger and Janice Swann, husband and wife, entered into a construction contract with Ray Bonner Home Builders, L.L.C. Under that contract, Ray Bonner Home Builders agreed to construct a house for the Swanns on the Swanns' five-acre tract of property. Ray Bonner, the managing member of Ray Bonner Home Builders, then arranged for a construction loan for a "pre-sale" from Regions Bank; the "pre-sale" he referred to was the house he had agreed to construct for the Swanns. Ray Bonner obtained approval for the loan through Melanie Barnett, who was employed at that time by Regions Bank as a commercial loan officer. Regions Bank approved the loan as a business loan in the name of Ray Bonner Home Builders.
It is undisputed that Barnett knew at the time of the loan that Ray Bonner Home Builders was not a licensed builder. However, according to Barnett, Ray Bonner informed her that Kenneth E. Hooks Builders, L.L.C., was a licensed builder and would be serving as the general contractor for the project. Barnett discussed the situation with her supervisor, and they concluded that the loan could be approved. Barnett arranged for the loan to be closed by Reli, Inc.
On August 1, 2003, Ray Bonner and the Swanns attended a closing of the construction loan at the offices of Reli, Inc. At that closing, Ray Bonner, on behalf of Ray Bonner Home Builders, executed a promissory note in favor of Regions Bank in exchange for the loan proceeds to finance the construction of the Swanns' house. On that same date, the Swanns conveyed by warranty deed two of their five acres to Ray Bonner Home Builders; Ray Bonner Home Builders then executed a mortgage in favor of Regions Bank against the two acres as collateral for the construction loan. The Swanns were not a party to the loan transaction between Ray Bonner Home Builders and Regions Bank.
Ray Bonner Home Builders began construction of the Swanns' house. Regions Bank, as the lender, exercised its right under the loan agreement to inspect the progress of the construction at various times. Regions Bank continued to make progress payments to Ray Bonner Home Builders under the loan agreement despite the fact that certain construction problems were noted. At one point, the Swanns attempted to intervene with Regions Bank and requested to take over the project as the general contractor. However, Regions Bank informed the Swanns that it had no contractual relationship with them and that the Bank's contractual obligations, as the lender, were owed to Ray Bonner Home Builders, as the borrower. Ray Bonner Home Builders expended all the construction-loan proceeds before completing the house. The Swanns could not complete the construction of the house.
On October 7, 2004, the Swanns filed a complaint in the Elmore Circuit Court, naming as defendants Ray Bonner Home Builders; Kenneth E. Hooks Builders; *1184 Riley H. Bell, a plumber; and Kenneth L. Smith, a brick mason; both Bell and Smith had worked as subcontractors on the house. Regions Bank and Barnett were not identified as defendants in the complaint, although the Swanns included various fictitiously named defendants. In their original complaint, the Swanns asserted claims of negligent or wanton contracting, training, hiring, supervising, retaining and/or inspecting; breach of contract; wantonness; fraud arising out of the failure to construct the house properly and for the agreed-upon price; civil conspiracy; and unjust enrichment. All the claims asserted in the Swanns' original complaint related to improper construction of the house.
On May 10, 2005, the Swanns filed their first amended complaint, in which they substituted Regions Bank, Melanie Barnett, and Bill Renfroe for fictitiously named defendants.[1] The Swanns did not alter the substance of their claims in this amended complaint.
On May 23, 2005, Ray Bonner, the managing member of Ray Bonner Home Builders, filed a suggestion of bankruptcy, notifying the trial court that he had initiated a Chapter 7 bankruptcy proceeding in the United Stated Bankruptcy Court. On June 16, 2005, the trial court stayed all proceedings in the litigation as a result of Ray Bonner's pending bankruptcy petition. On September 23, 2005, the trial court was notified that Ray Bonner's debts had been discharged in bankruptcy on June 23, 2005. The Swanns' litigation then resumed. On June 1, 2006, the trial court granted a motion to dismiss filed by Ray Bonner Home Builders on the ground that all claims asserted against it had been discharged in the bankruptcy proceeding.
Roger Swann died in 2005.[2] On January 26, 2007, a second amended complaint was filed, substituting Janice Swann, as the administratrix of the estate of Roger Swann, as a plaintiff. On April 2, 2007, a third amended complaint was filed.[3] In this complaint, Janice modified her theories of recovery against Regions Bank and Barnett. Because of the posture of this case, we address only those claims asserted in the third amended complaint against Regions Bank and Barnett and only those claims challenged on appeal.[4]
In count VIII of the third amended complaint, Janice alleged that Regions Bank and Barnett had been aware that Ray Bonner Home Builders was not a licensed home builder, as required by Alabama law, that Regions Bank and Barnett had failed to disclose that information to the Swanns, that Ray Bonner Home Builders' nonlicensure was a material fact that Regions Bank and Barnett had had a duty to disclose, and that the suppression of that fact had induced the Swanns to act. In count XI, Janice alleged that Regions Bank and Barnett had facilitated Ray Bonner Home Builders' illegal contract with the Swanns in violation of §§ 34-14A-1 through 34-14A-17, Ala.Code 1975, and that, as a result, Regions Bank and Barnett were liable *1185 for a civil conspiracy. In count XII, Janice alleged that Roger Swann had sought advice in the financing and construction of the house from Regions Bank and that Regions Bank and Barnett had acted in a fiduciary capacity by undertaking to advise Roger Swann that Ray Bonner Home Builders "was a reputable homebuilder who did a lot of business with Regions Bank's construction loan financing department." Janice asserted that, as a result of Regions Bank and Barnett's actions, a fiduciary relationship had arisen, which Regions Bank and Barnett had breached.
On April 20, 2007, Regions Bank and Melanie Barnett filed a joint motion for a summary judgment. In support of that motion, Regions Bank and Barnett relied on deposition excerpts from Janice, Barnett, and Spencer Knight, an employee of Regions Bank. Janice formally opposed that motion, but, on August 28, 2007, the trial entered a summary judgment in favor of Regions Bank and Barnett. The trial court did not state its grounds for entering the summary judgment. Janice filed a motion to reconsider; the trial court denied that motion. On October, 5, 2007, the trial court granted Janice's motion to voluntarily dismiss all remaining defendants. Janice timely appealed the summary judgment entered in favor of Regions Bank and Barnett to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.
Standard of Review
"`This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce "substantial evidence" as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.'"
Jones v. Alfa Mut. Ins. Co., 1 So. 3d 23, 29 (Ala.2008) (quoting Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.2004)).
Analysis
On appeal, Janice asserts that Barnett and Regions Bank had a duty to disclose "material deficiencies in Ray Bonner's LLC's ability to construct a home"; that Regions Bank and Barnett breached a fiduciary duty owed to the Swanns; and that Regions Bank and Barnett are liable for a civil conspiracy. We address each of these issues in turn. Additionally, because it could be dispositive, we address as an initial matter another issue raised by Regions Bank and Barnett on appealthat certain of the claims stated against them in the third amended complaint were time-barred because those claims did not relate back to the filing of the original complaint.
Whether the Claims Asserted in the Third Amended Complaint Related Back
In their summary-judgment motion, Regions Bank and Barnett argued that the *1186 "new" claims asserted against them in the third amended complaint, i.e., claims of fraudulent suppression, civil conspiracy, and breach of fiduciary duty, were time-barred because the relation-back doctrine did not apply to save those claims. Regions Bank and Barnett pointed out that those claims were governed by a two-year statute of limitations but that the third amended complaint had been filed some two and one-half years after the filing of the original complaint. Regions Bank and Barnett argued that the Swanns had not alleged facts made the basis of those claims in the original complaint and, therefore, that the "new" claims did not relate back to the filing of the original complaint; thus, they argued, the new claims were time-barred.
Relation back of claims is governed by Rule 15(c), Ala. R. Civ. P. That rule provides:
"(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
". . . .
"(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, except as may be otherwise provided in Rule 13(c) for counterclaims maturing or acquired after pleading...."
In Prior v. Cancer Surgery of Mobile, P.C., 959 So. 2d 1092 (Ala.2006), the Alabama Supreme Court addressed the relation-back doctrine:
"The Alabama Rules of Civil Procedure allow parties to amend their complaints. Rule 15(a), Ala. R. Civ. P. Even if otherwise barred by the applicable statute of limitations, an amendment to a complaint may be allowed if it `arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading ....' Rule 15(c)(2), Ala. R. Civ. P. However, if allowing the plaintiff to amend his or her complaint would prejudice the opposing party, the amendment should be denied. Ex parte Johnston-Tombigbee Furniture Mfg. Co., 937 So. 2d 1035 (Ala. 2005). ...
"An amended complaint relates back to the original complaint under Rule 15(c)(2), Ala. R. Civ. P., when "`the same substantial facts are pleaded merely in a different form."' Ex parte Johnston-Tombigbee Furniture, 937 So.2d at 1038 (quoting Court of Civil Appeals' opinion in Johnston-Tombigbee Furniture Mfg. Co. v. Berry, 937 So. 2d 1029, 1032 (Ala.Civ.App.2004), quoting other cases)."
959 So.2d at 1095 (footnote omitted).
In Prior, supra, our supreme court determined that the amended complaint filed in that case did not relate back to the original complaint because the original complaint had sought to impose liability on one physician for his allegedly sub-standard care on a specified date and the amended complaint sought to impose liability upon another physician for his allegedly substandard care on another specified date. Thus, the acts of the two physicians were distinct and the dates of the alleged acts were distinct. The supreme court concluded that, as a result, the amended complaint could not relate back to the filing of the original complaint. 959 So.2d at 1097.
In Sonnier v. Talley, 806 So. 2d 381 (Ala. 2001), the supreme court reached the opposite conclusion and allowed the amended complaint to relate back to the filing of the original complaint. In that case, Talley, the plaintiff, sued physicians and a hospital alleging general negligence and malpractice *1187 occurring in connection with her treatment for cancer and an unnecessary hysterectomy "during the period June 1990 through October 1991." Sonnier, 806 So.2d at 383. Talley then filed an amended complaint alleging that the same defendants "had made misrepresentations of fact related to the surgery, the cancer, and her health during the period from June 1991 through October 1991." Id. The court held that Talley's amended complaint related back to her original complaint under Rule 15(c)(2). The court stated:
"Regarding Rule 15(c), this Court has quoted the following with approval:
"`"Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all of the notice that statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged, such as by specifying particular acts of negligence under a general allegation of negligence, or remedies a defective pleading, will relate back even though the statute of limitations has run in the interim. Similarly, while it is still the rule that an amendment which states an entirely new claim for relief based on different facts will not relate back, if the pleading sufficiently indicates the transaction or occurrence on which the claim or defense is based, amendments correcting specific factual details such as time and place, as well as other items, will relate back.
"`"The [Alabama Rules of Civil Procedure] have broadened the meaning of the concept of `cause of action,' shifting the emphasis from a theory of law as to the cause of action, to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. And an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back. Thus, an amendment will relate back which changes the theory of recovery as to the type of negligence claimed, or adds additional grounds of negligence, changes the theory of the action from one based on contract to one sounding in tort, changes a demand for equitable relief to one for legal relief, states a different fulfillment of conditions precedent, or increases the amount of damages claimed."'"
Sonnier, 806 So.2d at 386-87 (quoting National Distillers & Chem. Corp. v. American Laubscher Corp., 338 So. 2d 1269, 1273-74 (Ala.1976), quoting in turn 3 James W. Moore et al., Moore's Federal Practice and Procedure ¶ 15.15[3], pp. 1025-31 (1968 ed.)).
Thus, even though Talley's amended complaint alleged a new cause of action, the supreme court held that the amended complaint related back to Talley's original complaint because the claims asserted in the amended complaint were limited to the same period and to the same parties made the basis of Talley's original complaint. The supreme court also noted that Talley's original complaint had notified the defendants of claims arising from the same set of facts made the basis of the amended complaint. The supreme court stated that the amendment had "`"ma[de] more specific what ha[d] already been alleged."'" Sonnier, 806 So.2d at 387 (quoting National Distillers & Chem. Corp., 338 So.2d at 1273).
We conclude that the posture of this case is more closely aligned with Sonnier, *1188 supra, than with Prior, supra, and that the claims asserted against Regions Bank and Barnett in the third amended complaint relate back to the filing of the original complaint. The causes of action asserted against Regions Bank and Barnett in the third amended complaint relate to the same parties, the same transaction, and the same period made the basis of the claims asserted against Regions Bank and Barnett in the earlier complaints. Janice simply modified the theories of recovery against Regions Bank and Barnett by making more specific what had already been alleged. Because the previous complaints provided Regions Bank and Barnett with a sufficient factual basis from which they could reasonably anticipate the claims presented against them in the third amended complaint, we conclude that the new claims of fraudulent suppression, civil conspiracy, and breach of fiduciary duty relate back to the date of the original complaint. See Sonnier, supra; and Ex parte Johnston-Tombigbee Furniture Mfg. Co., 937 So. 2d 1035, 1043 (Ala.2005). Therefore, the new claims asserted in the third amended complaint are not time-barred.
Whether Regions Bank and Barnett Had a Duty to Disclose or Owed a Fiduciary Duty to the Swanns
Janice asserts that Barnett and, thus, Regions Bank were obligated to disclose to the Swanns "Ray Bonner's LLC's professional and legal deficiencies." (Appellant's brief at 28.) We interpret this argument to refer to the fact that Ray Bonner Home Builders was an unlicensed builder, pursuant to the Alabama Home Builders Licensure Act. Ala.Code 1975, § 34-14A-1 et seq. This alleged duty to disclose presumably is asserted in support of Janice's fraudulent-suppression claim, asserted in her third amended complaint.
"The question whether a party had a duty to disclose is a question of law to be determined by the trial court." Barnett v. Funding Plus of America, Inc., 740 So. 2d 1069, 1074 (Ala.1999). In State Farm Fire & Casualty Co. v. Owen, 729 So. 2d 834, 842-43 (Ala.1998), our supreme court set forth the factors that must be considered in determining whether a duty to disclose exists: (1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiffs' opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances. See also Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665 (Ala. 2001).
"A duty to communicate can arise from a confidential relationship between the plaintiff and the defendant, from the particular circumstances of the case, or from a request for information, but mere silence in the absence of duty to disclose is not fraudulent....
". . . .
"This Court has stated that whether one has a duty to speak depends upon a fiduciary, or other, relationship of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances of the case.... When the parties to a transaction deal with each other at arm's length, with no confidential relationship, no obligation to disclose information arises when the information is not requested."
Mason v. Chrysler Corp., 653 So. 2d 951, 954-55 (Ala.1995).
We conclude that the present case is most appropriately governed by the rationale in Ex parte Farmers Exchange Bank, 783 So. 2d 24 (Ala.2000), in which the Alabama Supreme Court held that an even closer business relationship between a bank and its customer was not sufficient to *1189 give rise to a duty to disclose. In Ex parte Farmers Exchange Bank, Cole, the plaintiff and the purchaser of residential property, sought financing for that property from the bank. Id. at 26. In connection with the financing process, a termite inspection was conducted. That inspection revealed an active termite infestation. The inspection report was forwarded to the bank before the closing, and, thus, the bank was presumed to have knowledge of the contents of that report. Id. After the closing and after taking possession of the property, Cole discovered the termite infestation. Id. at 27.
Cole sued the bank, alleging that the bank had not told her the results of the inspection and that the inspection report had not been presented to her at the closing, as the seller of the property had been required to do. Cole alleged that the house had been inspected for termites; that the bank knew or should have known that the house had termites and/or that it had termite damage; and that the bank had proceeded to provide Cole financing to purchase the house, without informing her of the results of the termite inspection. Id. at 26. Cole further alleged that the bank had "`caused, permitted, condoned, or allowed ... fraud to be perpetrated upon'" her. Id. However, it was undisputed that Cole had not inquired of the bank whether the house had termites or whether it knew the results of the inspection. Id. at 26-27.
The trial court entered a summary judgment in favor of the bank, holding that the bank had no duty to disclose to Cole, its customer, the existence of deficiencies in the property it was financing for her. Id. at 27. On appeal, the Alabama Supreme Court affirmed. In affirming the summary judgment, our supreme court stated:
"The question at issue in this case revolves around the second element of fraudulent suppressionspecifically, it is whether the Bank had a duty to disclose to Cole the termite damage indicated by Copter Pest Control's report. The existence of a duty is a question of law to be determined by the trial court. State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala.1999). A duty to disclose can arise either from a confidential relationship with the plaintiff or from the particular circumstances of the case. Ala.Code 1975, § 6-5-102; Ex parte Ford Motor Credit Co., 717 So. 2d 781, 785 (Ala.1997). This Court has stated that the only circumstance under which a lender who is merely providing financing for the sale of some item can have a duty to disclose information related to the condition of that item is if the plaintiff makes a specific request of the lender for that information. See Ex parte Ford Motor Credit Co., 717 So.2d at 785-87."
783 So.2d at 27.
The court continued:
"Cole made no specific request to the Bank that a termite bond be presented to her before closing. This distinguishes this case from Soniat [v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala.1993)]. The sales contract between Miller [the seller] and Cole provided that at the closing Miller would provide Cole with a termite-inspection report. It is without dispute that the termite report was given to the Bank for the sole purpose of allowing the Bank to record the amount of the inspection fee on the appropriate HUD report.
"With Soniat clarified, we address the question whether the Bank had a duty to disclose to Cole information concerning termite damagea duty arising either from their relationship or from other circumstances surrounding the *1190 transaction in which they were both involved.
"In Lee v. United Federal Savings & Loan Ass'n, 466 So. 2d 131 (Ala.1985), this Court dealt with the issue whether a lending institution could be held liable for fraud that might have occurred in a transaction in which it was merely providing financing. We held:
"`[T]he mere lending of money on a house by a financial institution, albeit one with knowledge of deficiencies in the house, does not create a confidential relationship, or other circumstances imposing a duty to disclose information at the lender's disposal.'
"466 So.2d at 134. (Emphasis added.) As we have already stated, the Bank's single role was to provide financing to Cole. This Court in Lee made it clear that a lender in this kind of situation has no duty arising from the relationship between it and the borrower to inform the borrower of any deficiencies in the house she is purchasing, including deficiencies related to termite damage.
"However, the Bank could still be liable to Cole if the situation between them is similar to the one in Soniati.e., if Cole made a specific request of the Bank for information about the possibility of termite damage. See Ex parte Ford Motor Credit Co., 717 So.2d at 786; Gewin v. TCF Asset Mgmt. Corp., 668 So. 2d 523 (Ala.1995); Altmayer v. City of Daphne, 613 So. 2d 366 (Ala.1993); Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So. 2d 238 (Ala.1992). This case is unlike Soniat, where the particular facts indicated that the buyer had asked for the relevant information, and a duty to disclose had thus arisen. In this present case, no evidence before the trial court suggested that a separate duty on the part of the Bank had arisen. While Cole did, through the purchase agreement, make inquiry of Miller (the seller) concerning termite damage, she made no request of the Bank concerning termite damage, either in the purchase agreement, orally, or otherwise. Therefore, no duty on the part of the Bank to disclose could have arisen."
783 So.2d at 28-29. The supreme court thus concluded that, without an inquiry from the purchaser as to the specific deficiency in issue, the bank had no duty to disclose information about the deficiencies in the house or the property made the subject of the loan. The court further concluded that, despite the fact that the bank had undertaken to finance the property for its customer, none of the circumstances presented in that case warranted the imposition of a duty on the bank to disclose.
Applying the rationale of Ex parte Farmers Exchange Bank, supra, to this case, we conclude that Regions Bank and Barnett had no duty to disclose Ray Bonner Home Builders' lack of a home builder's license to the Swanns. We first note that no contractual relationship existed between Regions Bank or Barnett and the Swanns; thus, Regions Bank and Barnett had no contractually imposed duty to disclose.
Additionally, there is no allegation that Roger or Janice ever directly asked Barnett or anyone else affiliated with Regions Bank whether Ray Bonner Home Builders was a licensed home builder. Janice testified at her deposition that she had never met and had never had a "real" conversation with Barnett; there is also no allegation that Janice ever met or discussed Ray Bonner Home Builders with anyone else from Regions Bank.
Unfortunately, Roger died before his testimony could be preserved under oath, see Rule 804, Ala. R. Evid. (specifying *1191 limited exceptions to Alabama's evidentiary prohibition against hearsay, none of which would allow admission of Janice's recollection of Roger's statements regarding his conversations with Barnett). Barnett testified that she did not recall having ever met Roger. We, therefore, find no admissible evidence in the record to indicate that the Swanns ever asked Regions Bank or any of its agents or representatives whether Ray Bonner Home Builders was a licensed home builder.[5] Thus, a duty to disclose did not exist by virtue of a direct inquiry.
Further, as was the case in Ex parte Farmers Exchange Bank, supra, and Lee v. United Federal Savings & Loan Ass'n, 466 So. 2d 131 (Ala.1985), we find no fiduciary or confidential relationship or any other special circumstances to exist between Regions Bank or Barnett and the Swanns that might have given rise to a duty to disclose. See Ex parte Farmers Exch. Bank, 783 So.2d at 29 (quoting Lee v. United Fed. Savings & Loan Ass'n, 466 So.2d at 134) ("`[T]he mere lending of money on a house by a financial institution, albeit one with knowledge of deficiencies in the house, does not create a confidential relationship, or other circumstances imposing a duty to disclose information at the lender's disposal.'"). "Courts have traditionally viewed the relationship between a bank and its customer as a creditor-debtor relationship which does not impose a fiduciary duty of disclosure on the bank." Baylor v. Jordan, 445 So. 2d 254, 256 (Ala.1984). See also K & C Dev. Corp. v. AmSouth Bank, N.A., 597 So. 2d 671 (Ala.1992), and McIntyre Elec. Serv., Inc. v. SouthTrust Bank, 495 So. 2d 1043 (Ala. 1986). Thus, even if the Swanns had been customers of Regions Bank and had been parties to the construction-loan agreement between Regions Bank and Ray Bonner Home Builders, which they were not, no fiduciary relationship would have arisen as a result.
Janice briefly asserts that she and Roger were third-party beneficiaries of the construction loan made by Regions Bank to Ray Bonner Home Builders and that a duty to disclose could have arisen by virtue of that relationship. We disagree.
"`[I]t has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to his incidental, benefit.' Mills v. Welk, 470 So. 2d 1226, 1228 (Ala.1985). `To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached.' Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99, 101-02 (Ala.1987)."
McGowan v. Chrysler Corp., 631 So. 2d 842, 848 (Ala.1993). We find no evidence indicating that Regions Bank intended to bestow a direct, as opposed to an incidental, benefit on the Swanns at the time the construction loan to Ray Bonner Home Builders was made.
Janice also points this court to the case of Richfield Bank & Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648 (Minn. 1976), in support of her claim that Regions Bank and Barnett had a duty to disclose based on special circumstances that she alleged are present in this transaction. However, that case is inapposite, and we decline to apply its holding in this case. *1192 In Richfield Bank, the Sjogrens obtained a business loan from the Richfield Bank for the purpose of purchasing 50 air-purification units from National Pollution Eliminators, Inc. 309 Minn. at 364, 244 N.W.2d at 649. The Sjogrens dealt with one individual, Michael Thompson, at the bank; National Pollution Eliminators had referred the Sjogrens to Thompson for the loan. 309 Minn. at 363, 244 N.W.2d at 649. In order to secure the loan, the Sjogrens were required to sign a note and to convey a security interest in some real estate and in the 50 air-purification units. 309 Minn. at 364, 244 N.W.2d at 649.
The Sjogrens subsequently learned that National Pollution Eliminators was financially insolvent, that National Pollution Eliminators would not have 50 air-purification units available, and that Thompson was personally involved in the day-to-day dealings of National Pollution Eliminators. 309 Minn. at 364-65, 244 N.W.2d at 649-50. In fact, the Sjogrens met with Thompson and Thompson stated that, at the time the bank had closed the Sjogrens' loan, Thompson had known that National Pollution Eliminators would not be able to provide the 50 air-purification units to the Sjogrens. Id. National Pollution Eliminators went out of business shortly thereafter. 309 Minn. at 364 n. 1, 244 N.W.2d at 649 n. 1.
The bank sued to collect on the note, and the Sjogrens argued that the bank had fraudulently induced them to enter into the transaction. 309 Minn. at 363, 244 N.W.2d at 649. The jury returned a verdict in favor of the Sjogrens, and the bank appealed. Id. On appeal, the Supreme Court of Minnesota affirmed the judgment entered on the jury's verdict in favor of the Sjogrens. Id. The court concluded that, under the "unique and narrow `special circumstances' of this case," the bank, through Thompson, its agent, had actual knowledge of fraudulent activities on the part of its depositor, National Pollution Eliminators, and that it had an affirmative duty to disclose those facts to the Sjogrens before it engaged in making a loan to them that furthered another customer's fraud. 309 Minn. at 369, 244 N.W.2d at 652.
The facts and allegations presented in this case do not rise to the level of those presented in Richfield Bank, supra. First and most significantly, unlike in Richfield Bank, Regions Bank was not involved with two of its customers; Regions Bank did not make a loan to the Swanns. Therefore, Regions Bank and Barnett had no duty to disclose to the Swanns. Second, Janice has presented no evidence indicating that Barnett or Regions Bank had actual knowledge of fraudulent activities of the type at issue in Richfield Bank. Third, Janice has presented no evidence indicating that Barnett was involved in the day-to-day affairs of Ray Bonner Home Builders or in any of the affairs of Ray Bonner Home Builders other than its banking matters. Therefore, the rationale and reasoning of Richfield Bank is inapplicable to this case.
We also decline to recognize a duty to disclose owed by Regions Bank or Barnett by virtue of the public policy that underlies the Alabama Home Builders Licensure Act. Nothing in the act can be construed as creating a private right of action against a lending entity for its failure to notify a third party that it has contracted with an unlicensed builder. Likewise, nothing in the act forbids a lender from entering into a loan agreement with an unlicensed builder. The act imposes a duty to obtain a license on the builder, not a duty of oversight on the part of financing institutions. See 34-14A-1 et seq., Ala.Code 1975. Had the legislature intended the act to create liability in such a manner, it could have so indicated. We *1193 also find no authority for such a result in the prior cases of this state. For the foregoing reasons, we conclude that Regions Bank and Barnett had no duty to disclose to the Swanns that Ray Bonner Home Builders was an unlicensed home builder.
Janice also asserts that Barnett's alleged recommendation to the Swanns of Ray Bonner Home Builders as a builder with whom Regions Bank did a lot of business and as a reputable builder created a fiduciary duty on the part of Regions Bank. Because a duty to disclose or a fiduciary duty may arise from a confidential relationship or from the particular circumstances of the case, we examine this allegation to determine if it could give rise to a potential duty to disclose or a heightened responsibility on the part of Regions Bank and Barnett.[6]
A "confidential relationship," which may give rise to a duty to disclose, has been defined as
"`[ [a] relationship in which] one person occupies toward another such a position of adviser or counselor as reasonably to inspire confidence that he will act in good faith for the other's interests, or when one person has gained the confidence of another and purports to act or advise with the other's interest in mind; where trust and confidence are reposed by one person in another who, as a result, gains an influence or superiority over the other; and it appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible. It arises in cases in which confidence is reposed and accepted, or influence acquired, and in all the variety of relations in which dominion may be exercised by one person over another.'"
Holdbrooks v. Central Bank of Alabama, N.A., 435 So. 2d 1250, 1252 (Ala.1983) (quoting 15A C.J.S. Confidential (1967)); see also Bank of Red Bay v. King, 482 So. 2d 274, 285 (Ala.1985) ("While the relationship between a bank and its customer has been traditionally viewed by courts as a creditor-debtor relationship which does not impose a fiduciary duty of disclosure on the bank, a fiduciary duty may, nevertheless arise when the customer reposes trust in a bank and relies on the bank for financial advice, or in other special circumstances.").
A fiduciary relationship is defined as
"[a] relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship.... Fiduciary relationships usu. arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."
Black's Law Dictionary 1315 (8th ed.2004).
However, the circumstances of this case do not give rise to a confidential relationship between Regions Bank or *1194 Barnett and the Swanns, and none of the categories of fiduciary relationships identified in Black's Law Dictionary are applicable. Assuming that Barnett "recommended" Ray Bonner Home Builders to Roger as someone with whom Regions Bank did a lot of business and as a reputable builder, and assuming that Janice's testimony on that point was admissible, Janice's affidavit testimony establishes that the Swanns did not rely on that alleged recommendation.
In her affidavit submitted in opposition to the summary-judgment motion filed by Regions Bank and Barnett, Janice asserted that, after Roger met with Barnett, the Swanns searched out previous customers and previous work of Ray Bonner Home Builders before deciding to hire Ray Bonner Home Builders as their contractor. Only after conducting their investigation and deciding that "everything seemed to check out," did the Swanns execute the construction contract with Ray Bonner Home Builders.
Thus, the evidence establishes, at most, that Roger met one time with Barnett; the stated purpose of that meeting was to inquire about the possibility of obtaining a construction loan. Even if Barnett referred Roger to Ray Bonner Home Builders during that meeting, Roger did not repose his trust and confidence in Barnett's alleged advice. Janice could not have reposed any trust in Barnett because Janice had never met or talked to Barnett. Accordingly, no fiduciary or confidential relationship existed between Regions Bank or Barnett and the Swanns, and no duty to disclose arose as a result. Without the existence of a fiduciary duty or relationship, Janice's breach-of-a-fiduciary-duty claim fails as a matter of law.
For the above-stated reasons, we conclude that Regions Bank and Barnett had no duty to disclose to the Swanns and that no fiduciary relationship existed between Regions Bank or Barnett and the Swanns. We affirm the summary judgment in favor of Regions Bank and Barnett as to the fraudulent-suppression and breach-of-fiduciary-duty claims.
The Conspiracy Claim
Janice next asserts that Regions Bank, acting through Barnett, "orchestrated" the loan closing and, thus, "directed" the Swanns to convey their property to Ray Bonner Home Builders. As a result, Janice asserts that Regions Bank and Barnett are liable for a conspiracy to deprive the Swanns of the protections of the Alabama Home Builders Licensure Act.
Although the errors in this argument are numerous, we need not address them other than to point out that, as a result of our analysis above, all remaining claims in this case have been dismissed. We have herein affirmed the summary judgment entered in favor of Regions Bank and Barnett as to the claims of fraudulent suppression and breach of fiduciary duty. Additionally, Janice voluntarily dismissed all claims asserted against the remaining defendants. Thus, the only remaining claim to be addressed is the claim of a civil conspiracy asserted against Regions Bank and Barnett.
"Civil conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means." Keith v. Witt Auto Sales, Inc., 578 So. 2d 1269, 1274 (Ala. 1991) (citing Eidson v. Olin Corp., 527 So. 2d 1283 (Ala.1988)). "The gist of an action alleging civil conspiracy is not the conspiracy itself, but rather, the wrong committed." 578 So.2d at 1274 (citing Sadie v. Martin, 468 So. 2d 162 (Ala.1985)). For that reason, "[a] civil conspiracy cannot exist in the absence of an underlying *1195 tort." Goolesby v. Koch Farms, LLC, 955 So. 2d 422, 430 (Ala.2006) (citing Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124 (Ala.2003)). Because all other claims asserted by Janice have been dismissed, there is no underlying tort claim that could possibly support her conspiracy claim; as a result, her conspiracy claim fails as a matter of law. Therefore, we affirm the trial court's summary judgment in favor of Regions Bank and Barnett as to the conspiracy claim.
AFFIRMED.
PITTMAN and THOMAS, JJ., concur.
THOMPSON, P.J., and BRYAN, J., concur in the result, without writings.
NOTES
[1] All claims asserted against Renfroe were dismissed without prejudice on April 10, 2007.
[2] On August 29, 2005, a suggestion of death of Roger Swann was filed.
[3] Although Regions Bank and Barnett moved to strike this complaint because it was filed without leave of court within 42 days of the trial date, the trial court ultimately allowed Janice's subsequent motion to amend. Therefore, the third amended complaint was deemed to be properly before the trial court.
[4] Janice dismissed her claims against all other defendants before filing this appeal. Therefore, the only remaining defendants are Regions Bank and Barnett.
[5] Based on the issues presented to this court on appeal, it appears that Janice has abandoned her claim of a direct misrepresentation by Barnett.
[6] Although Janice presents her breach-of-fiduciary-duty claim as a separate issue, it is dependent upon a duty to disclose, as is her fraudulent-suppression claim. We, therefore, analyze that issue under the same heading as the fraudulent-suppression claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918136/ | 101 B.R. 763 (1989)
In re Elmer Daniel SPERRY, Debtor.
Andrea A. RUFF, Trustee, Plaintiff,
v.
LAKE ABSTRACT & GUARANTY CO., Paul Grigsby, Elmer Daniel Sperry, Individually and as Trustee, and Vaughn Realty Corporation, Defendants.
Bankruptcy No. 84-672-BKC-6P7, Adv. No. 86-74.
United States Bankruptcy Court, M.D. Florida, Orlando Division.
June 15, 1989.
*764 John A. Baldwin, Fern Park, Fla., for defendants Paul Grigsby and Elmer Daniel Sperry.
Stephen H. Judson, Leesburg, Fla., for defendant Lake Abstract.
Leigh Meininger, trustee, Orlando, Fla., for defendant Lake Abstract.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO THE COMPLAINT OF ANDREA A. RUFF, TRUSTEE
GEORGE L. PROCTOR, Bankruptcy Judge.
This adversary proceeding is before the Court upon the trustee's complaint seeking a declaratory judgment concerning her rights, title and interest in real property and to avoid a fraudulent transfer pursuant to 11 U.S.C. § 544(b). In response, defendants Lake Abstract & Guaranty Co., Paul Grigsby, Elmer Daniel Sperry, and Vaughn Realty Corporation seek a determination of their interest in this property. Additionally, Leigh Meininger, the bankruptcy trustee for defendant Lake Abstract & Guaranty Co. ("Lake Abstract") has filed a crossclaim against Paul Grigsby to void an unrecorded mortgage pursuant to 11 U.S.C. § 544(a). The crossclaim is the subject of a separate opinion. 101 B.R. 767.
A trial of this adversary proceeding was held on March 19, 1987, September 3, 1987, October 13, 1988 and March 2, 1989, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. The debtor, Elmer Daniel Sperry, Sr., filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on August 24, 1984. 11 U.S.C. § 701 et seq. Andrea A. Ruff was appointed as trustee.
2. The trustee seeks a declaratory judgment as to her interest in four acres of real property located in Lake County, Florida, which the debtor is currently leasing for residential purposes (the "Airport Property"). The trustee claims that despite the lack of legal title, the property belongs to the bankruptcy estate.
3. The Airport Property is located at 5503 South Highway 441, in Leesburg, Florida, and is legally described as:
Lot 7 in Silver Lake Estates Edition A, a subdivision in Lake County, Florida, according to the plat thereof recorded in Plat Book 5, Public Records of Lake County, Florida, LESS the right-of-way of U.S. Highway 441 in Lake County, Florida.
4. Debtor denies that he has ever possessed any legal interest in the Airport Property, despite having been in continuous possession of the property for 10 years.
5. The facts which underlie this dispute show that the debtor found the Airport Property and desired to purchase it for himself. However, due to the fact that he had over 50 judgments recorded against him, he was unable to obtain necessary financing. Consequently, Debtor asked his second cousin, Gene Smith ("Smith"), to acquire the property in his stead.
6. On August 16, 1978 Gene Smith and his wife, Brenda, purchased the Airport Property for $210,000.00, obtaining 100% financing through Barnett Bank. An MAI appraisal showed the land to be worth $264,000.00 at that time.
7. Prior to that purchase date, Debtor conducted a business (Sperry Auto Sales) on property titled in his name. After the Smiths took title to the Airport Property, Debtor conveyed all of his interest in his land to Gene Smith and moved to the Airport Property. The value of the transferred property was approximately $100,000.00.
8. Gene Smith and the Debtor never entered into a formal lease agreement. *765 However, according to the terms of the alleged lease, the rent charged to Debtor was equal the mortgage payments due Barnett Bank. Of the few checks written by Sperry Equipment Company, some went directly to Barnett Bank inscribed with the words "Airport Payment" instead of "rent" as other checks for rental items were written.
9. Debtor was often in default in payment of his rent, making only 70-80% of the required payments. Nevertheless, Gene Smith did not file eviction proceedings.
10. Notwithstanding the purported purpose of acquiring the land as a long-term investment, Smith transferred title to the Airport Property on June 22, 1983, to William Burleigh ("Burleigh"), another lifelong friend of the Debtor. The consideration for the transfer was an assumption of the mortgage (Approximate balance = $138,000.00) and a payment of $14,000.00 in back taxes. No mention was made of Debtor's $100,000.00 "equity" in the property (See Paragraph 6 above).
11. There was an understanding between Smith and Burleigh permitting the Debtor to remain on the property despite his inability to pay rent.
12. On June 22, 1983, the property was deeded to Lake Abstract & Guaranty Company, a company controlled by Burleigh.
13. Burleigh continued to allow the Debtor to occupy the property, and again there was no written lease. At most, only one or two rent payments were ever tendered and those checks were returned for insufficient funds. The rent that Burleigh was supposedly charging Debtor was the same amount as the mortgage payment, $2,700.00 per month.
14. Burleigh has twenty years of experience as an employee, stockholder and officer of a real property title abstract company. In this capacity and as a close personal friend of the Debtor, he had personal knowledge of the many judgment liens against the Debtor at the same time title to the Airport Property was transferred from Smith to Lake Abstract.
15. Because the Debtor failed to make regular payments and Burleigh and Lake Abstract were in deep financial trouble, it became necessary to again transfer the property. Burleigh admitted that the primary concern was that the new title holder be a friend of Sperry.
16. Burleigh subsequently transferred the land to Paul Grigsby ("Grigsby"), another friend of the Debtor, for approximately $280,000.00.
17. At trial an agreement was introduced into evidence supporting the proposition that the debtor had a contingent interest in certain funds should Grigsby sell the Airport Property. The letter of agreement dated October 9, 1985, reads:
An agreement between William E. Burleigh and Paul R. Grigsby regarding the sale of Silver Lake Estate, Lot 7, Blk, 39- less Hwy. 441, ORE 780 P5-574. When said sale is consummated William E. Burleigh will submit an accounting of monies owed him by Elmer Sperry. After these two billings are deducted and any other expenses brought on by the sale, the balance, if any, will be disbursed to Elmer Sperry. In the event the above property is not sold within 12 months from Nov. 1, 1985, I, Paul R. Grigsby will reimburse William E. Burleigh for whatever monies owed him at that time.
CONCLUSIONS OF LAW
The fundamental question in this adversary proceeding is the trustee's interest in the Airport Property. The trustee suggests that the nature of the transactions and the relationship of the parties support the imposition of a constructive trust on the Airport Property for the benefit of the estate. Alternatively, the trustee seeks to void the fraudulent transfer of the property pursuant to 11 U.S.C. § 544(b).
Section 544(b) provides:
(b) The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502(c) of this title.
*766 Thus, the trustee must establish that an interest of the debtor was transferred with the intention of defrauding creditors. The applicable state statute dealing with this issue is § 726.01, Florida Statutes (1987), providing that every transfer made with the intent to hinder, delay or defraud creditors is void.[1]
It is well settled Florida law that where property is purchased by a debtor and title is taken in the name of another to avoid creditors, the deed may be set aside as a fraudulent conveyance by all existing and subsequent creditors. Scott v. Sites, 41 So. 2d 444 (1949); Knowles v. Magic City Grocery, Inc., 144 Fla. 78, 197 So. 843 (1940); Fleming v. Otis Elevator Co., 107 Fla. 557, 145 So. 201 (1933); First State Bank v. Fitch, 105 Fla. 435, 141 So. 299 (1932); Hummell v. Harrington, 92 Fla. 87, 109 So. 320 (1926).
A fraudulent conveyance is defined as a transaction through which the owner of real or personal property has sought to place the land or goods beyond the reach of his creditors, or that operates to the prejudice of their legal or equitable rights, or a conveyance that operates to the prejudice of the legal or equitable rights of other persons. 37 Am.Jur.2d, Fraudulent Conveyances § 1. A purchase by one not a creditor is fraudulent and void as against creditors, even though the purchaser has paid an adequate consideration, where the seller has at the time a purpose or intent of defrauding his creditors, or of hindering and delaying them in the collection of their debts, and the purchaser knows of this purpose, or has knowledge of such facts or circumstances as would induce an ordinarily prudent person to make inquiry which would lead to the discovery of the purpose.
In this case, the evidence clearly shows that the Airport Property was purchased by the defendants exclusively for the benefit of the debtor with the sole intention of placing this asset beyond the reach of his creditors. Smith, Burleigh, and Grigsby were willing participants in the scheme and had actual knowledge of his intentions.
Despite the defendants' assertions to the contrary, the Smiths did not lose money on the transfer to Burleigh nor did Burleigh, acting through Lake Abstract, realize a $150,000.00 profit when he sold the property to Grigsby. Instead, the parties conveniently omitted the debtor's "equity" in the property (i.e. the transfer of land worth $100,000.00 to Gene Smith) when they calculated these figures for trial. When one considers the effect of Debtor's "equity" on these calculations, it is obvious that there was little or no consideration for the transfers.
The Court finds further that despite the various transfers, the debtor always retained exclusive control over the property and the manner in which it was disposed. He was never threatened with eviction even though he was often in default under the alleged lease. The letter agreement of October 9, 1985, further demonstrates the knowledge of Burleigh and Grigsby of Debtor's interest. It shows that once the delinquent mortgage payments and other expenses were paid, the balance was to be distributed to the Debtor. The Court concludes, therefore, that the transfers of the property between Smith, Burleigh, Lake Abstract and Grigsby should be declared void as fraudulent conveyances.
Because the debtor never possessed actual legal title, the Court must now determine if this property can be brought into the estate through imposition of a constructive trust. A constructive trust arises entirely by operation of law, without reference to any actual or proposed intention of creating a trust. It is based on the premise that one who acquires property by fraud, misrepresentation, or other circumstance rendering it inequitable for him to retain it, is in equity regarded as a trustee for the party who suffers by reason of the fraud or other wrong and who is equitably entitled to the property. See, In re McDonald, *767 16 B.R. 618 (Bankr.S.D.Fla.1981) (constructive trust imposed upon vehicle transferred to brother to avoid creditors). See also, Doing v. Riley, 176 F.2d 449 (5th Cir.1949); Wadlington v. Edwards, 92 So. 2d 629 (Fla. 1957).
In the instant case, Paul Grigsby is currently the title holder to the Airport Property. Due to his close relationship with the debtor, the amount of control Sperry exerted over the property, and his acknowledgement of the October 9, 1985 letter, the Court finds him to be a willing participant in the scheme to defraud creditors. If he were allowed to keep the property, he would profit by this wrong and would be unjustly enriched at the expense of Sperry's creditors. Under the circumstances, the Court finds that (i) Grigsby holds title to the property in trust for Sperry's estate, and (ii) that the trustee may avoid his interest in the Airport Property pursuant to § 544(b).
The defendants contend that, even if the Court adopted these findings, the trustee's action is barred by the applicable statute of limitations. The Court does not agree. A trust which is created by operation of law falls outside the statute of limitations and is instead governed by the doctrine of laches. Williams v. Grogan, 100 So. 2d 407 (Fla.1958); Wadlington v. Edwards, 92 So. 2d 629 (Fla. 1957). Although the original transaction between Sperry and Gene Smith took place six years prior to the filing of the bankruptcy petition, the secret manner in which it was accomplished made it extremely difficult for creditors to uncover. Under the circumstances, the Court finds that the trustee's action is not barred by the doctrine of laches and the trustee may bring this action to set aside the transfer to Grigsby as a fraudulent conveyance.
The Court will enter a separate Final Judgment in accordance with these findings.
FINAL JUDGMENT ON COMPLAINT FILED BY ANDREA A. RUFF, TRUSTEE
Upon Findings of Fact and Conclusions of Law separately entered, it is ORDERED as follows:
1. Final Judgment is entered in favor of the plaintiff, Andrea A. Ruff, Trustee, and against the defendants, Lake Abstract & Guaranty Co., Paul Grigsby, Elmer Daniel Sperry, Individually and as Trustee, and Vaughn Realty Corporation.
2. Defendants Lake Abstract & Guaranty Co., Paul Grigsby, Elmer Daniel Sperry, Individually and as Trustee, and Vaughn Realty Corporation, are divested of any interest in the property located at 5503 South Highway 441, Leesburg, Florida, 32748, and more legally described as:
Lot 7 in Silver Lake Estates Addition A, a subdivision in Lake County, Florida, according to the plat thereof recorded in Plat Book 5, Public Records of Lake County, Florida, LESS the right-of-way of U.S. Highway No. 441 in Lake County, Florida.
3. Defendant Paul Grigsby's interest in this property is void pursuant to 11 U.S.C. § 544(b).
4. The real property described above is property of the estate as defined by 11 U.S.C. § 541 and may be disposed of by the trustee in accordance with law.
DONE AND ORDERED.
NOTES
[1] In the case of In re Warner, 83 B.R. 807 (Bankr.M.D.Fla.1988), the Court determined that the recently enacted Florida Uniform Fraudulent Transfer Act, Florida Statutes § 726.01 et seq., did not have application to transfers which occurred before January 1, 1988. The Court stands by that determination. Contra, In re Gherman, 103 B.R. 326 (Bankr.S. D.Fla.1989). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918150/ | 101 B.R. 361 (1989)
In re MIAMI GENERAL HOSPITAL, INC., Debtor.
Bankruptcy No. 87-02131-BKC-AJC.
United States Bankruptcy Court, S.D. Florida.
May 4, 1989.
David C. Profilet, Stroock & Stroock & Lavan, Miami, Fla., for trustee.
Evan J. Langbein, Miami, Fla., for claimant George N. Leader.
Gui L.P. Govaert, Miami, Fla., trustee for the estate of Miami Gen. Hosp., Inc.
Leonard H. Gilbert, Robert A. Soriano, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for First American Bank and Trust Co.
Holland and Knight, Miami, Fla., for Gen. Health, L.P., Gen. Partnership and Home Sav. of America, F.A.
Brian K. Goodkind, Adorno Allen Schiff & Goodkind, P.A., Miami, Fla., for Sp. Deputy Receiver of the Estate of Intern. Medical Centers, Inc.
Robert Beatty, Miami, Fla., for Southern Bell Telephone & Telegraph Co.
Asst. U.S. Trustee, Miami, Fla.
Gary C. Matzner, Hayt, Hayt & Landau, Miami, Fla., for Golden Glades Regional Medical Center, Inc.
Raul F. Pino, Miami, Fla., for Creditor, Fyrsafe Equipment, Inc.
Richard B. Adams, Jr., Adams Hunter Angones Adams Adams & McClure, Miami, Fla., for Claimant, Daniel Seckinger, M.D.
Malcolm W. Weldon, Pyszka Kessler Massey, Miami, Fla., for SSI Medical Services, Inc.
Christiana T. Moore, F. Philip Blank, P.A., Tallahassee, Fla., for Florida Patient's Compensation Fund.
Richard M. Bales, Jr., Kelly Black Black Byrne Craig & Beasley, P.A., Miami, Fla., on their own behalf.
Jeffrey A. Sarrow, P.A., Fort Lauderdale, Fla., for petitioning creditors, Ivan Fisher, Lewis Dan and Donald Altman.
Jeffrey A. Bernstein, Miami, Fla., for Sunshine State Properties, Inc.
*362 Irving V. Belzer, Smith Gill Fisher and Butts, Kansas City, Mo., for Midland Research Laboratories, Inc.
Joseph A. Gassen, Mershon, Sawyer, Johnston, Dunwody and Cole, Miami, Fla., Sp. Counsel to the Trustee of Miami Gen. Hospital, Inc.
Mary Kogut Equels, Holtzman Krinzman & Equels, Coral Gables, Fla., for Calmaquip Engineering Corp.
Jose I. Astigarraga, Steel, Hector & Davis, Miami, Fla., for Silvia Romero.
Janie Locke Anderson, Coll Davidson Carter, Smith, Salter & Barkett, Miami, Fla., for McDonnell Douglas Corp.
ORDER DENYING INTERNATIONAL MEDICAL CENTER, INC.'S AMENDED APPLICATION FOR ADMINISTRATIVE EXPENSE
A. JAY CRISTOL, Bankruptcy Judge.
THIS MATTER came before the Court on Thursday, March 23, 1989, at 9:30 a.m., on International Medical Center, Inc.'s Amended Application for Administrative Expense (the "Application"). By the Application, the Receiver[1] seeks allowance, as an administration claim, of expenses the estate of IMC incurred, both pre-and post-petition, arguably as custodian for Miami General Hospital, Inc. ("MGH" or the "Debtor"). The Trustee[2] and several general unsecured creditors[3] filed objections to the Application, contesting both the priority and amount claimed.[4] The Court, having reviewed the Application, objections and briefs of the parties, heard argument of counsel, and based on the facts to which the Trustee and the Receiver stipulated, enters the following findings, conclusions and order:
Findings of Fact and Conclusions of Law
1. Since May 14, 1987, IMC, previously a health maintenance organization, has been in a state court receivership under chapter 631 of the Florida Statutes, styled In re Receivership of International Medical Center, Inc., Circuit Court, Second Judicial Circuit, Leon County, Florida, case number 87-1456. IMC was the parent corporation of MGH, but with the commencement of IMC's receivership, the Receiver became the owner and holder of all of the common stock of the Debtor. On June 18, 1987, the Petitioning Creditors filed an involuntary petition under chapter 11 of the Bankruptcy Code against MGH, to which the Receiver consented during a hearing held June 19, 1989.
2. From May 14 through July 1, 1987, the Receiver operated MGH using funds of the estate of IMC. The Receiver did not itself incur any of the expenses claimed in the Application, but rather, funded MGH from the estate of IMC, which was nothing more than the parent corporation of the Debtor and, therefore, an "insider." See 11 U.S.C. § 101(30). Ordinarily, *363 the claims of insiders are subordinate to all others, not first in the scheme of distribution. See Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S. Ct. 1, 84 L. Ed. 110 (1939). Even if the Receiver was a custodian for MGH, the Receiver cannot shift such status to the estate of IMC so as to boost what is in reality IMC's insider claim to administrative priority.
3. Moreover, the fund of money from which the Receiver seeks reimbursement represents the proceeds of a settlement of litigation with the Debtor's principal lender, First American Bank and Trust Company ("FABT").[5] In contrast, none of the money contributed by the Receiver from IMC's estate to pay expenses of MGH created any source of funds from which to pay MGH's creditors.
4. The Trustee argues that IMC's claim is barred by laches because (a) the Receiver delayed for over a year in filing the Application or otherwise giving notice of its intent to assert on behalf of IMC the priority accorded the expenses of a custodian, relying on In re Chicago Pacific Corp., 773 F.2d 909, 917 (7th Cir.1985), and (b) the Receiver has never filed the report and account required of a custodian under 11 U.S.C. § 543(b)(2) and Bankruptcy Rule 6002(a). Although the Trustee's argument may be meritorious, it is not as persuasive as the reasoning set forth in paragraphs 2 and 3 above.
5. The Receiver argues that the broad provisions of chapter 631 of the Florida Statutes somehow should modify the result reached. But federal bankruptcy law governs the order of distribution in a case under title 11, not state law. See U.S. Const. art. IV, § 2; Connecticut Gen. Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612 (1st Cir.1988); Wisconsin v. Reese (In re Kennedy & Cohen, Inc.), 612 F.2d 963 (5th Cir.), cert. den., 449 U.S. 833, 101 S. Ct. 103, 66 L. Ed. 2d 38 (1980). Likewise, whether the Receiver was a custodian of MGH is also a question of federal law. See 11 U.S.C. § 101(10); In re Gold Leaf Corp., 73 B.R. 146 (Bankr.N.D.Fla.1987); Flournoy v. City Finance (In re Lewis), 12 B.R. 106 (Bankr.M.D.Ga.1981). If possible, otherwise conflicting federal and state laws should be accommodated. But in the instant case, the state law, chapter 631, is silent on the authority of a receiver of an insurance company to operate its subsidiaries. Further, chapter 631 says nothing about the effect of the receivership on the creditors of the insurance company's subsidiaries. In short, chapter 631 does nothing to protect the subsidiaries' creditors. Chapter 631 does not permit the conclusion that the Receiver was also the receiver for MGH and therefore a custodian within the meaning of 11 U.S.C. § 101(10).
6. Indeed, the Court finds that the Receiver was not a receiver of MGH appointed in a non-title 11 case or proceeding. See 11 U.S.C. § 101(10)(A). Nor was the Receiver authorized to take charge of MGH's property for the purpose of general administration of such property for the benefit of MGH's creditors. See 11 U.S.C. § 101(10)(C).[6] As such, the Receiver was not a custodian of MGH and therefore its claim is not allowable as an administrative expense under 11 U.S.C. § 503(b)(3)(E).
*364 7. Based on three orders[7], the Receiver contends that it was a receiver for MGH. However, on their face, none of the orders appoint the Receiver as receiver for MGH. The Rehabilitation Order and the Liquidation Order merely direct the Receiver to take possession of the securities held by IMC, which happened to include all of the outstanding stock of MGH. The mere fact that a parent corporation is in receivership does not mean that its subsidiaries are part of that receivership. Greenbaum v. Lehrenkrauss Corp., 73 F.2d 285 (2d Cir.1934) (L. Hand, Swan and Augustus N. Hand, judges). Nor does the Order of Clarification of Stay appoint the Receiver as receiver for MGH. That order says only that MGH is an asset of IMC's estate and enjoins all actions against MGH "or any other asset of [IMC]." As stated in the order, the purpose of the injunction was to prevent wasting of IMC's assets, which would harm IMC's creditors.[8]
8. Finally, IMC's claim is not otherwise allowable as an administrative expense under 11 U.S.C. § 503(b)(1)(A) because the Court did not authorize post-petition financing under 11 U.S.C. § 364(b). The Receiver's payment from the estate of IMC of expenses for goods and services allegedly supplied to MGH was not in the ordinary course of business. As such, prior Court approval of the expenses after notice and a hearing was a prerequisite to allowance of the expenses as an administration claim under 11 U.S.C. § 503(b)(1)(A). See, e.g., 3 Collier Bankruptcy Practice Guide ¶ 44.03[2] (A. Herzog and L. King 1989).
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the objections raised by the Trustee and the general unsecured creditors are sustained and the Receiver's Application is denied.
DONE AND ORDERED.
NOTES
[1] The State of Florida, Department of Insurance, Division of Rehabilitation and Liquidation, in its capacity as receiver for the estate of International Medical Center, Inc. ("IMC").
[2] Gui L.P. Govaert, trustee for the estate of MGH.
[3] The objecting creditors are Ivan Fisher, Lewis Dan, Donald Altman, Rudy Noriega (the "Petitioning Creditors"), Calmaquip Engineering Corporation and McDonnell Douglas Corporation. McDonnell Douglas Corporation holds both a general unsecured claim without priority and an administration claim.
[4] The Trustee also filed and served his Memorandum of Law in Support of Trustee's Objection to International Medical Center, Inc.'s Amended Application for Administrative Expense (the "Trustee's Memorandum") to which the Receiver responded with the Receiver's Memorandum of Law in Support of International Medical Center's Amended Application for Administrative Expense (the "Receiver's Memorandum"). The Trustee then replied with the Trustee's Response to Receiver's Memorandum of Law in Support of International Medical Center's Amended Application for Administrative Expense.
As set forth in the briefs, the Trustee and the Receiver agreed to first present legal argument on the question of the Application's entitlement to administrative priority, based on stipulated facts, and reserve for later argument and proof the question of amount. Consequently, I reach only the priority issue here, as I need make no determination of the amount of the claim.
[5] The Trustee disputed the validity, priority and extent of liens of FABT in certain real and personal property of the estate, objected to FABT's claim and sought to subordinate it to the claims of other creditors because the transactions between the Debtor and FABT were fraudulently intended to benefit the Debtor's parent, IMC. See Complaint to Determine Validity, Priority and Extent of Lien and Objection to Claim, to Set Aside Fraudulent Conveyance and for Equitable Subordination, Gui L.P. Govaert, Trustee, Miami General Hospital, Inc. v. First American Bank and Trust Company (In re Miami General Hospital, Inc.), adversary proceeding number 87-0444-BKC-AJC-A, case number 87-02131-BKC-AJC. As part of the settlement, FABT paid the Trustee approximately $1.2 million.
[6] The Receiver did not contend that it was a custodian under 11 U.S.C. § 101(10)(B), presumably because the Receiver was not an "assignee under a general assignment for the benefit of the [D]ebtor's creditors," since there was no such action commenced by or against the Debtor at any time pursuant to section 727.104 of the Florida Statutes.
[7] Order Appointing the Department of Insurance as Receiver for Purposes of Rehabilitation (Exhibit A to the Trustee's Memorandum) (the "Rehabilitation Order"); Order of Liquidation and Injunction (Exhibit B to the Trustee's Memorandum) (the "Liquidation Order"); Order of Clarification of Stay (Exhibit A to the Receiver's Memorandum).
[8] Because the Court finds that the Receiver was not a custodian, the so-called "Equitable Benefits Doctrine," enunciated in Randolph & Randolph v. Scruggs, 190 U.S. 533, 23 S. Ct. 710, 47 L. Ed. 1165 (1903), is inapplicable. Congress codified Randolph at 11 U.S.C. § 503(b)(3)(E) and thereby limited it to the expenses of parties who qualify as "custodians" under 11 U.S.C. § 101(10) or who otherwise take possession of the debtor's property pre-petition for the general benefit of the debtor's creditors. See In re Jensen-Farley Pictures, Inc., 47 B.R. 557 (Bankr.D. Utah 1985). Notably, if the Receiver truly were a custodian as it contends, the Receiver would not need Randolph to bolster its position. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005327/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4805
DARYL CUMMINGS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4826
CHARLENE RENE LOCKLEAR,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4903
CHARLES RONALD LOCKLEAR,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-21)
Submitted: August 20, 2001
Decided: September 10, 2001
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
2 UNITED STATES v. CUMMINGS
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina; Michael
R. Ramos, RAMOS & LEWIS, L.L.P., Shallotte, North Carolina;
Walter Hoytt Paramore, III, Jacksonsville, North Carolina, for Appel-
lants. John Stuart Bruce, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Felice McConnell Corpening,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Daryl Cummings, Charlene Locklear, and Charles
Locklear of conspiracy to manufacture and making, possessing, and
passing counterfeit currency. On appeal, they allege that the district
court erred by enhancing their offense levels for use of a minor.1
Finding no reversible error, we affirm.
The basic facts of this case are undisputed. Appellants and several
others gathered at Charlene Locklear’s home. Also present were a co-
defendant’s fifteen-year-old daughter, Charles Locklear’s sixteen-
year-old girlfriend, and Charlene Locklear’s three children, ages ten,
seven, and five. At some point during the evening, the conspirators
attempted to download images of federal reserve notes from the Inter-
1
U.S. Sentencing Guidelines Manual § 3B1.4 (2000).
UNITED STATES v. CUMMINGS 3
net and print them. However, they were unable to line up the fronts
and backs of the bills. The group ultimately obtained a scanner,
scanned images of real currency into the computer, and printed coun-
terfeit bills of various denominations. Some of the conspirators cut
the individual bills from sheets, and then everyone in the house,
including the five minors, crumpled the bills to make them appear
worn.
The currency was split up, and Charles Locklear, four co-
conspirators, and the fifteen-year-old traveled to South Carolina, pass-
ing counterfeit bills at several convenience stores, purchasing crack
cocaine, and attempting to use the bogus bills to play video poker.
When they returned home, another group, which included Cummings,
Charlene Locklear, and the fifteen-year-old, left to pass the notes at
several more convenience stores and a flea market. Charles Locklear
remained in the house with the other minors and printed more bills.
The conspirators were apprehended after the fifteen-year-old and an
adult co-defendant were arrested while attempting to pass counterfeit
bills at a Wal-Mart.
Appellants all objected at trial to the USSG § 3B1.4 enhancement,
arguing, as they do on appeal, that there was no evidence they
recruited, coerced, or actively employed the minors.2 Cummings also
argues that there was no evidence he was aware the minors were
under the age of eighteen.
Appellants primarily rely on recent decisions by the Sixth and
Ninth Circuits to support their position that the definition of "use" for
purposes of the enhancement should be similar to that found in Bailey
v. United States, 516 U.S. 137 (1995).3 We reject such a narrow defi-
2
Under USSG § 3B1.4, a defendant’s base offense level may be
enhanced by two levels if a minor is used. "Use" is defined as "directing,
commanding, encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting" the minor. USSG § 3B1.4, cmt. n.1. In the pres-
ent case, Appellants allege that the minors were willing and active partic-
ipants.
3
See United States v. Butler, 207 F.3d 839, 847-48 (6th Cir. 2000)
(holding that a defendant must take affirmative steps to actively employ
the minor); United States v. Parker, 241 F.3d 1114, 1120-21 (9th Cir.
2001) (same).
4 UNITED STATES v. CUMMINGS
nition, finding the approach taken by the Seventh Circuit, focusing on
the term "encouraging" in the definition of "use," to be more persua-
sive. United States v. Ramsey, 237 F.3d 853, 859-60 (7th Cir. 2001)
(holding that an adult defendant who forms a partnership with a minor
clearly encourages the minor to commit the crime by virtue of the
inherent relationship between adults and minors), petition for cert
filed, Apr. 18, 2001 (No. 00-9546).
In the present case, there were special relationships between the
minors and the adult conspirators that make the Seventh Circuit’s
approach more applicable. For example, we find it highly probable
that Charles Locklear (age twenty-eight at the time of the offenses)
influenced and encouraged his sixteen-year-old girlfriend to partici-
pate. Likewise, the fifteen-year-old was probably encouraged by her
co-conspirator mother. More importantly, it is beyond debate that
Charlene Locklear’s ten, seven, and five-year-old children required
direction and encouragement while they helped crumple the counter-
feit bills.
Finally, we find Cummings’ scienter argument to be without merit.
As a factual matter, even if he could not tell that the fifteen- and
sixteen-year-olds were minors, there could be no question as to Char-
lene Locklear’s small children. Furthermore, the burden is on Cum-
mings to show that the information in the presentence report is
incorrect, and we find that he has failed to meet this burden. United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). More importantly,
there is nothing in the guidelines imposing a knowledge requirement.
United States v. McClain, 252 F.3d 1279, 1286 (11th Cir. 2001).
We therefore affirm Appellants’ convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005363/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-4143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AUDWIN L. DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CR-97-331)
Submitted: September 6, 2001 Decided: September 18, 2001
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James M. Nachman, NACHMAN & KAUFMAN, L.L.P., Richmond, Virginia,
for Appellant. Stephen Wiley Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Audwin L. Davis appeals the district court’s revocation of
supervised release imposed pursuant to a conviction for possession
of a firearm by a controlled substance abuser. Davis’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious issues for
appeal. On Davis’s behalf, counsel contends that the district
court abused its discretion in finding Davis in violation of his
supervised release and in imposing a twelve-month period of active
incarceration. Davis has filed a pro se supplemental brief also
claiming that the district court abused its discretion.
We have reviewed the claims and find no abuse of discretion.
See United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995).
In addition, we have examined the entire record in this case in
accordance with the requirements of Anders and find no meritorious
issues for appeal. We therefore affirm.
This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be friv-
olous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on the client. Finally, we dispense with oral
argument because the facts and legal contentions are adequately
2
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/237325/ | 224 F.2d 906
JUNSO FUJII, Appellant,v.John Foster DULLES, Secretary of State of the United States, Appellee.
No. 14460.
United States Court of Appeals Ninth Circuit.
July 14, 1955.
Wirin, Rissman & Okrand, Los Angeles, Cal., Fong, Miho, Choy & Chuck, Honolulu, Hawaii, for appellants.
Louis B. Blissard, U. S. Atty., Charles B. Dwight, III, Asst., Honolulu, Hawaii, Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.
DENMAN, Chief Judge.
1
Fujii appeals from a judgment of the District Court for the District of Hawaii dismissing his amended and supplemental complaint brought under 8 U.S.C. § 903,1 for a declaration that he is a citizen of the United States.
2
One of the grounds of the dismissal is that though the original complaint filed on December 16, 1952 sought relief expressly under 8 U.S.C. § 903, it failed to state that Fujii had been denied registration as a citizen of the United States on the ground he was not a national of the United States as required by Section 903, and that, since the amended and supplemental complaint alleging such denial was filed after the repeal of Section 903, it could not be considered and the complaint must be dismissed.
3
We do not agree that after the repeal of Section 903, the original complaint so could not be amended. Appellee relies upon Bonner v. Elizabeth Arden, Inc., 2 Cir., 177 F.2d 703, 705, holding that such amendments cannot be filed after expiration of the statute of limitations. We think the complaint so far as it is an amendment on matters "attempted to be set forth" in the original proceeding under Section 903 should have been deemed properly filed under F.R.C. P. 15(c), 28 U.S.C., as follows:
4
"(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."
5
In so far as the supplemental pleading alleges matters subsequent to the "pleading sought to be supplemented" it should be considered, as is an amendment, and allowable as such under F.R.C.P. 15(c).
6
"(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor."
7
The following cases are in accord with our view that the claimed jurisdictional defect so may be cured by supplemental pleadings. Porter v. Block, 4 Cir., 156 F.2d 264, 271; Technical Tape Corp. v. Minnesota Mining & Mfg. Co., 2 Cir., 200 F.2d 876, concurring opinion by Judge Clark at page 879; Genuth v. National Biscuit Co., D.C.S.D.N.Y., 81 F.Supp. 213, 214. The reasoning of these cases applies a fortiori to the construction of a statute for preventing the deprivation of a citizen's nationality for, as stated by the Supreme Court in Schneiderman v. United States, 320 U.S. 118, at page 122, 63 S.Ct. 1333, at page 1335, 87 L.Ed. 1796, "the facts and law should be construed as far as is reasonably possible in favor of the citizen". Cf. Fukumoto v. Dulles, 9 Cir., 216 F.2d 553, 554.
8
It further appears that on October 17, 1952 Fujii applied at the office of the American Vice Consul at Kobe, Japan for registration as a citizen of the United States. Instead of acting at once on this application for registration, the Vice Consul, proceeding under 8 U.S.C. § 901, certified to the Department of State that he had reason to believe that Fujii had lost his United States citizenship under 8 U.S.C. § 801 by service in the army of Japan.
9
An affidavit by the Assistant United States Attorney for the District of Hawaii states that the certificate of loss of nationality was not approved by the Secretary of State until March 18, 1953 and a copy forwarded to the Consulate at Kobe — and that on that date the Consulate denied Fujii application for registration as a citizen.
10
Fujii's complaint admitted the army service but alleged that it was not his free and voluntary act but was the result of duress and coercion. His complaint alleges that the certificate was approved by the Secretary of State on December 18, 1952, and that this was the ground of the failure to register him as a citizen seeking a passport on that date. For the purposes of this opinion, we assume the approval of the certification and the Consul's denial of Fujii's registration as a citizen based on it to have been at the later date of March 18, 1953, asserted by Dulles.
11
The district court narrowly construed the saving clause of § 903 as not continuing Fujii's proceeding for registration as a citizen after December 24, 1952, the date of the repeal of § 903. We do not agree. The liberal construction of the Schneiderman case should have been followed. The saving clause of § 405(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 note, provides that it shall not be "`construed to affect'" a proceeding under § 903 such as is Fujii's here.
12
Speaking of an amendment made in Congress to § 405(a), the Supreme Court states in United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 518, 99 L.Ed. ___, that "The change in the section was designed to extend a savings clause already broadly drawn, and embodies, we believe, congressional acceptance of the principle that the statutory status quo was to continue even as to rights not fully matured." (Emphasis supplied.) Fujii had the right to litigate his case before the district court though his right thereto had not fully matured on December 24, 1952.
13
The judgment is reversed and the case remanded to the district court to determine Fujii's contention that he was coerced into his service in the army of Japan.
Notes:
1
Now Immigration and Nationality Act, § 360, 8 U.S.C.A. § 1503 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/374960/ | 615 F.2d 1315
103 L.R.R.M. (BNA) 2755, 88 Lab.Cas. P 11,881
Myrna VARRA, Plaintiff-Appellant,v.DILLON COMPANIES, INC., a Kansas Corporation, d/b/a KingSoopers, Inc. and Bakery and ConfectioneryWorkers' International Union of America,AFL-CIO, Local No. 72,Defendants-Appellees.
No. 78-1250.
United States Court of Appeals,Tenth Circuit.
Argued Aug. 16, 1979.Decided Feb. 29, 1980.
Donald A. Brenner, Denver, Colo., for plaintiff-appellant.
Walter C. Brauer, III of Brauer & Simons, Denver, Colo. (James A. Huttv'Dodd, Denver, Colo., with him on the brief), for defendant-appellee Bakery and Confectionery Workers' Intern. Union of America, AFL-CIO, Local No. 72.
Earl K. Madsen of Bradley, Campbell & Carney, Golden, Colo., for defendant-appellee Dillon Companies, Inc., d/b/a King Soopers, Inc.
Before HOLLOWAY, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
1
Myrna Varra sued her employer, Dillon Companies, Inc. d/b/a King Soopers, Inc., and her union, Bakery and Confectionery Workers' International Union of America, AFL-CIO, Local No. 72, for $2,000 in back wages she asserted were owed to her because of an allegedly unlawful discharge. The suit against the employer is based on breach of the collective bargaining agreement, and the claim against the union is based on breach of the duty of fair representation. Jurisdiction is asserted under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
2
The trial court awarded summary judgment in favor of both defendants on the ground that Varra had failed to exhaust internal union remedies. On appeal Varra admits this failure, but argues that exhaustion is not required when exhaustion of union remedies would be futile or inadequate, or when the union has breached its duty of fair representation in handling the grievance.
3
After her discharge Varra submitted her claim to the union, which initiated the grievance procedure set forth in the collective bargaining agreement. Following an investigation, the union declined to submit the grievance to arbitration. This technically ended the grievance procedure. Varra alleges this refusal was arbitrary and capricious and therefore violated the union's duty of fair representation.
4
The union's constitution and bylaws1 provide a procedure by which union members can file charges against union officials for unfair treatment. The constitution of the international union in article XXII, section 3(g), states,
5
If the charges, or any portion thereof, are sustained, the trial body may impose any penalty necessary and appropriate under the circumstances, including, but not limited to reprimand, fine, suspension, expulsion, revocations of charters and orders to perform or refrain from performing any specified acts. Upon failure to comply with any such judgment, (unless stated in accordance with this Constitution) the member, officer or local union shall stand suspended.
6
The trial court held this internal union appeal could result in reinstatement of the grievance procedure because the trial body had the power to order the union official to proceed with arbitration of Varra's claim against the company. In an affidavit submitted by the defendant union to support its motion for summary judgment, Ray R. Valdez, President and Business Manager of Local 72, states that Varra did not file any charges pursuant to this internal union procedure, and that nothing was said or done to inhibit her from doing so. Varra makes no allegations to the contrary.
7
* We deal first with the union's defense of failure to exhaust internal remedies. In Imel v. Zohn Mfg. Co., 481 F.2d 181 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974), this Court held that failure to exhaust internal union remedies, as required by the union constitution, precludes a civil suit against the union for breach of the duty of fair representation when there is no allegation or proof that resort to those procedures would be futile. See also Fizer v. Safeway Stores, Inc., 586 F.2d 182 (10th Cir. 1978). Varra argues that appeal was futile here because the internal union procedures could not give her the requested relief of back pay. She misunderstands the exception.
8
The Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), recognized that under certain circumstances exceptions to the exhaustion of remedies doctrine are necessary and appropriate. One such situation is when the union wrongfully prevents the employee from using the grievance procedure. Id. 185-86, 87 S.Ct. 914. Another is when the union and the employer are charged with systematic and concerted racial discrimination; it would be futile for employees to submit this charge to a procedure administered by either the union or employer. Glover v. St. Louis-San Francisco Ry., 393 U.S. 324, 330-31, 89 S.Ct. 548, 551-52, 21 L.Ed.2d 519 (1969). Another recognized exception is when internal union remedies do not provide redress for the particular grievance. See, e. g., Fruit & Vegetable Packers Local 760 v. Morley, 378 F.2d 738, 745 (9th Cir. 1967) (no provision in union constitution for dealing with a violation of federal law).
9
In the instant case there is no allegation or proof that anyone prevented Varra from pursuing her internal union remedies, or that appeal would be futile because of union animus directed against her. Varra's charge of arbitrary and capricious action is really only levied against the union officials who denied her arbitration. No reason is given to conclude that the person involved in the appeal procedure would not be fair and reasonable. See Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969). No facts are alleged at all, except that the union did not pursue the arbitration of Varra's claim. The union procedure addresses the claim Varra has asserted against the union breach of duty to represent by arbitrarily refusing to pursue her wrongful discharge grievance. It provides her a remedy that cures any breach by subordinate union officials; the appeal board can order initiation of arbitration, which may, of course, vindicate her claim for back pay.
10
This case exemplifies the policy underlying the exhaustion of remedies rule allowing labor organizations the opportunity to resolve disputes concerning their internal affairs before dissident members bring the disputes before the courts. See Imel v. Zohn Mfg. Co., 481 F.2d 181, 183 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974). Here any breach that may have occurred could be cured by the union through its own established appeal processes; judicial intrusion into its affairs would then be unnecessary. We therefore affirm summary judgment in favor of the union.
II
11
Next we address the employer's defense of failure to exhaust remedies. The remedies set forth in the bargaining agreement, to which the employer is a party, were technically exhausted when Varra was denied the final step in the grievance procedure arbitration. The requirement of pursuing an appeal within the union arises only under the union constitution, an agreement to which the employer is not a party. Thus the employer does not have contractual standing to require an employee to exhaust the union appeal. Therefore, we must determine whether the employer should be allowed on policy grounds to raise the exhaustion defense in a case like that before us.
12
Some courts have stated flatly that the employer cannot raise failure to exhaust internal union remedies as a defense in a suit for breach of the collective bargaining agreement. Petersen v. Rath Packing Co., 461 F.2d 312, 315 (8th Cir. 1972); Brady v. TWA, Inc., 401 F.2d 87, 104 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969). Another circuit has stated the employer can raise this defense under certain circumstances. Harrison v. Chrysler Corp., 558 F.2d 1273, 1278 (7th Cir. 1977); Orphan v. Furnco Const. Co., 466 F.2d 795, 801 (7th Cir. 1972). See also Fizer v. Safeway Stores, Inc., 586 F.2d 182, 184 (10th Cir. 1978) (exhaustion not required after final arbitration).
13
We think the failure to exhaust internal union remedies should be available as a defense to the employer in this case. Requiring pursuit of a union appeal that can result in reinstatement of the grievance and arbitration of the unlawful discharge dispute is more desirable here than a civil suit for several reasons. The national labor policy in favor of private dispute resolution is served by requiring complaints to be processed outside the courts whenever there is an effective process available, see Harrison v. Chrysler Corp., 558 F.2d at 1278; Orphan v. Furnco Const. Co., 466 F.2d at 801; there is no evidence in this case that either the grievance procedure or the union appeal would be futile or is in some way being undermined by wrongdoing on part of the union and/or employer. The integrity of the bargaining agreement grievance procedure is maintained by allowing all possible cases to be funneled through it. "Such activity complements the union's status as exclusive bargaining representative by permitting it to participate actively in the continuing administration of the contract. In addition, conscientious handling of grievance claims will enhance the union's prestige with employees. Employer interests, for their part, are served by limiting the choice of remedies available to aggrieved employees." Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Finally, if the union determines Varra's complaint is meritorious, her cause is furthered by having the union's backing, including use of the union's financial resources, to battle for her rights. Requiring an employee to utilize collateral means of reviving the grievance procedure can be time-consuming, of course. But under the circumstances of the present case this drawback is outweighed by the important interests furthered by the requirement.
14
Varra argues, however, that Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), relieves her of the exhaustion requirement here. That case held a wrongfully discharged employee may sue the employer directly, in the face of a defense of failure to exhaust contractual remedies, if he or she can prove the union breached its duty of fair representation in handling the employee's grievance. Id. at 186, 87 S.Ct. at 914. In such a case the employee must not only show the discharge was contrary to the contract, but also demonstrate breach of duty by the union. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976).
15
Here Varra has joined the union as a defendant in her suit against the employer, asserting breach of its duty of fair representation. But, we did not reach the merits of her claim against the union, because we held she could not maintain her suit against the union without first availing herself of internal union remedial procedures. Should we allow her to obtain a judicial determination of the same alleged defalcation in these circumstances by suing the employer? We think not. The suit against the employer seems premature when the union may yet cure its wrong to her, if there is one.
16
The judgment is affirmed.
1
The appellate record does not include the bargaining agreement, union constitution or bylaws, or any affidavit submitted in connection with the motion for summary judgment. We therefore must rely upon quotations and references in the various briefs and the trial court's opinion. There does not seem to be any real issue, however, concerning what they state | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/237446/ | 225 F.2d 558
Mary B. RILEY, Appellant,v.UNITED STATES of America, Appellee.
No. 12512.
United States Court of Appeals District of Columbia Circuit.
Argued May 23, 1955.
Decided July 14, 1955.
Messrs. Joseph F. Salisbury and Michael F. X. Dolan (appointed by the District Court), Washington, D. C., for appellant.
Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Lewis Carroll and Thomas A. Flannery, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, WASHINGTON and BASTIAN, Circuit Judges.
BAZELON, Circuit Judge.
1
Appellant was convicted of manslaughter. At the trial she claimed that she had stabbed her common-law husband to death in self-defense.
2
According to the testimony of a policeman, appellant stated orally and in writing that she engaged in a fight with the deceased; that, while they were wrestling on the floor facing each other, the appellant on her left and the deceased on his right side, appellant stabbed the deceased in his back. Dr. Murphy, the deputy coroner, on the basis of an autopsy he performed, described the nature and direction of the stab wound. He was then asked to express his opinion, in response to a hypothetical question, whether it was physically possible for the left-handed appellant, "holding a knife in her left hand, to have inflicted the type of wound * * * found on decedent" in the manner that she explained to the policeman. The trial court overruled defense objections and permitted Dr. Murphy to answer. He testified:
3
"I think it would have been impossible to inflict the wound described by me, as cited in the question. My reason for saying that — may I explain, sir? * * * My reason for saying that is because of the fact if a person was left-handed, facing an individual, in order to inflict a wound carrying the direction of the wound that I described, the arm would have had to go under the body and the thrust come from in back, with the arm under the body, and there would have been a loss of function of that arm from pressure of the body on the muscles of the arm."
4
Admission of this testimony, appellant says, is reversible error. We do not agree.
5
Even where, as here, the expression of opinion by an expert on a hypothetical question closely touches the ultimate issue which the jury must determine,1 it is admissible so long as it relates to matters within the witness' special competence and skill and not to matters of common knowledge and observation.2 Dr. Murphy's opinion required knowledge of human anatomy and of the character of wounds and their effect on body tissue. He had to determine if the muscles and joints in the arm, located in the position appellant described, could have operated with sufficient power to inflict the stab wound; he also had to consider the direction and extent of penetration of the wound. Testimony of this nature is for medical experts, not laymen.3 Hence the court properly exercised its discretion in permitting Dr. Murphy to respond to the hypothetical question and thus to assist the jury in resolving the ultimate issue of self-defense.
6
Appellant also contends that the verdict of guilt was not supported by sufficient evidence. We have examined this contention and find it without merit.
7
Affirmed.
Notes:
1
Dr. Murphy did not testify on the ultimate issue of self-defense. His testimony cast doubt on appellant's credibility by rebutting her statement that the wound was inflicted in the manner and from the position she described. On cross-examination, he conceded that the stabbing could have occurred in two other ways during the wrestling: first, if decedent had rolled on the knife, and second, if he were on top of appellant when she was on her back
2
See Pasadena Research Laboratories v. United States, 9 Cir. 1948, 169 F.2d 375, 385, certiorari denied, 1948, 335 U.S. 853, 69 S.Ct. 83, 93 L.Ed. 401; Murray v. United States, 1923, 53 App.D.C. 119, 121-122, 288 F. 1008, 1011. Accord, Kenney v. Washington Properties, 1942, 76 U.S.App.D.C. 43, 45, 128 F.2d 612, 614, 146 A.L.R. 1
3
Commonwealth v. Spiropoulos, 1911, 208 Mass. 71, 72, 94 N.E. 451, 452; State v. Avery, 1933, 176 La. 264, 270-274, 145 So. 535, 536-537. Cf. Bram v. United States, 1897, 168 U.S. 532, 569, 18 S.Ct. 183, 42 L.Ed. 568 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1005571/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4251
HOWARD ELLIOT BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-00-232)
Submitted: September 25, 2001
Decided: October 19, 2001
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Benjamin H. White, Jr., United States Attor-
ney, Douglas Cannon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
2 UNITED STATES v. BROWN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Howard Elliot Brown was found guilty by a jury of two counts of
transporting stolen motor vehicles in interstate commerce, pursuant to
18 U.S.C. §§ 2, 2312 (1994). The court imposed a sentence of forty-
seven months incarceration. This appeal followed.
Brown challenges the sufficiency of the evidence to support his
conviction. The elements of 18 U.S.C. § 2312 are: (1) the defendant
transported or caused to be transported in interstate commerce; (2) a
stolen vehicle; (3) which the defendant knew to be stolen. United
States v. Chorman, 910 F.2d 102, 110 (4th Cir. 1990). Brown chal-
lenges only the district court’s denial of his motion for acquittal, Fed.
R. Crim. P. 29, based on his claim that the evidence was not sufficient
to support a finding that he had knowledge the motor vehicles he sold
were stolen.
Brown’s conviction must be affirmed if the evidence, viewed in the
light most favorable to the government, is sufficient for any rational
jury to find the elements of the offense beyond a reasonable doubt.
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In evaluating the
sufficiency of the evidence, we do not review the credibility of the
witnesses, and we assume that the jury resolved all contradictions in
the testimony in favor of the government. United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998). An inference of knowledge of the
stolen character of property arises from unexplained possession of
recently stolen property. United States v. Chorman, 910 F.2d at 113;
Battaglia v. United States, 205 F.2d 824, 826 (4th Cir. 1953). With
these standards in mind, our review of the briefs and joint appendix
makes clear that there was sufficient evidence to support Brown’s
convictions.
UNITED STATES v. BROWN 3
Accordingly, we affirm Brown’s convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/237284/ | 224 F.2d 721
55-2 USTC P 9625
UNITED STATES of America, Appellant,v.Paul W. SAMPSELL, Trustee in Bankruptcy for the Estate of F.P. Newport Corporation, Ltd., Bankrupt, Appellee.
No. 14569.
United States Court of Appeals Ninth Circuit.
Aug. 11, 1955.
H. Brian Holland, Asst. Atty. Gen., Grant W. Wiprud, Ellis N. Slack, A. F. Prescott, Sp. Assts. to Atty. Gen., Laughlin E. Waters, U.S. Atty., Edward R. McHale, Asst. U.S. Atty., Los Angeles, Cal., for petitioner.
Norman A. Bailie, George Bouchard, Los Angeles, Cal., for respondent.
Before STEPHENS, ORR and CHAMBERS, Circuit Judges.
ORR, Circuit Judge.
1
The United States of America, hereafter Government, has demanded payment of income taxes from Trustee Sampsell on income alleged to have been received by the bankrupt estate from May 26, 1952, to January 1, 1953. The Government duly filed its claim asserting a deficiency. The trustee filed objections and the referee in bankruptcy entered an order disallowing the claim. The Government petitioned the United States District Court for review. The order of the referee was confirmed. The cause was submitted on a stipulation of facts.
2
This is not the first time the trustee has been in disagreement with the Government over liability of the bankrupt estate for income taxes. The trustee challenged the right of the Government to collect taxes for the years 1938 and 1939. Litigation ensued and culminated in a decision of this court upholding the Government's contention, United States v. Metcalf, 9 Cir., 131 F.2d 677, certiorari denied 318 U.S. 769, 63 S. Ct. 761, 87 L. Ed. 1140. In the Metcalf case this court said that it is the nature and character of the operation of the bankrupt's property by the trustee which determines whether such operation falls within the meaning of § 52 of the Internal Revenue Code of 1939, 26 U.S.C.A., so as to become taxable. This court, after reviewing the nature of the operations then conducted by the trustee, held the income in question to be taxable.
3
The Government seems to argue that the decision in the Metcalf case on facts present there, is determinative here. The Metcalf case could have that effect only in the event the facts were in substance the same as in the instant case. Subsequent to the decision in the Metcalf case and on May 26, 1952, an order of liquidation was entered directing the trustee to sell the assets of the estate either at private or public auction and close the estate. The stipulation of facts in this case shows that in 1952 much of the property of the bankrupt remained in the hands of the trustee. It is agreed that income was received by the trustee in the period in question, but there is no showing of the manner in which this income was received or its character. The trustee seems to content himself with the assertion that the order for liquidation of itself renders income thereafter received by the estate, irrespective of source or character of operations conducted, nontaxable, and relies on the case of California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R. 2d 1211, in support of its position. We do not construe that case to so hold. True, this court gave effect to the order for dissolution, but in determining whether the income there involved was taxable this court considered what the trustee had done and whence came the income. The particular facts and circumstances under which the trustee operated were before the court. The Goggin case is in no way at variance with the holding in the Metcalf case, viz.: that it is the nature of the operation of the bankrupt's property which determines whether or not income is taxable. In the Owl Drug case1 the court had before it the facts of what the trustee had done and the source and nature of the income received in making its decision that the income there in question was not taxable.
4
The stipulation of facts before us gives no information as to how the trustee conducted the affairs of the estate after the order of liquidation was entered and the source of the income. The stipulation of facts before the court in the Metcalf case is made part of the record on this appeal but those facts are not competent to prove what occurred in 1952. The facts before us show the date F. P. Newport Corporation, Ltd., was declared bankrupt; that in 1938 and 1939 the trustee executed certain oil and gas leases and received substantial royalties, etc. The stipulation recounts the holding of this court in the Metcalf case, and further states that the trustee filed federal income returns showing items of income and deductions during certain of the subsequent years, and paid the tax due thereon; that on May 26, 1952, the referee in bankruptcy entered an order of liquidation; that the trustee filed a federal income tax return for 1952 which included only the income and expenses January 1, 1952 to May 26, 1952; that the Director of Internal Revenue denied the contention of the trustee that the order of May 26, 1952, relieved the trustee from any obligation to pay income taxes subsequent to May 26, 1952; and that much of the property of the corporation which came into the hands of the trustee remains unsold. It is thus apparent that this court, from the facts before it, can make no determination as to the character of the income received subsequent to May 26, 1952, and from what source received, a knowledge of which is absolutely essential to a proper solution of this case.
5
The facts presented being insufficient the question arises as to who had the burden of proof. In this connection we quote from 3 Collier on Bankruptcy, 3d ed. p. 2173: '* * * a sworn proof of a tax claim in proper form establishes a prima facie case for the allowance of the claim. The burden of proof is on the claimant, but the burden of going forward and introducing evidence to rebut the prima facie case is on the objecting party.' The trustee has not met this burden.
6
The order of the referee is reversed and the case remanded for such further proceedings as may appear necessary and proper.
7
Order reversed.
1
In re Owl Drug Co., D.C., 21 F. Supp. 907 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/387942/ | 642 F.2d 1151
UNITED STATES of America, Plaintiff-Appellee,v.James Wood CASTLEBERRY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Charles Monroe GILPEN, Defendant-Appellant.
Nos. 80-1138, 80-1139.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 12, 1981.Decided March 23, 1981.
1
Tom O'Toole, Phoenix, Ariz., for Castleberry.
2
Arthur L. Rothenberg, Miami, Fla., for Gilpen.
3
Robert Abel, Sp. Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
4
Appeal from the United States District Court for the District of Arizona.
5
Before WALLACE and POOLE, Circuit Judges, and SMITH,* District judge.
RUSSELL E. SMITH, District Judge:
6
Defendants Castleberry and Gilpen, following a joint trial, were convicted of conspiracy to import (21 U.S.C. § 963), conspiracy to possess with intent to distribute (21 U.S.C. § 846), and possession of (21 U.S.C. § 841(a)(1)) a controlled substance. All counts related to the same transaction. It is conceded that there was a conspiracy and that substantial quantities of marijuana were smuggled into the United States from Mexico.
7
Defendants claim that the evidence was insufficient to connect them with the conspiracy. It is probable that without the testimony of a coconspirator, Berry, the evidence is insufficient. Berry, however, identified Defendant Castleberry as one of the entrepreneurs and Defendant Gilpen as the owner of the plane used in the smuggling. There were many reasons why the jury might have rejected Berry's testimony: At the time of this offense he was a convicted felon on parole; he had committed perjury in the trial leading to his prior conviction; he was impeached by prior contradictory statements; he had identified an innocent man as the pilot of the plane; he had been promised immunity for the crimes here involved; he was under the witness protection program,1 and the value of his support and pay was something over $11,000.00; he had been given a new identity; he had federal help in finding a job. Had there been no corroboration, it might be said that the qualifications of the witness were so shoddy that a verdict of acquittal should have been entered. See Lyda v. United States, 321 F.2d 788 (9th Cir. 1963). In our opinion, however, Berry's testimony was corroborated by documentary and physical evidence, the force of which was more than adequate to connect both defendants to the conspiracy.
8
It is also urged that evidence relative to the witness protection program was so prejudicial that a reversal is required. In opening, the United States Attorney said: "We will have testimony from one of the co-conspirators, an individual who was not indicted, but a co-conspirator, nevertheless, by the name of Walter Berry." In opening, the attorney for Castleberry said: "As I pointed out, the Government has in effect given Mr. Berry immunity regarding federal prosecution. I think the evidence will also show that he has been given some form of compensation in return for his cooperation separate and apart from the normal witness fees. He has been given assistance in relocating and finding a new job, perhaps even assistance in locating a job."
9
Berry was called as the Government's first witness, and on direct examination his testimony was as follows:
10
Q Are you currently under the Federal Witness Protection in court here with the people who are assigned to you?
11
A Yes, I am.
12
Q Tell us why you are testifying in this matter?
13
A I have several reasons. Do you okay.
14
Well, I felt I didn't have much option. I had an agreement to work with these guys and when we got busted they deserted me. I heard rumors. A friend of mine got picked up and four guys in a limousine with machine guns looking for me.
15
MR. O'TOOLE: I object as to the relevancy and I ask for some more foundation on this.
16
THE COURT: I'll sustain the objection. Counsel will proceed by question and answer.
17
Q BY MR ABLE: Did you have any particular fears of the individuals involved?
18
A Yes, yes I did and also the fact that I was told they would bail me out of jail, retain counsel, pay me, none of that was done, and I promised my dad died that week. I promised him I would go straight.
19
The next day counsel for Castleberry moved for a mistrial. The motion was denied.
20
Counsel for Castleberry, on the cross-examination of Berry, developed that, after Berry had agreed to cooperate with the Government and before he went into the program, the Government furnished him money to move, paid his bills until he moved into his own place, and then paid him $700.00 per month until the month of the trial. Counsel for Gilpen, on cross-examination of Berry, proved that he had gone into the protection program and that the threats had nothing to do with the prosecution of Castleberry and Gilpen but rather came from a coconspirator named Pettit, who was separately tried.
21
At the request of the defendants, the court instructed the jury as follows:
22
The witness, Walter E. Berry, has testified that he received threats following his arrest in San Diego. There is no evidence before you, however, to indicate that the Defendants Castleberry and Gilpen personally made any threats directly or indirectly against the person of Walter E. Berry.
23
In view of the defendant Castleberry's opening and the inquiries of both defendants into the relationship between the Government and Berry involving as it did promises of immunity and payments of money, it was relevant for the Government to prove that the payments were made because Berry was being protected and that that protection was offered because Berry did have a fear generated by his cooperation with the prosecution. Once the matter of the protection program is broached, there is always some danger that the jury will infer without further evidence that the defendants themselves were the sources of the fear. Where, as here, however, there was evidence that Pettit, not the defendants, was the source of fear, and the jury was instructed that the defendants were not directly or indirectly responsible, the danger was minimal. In any event, the defendants deliberately took the risk. When Castleberry's counsel moved for discovery of the amounts paid under the witness protection program, he was advised by the court that, if the matter was opened, the Government would have a right to prove the witnesses' fears. It is now argued that Castleberry's counsel did not in opening refer to the witness protection program by name, nor mention Berry's fears; but once counsel opened the gate of special privileges the reason for those privileges became relevant, no matter how carefully the words suggesting the special benefits were chosen.
24
That the threats surfaced in the direct examination rather than on redirect is, in our opinion, under the circumstances of this case, no more than a problem in the order of proof and, while perhaps unfortunate, not error of a magnitude requiring reversal. See United States v. Partin, 552 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977); United States v. Librach, 536 F.2d 1228 (8th Cir.), cert. denied, 429 U.S. 939, 97 S. Ct. 354, 50 L. Ed. 2d 308 (1976).
25
Affirmed.
POOLE, Circuit Judge, concurring specially:
26
In concurring with the court's opinion, I feel it necessary to emphasize disapproval of the tactics employed by the prosecution in this case. The Government introduced what it had to know would be highly prejudicial testimony concerning threats against the witness Berry. The prejudicial outfall from this particular kind of testimony may linger despite any cautionary instructions, the suspicion having been implanted in the jurors' minds of connection between the defendants and their threatening coconspirators. The argument that this testimony was relevant to rehabilitate Berry is belied by the fact that it was elicited on direct examination, before the defense had had an opportunity to impeach him.
27
The Government no less than the court is duty-bound to seek and to serve justice. That obligation is ill-served in resorting to tactics of the sort portrayed here.
28
I have nonetheless joined the majority opinion because the evidence supporting conviction was substantial and the trial judge, with full knowledge of the posture of the case, gave instructions about the threats which on review I cannot conclude failed to repair the damage.
*
Honorable Russell E. Smith, Senior United States District Judge, District of Montana, sitting by designation
1
Pub.L.No. 91-452, 18 U.S.C.A. preceding § 3481 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/300884/ | 453 F.2d 908
UNITED STATES of America, Plaintiff-Appellee,v.Frank DeLAUGHTER et al., Defendants-Appellants.
No. 30166 Summary Calendar.*
United States Court of Appeals,Fifth Circuit.
Jan. 10, 1972.Rehearing Denied Feb. 3, 1972.
Norman Magee, Ferriday, La., for defendants-appellants.
Donald E. Walter, U. S. Atty., Robert H. Shewell, Asst. U. S. Atty., Shreveport, La., Frank D. Allen, Jr., Criminal Section, Civil Rights Division, Dept. of Justice, Washington, D. C., David L. Norman, Asst. Atty. Gen., for plaintiff-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
GEWIN, Circuit Judge:
1
Appellants Frank DeLaughter, Lee Drane and Ed Fuller were each indicted on one count charging a violation of 18 U.S.C.A. Sec. 2421 and on one count charging a conspiracy in violation of 18 U.S.C.A. Sec. 371. After a three day trial by jury each of the appellants was convicted on the Sec. 242 count. The jury was unable to agree as to the conspiracy charge, and a mistrial was declared as to all appellants on that count. We affirm.
2
Since no evidentiary questions are presented on this appeal, it is unnecessary to state the facts in detail. The procedural issues presented for review do necessitate an outline of the circumstances out of which the alleged errors arose. On various occasions during the course of the trial the judge chose to question certain of the witnesses in order to facilitate an understanding of the facts. At one point the judge referred to the "inexperienced prosecutor" in explanation of his questioning, but he admonished the jury not to give any more weight to his questions than to those of counsel. On at least three other occasions he gave similar cautionary instructions to the jury. In his instructions he advised the jury that they were not to infer from his questioning of witnesses that he had any opinion about the guilt of the defendants. He stated that his only purpose in asking questions was to fully develop the true facts.
3
After the jury retired to deliberate they returned to the courtroom and asked for additional instructions and clarification concerning the conspiracy count. The judge complied with the request and the jury again retired. After further deliberations the jury returned to the courtroom for the purpose of asking a question. The judge advised the foreman that he did not wish to know where they stood in their deliberations. The foreman then stated "I guess we are hung then"; to which the trial judge replied that he had no alternative but to declare a mistrial. At that point the government prosecutor suggested to the judge that the foreman be permitted to submit the question in writing. Over appellants' objections the question was submitted in writing to the judge. Appellants' motion for a mistrial was overruled. The judge called the attorneys for both sides to the bench to view the paper received from the jury. He then asked if the jury had reached a unanimous verdict on one count. Upon receiving an affirmative answer from the foreman, the judge sent the jury back to write out their verdict on that count. The jury retired and returned five minutes later with a verdict of guilty as to count one. After a poll of the jury, which reflected a unanimous verdict, the judge ordered that the verdict as to count one be entered as the judgment of the court and that a mistrial be declared as to count two.
4
Appellants raise three issues which we state in the language used in their brief. We will discuss each specified error separately.
5
1. Once the trial court had declared a mistrial, the trial terminated, and it was error to permit the jury to continue its deliberations, and all ensuing verdicts were null and void.
6
When a jury should be discharged for failure to agree is within the sound discretion of the trial court.2 The initial response of the trial court to the foreman's statement, "I guess we are hung then", did not, in our view, constitute a ruling by the court or an exercise of its discretion. The appellants contend that after the above mentioned incident occurred the jury deliberated further. We disagree. The record reveals that the jury returned to the jury room not to deliberate, but to write out the verdict on the count upon which they had agreed. Even assuming that the jury was permitted to deliberate further, no error was committed. It is permissible for a court to direct additional deliberation after being advised of a jury's inability to agree.3 It is also permissible for a jury, as here, to render a partial verdict; a court may accept a jury's verdict as to one count and declare a mistrial as to another upon which no agreement has been reached.4
7
2. It was reversible error for the Court to permit the jury to communicate with the prosecutor.
8
The record bluntly refutes this argument. The foreman's statement was submitted in writing to the judge, not to the prosecutor. Such a communication is permissible.
9
3. Over defense counsel's objection of the trial judge's questioning of the witnesses, the comment by the trial judge in explanation of his questioning as to "inexperienced prosecution" was prejudicial and reversible error.
10
It is true that in some circumstances a trial judge could so interfere with the conduct of a trial that a fair trial could not be had. But our study of the record in this case convinces us that this contention is without merit. The tenor of the judge's questions did not tend to benefit the prosecution only; they were equally as helpful to the appellants. The questions asked were pertinent and generally related to a valid inquiry into material facts. It is within the discretion of a trial judge to question witnesses if he deems it necessary. It is only when the judge's questions are prejudicial to the defendant that error is committed.5 We find no abuse of the court's discretion or prejudice to the defendant.
11
The judge's reference to an "inexperienced prosecutor", while perhaps unwise, cannot be said to be prejudicial in view of the repeated instructions to the jury that they were the sole judges of the facts and that they were to give no more weight to the court's questions than to those of counsel.6 Even if we should accept appellants' contention that the court's comment was error, we are convinced that it was harmless beyond a reasonable doubt.7
12
Affirmed.
*
Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I
1
18 U.S.C. Sec. 242 provides:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.
2
E. g., United States v. Pope, 415 F.2d 685, 690 (5th Cir. 1969); Jenkins v. United States, 149 F.2d 118, 119 (5th Cir. 1945)
3
See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); Posey v. United States, 416 F.2d 545 (5th Cir. 1969); Thaggard v. United States, 354 F.2d 735 (5th Cir.), cert. denied, 383 U.S. 958, 86 S. Ct. 1222, 16 L. Ed. 2d 301 (1966)
4
United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48 (1943); United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832, 90 S. Ct. 86, 24 L. Ed. 2d 82 (1969); United States v. Conti, 361 F.2d 153 (2d Cir. 1966); E. Devitt & Blackmar, 1 Federal Jury Practice and Instructions Sec. 17.20, at 341 (2d ed. 1970). See also Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 357 (1932); United States v. Manglona, 414 F.2d 642 (9th Cir. 1969); C. Wright, 2 Federal Practice & Procedure Secs. 513-14, at 368-370 (1969)
5
Gov't of the Virgin Islands v. Rivera, 439 F.2d 1126 (3d Cir. 1971); United States v. Lewis, 338 F.2d 137 (6th Cir. 1964); Papalia v. United States, 243 F.2d 437 (5th Cir. 1957)
6
See cases cited note 4 supra
7
Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); United States v. Hayes, 444 F.2d 472 (5th Cir. 1971) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1574667/ | 253 S.W.2d 450 (1952)
MILLMEN UNION, LOCAL 324, AFL, et al.
v.
MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.
No. 3052.
Court of Civil Appeals of Texas, Waco.
November 20, 1952.
Rehearing Denied December 11, 1952.
Mullinax, Wells & Ball, Houston Clinton, Jr. and L. N. D. Wells, Jr., Dallas, for appellant.
Naman, Howell & Boswell, Waco, G. H. Penland, Dallas, for appellee.
TIREY, Justice.
This is an appeal from a final judgment granting a permanent injunction against certain picketing by appellants upon appellee's private right of way. The cause was tried without the aid of a jury and upon stipulations of the parties.
The court in its decree found:
"(a) The defendants, their agents, servants, employees and representatives have been unlawfully picketing and will continue to unlawfully picket on plaintiff's right-of-way property abutting the Wm. Cameron & Co. planing mill property between 26th Street and 23rd Street and from the west line of 26th Street to 28th Street in the City of Waco, Texas, unless enjoined therefrom.
*451 "(b) That as a result of said picketing the plaintiff's switchmen employees have refused to move freight cars to and from said Wm. Cameron & Co. mill properties because of their refusal to cross said picket lines; that plaintiff under said circumstances in order to deliver said freight service must assemble volunteer crews from its supervisory personnel which is both burdensome and expensive to plaintiff and that plaintiff will suffer irreparable injury, loss and damage unless the defendants are enjoined from picketing on its right-of-way property as aforesaid and that plaintiff's remedy at law is inadequate.
"(c) That plaintiff has no labor dispute or controversy with the defendants or any of its employees in any way connected with or involving the defendants herein and that none of the defendants are employees of the plaintiff.
"(d) That said picketing upon the part of the defendants, their agents, servants, employees and representatives constitutes an unlawful use of plaintiff's private property and an unlawful interference with the obligation of plaintiff as a common carrier and that said acts and conduct are without the consent or permission of plaintiff.
"(e) That the stipulations of the parties on file herein are considered by the court to be sufficient to justify the issuance of injunctive relief as prayed for by plaintiff * * *."
"The court ordered the employees "to desist and refrain from picketing on plaintiff's railroad right-of-way abutting the Wm. Cameron & Co. planing mill property between the east line of 26th Street and the west line of 23rd Street and between the west line of 26th Street and the east line of 28th Street in the City of Waco, Texas, from entering or being upon plaintiff's said right-of-way property as hereinabove described and from interfering or attempting to interfere with the movement of any of plaintiff's agents, servants, and employees and trains and cars upon said right-of-way property as hereinabove described, and that this injunction shall not apply to lawful picketing of defendants on any public street or alley or other location except upon said railroad right-of-way property between public streets as hereinabove described and that all costs incurred herein be taxed against the defendants for which let execution issue * * *."
(The findings in the decree are not assailed by appellants, and since the trial was non-jury they are bound by the rule in Cavanaugh v. Davis, 149 Tex. 573, 235 S. W.2d 972, and Woodward v. Ortiz, Tex., 237 S.W.2d 286. See also Abilene Hotel Corp. v. Gill, Tex.Civ.App., 187 S.W.2d 708, point 6 (writ ref. w. o. m.); also cases collated in 4 Texas Digest, Appeal & Error.
The decree is assailed on the ground (Point 1) that "the trial court erred in issuing permanent injunction since said injunction deprives appellants of their exercise of freedom of speech guaranteed by the First and Fourteenth Amendments of the Constitution of the United States and by the Constitution of the State of Texas, Vernon's Ann.St."
It is our view that Point 1 is not applicable to the factual situation here presented and it is overruled. The findings in the decree show that appellants were guilty of a trespass while they were engaged in picketing on appellee's right-of-way and the decree specifically restrains them from so doing and specifically shows that the injunction does not apply to picketing that is lawful on any public street or alley or other location except upon the right-of-way of the railroad between the public streets therein specifically designated. We are unable to see how the decree contravenes any part of the First and Fourteenth Amendment to our Federal Constitution, or any part of our State Constitution. On the contrary, we think it is in complete harmony with the provisions of each of them, as well as the spirit thereof. It is certainly in accord with the general welfare clause. Appellants' right to picket is in nowise restrained except when they are *452 trespassing on the property of a third party, not involved in the strike, against such third party's will. However, it is our view that the picketing by the employees of Cameron on appellee's right-of-way contravenes the last clause of Art. 5153, Vernon's Ann.Tex.Civ.Stats., which provides that "Such member or members shall not have the right to invade or trespass upon the premises of another without the consent of the owner thereof." Appellants' contention would certainly nullify such provision of the statute and defeat the intent of the legislature and the public policy there declared. Our legislature has the right to fix the public policy of our state and it is the duty of the courts as well as our citizens to abide by it. The stipulations and the findings of the court show that the railroad company was being interfered with by the picketing pursued by the employees of Cameron, and the railroad suffered inconvenience and unnecessary expense by reason of such picketing. The railroad lawfully had and exercised complete control of its right-of-way and the action of the employees of Cameron, as stipulated and as found by the court, did interfere with the railroad in the exclusive control of its property and to its detriment in its use in the pursuit of its lawful purposes.
Appellants in their argument say: "It is elementary that peaceful picketing for lawful purposes in connection with a bona fide labor dispute `is one phase of the right of free speech guaranteed * * * by the First Amendment to the Constitution of the United States, which under the Fourteenth Amendment, no state can abridge,'" and further contend in effect that its acts and conduct in picketing were terminated by the injunction and that their pickets met all of the essential attributes of legality, to come within the protective cloak of the Constitution, because their picketing was peaceful and in conjunction with a bona fide labor dispute. We have no quarrel with the foregoing general statement, but in view of the stipulations here and the findings of the court it has no application to the case at bar. Appellants were on the private right-of-way of appellee engaged in picketing, without the consent of appellee, by reason of the strike of the employees of Cameron Mills. We know of no rule of law or well considered decision authorizing anyone to go upon the property of a third party, not a party to the controversy, without his consent for the purpose of picketing or otherwise and thereby inconveniencing such third party to his detriment in the lawful exercise and use of his property. Such a rule of law would authorize one in the exercise of his freedom of speech to deprive such third party of the exclusive control and use of his private property. The decree of the court seeks to avert such wrongful conduct.
Appellants rely on the opinion of our Supreme Court in Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588, and cases there cited. We have carefully reviewed this opinion and we do not think it is in point and applicable here. As we understand the opinion, the place where the picketing occurred was a public street and the railroad company's tracks were on this public street. The court said that so long as pickets did not physically obstruct the spur tracks and mutilate or seriously impair the rights of the railroad to use the streets, they had the same right to use the street as the railroads had, consistent with the peculiar and essential differences in the means and manner of its use by them and by the railroads. The court then stated in effect that when the trial court ordered the relators not to picket within 100 feet of the railroad tracks the railroad was using or was about to use, such holding was an abridgement of the right of free speech guaranteed by the Constitution to them. Our view is that the stipulation of the parties and the findings made by the trial court pointedly distinguish the factual situation in the case at bar from the Henry case. All of the cases cited by Justice Brewster in the above case involved picketing on public streets, so it is our view that such opinion is not applicable and controlling here.
Since the stipulations show and the court found that appellants' pickets invaded and trespassed upon the premises of appellee without the consent of the appellee, such picketing brought them within the last provision *453 of Art. 5153, supra, and it is our view that such statute is constitutional. It contravenes no legal right of the employees of Cameron engaged in the picketing, and at the same time protects the railroad company in the enjoyment of the legal purposes for which it paid for and holds its right-of-way and at the same time enables it to discharge its legal obligation as a common carrier. We see no infringement here of our Federal Constitution. We are of the further view that such statute by its terms is merely declaratory of the common law as found in all Anglo-American jurisdictions. Being of such view, it follows that appellants have no defense for their action in this behalf. The foregoing view is in harmony with the general statement of the rule as to picketing as made by the United States Supreme Court in Hughes v. Superior Court of California in and for Contra Costa County, 339 U.S. 460, 70 S.Ct. 718, 721, 94 L.Ed. 985; "And we have found that because of its element of communication picketing under some circumstances finds sanction in the Fourteenth Amendment. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58. However general or loose the language of opinions, the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance. [Citing cases.] `A state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual.' Bakery & Pastry Drivers & Helpers Local v. Wohl, supra, 315 U.S. at page 775, 62 S.Ct. [816] at page 819, 86 L.Ed. 1178." [Underscoring ours.] The foregoing statement of the United States Supreme Court has not been overturned, and although the statement is general we think it is peculiarly applicable here.
Appellants rely upon the case of Thornhill v. Alabama, supra. This case was discussed by Justice Brewster in the Henry case and has been cited many times by our United States and State Supreme Courts. As we understand the Thornhill case, it was dealing with picketing that took place in a public street. The Supreme Court of the United States there said [310 U.S. 88, 60 S.Ct. 746]: "* * * (The) streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." We do not think the pronouncements in the Thornhill case are applicable here.
In the case of Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 76, 90 L.Ed. 265, the court was dealing with a Jehovah Witness who was standing on the public street in front of the Federal Post Office in the town of Chickasaw, Alabama, and was distributing religious literature in violation of a city ordinance. It is obvious that such factual situation distinguishes it from the case at bar and the Marsh case is no authority for appellants' contention that its pickets can trespass on the private property of the railroad. It is true that Chickasaw was a company owned town, but there is no similarity between the streets of a company owned town and appellee's private right-of-way.
Appellants cite the case of N.L.R.B. v. LeTourneau Co., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, and N.L.R.B. v. Cities Service Oil, 2 Cir., 122 F.2d 149. We have carefully read these cases and do not think they are applicable to the situation here before us and it would serve no useful purpose to review them and it would unnecessarily burden this opinion.
Our view here is supported by the following well considered cases: Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; International Brotherhood of Teamsters v. Hanke, 339 U.S. 470, 70 *454 S.Ct. 773, 94 L.Ed. 995; Building Service Employees International Union v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045; N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; International Brotherhood of Electrical Workers v. N.L.R.B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299; North East Texas Motor Lines, Inc., v. Dickson, 148 Tex. 35, 219 S.W.2d 795; Construction & General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Best Motor Lines v. International Brotherhood of Teamsters, Tex., 237 S.W.2d 589. See also the following law review articles discussing picketing and free speech: "Thornhill to Hankethe Picketing Puzzle", Weinberg, University of Cincinnati Law Review, Vol. 20, pp. 437-482; "Picketing and Free Speech", Williams, 30 Tex. Law Rev. 206; "PicketingIs It Still Free Speech", 39 Georgetown Law Journal 114. See also Injunction Against Picketing, 11 A.L.R.2d 1338-1365.
Appellants' Point 2 is: "The trial court erred in issuing permanent injunction since said injunction deprives appellants of enjoyment of a prescriptive easement over the land upon which appellants were picketing." There is no merit in this contention.
Appellants in their argument say: "The deed under which appellees hold clearly conveys only a right-of-way and not the fee title to the land. It purports to convey that and no more, for the granting clause plainly states that grantors "do grant, bargain, convey and relinquish unto the said Missouri, Kansas and Texas Railway Company the right-of-way over those lands * * *.'"[1]
We think the fee title passed to the railroad company under the rule announced in Calcasieu Lbr. Co. v. Harris, 77 Tex. 18, 13 S.W. 453, and Brightwell v. International-Great Northern R. Co., 121 Tex. 338, 49 S.W.2d 437, 84 A.L.R. 265. See also the well considered opinion of Justice Smedley of our Supreme Court in Texas Electric Ry. Co. v. Neale, 252 S.W.2d 451.
However, if we be mistaken in our view and appellee owns only the right-of-way easement for right-of-way purposes, the appellee under such rule still has the right of exclusive possession and under the factual situation had the right to exclude trespassers therefrom. In Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., 267 S.W. 688, 689 (opinion by Com.Apps., adopted by S.Ct.), find this statement of the rule: "A railroad company has the exclusive use of the surface of the land on which its right of way is located, * * *." See also 44 Amer.Jur. 341, Railroads, Sec. 129, for statement of applicable law; also Fort Worth & Denver City Ry. Co. v. Craig, Tex.Civ.App., 176 S.W. 827, point on page 829; Peterson v. Holland, Tex.Civ.App., 189 S.W.2d 94 (er.ref.); Texarkana & Ft. S. Ry. Co. v. Bland, Tex.Civ.App., 205 S.W. 727.
*455 The stipulations show conclusively and the court found that the continuous presence of the pickets on the right-of-way was an unlawful interference with appellee in the use of its right-of-way and placed a greater burden on appellee than it was required to bear in the lawful exercise of such use and its obligation as a common carrier. Moreover, the permitted, continued use of the right-of-way by the pickets did give to such pickets the status of licensees and did create a higher duty on the part of the railroad to look out for them and to maintain the right-of-way safely for them. The danger of accident to the pickets and to the railroad employees was greatly increased. It is our view that the railroad had the right to exclude appellants' pickets from the right-of-way when their presence increased the burden of the appellee and became detrimental to the best interests of the railroad in the use of its right-of-way.
Finally, appellants contend in effect that they are entitled to free enjoyment of the pathway heretofore used by them across appellee's right-of-way, which has become an easement over the same. They contend that an easement in the public has been established by prescription and it is their view that such right is established by a stipulation of the parties. We are not in accord with such view. The facts admitted by stipulation of the parties do not establish a prescriptive easement because the user as shown by such facts was not and is not adverse, hostile, uninterrupted, exclusive and continuous as against appellee. At most the facts show a permissive use by some members of the public and in the main those members who were and are employed by Cameron Company of the path in dispute as a convenience in reaching their place of employment. We think the rule is that the requisite elements to establish easement are the same as in the establishment of title by limitation in trespass to try title. See 15 Tex.Jur. 812, secs. 40 and 41. In Bender v. Brooks, 103 Tex. 329, 127 S.W. 168, point on page 170, our Supreme Court held: "In order for possession to be adverse to the true owner, it `must be of such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant.'" See cases collated in Old National Life Ins. Co. v. Jerusalem Lodge No. 67, Tex.Civ.App., 192 S.W.2d 921 (n.r.e.) point on top of page 928. The rule in Texas is: "Possession in order to be adverse must be exclusive." See Old National Life Ins. Co. v. Jerusalem Lodge No. 67, supra. See also cases collated in Vol. 2, Texas Digest, Adverse Possession, Moreover, the use of unenclosed land by members of the public is not considered a user adverse and hostile to the owner. See Nave v. City of Clarendon, Tex.Civ.App., 216 S.W. 1110. See also Johnson v. Krieg, Tex.Civ.App., 175 S.W.2d 102 (er. ref. w. o.m.); Weber v. Chaney, Tex.Civ.App., 5 S.W.2d 213, 214 (er. ref.); Heilbron v. St. Louis S. W. Ry. Co., 52 Tex.Civ.App., 575, 113 S.W. 610, point on page 613. This court in Boone v. City of Stephenville, 37 S.W.2d 842, 844, said: "In order for adverse claim to ripen into prescription, the claim must be continuous and uninterrupted. A single act of acknowledgment by the claimant of the owner's title is fatal to the right." The letter of Mr. Carolan, President of the Millmen's Union,[2] to appellee and the reply *456 thereto[3], bring appellants within the above rule. See also opinion of this court in Gill v. Pringle, Tex.Civ.App., 224 S.W.2d 525, point p. 527 (writ ref.) The statements contained in Gill v. Pringle, supra, and approved by the Supreme Court are the last expressions of our Supreme Court on this matter and are controlling here. Our view is that the record here tendered shows that the user of members of the public was not exclusive nor inconsistent with the use of the railroad. On the contrary, the record shows that there was no interference with the railroad's use of its right-of-way until this controversy arose and that the railroad acted promptly to protect its rights. See Ladies Benevolent Society of Beaumont v. Magnolia Cemetery Co., Tex.Com.App., 288 S.W. 812, point on page 815.
Believing that the trial court has correctly disposed of this matter, its judgment is in all things affirmed.
LESTER, C.J., took no part in the consideration and disposition of this case.
NOTES
[1] The pertinent parts of the deed in question provide: "* * * for and in consideration of the sum of Five Hundred Dollars to us in hand paid by the Missouri Kansas and Texas Railway Company, the receipt of which is hereby acknowledged, have granted, sold, conveyed and relinquished, and by these presents do grant, bargain, convey and relinquish unto the said Missouri, Kansas and Texas Railway Company the right of way over those lands situated in the County of McLennan, State of Texas * * * (here follows description of the land) said right of way herein granted to be One Hundred feet in width through said land, the same to extend fifty feet in width on each side of the center of the track of said railway as the same may be located, together with the use of the wood, water, stone, gravel and other material and privileges useful in the construction and maintenance of said railway pertaining to the land so granted and conveyed. To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said The Missouri, Kansas and Texas Railway Company, its successors and assigns forever; and we do hereby bind ourselves, our heirs, executors, administrators and assigns to warrant and forever defend all and singular the said premises unto the said The Missouri, Kansas and Texas Railway Company, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."
[2] "The employees of Wm. Cameron & Co., Waco, Texas, have requested that I ask the railroad company a favor, to provide a foot crossing with a warning signal of approaching trains. We would like to have this crossing arranged about 24th and Jackson Streets, which is the Katy tracks. The reason for this request, Wm. Cameron & Co. have arranged a parking lot for employees just across the Katy tracks, south of Cameron Company factory. Approximately 300 employees, at this time and for past couple of months, are having to walk from inside factory yard, part of them from about 23rd Street through factory to 26th Street, south on 26th Street, then across Katy tracks to 26th Street, back down beside tracks to about 24th Street to parking lot to get their cars. This results in approximately five blocks, four times daily, as most of them go home to lunch at noon.
"When it is raining and cold this makes a very disagreeable situation. I would like to point out that there is another parking lot on the west side of 26th Street where a large number of employees' cars are parked, four times daily when these employees are walking across the crossing at 26th Street, automobiles are driving across, which makes an additional danger, having to watch automobiles and trains at this double track crossing. I believe you can see there would be much less danger of getting struck by a train on this double track crossing if the foot crossing could be provided by the railroad company.
"Wm. Cameron & Co. now have a gate at the southeast corner of factory which is just across the tracks from the parking lot, but they refuse to open this gate because there is no foot crossing or warning signal. Since there are no crossings from 20th Street to 26th Street, these employees feel the railroad company will be courteous enough to grant this favor, which we will deeply appreciate.
"I have contacted Mr. L. T. Barrow, General Agent, Waco, and he contacted Mr. Schaller, Superintendent of South Texas Division, Smithville, Texas. I was informed by Mr. Barrow, that at this time the Management did not feel they should spend the amount of money it would cost for the foot crossing.
"Mr. Warden, we will deeply appreciate your making an investigation of this situation as soon as possible.
"Please give us an answer soon. Thanks in advance."
[3] "This will acknowledge receipt of your letter of April 18, requesting that we open a foot crossing with crossing protection for Wm. Cameron Co. workmen just opposite the Cameron mill between 24th and 26th Streets.
"This crossing with automatic protection would cost us more than $5000, and our management does not feel justified at this time to spend this amount of money due to the fact that 26th Street crossing is protected with automatic signals, and can be used for this same purpose.
"I am very sorry indeed to have to report this unfavorable information to you, but we do appreciate you calling on us and do hope that we may be able to serve you in future problems." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575047/ | 17 So.3d 763 (2009)
David L. MORROW, Appellant,
v.
SAM'S CLUB and Sedgwick CMS, Appellees.
No. 1D08-6057.
District Court of Appeal of Florida, First District.
July 31, 2009.
Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
Thomas P. Vecchio and Juliana L. Curtis of Ross Vecchio, P.A., Lakeland, for Appellees.
WEBSTER, J.
In this workers' compensation appeal, claimant challenges an order of the judge of compensation claims on three grounds. Because we agree the judge committed reversible error when he denied claimant's request for an orthopedic referral on the ground claimant failed to establish objective relevant medical findings to support the referral, we need not address the other issues.
Claimant suffered a workplace injury that the employer and carrier accepted as compensable. The employer and carrier authorized treatment at an occupational health clinic, where claimant was examined on several occasions, alternately by a doctor and a nurse. Unable to determine an objective basis for claimant's continued pain complaints, both health care providers recommended an orthopedic evaluation. Relying on the nurse's written statements that claimant's pain complaints were subjective, the employer and carrier refused to authorize the orthopedic referral, contending there were no objective relevant *764 medical findings justifying the evaluation as required by section 440.09, Florida Statutes (2007). The judge agreed with that argument and denied claimant's request for the evaluation.
Section 440.09 is entitled "Coverage." Subsection (1) provides, in pertinent part:
The employer must ... furnish benefits required by this chapter if the employee suffers an accidental compensable injury... arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings. ... Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. For purposes of this section, "objective relevant medical findings" are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.
(Emphasis added.)
In denying claimant's entitlement to an orthopedic evaluation, the judge relied on the emphasized language of subsection (1). This was error. By its plain meaning, this language applies to compensability of "[p]ain or other subjective complaints." It is inapplicable in determining whether a claimant is entitled to a specialist evaluation recommended by his or her authorized treating physician. Entitlement to such a referral is governed, as is all medical treatment or care, by section 440.13(2)(a), Florida Statutes (2007), which requires a showing of medical necessity.
Here, the employer and carrier never contested the medical necessity of the referral, and the uncontradicted evidence was that claimant's authorized medical care provider made repeated recommendations for an orthopedic evaluation. Claimant's doctor testified that the compensable accident was the major contributing cause of the need for the evaluation, and that the purpose of the evaluation was to determine whether claimant's ongoing symptoms were related to his injuryor at least to determine whether there was an objective basis for claimant's symptoms. In such circumstances, this court has held a claimant is entitled to an evaluation. See Grainger v. Indian River Transport/Zurich U.S., 869 So.2d 1269, 1271 (Fla. 1st DCA 2004) (holding that the judge of compensation claims erred by not requiring the employer and carrier to pay for an evaluation to determine the etiology of claimant's medical problem, and that it is the purpose of the evaluation, not its result, that determines its compensability).
Because the judge erroneously denied claimant's request for an orthopedic evaluation recommended by his authorized treating physician, we reverse and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED, with directions.
WOLF and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918093/ | 101 B.R. 499 (1989)
In the Matter of CDECO MARITIME CONSTRUCTION INC., Roger J. Au & Son, Inc., Firelands Sewer & Water Construction Co., Inc., Debtors in Possession.
Bankruptcy Nos. 683-00985, 683-00986 and 684-00040.
United States Bankruptcy Court, N.D. Ohio.
January 11, 1989.
Edward R. Brown, Arter & Hadden, Cleveland, Ohio, for Aetna Cas. & Sur. Co., Inc.
John A. Schwemler, Brouse & McDowell, Akron, Ohio, for debtors and debtors in possession.
Larry L. Inscore, Inscore, Rinehardt, Whitney and Enderle, Mansfield, Ohio, for Charles H. Au, personally.
MEMORANDUM OF DECISION ADEQUACY OF PROPOSED DISCLOSURE STATEMENT
JAMES H. WILLIAMS, Chief Judge.
The long and troubled history of these three embattled debtors, whose cases have been before this court for approximately five years, now moves into the arena of the disclosure of "adequate information"[1] preparatory *500 to seeking acceptance of a plan.
The current struggle was precipitated by the filing of a liquidating plan by the major creditor of the debtors, the Aetna Casualty & Surety Company, Inc. (Aetna), accompanying which, of course, was a proposed disclosure statement. Objections to the disclosure statement were raised by the debtors and Charles H. Au, the sole shareholder of Roger J. Au & Son, Inc. (Au & Son). The plan's proponent and the objectors have filed memoranda in support of their respective positions and presented oral argument to the court.
As a measure of the intensity of the parties' feelings, which have surfaced in a variety of acrimonious exchanges throughout the lives of these cases, the proposed disclosure statement and summary of the plan covers 20 pages; the debtors submit 29 pages of written argument against the sufficiency of the proposed disclosure and Mr. Au adds 23 more pages in opposition; and, in an effort to demonstrate why these voluminous attacks on its proposal are without merit, Aetna submits 13 pages of supportive argument. As noted, these writings were buttressed by oral argument of the very capable counsel for all parties.
Rather than attempt a section-by-section analysis of the proposed disclosure statement or deal with each objection, many of which overlap or raise the same perceived inadequacies in different language, the court will focus upon those aspects of Aetna's proposed disclosure statement which it believes merit attention and, by its silence, will approve of the adequacy of disclosure in areas not discussed.
It is somewhat ironic that Section 1125, described as "the heart of the consolidation of the various reorganization chapters found in current law" (H.R. No. 95-595, 95th Cong. 1st Sess. 408-10 (1977), U.S. Code Cong. & Admin.News 1978, pp. 5787, 6364) is also one to which very few objective standards can apply. One court has noted that "[w]hat constitutes adequate information [under section 1125(a)(1)] must be determined on a case-to-case basis under flexible standards." In re A.C. Williams Co., 25 B.R. 173, 176 (Bankr.N.D.Ohio 1982). Another notes that lists of factors by which to gauge the sufficiency of a disclosure statement, developed by such cases as A.C. Williams Co., may be too extensive in some cases and insufficient to provide adequate information for plan evaluation in others. In re Metrocraft Publishing Services, Inc., 39 B.R. 567 (Bankr. N.D.Ga.1984). More recently, an appellate court has stated that "[t]he determination of what is adequate information is subjective and made on a case by case basis. This determination is largely within the discretion of the bankruptcy court." In re Texas Extrusion Corp., 844 F.2d 1142, 1157 (5th Cir.1988).
In weighing the extent of necessary disclosure, it is appropriate also to take into account the creditor body and others for whose enlightenment the disclosure statement is designed. Here, despite the fact that we are dealing with three debtor corporations, an unusually small creditor body is involved, particularly in light of the substantial amounts of money that are at stake in various aspects of the cases. Au & Son's schedules list only 38 unsecured creditors, many without dollar amounts listed and others marked "disputed;" CDECO Maritime Construction, Inc. appears to have but one unsecured creditor Aetna, asserted to be contingent and unliquidated; and Firelands Sewer & Water Construction Co., Inc. has three creditors on its schedules Aetna, Au & Son and Michigan National Bank of Detroit which has since waived any claim.
How much detail, then, is necessary to enable this relatively small and generally sophisticated creditor body to make "an *501 informed judgment about the plan" (11 U.S.C. § 1125(a)(1)) Aetna desires them to accept?
At the outset, Aetna proposes to deal with administrative expenses totaling $173,000.00 and a pre-petition claim of the United States Army Corps of Engineers by adding two footnotes, which the debtors find acceptable. The court agrees that the same should be incorporated in the disclosure statement. Further, a mathematical error on page 7 of the proposed disclosure statement should be corrected to indicate that the total realized from contract claims is $467,061.59 and the grand total realized should thus be $1,222,339.00.
The significant remaining asset of the debtors is the value of its pending litigation against the Northeast Ohio Regional Sewer District (NEORSD) and, springing from Au & Sons's dissatisfaction with Aetna's conduct in connection with the NEORSD litigation, an adversary proceeding brought by the debtors against Aetna.[2]
The NEORSD litigation is discussed in the proposed disclosure statement in the context of the deposition opinion of a witness for Aetna who views it as either without value or worth less than counterclaims NEORSD asserts against Au & Son. Aetna does note that "Debtors appear to dispute vigorously the evaluation and [asserts] that the value of the Au claim against NEORSD is $5 million or more." (Proposed disclosure statement, p. 19) It is willing to remove a statement that the debtors have offered nothing to substantiate their claim.
The court views the Aetna treatment of this asset as sufficient. A disclosure statement is simply not the place to argue various theories of recovery or to demonstrate results of "what if" kinds of proof (e.g., that Au & Son was fraudulently induced to execute a release to NEORSD). "It is also not necessary to the adequate information standard for a disclosure statement to * * * speculate as to future uncertainties, such as the consequences of the various possible outcomes of pending litigation." In re Stanley Hotel, Inc., 13 B.R. 926, 935 (Bankr.D.Col.1981).
Of concern is Aetna's proposal that the resolution of the NEORSD litigation involve the payover to NEORSD of a $750,000.00 claim Au & Son asserts against another entity, Euthenics, a named defendant in litigation commenced by Au & Son. The debtors point out that no explanation is given for this segment of the proposed resolution and that such is necessary to a full understanding of the Plan's workings. The court agrees. Aetna's argument that such an explanation would "lead to further confusion" does not justify simply omitting the rationale behind the treatment of this claim asserted by the debtors.
Only brief mention of the Au & Son litigation against Aetna is made in the disclosure statement, presumably because of Aetna's admitted view that "the lawsuit * * * has only nuisance value * * *." (Aetna's Memorandum in Response to Objections, p. 6) The court agrees with Aetna that it need not "anticipate their theory of recovery, validate that theory, and set it forth in the Disclosure Statement" (Id.), but inasmuch as the litigation challenges the right of Aetna to settle Au & Son's claims against NEORSD or, alternatively, demands judgment of $7,000,000.00 against Aetna, it deserves more than the rather cavalier treatment afforded it by Aetna in the proposed disclosure statement. Moreover, in any discussion of the relative positions of Aetna and Au & Son under a certain agreement dated April 1, 1983, any disclosure statement ultimately to be approved must comport with the finding of Hon. David D. Dowd in Case No. C86-1188A, Roger J. Au & Son, Inc. et al. v. Aetna Casualty and Surety Co. that the *502 agreement's effective date is August 5, 1983, not April 1, 1983.[3]
* * *
In summary, the court finds the creditor-sponsored plan submitted in these cases to be accompanied by a proposed disclosure statement that, with some modification and elaboration, is generally adequate to meet the requirements of 11 U.S.C. § 1125.
The court will approve for distribution to creditors and equity security holders, pursuant to Bankruptcy Rule 3017(d), a disclosure statement which deals with the $173,000.00 administrative expense claim which debtors' counsel disputes; the post-petition claim of the United States Army Corps of Engineers; the mathematical errors on page 7 of the proposed disclosure statement; the rationale for the treatment of Au & Son's claim against Euthenics and the nature and status of the litigation brought by Au & Son and others against Aetna and the potential effect of recovery by the plaintiffs thereunder; and the finding by the United States District Court that that certain Supplemental Agreement dated April 1, 1983 was actually effective on August 5, 1983, a date subsequent to the filing by the debtors, CDECO Maritime Construction, Inc. and Au & Son, of petitions for relief under Chapter 11.
An order giving effect to these findings will enter forthwith.
NOTES
[1] § 1125. Postpetition disclosure and solicitation.
(a) In this section
(1) "adequate information" means information of a kind, and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor's books and records, that would enable a hypothetical reasonable investor typical of holders of claims or interests of the relevant class to make an informed judgment about the plan, but adequate information need not include such information about any other possible or proposed plan; and
* * * * * *
(b) An acceptance or rejection of a plan may not be solicited after the commencement of the case under this title from a holder of a claim or interest with respect to such claim or interest, unless, at the time of or before such solicitation, there is transmitted to such holder the plan or a summary of the plan, and a written disclosure statement approved, after notice and a hearing, by the court as containing adequate information. The court may approve a disclosure statement without a valuation of the debtor or an appraisal of the debtor's assets.
[2] Au and Son's litigation against Aetna was actually commenced in the Richland County, Ohio Common Pleas Court. Aetna caused its removal to this court. It then sought withdrawal of the reference to the bankruptcy court on several grounds. The United States District Court for the Northern District of Ohio, Eastern Division, Dowd, J. on October 27, 1988 denied the motion to withdraw.
[3] Judge Dowd's decision was rendered subsequent to the filing of the proposed disclosure statement and grows out of Aetna's attempt to have the reference to this court of the Au & Son litigation against it withdrawn, as noted in footnote 2 above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574707/ | 16 Neb. Ct. App. 288
SANTOS A. VILLANUEVA, APPELLANT,
v.
CITY OF SOUTH SIOUX CITY, A POLITICAL SUBDIVISION, APPELLEE.
No. A-06-321.
Court of Appeals of Nebraska.
Filed January 8, 2008.
Steven H. Howard, of Dowd, Howard & Corrigan, L.L.C., for appellant.
Thomas J. Culhane, of Erickson & Sederstrom, P.C., for appellee.
INBODY, Chief Judge, and CARLSON and CASSEL, Judges.
CARLSON, Judge.
INTRODUCTION
Santos A. Villanueva brought a negligence action against the City of South Sioux City (the City) following an automobile accident with an employee of the City. The district court for Dakota County sustained the City's motion for summary judgment and overruled Villanueva's motion for partial summary judgment. Villanueva appeals. At issue in this case is whether Villanueva complied with the notice requirements of the Political Subdivisions Tort Claims Act (Tort Claims Act), Neb. Rev. Stat. §§ 13-901 to 13-926 (Reissue 1997 & Cum. Supp. 2002).
BACKGROUND
On September 26, 2003, Villanueva filed an amended complaint against the City, alleging that he was injured on February 25, 2002, as a result of an automobile accident with Paul Black, an employee of the City. The amended complaint alleged that the accident was caused by Black's negligence and that at the time of the accident Black was operating a vehicle owned by the City and was acting in the course and scope of his employment with the City. Villanueva claimed that as a result of the injuries he sustained in the accident, he has incurred medical expenses in excess of $100,000 and has and will continue to suffer physical pain, mental suffering, loss of enjoyment of life, loss of income, scarring, and disfigurement. Villanueva also alleged that he timely filed a claim with the City pursuant to the Tort Claims Act and that he has fully complied with the Tort Claims Act.
On October 20, 2003, Villanueva filed a motion for partial summary judgment, and on November 3, the City filed a motion for summary judgment. Both motions were made in regard to the same issuewhether Villanueva complied with the notice requirements of the Tort Claims Act. On June 4, 2004, the trial court found that Villanueva had complied with the notice requirements of the Tort Claims Act and sustained Villanueva's motion for partial summary judgment and overruled the City's motion for summary judgment.
On December 27, 2005, the City filed a motion asking the trial court to reconsider its ruling on Villanueva's motion for partial summary judgment and the City's motion for summary judgment. On February 14, 2006, a hearing was held on the motion to reconsider. The evidence at the hearing on the motion to reconsider included a letter from Villanueva's attorney dated April 15, 2002, addressed to the city clerk, city attorney, and city administrator. The letter stated as follows:
Please be advised that we represent ... Villanueva who received serious personal injuries on February 25, 2002.... Villanueva was traveling north bound on 3' Avenue at its intersection with W. 7th Street, when a pickup truck owned by the City ... and driven by ... Black, entered the intersection and struck the driver's side of ... Villanueva.... Villanueva has suffered personal injury as a result of this collision. Our investigation of the accident reveals that the personal injury suffered by ... Villanueva was solely and proximately caused by the negligence of the City.
This letter shall serve as our notice to you under the Political Subdivision[s] Tort Claims Act, Neb. Rev. Stat. Sec. 13-902 et. seq. for the personal injuries sustained by... Villanueva as a result of said occurrence. Would you kindly request the attorney responsible for the handling of this claim to contact me.
The evidence also included a January 7, 2003, letter from Villanueva's new counsel to the City's city clerk, city attorney, and city administrator which advised that he had been retained to represent Villanueva in his "injury auto accident" with a vehicle owned by the City and that it was Villanueva's position that the City was at fault. The January 7 letter also referenced the April 15, 2002, letter, included a copy of such letter, and asked whether "a decision on this claim" had been made.
On February 22, 2006, the trial court entered an order finding that the two letters, taken together or separately, did not satisfy the requirements of § 13-905. The trial court sustained the City's motion for summary judgment, overruled Villanueva's motion for partial summary judgment, and dismissed Villanueva's amended complaint. Villanueva appeals.
ASSIGNMENTS OF ERROR
Villanueva assigns that the trial court erred in (1) sustaining the City's motion for summary judgment and (2) overruling Villanueva's motion for partial summary judgment.
STANDARD OF REVIEW
[1,2] Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007); City of Lincoln v. Hershberger, 272 Neb. 839, 725 N.W.2d 787 (2007). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
ANALYSIS
[3] Villanueva assigns that the trial court erred in granting summary judgment in favor of the City on the ground that he failed to comply with the notice requirements of the Tort Claims Act, specifically § 13-905. The Tort Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees. Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003). In the instant case, it is undisputed that the City is a political subdivision subject to the Tort Claims Act.
[4] While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of a suit under the Tort Claims Act. Jessen v. Malhotra, supra; Keller v. Tavarone, supra. Section 13-920(1) provides, in relevant part:
No suit shall be commenced against any employee of a political subdivision for money on account of damage to or loss of property or personal injury to or the death of any person caused by any negligent or wrongful act or omission of the employee while acting in the scope of his or her office or employment ... unless a claim has been submitted in writing to the governing body of the political subdivision within one year after such claim accrued ....
(Emphasis supplied.)
Villanueva's claim for negligence accrued on February 25, 2002. Under § 13-920(1), Villanueva was required to submit a written claim to the appropriate political subdivision by February 25, 2003. He argues that his April 15, 2002, letter and his January 7, 2003, letter were such a claim.
[5] The written claim required by the Tort Claims Act notifies a political subdivision concerning possible liability for its relatively recent act or omission, provides an opportunity for the political subdivision to investigate and obtain information about its allegedly tortious conduct, and enables the political subdivision to decide whether to pay the claimant's demand or defend the litigation predicated on the claim made. Jessen v. Malhotra, supra.
[6,7] The necessary content of a written claim is addressed in § 13-905, which requires that all claims shall be addressed "in writing and shall set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant." The notice requirements for a claim filed pursuant to the Tort Claims Act are liberally construed so that one with a meritorious claim may not be denied relief as the result of some technical noncompliance with the formal prescriptions of the act. Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988). Therefore, substantial compliance with the statutory provisions pertaining to a claim's content supplies the requisite and sufficient notice to a political subdivision in accordance with § 13-905, formerly Neb. Rev. Stat. § 23-2404 (Reissue 1983), when the lack of compliance has caused no prejudice to the political subdivision. Chicago Lumber Co. v. School Dist. No. 71, supra.
In concluding that the content of Villanueva's two letters, taken together or separately, were insufficient to satisfy the notice requirements of § 13-905, the trial court specifically found that the letters do not make a proper demand of the relief sought to be recovered. The trial court relied on Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003), in making this finding. In Jessen, a physician employed by a county medical clinic allegedly misdiagnosed a patient's heart disease. Two days after seeing the physician, the patient died from a myocardial infarction. The patient's widow sent a letter to the physician stating that her husband had been examined by the physician and implying that the physician negligently failed to diagnose her husband's condition, a condition which led to his death. The letter further stated that the physician's misdiagnosis was "'malpractice" and that the patient's family was "'very angry." Id. at 395, 665 N.W.2d at 589. The Nebraska Supreme Court concluded that the content of the widow's letter was insufficient to satisfy the requirements of a written claim under § 13-905 because it did not make a demand for the satisfaction of any obligation, nor did it convey what relief was sought by the plaintiff. The court found that without a proper demand of the relief sought to be recovered, a written claim fails to accomplish one of its recognized objectives: to allow the political subdivision to decide whether to settle the claimant's demand or defend itself in the course of litigation.
The Jessen court cited two other cases with approval in which the Nebraska Supreme Court had construed the predecessor to § 13-905 to require that a written claim make a demand upon a political subdivision for the satisfaction of an obligation. The court first referenced Peterson v. Gering hr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985), a case in which the claim failed to meet the "demand" requirement. The purported claim in Peterson notified the political subdivision that it "`failed to deliver water by reason of negligence or omission of duties and responsibilities of the [political subdivision]"' and that the plaintiffs would hold it liable for "`whatever damages may result as a result of failure to deliver water." Id. at 283-84, 363 N.W.2d at 147 (emphasis in original). The Peterson court noted that the purported claim did not state the amount of damage or loss sustained by the plaintiffs, nor did it allege that such damage or loss had occurred. The court found that the purported claim did not meet the Tort Claims Act's requirements because "it made no demand against the [political subdivision]; rather, it only alerted the district to the possibility of a claim." Peterson v. Gering hr. Dist., 219 Neb. at 284, 363 N.W.2d at 147.
The court in Jessen v. Malhotra, supra, also cited with approval West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988), as a case in which the claim "passed statutory muster." In West Omaha Inv., the plaintiff sent a letter to a political subdivision stating that pursuant to the Tort Claims Act "`claim is made against [the political subdivision] for the property loss suffered" by plaintiff as a result of a fire. The letter alleged that the fire loss was caused in part by the political subdivision's negligencespecifically in its failing to furnish the water with which to extinguish the fire. 227 Neb. at 787-88, 420 N.W.2d at 294. In considering whether the letter met the Tort Claims Act's requirements, the West Omaha Inv. court determined that the court in Peterson v. Gering hr. Dist., supra, was mostly concerned that the plaintiffs make an actual demand upon the defendant. It noted that the Peterson court emphasized that the questionable language in the plaintiff's claim was "'whatever damages may result." 227 Neb. at 789, 420 N.W.2d at 294. The Supreme Court found that the letter in West Omaha Inv. stated that property loss had occurred and that the defendant was responsible and thus, that the letter satisfied the Tort Claims Act's requirements. The West Omaha Inv. court stated, "The letter did not merely alert the defendant to the future `possibility of a claim' for `whatever damages may result' as in Peterson. Rather, the plaintiff stated that `claim is made' against the defendant for actual property loss caused in part by the defendant's negligence." 227 Neb. at 790, 429 N.W.2d at 295.
In determining whether the two letters in the present case satisfy the requirements of § 13-905, we also look to Keating v. Wiese, 1 Neb. Ct. App. 865, 510 N.W.2d 433 (1993). In Keating, the plaintiff's attorney sent a letter to a political subdivision notifying it that the attorney was representing the plaintiff in connection with damages sustained when a city bus struck the plaintiff's car. The letter further stated: "We are not making a formal claim at this time, simply because it is impossible to determine the extent of [the plaintiff's] damages." Keating, 1 Neb. App. at 867, 510 N.W.2d at 436. The letter also requested a response by the political subdivision's insurance claims adjuster. This court took Peterson v. Gering Irr. Dist., supra, and West Omaha Inv. v. S.LD. No. 48, supra, into account in determining whether the plaintiff's letter in Keating met the requirements of § 13-905. We concluded that the plaintiff's letter in Keating notified the political subdivision that the plaintiff had sustained damages as a result of a collision with a city bus and held that the letter substantially complied with the requirements of the Tort Claims Act. We stated that the political subdivision knew of its possible liability for the recent accident and that the political subdivision was given the opportunity to investigate and obtain information about the accident. We further stated that the political subdivision had the opportunity to decide whether to pay the plaintiff's demand or to defend the litigation predicated on the claim.
Having considered the previously discussed case law, we determine that the instant case is comparable to West Omaha Inv. v. S.LD. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988), and Keating v. Wiese, supra. In both of these cases, the claims satisfied the requirements of § 13-905 because they stated that the plaintiffs had sustained damages as a result of a negligent act by the respective political subdivision. In contrast, the purported claims in Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003), and Peterson v. Gering In: Dist., 219 Neb. 281, 363 N.W.2d 145 (1985), did not allege that any damage or loss had occurred. In the present case, the April 15, 2002, letter states that Villanueva suffered personal injuries as a result of the City's negligence. The letter also sets forth the date, location, and circumstances of the event which gave rise to the claim. It further states that the letter serves as notice to the City under the Tort Claims Act and asks that the attorney responsible for handling the "claim" contact Villanueva's attorney. Thus, we conclude that the content of the April 15, 2002, letter alone substantially complies with the requirements of § 13-905. As we concluded in Keating v. Wiese, supra, the letter made the City aware of its possible liability for the recent accident, and the City was given the opportunity to investigate and obtain information about the accident. The City had the opportunity to decide whether to pay Villanueva's demand or to defend the litigation predicated on the claim. No assertion is made that the City was in any way prejudiced by the claimed omissions.
We note that given the foregoing analysis, the question of whether a proper claim has been made under the Tort Claims Act is a recurring one. Clearly more care in drafting such claims would eliminate the necessity of litigating the issue.
CONCLUSION
We conclude that Villanueva's April 15, 2002, letter substantially complies with the notice requirements of the Tort Claims Act and, therefore, that the trial court erred in granting summary judgment in favor of the City and in overruling Villanueva's motion for partial summary judgment. We reverse the judgment of the trial court sustaining the City's motion for summary judgment and remand the cause to the trial court with direction to sustain Villanueva's motion for partial summary judgment.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574719/ | 253 S.W.2d 716 (1952)
PEACOCK
v.
ALEXANDER et ux.
ALEXANDER et ux.
v.
PEACOCK.
Nos. 6645, 6649.
Court of Civil Appeals of Texas, Texarkana.
December 4, 1952.
Rehearing Denied January 1, 1953.
*717 Stone & Stone and Wm. Emerson Stone, Jr., Jacksonville, for Peacock.
Lewis & Chandler, Jacksonville, for Alexander and wife.
HALL, Chief Justice.
The trial court rendered summary judgment in cause No. 6645, construing a certain mineral deed in favor of appellees Alexander and wife against appellant J. H. Peacock; and in cause No. 6649 the trial court entered a summary judgment in favor of appellee J. H. Peacock and against appellants P. H. Alexander and wife, holding the appellants' cause of action barred by the four-year statute of limitation, R. S. Art. 5529, in so far as Alexanders' cause of action sought cancellation of the royalty deed for (1) fraud and misrepresentation, (2) for failure of consideration and (3) for want of delivery.
The above causes of action are here consolidated for the reason that they relate to the same subject matter, between the same parties, and together constituted cause No. 18975 in the trial court. Alexander and wife's suit against Peacock was for removal of cloud from title of Alexanders' land cast by a royalty deed executed by Alexander and wife to Peacock, covering 20 acres of land, dated September 17, 1936, and duly filed for record. They also sought to have the royalty deed cancelled for failure of consideration, for want of delivery and for fraud.
The record shows that on the 20th day of August, 1942, Alexander and wife filed suit against Peacock, being cause No. 15,300, seeking to set aside the royalty deed from them to Peacock, alleging that it was procured by fraud, for lack of delivery and failure of consideration. That suit was dismissed from the docket of the District Court of Cherokee County on August 19, 1944 for want of prosecution. The present suit No. 18975 was filed by Alexander and wife against Peacock on February 26, 1951, and as stated above, in addition to the cause of action asserted in the original suit No. 15,300, sought cancellation of the royalty deed for the reason that said deed by its own terms had expired and was a cloud on their title.
By two judgments entered the same day, to-wit, January 14, 1952, one in favor of appellant Alexander and wife cancelling the royalty deed, and the other in favor of Peacock, holding that the cause of action of Alexander and wife against Peacock for fraud, failure of consideration, and nondelivery of the royalty deed was barred by the four-year statute of limitation.
We have concluded that a determination of Peacock's Point No. 1 in cause No. 6645, *718 to the effect that "the trial court erred in granting the motion for summary judgment of appellees (Alexander and wife) because of the fact that the royalty deed from appellees to appellant (Peacock) is a perpetual royalty instrument by its terms and according to the language thereof and the rules of construction covering the construction of deeds," raises the controlling issue to be determined herein. If the royalty deed from Alexander and wife to Peacock had by its own terms expired, then it will not be necessary to discuss Alexanders' points with respect to the alleged errors of the trial court in finding his cause of action as to all matters raised by them, except the construction of the royalty deed, barred by limitation. The two paragraphs in the royalty deed pertinent here are:
"And said above described lands being now under an oil and gas lease originally executed in favor of L. A. Grelling et al. and now held by Humble Oil & Refining Co., it is understood and agreed that this sale is made subject to said lease, but covers and includes 20 royalty acres of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.
"It is agreed and understood that none of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said J. H. Peacock, and in the event that the said above described lease for any reason becomes cancelled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned by P. H. Alexander et ux. owning all interest in all oil, gas and other minerals in and upon said land, together with all interest in all future rents." (Italics ours.)
From the above paragraphs it clearly appears that the royalty deed from Alexander to Peacock covering the 20 acres was subject to the lease, originally made by the Alexanders to Grelling et al., but at the time of the execution of the royalty deed was owned by the Humble Oil & Refining Company, and is hereafter referred to as Humble Lease. It is conceded that the Humble Lease has long since been released to Alexander and wife by the Humble Oil & Refining Company. In fact the record shows that the oil and gas lease was released to the Alexanders some twenty-six days after the execution by them of the 20-acre royalty deed to Peacock. It is to be observed further that the royalty deed plainly states in the second paragraph copied above "and in the event that the said above described lease (Humble Lease) for any reason becomes cancelled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned by P. H. Alexander et ux. owning all interest in all oil, gas and other minerals in and upon said land, together with all interest in all future rents." Thus the royalty deed fixes the event ending its existence, namely, the termination by forfeiture or otherwise of the Humble Lease. We do not think that any other interpretation can be given to this plain provision in the royalty deed.
The royalty deed specifically states that it deals with royalty. Our Supreme Court holds that royalty means the 1/8 of the minerals reserved by the lessor in the oil and gas lease. State National Bank of Corpus Christi v. Morgan, 135 Tex. 509, 143 S.W.2d 757, and cases there cited. The deed could not legally deal with any portion of the 7/8 mineral interest held at the time by the Humble Oil & Refining Company. It recognized the existence of the Humble leasehold interest. Moreover, at the time the royalty deed was made, Alexanders owned nothing but the 1/8 reserved royalty.
"The object of construing any deed is to ascertain the intention of the parties as expressed in the deed itself and such intention expressed therein is of controlling importance." Totton v. Smith, 131 Tex. 219, 113 S.W.2d 517, 518. When the above rule is applied to the royalty deed under consideration here it appears by its express terms that it expired with the Humble Oil and Gas Lease set out above. We are supported in this conclusion by Maxwell v. Hunter, 5 Cir., 116 F.2d 260, wherein a *719 royalty deed in exact language as the royalty deed here was held to have expired with the lease covering the land at the time the royalty deed was executed and to which it was subject. See also MacDonald v. Sanders, Tex.Civ.App., 207 S.W.2d 155 (writ refused, N.R.E.); Ashcroft v. Fleming, Tex.Civ.App., 168 S.W.2d 304; same case, Fleming v. Ashcroft, 141 Tex. 41, 175 S.W.2d 401.
Appellant, among other authorities, cites Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, in support of his contention that the grant in the royalty deed here is perpetual. That case, as well as the Fleming case, supra, from this court (affirmed by the Sup.Ct.), under different fact situations, held that the term of years expressed in the granting clause determined the duration of the grant, one for fifteen years and the other for twenty years. And in the Fleming case, supra, it is held that there is no repugnancy between the fifteen year provision of the deed and the habendum and warranty clauses in which the word forever is used when all provisions are taken together. Neither of the royalty deeds discussed in those cases, so far as the record reveals, contains a similar paragraph to paragraph No. 2, copied above, in the royalty deed here, and for that reason we do not think they are controlling here. Appellants also cite two cases from California, Dabney-Johnston Oil Corp'n v. Hitchcock, Cal.App., 25 P.2d 867, 870, and Callahan v. Martin, 3 Cal. 2d 110, 43 P.2d 788, 795, 101 A.L.R. 871, which, upon first reading, seem to support the theory that his title under the royalty deed is of a permanent nature. However, these cases base their holding on the language employed in the conveyances. In the first case cited above it is said: "It is now urgently contended by the plaintiff that the court erred in receiving such evidence. With this contention we do not agree. It will be noted that no single assignment by its terms was limited to any right or rights arising out of any one of the leases. The most that can be said in that behalf is some of the assignments might be said to be ambiguous. * * * In the instant case the evidence introduced showed that the contracts were written in that part of this state where the development of oil wells is one of the extensive industries; that they were written by the lessors; that all persons interested were familiar with the terms used and the meaning thereof in the oil industry; that the lessors at the time the instruments were written declared their intention of conveying in perpetuity the interest designated in the hydrocarbon substances believed to be contained in the lands of the lessors; and that every one of the documents showed, by express language or clear inference, that a part of the `land owners royalty' was being conveyed and that said expression had the technical meaning of being an interest in perpetuity." In the second case cited next above it is said: "In Beam v. Dugan [132 Cal. App. 546, 23 P.2d 58], supra, it was held that the rights of the assignee of oil royalty to share in oil produced extend not only to the lease in effect at the time the assignment is made, but to all furture leases where the assignment of oil rights is unlimited in duration." (Italics ours.) Neither of the two cases last cited, so far as the opinions reflect, contains language similar to the second clause copied from the lease here under consideration, providing for its demise. We conclude that the summary judgment in the trial court correctly held that Peacock's royalty deed "expired in accordance with its terms" on the date the Humble Lease was released. This point is overruled.
Appellant's Point No. 2 is: "The trial court erred in granting the motion for summary judgment of appellees in total disregard of the prior construction of the instrument by the appellees as is evidenced by the record of cause No. 15,300, in the District Court of Cherokee County, Texas, Second Judicial District of the State of Texas, wherein appellees sought the cancellation of the instrument on bases other than construction." We heartily agree with appellee in respect to the rule of construction forming the basis of this point when applied to the proper state of facts. In Richardson v. Hart, Tex.Civ.App., 183 S.W.2d 235, reformed and affirmed by the Supreme Court, 143 Tex. 392, 185 S.W.2d 563, 564, we applied the rule expressed in Rio *720 Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 1088, 85 A.L.R. 391, that: "It is a familiar rule of construction of written instruments that, where a contract is ambiguous in its terms, a practicable and reasonable construction given it by the parties thereto, before any controversy has arisen as to its meaning, will generally be given controlling effect by the courts." The Supreme Court in reforming and affirming this court in that case held that the deed was not ambiguous and "in the absence of such ambiguity the rule of construction announced by the Court of Civil Appeals (set out above) is not applicable." The opinion recites further "Where the terms of the contract are plain and unambiguous the construction given it by the contracting parties is ordinarily immaterial and, in the absence of fraud, accident or mistake, parol evidence is not admissible to vary its terms", citing cases. (Italics ours.) The royalty deed is not ambiguous, but its terms are clear. Therefore the construction placed upon it by the parties, if any, is immaterial. This point is overruled.
We pointed out in the beginning of this opinion in consolidating the two causes of action that in cause No. 6649 the trial court had entered a summary judgment final in its nature holding Alexanders' cause of action barred by the four-year statute of limitation, R.S. art. 5529, in so far as it seeks cancellation of the royalty deed (1) "for fraud and misrepresentation, (2) the suit seeking cancellation for failure of consideration, and (3) the portion of the suit seeking cancellation on the basis that there was no delivery as provided by law for such conveyance and further any other basis or bases whereby plaintiffs (Alexanders) seek the action of the court to cancel such instrument save and except the question of the construction of the same." It is our opinion that our holding in No. 6645, that the royalty deed had expired by its own terms, renders a discussion of the questions raised with respect to the action of the trial court in cause No. 6649 set out next above is immaterial, and cause of Action No. 6649 should be reversed and ordered dismissed by the trial court.
The judgment in cause No. 6645 is affirmed; and the judgment in cause No. 6649 is reversed and remanded with instructions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2440232/ | 969 N.E.2d 633 (2012)
EDWARDS
v.
STATE.
No. 49A02-1111-CR-1006.
Court of Appeals of Indiana.
June 20, 2012.
MATHIAS, J.
Affirmed, Reversed and Remanded.
ROBB, C.J. and BAILEY, J., Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918143/ | 1 Mich. App. 216 (1965)
135 N.W.2d 588
MARIANI
v.
CITY OF DEARBORN.
Docket No. 155.
Michigan Court of Appeals.
Decided June 21, 1965.
James Thomson, for plaintiff.
Ralph B. Guy, Jr., Corporation Counsel, and Carl P. Garlow, Assistant Corporation Counsel, for defendant.
*218 HOLBROOK, J.
This matter comes before this Court upon an appeal from an order granting defendant and appellee's motion for accelerated judgment.[1] Plaintiff is the owner of real estate adjacent to 2000 S. Telegraph road in the defendant city.
The council of the defendant city in accord with Ordinance No 50-521, passed a resolution April 16, 1963, concerning proposed sidewalk and driveway apron construction and repair program, Contract #1-1963, determining necessity to construct certain sidewalks in the city of Dearborn including a sidewalk in front of the property of plaintiff.
Ordinance No 50-521, § 6, as amended by Ordinance No 58-1244, provides in part as follows:
"Charge for construction; special assessment. Upon the completion of the building, rebuilding, replacing, or repairing of any sidewalk or apron for side drive by the city in accordance with the provisions of this ordinance, a bill for the cost thereof, together with the additional 10 per cent, as above specified, shall be mailed by the director of public works to the owner of the property improved, if his address be known or can with reasonable diligence be ascertained, demanding payment of the amount due. If said amount is not paid to the city within 30 days from the date of such bill, the amount due shall be assessed against such property as a special assessment, in accordance with the provisions of section 16.24 of chapter 16 of the charter of the city of Dearborn."
Chapter 16, § 16.24, of the charter of the city of Dearborn, provides as follows:
"At the second regular meeting of the council in January of each year, the controller shall present to the council a certified list of all amounts due and unpaid to the city for the installation of sidewalks, *219 * * * or any similar work or improvement made on and affecting private property, by the city during the preceding year, * * * chargeable to the owners and occupants of the property upon which said improvements are made and to the property itself. * * *
"The council shall thereupon pass a resolution determining to levy a special assessment upon each said parcel of land for the amount due the city as set forth in said list and shall create a special assessment district * * * said district to be designated as `consolidated miscellaneous assessment district for the year 19__,' such year being the year in which said improvements were made, and shall order the board of assessors to make an assessment roll to be known as the `consolidated miscellaneous assessment roll for the year 19__' and to assess to each parcel of land designated in said miscellaneous assessment district * * * as shown by the controller's certified list, upon which improvements, constituting a lien upon the property itself, have been made. * * *
"All other provisions of this chapter relating to preparation and filing of roll, hearing by board of review, confirmation of roll, enforcement and collection of assessment, all notices in connection therewith, new assessments and reassessments and all other procedure in this chapter contained and applicable thereto, shall apply to assessments in this section authorized."
The other provisions of the charter of the city of Dearborn dealing with special assessments and time within which to test the validity thereof are contained in chapter 16 of the charter of said city, same being sections 16.10, 16.13, and 16.14, which are hereinafter quoted:
"§ 16.10. After the approval of the assessment roll as hereinabove provided, the council shall thereupon or thereafter pass a resolution confirming such roll *220 and in the same resolution shall find and determine that such roll contains a description of all the parcels of land constituting the assessment district; * * * and that all of the provisions of the charter of the city of Dearborn and of law authorizing all or part of the cost of a public improvement to be assessed to a special district have been complied with in the preparation of the assessment roll therein confirmed. Such roll shall have the date of confirmation indorsed thereon and be filed in the office of the city clerk."
"§ 16.13. All special assessments shall, from the date of the confirmation thereof, constitute a lien upon the respective parcels of land assessed and shall be a charge against the person to whom assessed until paid.
"§ 16.14. Such special assessments and all proceedings upon which such special assessments are based shall be incontestable, unless suit to test the validity thereof is instituted within 30 days after the day of the confirmation of such special assessment roll." (Emphasis supplied.)
The defendant city claims it constructed a sidewalk adjacent to plaintiff's property at 2000 S. Telegraph road on June 2 and 3, 1963, and in accord with Ordinance No 50-521 alleging that a bill was sent from defendant city to the plaintiff showing due $434.72 for sidewalk construction, same payable within 30 days from June 26, 1963. Plaintiff paid the amount billed him on July 24, 1963, but paid the same under protest.
On November 18, 1963, plaintiff instituted an action in Wayne county circuit court to recover the said sum of $434.72 with interest plus court costs and attorney fees claiming that the city had obtained the same without legal authority. On December 3, 1963, defendant made a motion for accelerated judgment claiming that plaintiff had failed to state a *221 cause of action and further that the charter of the city of Dearborn, and the statute of the State of Michigan, set up an appeal time during which a special assessment may be sued for and that plaintiff had failed to comply with the statutory provision and the charter requirements; and further, that the city did construct a sidewalk. The plaintiff amended his complaint substituting the word "billed" for "assessed" in paragraphs 2 and 3. Briefs were filed by both parties. On May 1, 1964, the Honorable James N. Canham, circuit judge, filed his opinion wherein he stated:
"The only issue presented for the court's determination is whether or not the plaintiff filed this suit timely pursuant to the provisions of the city of Dearborn charter, § 16.14, and CL 1948, § 211.53 (Stat Ann 1960 Rev § 7.97).
"In the event the court determines that the said suit was not started timely the matter is concluded and the city shall prevail. * * *
"It is plaintiff's further contention that the charter and statute have no application since there was never any assessment to protest, merely a bill for cost of sidewalk construction. Plaintiff cites Dearborn Ordinance No 50-521, § 6, entitled charge for construction. * * *
"The court concludes a special assessment was made by the defendant city, and the plaintiff had 30 days under the charter and the statute to challenge it after he paid same under protest. The plaintiff did not so challenge within 30 days provided therefor.
"Defendant's motion for accelerated judgment is granted."
The defendant city of Dearborn asserts that the ruling in Haggerty v. City of Dearborn (1952), 332 Mich. 304, is controlling in the case at bar.
*222 In the Haggerty v. City of Dearborn Case, supra, there was a suit by John S. Haggerty against the city of Dearborn and others to cancel special assessment and remove cloud from title. The case involved a special assessment imposed for the purpose of defraying the cost of construction of a sewer. The city, pursuant to law, included the property of plaintiff in the assessment district and the assessment roll was confirmed and sewer completed before the cause was commenced. The Court held on p 319 in part as follows:
"We hold that under CL 1948, § 211.53,[2] a party dissatisfied with his assessment for taxes, either for real or personal property or special assessment on real property must pay under protest, specifying in writing the grounds of such protest. The statute also provides that after paying under protest the party must begin his action within 30 days after such payment. Plaintiff's failure to comply with statutory provisions precludes relief in the instant case. He had an adequate remedy at law, but failed to exercise his right thereto." (Emphasis supplied.)
Our attention is also called to the case of Berston v. City of Flint (1913), 176 Mich. 266. In this case, complainant sought to enjoin the defendant city from confirming an assessment roll, and from entering into a contract for the construction of a certain sewer. It was claimed that certain property benefited by the sewer, was not included in the assessment district and should have been and for further reasons requested relief. The Supreme Court affirmed *223 the trial court granting relief to the complainants.
Further light is thrown upon the two cases when we read from the Haggerty v. City of Dearborn Case, supra, from p 318, which states in part as follows:
"In the Berston Case there was an excessive payment for the right-of-way and failure to include in the assessment district certain property of General Motors that would benefit from the sewer. Moreover, suit was started prior to the confirmation of the assessment roll. In the case at bar, the property of plaintiff was included in the assessment district and suit was not started until after the assessment roll was confirmed and the sewer completed. In our opinion the above case is not authority for cancellation of the assessment on plaintiff's property." (Emphasis supplied.)
In 6 CJS, Assessment, p 1024, it is stated in part as follows:
"It has been said that the term carries with it the idea of a burden imposed in invitum, and a single act as distinguished from recurring acts, indicates the charge so made or imposed or the amount thereof, and includes all the steps necessary to carry the assessment into effect."
Also see 5 CJ, Assessment, § 2, p 816, and note thereunder; Urquhart v. Wescott, 65 Wis 135, 143 (26 N.W. 552); Prentice v. Ashland County, 56 Wis 345, 347 (14 N.W. 297); and 5 CJ, Assessment, § 3, p 819.
In the case at bar, the plaintiff paid a bill to the city of Dearborn in accordance with a resolution, but paid it under protest and before any assessment roll was made in accordance with the city charter, chapter 16, § 16.24, as above recited. In fact, the suit was started at least two months before the city could place in operation, the resolution *224 to create a consolidated miscellaneous assessment roll under the provisions of said chapter 16, § 16.24.
Can defendant city consider the payment by the plaintiff in this case as payment of the debt not requiring the subsequent proceedings of making a legal assessment? In Detroit, H. & S.R. Co. v. Smith (1883), 50 Mich. 112, p 113, Justice COOLEY states:
"Payment implies a voluntary act of the debtor looking to the satisfaction, in whole or in part, of the demand against him; but in this case there was no such act whatever. What was done by defendant was directly in the face of the plaintiff's orders, who did not contemplate or desire any such payment. A creditor cannot lawfully pay himself with the debtor's money, without the debtor's consent, either express or implied; and when the debtor delivers him money for a purpose which negatives the idea of payment, the creditor's control is limited to the purpose declared." (Emphasis supplied.)
Paying a tax under protest is an assertion of illegality. Louden v. East Saginaw (1879), 41 Mich. 18. The principal object of the protest seems to be to warn the controlling officer not to pay over the money. First National Bank of Sturgis v. Watkins (1870), 21 Mich. 483, 490.
This Court must rule that the payment of the bill as sent to plaintiff by the director of public works was made under protest and that he preserved his legal rights thereunder and if the city had desired to perfect a lawful assessment, the same should have been proceeded with in accordance with law as provided in the charter and the ordinance of the said defendant city. Said bill not being an assessment, the payment of the same under protest did not preclude him nor did section 16.14 of the charter apply to such provisional payment.
It is the finding of this Court that the trial court erred in dismissing the action for the failure of *225 plaintiff to sue for the recovery of the sum paid within 30 days from payment under protest. Reversed. Costs to plaintiff-appellant.
T.G. KAVANAGH, P.J., and McGREGOR, J., concurred.
NOTES
[1] See GCR 1963, 116.1. REPORTER.
[2] CL 1948, § 211.53 (Stat Ann 1900 Rev § 7.97) provides in part:
"He may pay any tax, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax shown to be illegal for the reason shown in such protest." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918156/ | 272 So. 2d 867 (1973)
Ricky RAYSOR and Raymond Raysor, Appellants,
v.
STATE of Florida, Appellee.
Roosevelt LESTER, Appellant,
v.
STATE of Florida, Appellee.
Nos. 72-61, 72-62.
District Court of Appeal of Florida, Fourth District.
February 12, 1973.
*868 Edward M. Kay, of Varon, Stahl & Kay, Hollywood, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, for appellee.
WALDEN, Judge.
This was a not unusual criminal case based upon charges of robbery. Those convicted upon trial by jury appeal the resulting judgments. The cases were consolidated for purposes of appeal. We affirm the convictions of defendants-appellants, Ricky Raysor and Raymond Raysor, because they failed to demonstrate any reversible errors. We reverse the conviction of Roosevelt Lester because the court violated Rule 3.250, Florida Rules of Criminal Procedure[1], 33 F.S.A.
Although Lester qualified under the Rule for an entitlement for the concluding argument before the jury, and requested same, the request was denied without explanation and the state was permitted the opening and closing jury arguments.
The state does not deny the error and simply rests upon the premise that same was harmless because Lester has failed to demonstrate prejudice accruing to him by reason of the denial.
We believe the state's position to be unsound and particularly in light of the pronouncements of the Supreme Court of Florida in Birge v. State, Fla. 1957, 92 So. 2d 819, at pages 821 and 822:
* * * * * *
"We have consistently held that the right guaranteed to an accused by the cited statute is a vested procedural right the denial of which constitutes reversible error. * * * [W]hile a trial judge may exercise some discretion in arranging the order of addresses to the jury, he cannot deprive an accused of the right to the closing argument when he has offered no testimony except his own."
"We have carefully examined the evidence submitted to the jury. We are frank to state that in our judgment it was more than adequate to sustain the *869 jury's verdict. However, in view of the nature of the error we are not here permitted to apply the so-called harmless error rule authorized in many instances by Sections 54.23 and 924.33, Florida Statutes, F.S.A. The importance of the procedural right discussed above has been underscored by the fact that the privilege has been included in an act of the Legislature by which we are bound. It is not within our judicial province to disregard completely this legislative enactment which undoubtedly was passed to provide for those accused of crime an orderly judicial safeguard for the determination of their rights. As an appellate court we cannot speculate on the effect that the closing argument might have had on the jury. We are here confronted with the necessity of recognizing and preserving an important right guaranteed to the accused by our statute. It is not our privilege to disregard it even though we as individuals might feel that this appellant is as guilty as sin itself. (Emphasis supplied.)
"We are therefore compelled to the conclusion that the denial of this right to the appellant was a substantial prejudicial error which requires a new trial."
See also Davis v. State, Fla.App. 1971, 256 So. 2d 22; Cagnina v. State, Fla.App. 1965, 175 So. 2d 577, and Wyatt v. State, Fla. App. 1972, 270 So. 2d 47. In further extension, we are at a loss as a practical matter to know just how any criminal defendant could in fact make a demonstration of error because of the refusal of the trial court to follow the dictates of the Rule. It is inherent in the procedure, as all acquainted with trial tactics know, that the right to address the jury finally is a fundamental advantage which simply speaks for itself.
We do not know the rationale behind the denial of this vested procedural right to Lester. By way of volunteered comment, the fact that the defendants were represented by different attorneys who happened to be members of the same firm is of no moment as concerns the proper administration of Rule 3.250, supra. See Lopez v. State, Fla. 1953, 66 So. 2d 807, and Faulk v. State, Fla. 1958, 104 So. 2d 519. Furthermore, the fact that the state chooses to place multiple defendants on trial collectively can not serve as a diminution or abolishment of Rule 3.250, supra, because of any awkwardness in arranging the order of closing argument, or otherwise. See Faulk v. State, supra. While not exclusive, one method whereby Lester could have been afforded his right is as follows:
a. Mr. Kay (for Lester) opens.
b. State argues against all defendants.
c. Mr. Stahl argues on behalf of the defendants, Ricky Raysor and Raymond Raysor.
d. The State argues as concerns all defendants.
e. Mr. Kay (for Lester) presents the concluding argument.
The judgment and sentences of Ricky Raysor and Raymond Raysor are hereby affirmed. The judgment and sentence of the defendant, Roosevelt Lester, is hereby reversed and the case remanded for a new trial as to him.
Reversed in part; affirmed in part.
REED, C.J., and CROSS, J., concur.
NOTES
[1] "Rule 3.250 Accused as Witness. In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf, and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury." These provisions are identical to those formerly found in F.S. 918.09. (Emphasis supplied.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3338689/ | The plaintiff, Mary Rego, is wife of the other plaintiff Luigi Rego, sister of the defendant Julia Conti and aunt of the other defendant Margaret Pacileo. Julia Conti was formerly the wife of Michael Gagliardi whom she divorced in 1934. In December, 1925, when Julia Conti was Mrs. Gagliardi she and her husband lived with the plaintiffs. At that time Gagliardi needed money for his business and the plaintiffs loaned him $1000. The evidence does not support the plaintiff's claim that the loan was made to Julia and her husband jointly.
In June of 1927 the plaintiffs loaned the defendant Julia $862.24. Of this amount $500 was unpaid in September, 1932 and $150.00 in November, 1934.
The claim of a loan of $200. in December, 1927, is not substantiated.
In view of the fact that the defendant Julia transferred her property September 16th, 1932, paid the plaintiffs $500 four days later and they made no claim of fraud until January, 1935, it does not appear that the transfer was for the purpose of defrauding the plaintiffs.
It is apparent that when the plaintiffs learned that Julia, then Mrs. Gagliardi, had entered into a contract with her husband, Michael Gagliardi, wherein among other things, she agreed to assume his debt of $1000. to the plaintiffs they decided to sue her for that debt.
The complaint is not based upon this agreement, however, nor is there a privity of contract that would support the claim. *Page 100
Judgment is directed for the plaintiffs for the principal sum of $212.24 and interest amounting to $340.61, a total of $552.85 against the defendant, Julia Conti. Judgment is directed for the defendant Margaret Pacileo. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2440234/ | 970 N.E.2d 632 (2009)
386 Ill. App. 3d 1138
ROCHE
v.
FIRST HEALTH GROUP CORP.
No. 5-08-0113.
Appellate Court of Illinois, Fifth District.
February 10, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/730729/ | 101 F.3d 713
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.William J. CONNOLLY, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 96-3386.
United States Court of Appeals, Federal Circuit.
Oct. 22, 1996.
1
71 M.S.P.R. 312.
2
REVIEW DISMISSED.
ORDER
3
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
4
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1575036/ | 17 So.3d 308 (2009)
GRANADA GARDENS ASSOCIATION, LLC, a Florida limited liability company, and Big League Management, Inc., Appellants,
v.
Marta CASTRO and Juan Hernandez, her husband, Consuelo Lopez and Luis Gonzalez, Appellees.
No. 3D08-1748.
District Court of Appeal of Florida, Third District.
May 6, 2009.
Rehearing and Rehearing En Banc Denied July 2, 2009.
*309 Roland Gomez and Richard M. Gomez, Miami, for appellants.
Pyper & Layne and David J. Pyper, Weston, for appellees.
Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
PER CURIAM.
Appellees, Luis Gonzalez, Consuelo Lopez, Marta Castro, and her husband, Juan Hernandez (collectively, "plaintiffs"), brought suit against appellants, Granada Gardens Association, LLC and Big League Management, Inc. ("defendants"), seeking damages for injuries suffered as a result of defendants' negligence. The trial court ordered a new trial based on supposed inconsistencies in the jury verdict.[1]
The jury determined that defendants' negligence was the legal cause of damage to Gonzalez, Lopez, and Castro, but not Hernandez. The jury awarded Gonzalez, Lopez, and Castro non-economic damages totaling $100,000,[2] but awarded nothing to any of the plaintiffs for past medical expenses. After the jury verdict was read, the trial court directed a verdict in favor of Gonzalez on his past medical expenses in the amount of $10,000. Then, believing the verdict was inconsistent, the trial court asked the jury to deliberate again and, if possible, return with a "consistent" verdict. The jury returned a second verdict, finding that defendants' negligence was the legal cause of damage to all four plaintiffs, and awarding Hernandez $2500. After thanking the jurors for their service and discharging them, the trial court issued, what was in effect, an order granting new trial, and the judge recused himself.
Contrary to the conclusion of the trial court, the initial verdict was consistent, as the jury could reasonably have determined that while defendants were negligent, their negligence was not the legal cause of damage to all plaintiffs. See Cocca v. Smith, 821 So.2d 328, 331 (Fla. 2d DCA 2002). Therefore, we reverse the trial court's order granting a new trial with instruction to enter a final judgment consistent with the first verdict. We also reverse the directed verdict entered in favor of Hernandez in the amount of $10,000. See Schreidell v. Shoter, 500 So.2d 228, 232 (Fla. 3d DCA 1986) ("A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party.") (citing Holmes v. Don Mealey Chevrolet, Inc., 468 So.2d 552, 553 (Fla. 5th DCA 1985)). Here, the record reveals facts supporting the jury's first verdict. We affirm on all other issues.
*310 Affirmed in part, reversed in part, and remanded with instructions.
NOTES
[1] Although the order on appeal purports to be an order granting a mistrial effective, nunc pro tunc, the day of the trial, it is actually an order granting a new trial, as it was granted just shy of a month after the jury was discharged. See Keene Bros. Trucking, Inc. v. Pennell, 614 So.2d 1083, 1085 (Fla. 1993).
[2] The defendants, having been found liable by the jury for only 30 percent of the damage to plaintiffs, are responsible for 30 percent of the total damage award. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919845/ | 660 So.2d 384 (1995)
SUZANNE WALKER & ASSOCIATES, INC., Appellant,
v.
QUALTEC QUALITY SERVICES, INC., Appellee.
No. 94-2847.
District Court of Appeal of Florida, Fifth District.
September 15, 1995.
N. James Turner, of N. James Turner, P.A., Orlando, for appellant.
Robert B. Sendler, North Palm Beach, for appellee.
HARRIS, Judge.
The issue on appeal is whether the trial court erred in granting the defendant's motion to transfer venue.
Suzanne Walker & Associates, Inc. (Walker) and Qualtec Quality Services, Inc. (Qualtec) entered into a contract in which Qualtec retained Walker to perform consulting services at Walker's offices located in Seminole County. Allegedly pursuant to the contract, Qualtec notified Walker that it was exercising its right to terminate the contract because of unsatisfactory performance in that Walker had failed to generate the minimum sales revenues that had been promised and had performed services in an unprofessional manner by preparing documents in such careless fashion that they required continual review and rewriting by Qualtec.
Walker sued Qualtec in Seminole County for breach of contract, alleging that Qualtec wrongfully terminated Walker because the allegations of the termination letter were false. Qualtec filed a motion to dismiss *385 and/or transfer venue in which it stated that it maintains no offices in Seminole County for the transaction of its customary business and has its only office in Palm Beach County. Qualtec also stated that the action did not accrue in Seminole County as it was an action alleging breach of a contract that was entered into in Palm Beach County and all invoices for payment of services rendered were to be sent to Qualtec's Palm Beach office. Therefore, Qualtec contended that Seminole County was an inappropriate venue for the case.
Ultimately, the trial court granted Qualtec's motion and transferred venue to Palm Beach County. We reverse.
Section 47.051, Florida Statutes (1993), provides in part:
Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.
In the instant case, because there is no property in litigation and the defendant, Qualtec, was not sued in a county where it has an office, the determinative question to be answered here is: "Where did the cause of action accrue?"
The general rule is that a cause of action for breach of contract accrues, for venue purposes, in the county where the breach occurred. Carter Realty Co. v. Roper Bros. Land Co., Inc., 461 So.2d 1029 (Fla. 5th DCA 1985). Where the alleged breach lies in the defendant's act of renouncing and refusing to further recognize a partially completed contract, the cause of action accrues and venue is proper where the contract was to be performed. Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966). See also St. Laurent v. Resort Marketing Associates, Inc., 399 So.2d 362 (Fla. 2d DCA 1981) (interpreting Mendez as holding that, if alleged breach is renunciation of partially completed contract, cause of action accrues where renunciation occurred).
The instant complaint alleges wrongful repudiation or renunciation of a contract, and therefore Mendez and St. Laurent apply. According to Mendez, venue is proper where Walker's services were performed. Walker states in both its complaint and affidavit in opposition to Qualtec's motion to transfer venue that the services contemplated by the contract were performed in Seminole County. These statements were uncontroverted, and therefore, based on Mendez, venue was proper in Seminole County. Further, according to St. Laurent, venue is proper where the renunciation or termination of the contract occurred. Qualtec's termination letter was addressed to Walker's office in Winter Springs, Seminole County. Based on St. Laurent, then, venue was proper in that county.
Although section 47.051, Florida Statutes (1993), recognizes that venue would also be proper in the county in which the defendant maintains an office, the choice of venue in the first instance lies with the plaintiff. Magee v. Liberty Mutual Ins. Co., 366 So.2d 827 (Fla. 4th DCA 1979); Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977). Assuming the complaint does not show on its face that venue is lacking, the burden of proof is on the defendant to demonstrate that the venue chosen is improper. Id. Qualtec failed to meet this burden, and the trial court erred in granting the motion to transfer venue to Palm Beach County.
REVERSED and REMANDED for further action consistent with this opinion.
PETERSON, C.J., and COBB, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591686/ | 5 N.Y.2d 954 (1959)
In the Matter of Erie County Water Authority, Appellant,
v.
Jay Kramer et al., Individually and Constituting the New York State Labor Relations Board, et al., Respondents.
Court of Appeals of the State of New York.
Argued November 12, 1958.
Decided February 26, 1959.
H. Eliot Kaplan, Melvin L. Bong and Laurence J. Olmstead for appellant.
George E. Moehringer and Philip Feldblum for State Labor Relations Board, respondent.
Concur: Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL and BURKE. Judge VAN VOORHIS dissents and votes to reverse and to reinstate the order of Special Term on the opinion of O'BRIEN, J., at Special Term.
Order affirmed, with costs; no opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454742/ | 253 P.3d 1081 (2011)
242 Or. App. 177
STATE
v.
DEJESUS-DELACRUZ.
No. A142214
Court of Appeals of Oregon.
April 13, 2011.
Affirmed Without Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575059/ | 17 So. 3d 795 (2009)
Timothy WALDEN, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-2318.
District Court of Appeal of Florida, First District.
August 14, 2009.
Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
*796 Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
BENTON, J.
Timothy Walden appeals convictions for second-degree felony murder, armed robbery and aggravated assault on a law enforcement officer. He contends that the trial court erred in allowing in evidence certain hearsay statements. The trial court did err when it allowed the hearsay in over objection, but the error was harmless beyond a reasonable doubt.
"Admission of hearsay cannot be deemed harmless error if there is a reasonable possibility that it contributed to [the] conviction." Thomas v. State, 993 So. 2d 105, 108-09 (Fla. 1st DCA 2008) (citing State v. DiGuilio, 491 So. 2d 1129, 1138-39 (Fla.1986)). "As a general rule, a trial court's ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion. However, a court's discretion is limited by the evidence code and applicable case law. A court's ... interpretation of these authorities is subject to de novo review." McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006) (citations omitted).
At trial, Anisha Patel testified that she was robbed at gunpoint while working as a clerk at Baymeadows Inn and Suites in Jacksonville on the evening of July 24, 2007. After she emptied the cash registerof some $200 to $300the robber instructed her to lie down facing a wall. She remained lying on the floor until, after the robber left, a hotel guest entered the lobby and told her to get up. Explaining to the guest that she had just been robbed, she dialed 911. In the course of the phone call, which was recorded and played to the jury, the 911 operator asked whether the robber had left on foot or in a vehicle. Ms. Patel first responded: "On foot as far as I know."
Before the jury heard it, trial counsel made timely objection on hearsay grounds to a portion of the recording of the 911 call, including the following:
(Ms. Patel:) A red Cadillac.
(911 operator:) Did they say which way he went?
(Ms. Patel:) I guess he must have gone (inaudible)?
(911 operator:) He was on Baymeadows Circle toward Baymeadows Road?
(Ms. Patel:) (Inaudible) I left (inaudible) road to get.
(911 operator:) Okay. Did anybody see any part of the tag at all on the vehicle, tag number or anything?
(Ms. Patel:) No, sir. He just saw he saw him getting into a red Cadillac.
(911 operator:) Could they tell two door, four door, what kind of Cadillac it was?
(Ms. Patel:) Four door, red Cadillac.
(Emphasis supplied.) The trial court initially deferred ruling on defense counsel's objection, pending further testimony.
The hotel guest, Dwight Fowler, testified that on the evening of July 24, 2007, he entered the lobby of Baymeadows Inn and Suites to find Ms. Patel lying on the floor; that it was he who told her to get up; that after Ms. Patel informed him she had just been robbed (and placed the 911 call), Mr. Fowler went outside and spotted only one vehicle in the vicinity, a four-door red Cadillac, which was heading toward the highway; and that he called the vehicle description to Ms. Patel, who relayed it to the 911 operator. On cross-examination, Mr. Fowler conceded that he did not actually see the robber get into the red Cadillac and that he could not make out who the occupants of the Cadillac were, because it was dark and the vehicle was never less *797 than some 200 to 300 feet away. He could not identify the defendant at trial.
Arguing that the portion of the 911 tape recording to which the defense had objected was not hearsay, the state asserted it was offered, not for its truth, but simply to explain how police officers obtained a description of the vehicle they chased. Other witnesses testified to a police chase of a red, four-door Cadillac from which (after the police shot and killed the driver) Mr. Walden ultimately emerged. When the question of the admissibility of the 911 tape recurred, the trial court overruled the defense objection, reasoning:
It's actually second level hearsay analysis because according to Ehrhardt and Florida law, even what the witness was saying while on the stand technically is hearsay, what she told the police as is the second level what was told to her by the other civilian witness. But having analyzed it now and heard the police officer's testimony,[[1]] it does explain in both levels it explains not the truth of the matter asserted but why the police chase the red Cadillac as counsel for the State argued earlier. And therefore, the objection is overruled on both levels of hearsay.
Ms. Patel's trial testimony, unlike the tape recording of her out-of-court statement, was not hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," § 90.801(1)(c), Fla. Stat. (2007), and is not admissible, except as provided by statute. § 90.802, Fla. Stat. (2007). Hearsay within hearsay, which describes what she reported on the tape recording that Mr. Fowler had told her, is similarly inadmissible unless "each part of the combined statements conforms with an exception to the hearsay rule." § 90.805, Fla. Stat. (2007).
The record does not support the notion that it was unimportant to the state's case whether it was appellant who tried to get away in the red Cadillac. The trial court's protestations notwithstanding, the state was permitted to put on hearsay to prove the truth of the matter assertedthat Timothy Walden and his cousin (the driver) left the scene of the robbery in the red Cadillac. In closing, the state argued, "It's not a coincidence that that defendant was in a red Cadillac, the same car seen leaving the robbery at the time of the robbery in the direction from the robbery"; and "[w]ith the evidence you have you know he got into that Cadillac." The trial court erred by admitting the 911 tape of Ms. Patel's description of the red Cadillac and her report that the robber was inside, hearsay that did not qualify under any exception to the hearsay rule. See Conley v. State, 620 So. 2d 180, 182-83 (Fla.1993) (out-of-court statement relating accusatory information is hearsay when, regardless of the reason for offering it, the evidence is used to prove the truth of the matter asserted). "[W]hen the only purpose for admitting testimony relating accusatory information received from an informant is to show a logical sequence of events leading up to an arrest, the need for the evidence is slight and the likelihood *798 of misuse is great." State v. Baird, 572 So. 2d 904, 908 (Fla.1990).
This case well illustrates the unreliability of hearsay and the danger of its use. For one thing, cross-examination[2] is usually unavailable to test the reliability of hearsay. See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) ("Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested."); Bordelon v. State, 908 So. 2d 543, 546 (Fla. 1st DCA 2005) ("[W]e count on cross-examination ... to ferret out the truth from any and all witnesses, and to gain a fuller understanding of the import of their testimony.").
In the present case, both Ms. Patel and Mr. Fowler were cross-examined about the statements they made out of court. Among the hearsay statements introduced in the 911 recording was Ms. Patel's assertion that Mr. Fowler "just saw he saw him getting into a red Cadillac." This statement was false as cross-examination at trial made clear. Mr. Fowler testified that he did not actually see the robber enter the red Cadillac and could not see the occupants of the vehicle because it was dark and the vehicle was located 200 to 300 feet away from him. Only Ms. Patel was able to identify Mr. Walden (with whom she had also had a conversation 30 minutes prior to the robbery) as the man who robbed her.
Even though testimony on cross-examination rendered the trial court's error in admitting the hearsay statements in the 911 call harmless beyond a reasonable doubt in the present case, see State v. DiGuilio, 491 So. 2d 1129, 1138-39 (Fla. 1986), this case illustrates the most important reason why hearsay should be vigilantly excluded: it may well be unreliable. Had Ms. Patel and Mr. Fowler not taken the witness stand and undergone cross-examination, the inaccuracy in the tape-recorded hearsay statement would not have come to light: the jury would have been left with the mistaken impression, in a case where it was pivotal for the state to place the robber in the red Cadillac, that an eyewitness saw a man get into the red Cadillac outside of the hotel, minutes after the robbery took place. Because the inaccuracy was exposed, however, and the jury heard the account of what happened from *799 witnesses with firsthand knowledge, the error was cured.
Affirmed.
HAWKES, C.J., and ALLEN, J., concur.
NOTES
[1] Officer John Williams testified that at 9:40 p.m. on July 24, 2007, after hearing a radio dispatch, he joined in a high-speed chase of a red Cadillac, which was posting speeds up to 80 miles per hour and failing to obey traffic laws; that he saw two individuals inside the vehicle; that, on two occasions during the chase, a gun pointed in his direction was extended through the passenger-side window; and that his pursuit ended when he ran over "stop sticks" that punctured his tires.
[2] The potential for unreliability that results from the absence of cross-examination is "probably the most persuasive" reason for excluding hearsay:
The reasons for the exclusion of hearsay evidence are many. Among the most widely accepted are: (1) because hearsay statements are not made under oath, the reliability that an oath provides to evidence is missing; (2) when statements are made outside a courtroom, the jurors cannot observe the demeanor of the declarant and judge his or her credibility in the same manner as they can in determining the weight and reliability that should be given other evidence; (3) the lack of an opportunity to cross-examine the person who made the out-of-court statement to test the person's perception, memory, sincerity, and accuracy of the description of the event raises serious questions concerning the reliability of the statement. The latter justification is probably the most persuasive current reason for the rule. Wigmore's characterization of cross-examination as "beyond any doubt the greatest legal engine, ever intended for the discovery of truth" underlies the exclusion of hearsay testimony. Without the ability to cross-examine a witness regarding his or her ability to observe, remember, and truthfully and accurately recount what occurred, counsel cannot expose any inconsistencies or any inaccuracies in a statement made outside the courtroom.
Charles W. Ehrhardt, Florida Evidence § 801.1, at 766 (2009 ed.) (footnotes omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1543685/ | 81 Md. App. 314 (1989)
567 A.2d 509
MARGARET PASTORE
v.
WILLIAM C. SHARP ET UX.
No. 530, September Term, 1989.
Court of Special Appeals of Maryland.
December 29, 1989.
Certiorari Denied April 17, 1990.
William R. Leahy and Joseph V. Rohr, Jr. (Legal Aid Bureau, Inc., on the brief), Annapolis, for appellant.
William M. Ferris and Lynn T. Krause (Michaelson, Krause & Ferris, on the brief), Annapolis, for appellees.
Submitted before ALPERT, ROBERT M. BELL and FISCHER, JJ.
ALPERT, Judge.
This case involves a dispute over the custody of a five-year-old boy, Nicholas Pastore. Appellant, Margaret Pastore, is his natural mother; appellees are Nicholas's paternal aunt and uncle, Nancy and William Sharp.
Appellant married Peter Pastore in 1977 and gave birth to two boys, Vincent and Nicholas. Both appellant and Peter had severe drug dependencies, appellant's lasting for twenty years. In late May 1986, appellant called Peter's sister, Loretta Lambert, asking for help. Loretta and another of Peter's sisters, Nancy Sharp, traveled to the Pastores' home in New York, where they found appellant reduced to looking "like a concentration camp survivor," and Peter having drug-related convulsions. The Pastores and Peter's sisters agreed the next day, June 1, 1986, that the Lamberts and the Sharps would take the children back to Maryland temporarily. Vincent stayed with the Lamberts, while Nicholas stayed with the Sharps.
Appellant came to Maryland a month later on July 8, 1986, for Nicholas's second birthday. She attempted to regain custody of both her children, but only the Lamberts acquiesced. The Sharps refused to allow appellant to take Nicholas. After appellant returned to New York with Vincent, appellees sought and received temporary custody of Nicholas through an ex parte petition in the Circuit Court for Anne Arundel County. In its July 23, 1986 order, the court ruled that Nicholas could not be taken out of Maryland.
Appellant entered a drug rehabilitation program and has been drug-free since September 1986. She separated from her husband and moved in with her parents. On December 8, 1986, appellant petitioned a New York family court for custody of Nicholas and Vincent. The New York court awarded appellant custody of Vincent. It dismissed her petition for Nicholas's custody, however, declaring that it lacked jurisdiction because the child had been outside of New York for more than six months.
On March 9, 1987, appellant moved to dismiss appellees' July 1986 complaint for custody in the Maryland court, which still was pending because appellant had not been served with the complaint until January 13, 1987. The circuit court denied appellant's motion on April 21, 1987.
Appellant filed a counter complaint for custody of Nicholas on August 23, 1988. Beginning in November 1988 the court permitted appellant to take Nicholas on overnight visits to New York.
The matter came on for trial in February 1989 (Cawood, J.). Nicholas's day care teacher testified that the child, who usually was "well adjusted, very happy, content," acted very strangely following his first overnight visit with appellant. He seemed "very upset and very excited," and he raised his middle finger at one of the other children. Nicholas told the teacher he had learned the gesture from appellant. He also said appellant had told him that he did not like the day care center and that appellees did not love him.
Testimony at the trial revealed that appellant is involved in New York's workfare program, in which she receives public assistance in exchange for part-time work in the kitchen of a senior citizen center. Appellant lives in an efficiency apartment with a sliding plastic wall that divides the one large room into two. She is very involved in the church she joined shortly after she stopped using drugs. Appellant's mother-in-law, Louise Pastore, testified that appellant always has needed support from others around her.
Appellant testified that, if she were awarded custody of Nicholas, she would stop working entirely until the child entered school this year. According to her testimony, she has spoken to the New York Department of Labor about taking courses to upgrade her skills in hotel management, the field in which she once worked. She said she eventually will return to a full-time job outside the home.
Dr. Michael Gombatz, a licensed psychologist who evaluated appellant, Nicholas, and Vincent, testified (1) that appellant had no significant psychological problems; (2) that appellant and Nicholas had a healthy relationship; (3) that neither Nicholas nor Vincent had any mental disorder or personality problem; and (4) that Nicholas and Vincent had a close bond. Gombatz recommended that custody be returned to appellant.
Lynn Westergard, a social worker with the Anne Arundel County Department of Social Services (DSS), testified that appellant's interaction with her sons was very appropriate. Westergard also recommended that appellant be awarded custody of Nicholas. She suggested, however, that appellant remain in counseling and that the placement be supervised by the New York Protective Services Division for at least six months.
Appellees are a middle-class, two-income couple, with two children of their own. They own their own three-bedroom house in Severn, Maryland. A number of witnesses testified that appellees were very good parents who had developed close bonds with Nicholas.
Finally, it came out during appellant's testimony that her December 1986 custody petition in the New York court was incorrect in two significant respects. On the petition itself, she listed the date on which she gave custody of Nicholas to appellees as June 8, 1986, rather than the correct date of June 1, 1986. If the true date had been June 8, the New York court would have had jurisdiction. Appellant's other incorrect statement was on the supporting affidavit, where she stated that she had not participated in any other litigation concerning Nicholas, and had no knowledge of such a proceeding. Lynn Westergard, the DSS social worker, however, testified that she had told appellant about the Maryland custody case in July or August of 1986, months before appellant's December 1986 affidavit.
On March 1, 1989, Judge Cawood issued an Opinion and Order granting permanent custody of Nicholas to appellees. In that Opinion and Order the judge wrote, "[W]e do not believe it would be in his best interests to be removed from the custody of the Sharps. Unfortunately, all the damage done in twenty years cannot always be corrected in two."
Appellant timely filed her notice of appeal and the parties raise several issues which we restate as follows:
1. Are non-parents who are attempting to gain custody of a child from the child's natural parent required to show only that custody with the non-parent is "in the child's best interest," or are the non-parents required to show either that the natural parent is "unfit" or that "exceptional circumstances exist which would make such custody detrimental to the best interests of the child"?
2. If unfitness or exceptional circumstances must be established, did the trial court correctly find such unfitness or exceptional circumstances?
3. Was it an abuse of discretion for the court to reject the recommendations of a licensed psychologist and a DSS social worker that custody be awarded to the natural mother?
4. Did the court err by placing undue weight on the appellant's lack of wealth?
1. The Correct Standard
Appellees argue that the true standard for child custody in Maryland is the best interest of the child and that, "if the case law is, somehow, to the contrary, this Honorable Court should change the case law in the true interest of justice." While it is indeed true that the "best interests of the child standard" continues to reign, where there is a custody contest between a natural parent and a third party, there is a rebuttable presumption in favor of the natural parent. Only last year we said in Newkirk v. Newkirk, 73 Md. App. 588, 535 A.2d 947 (1988):
Although the "best interest of the child" standard prevails, in this State there is a prima facie presumption that a child's welfare is best served in the care and custody of its natural parents rather than a third party. This presumption is overcome, however, if the parent is unfit to have custody or if exceptional circumstances exist which would make such custody detrimental to the best interests of the child. Fam.Law Code Ann. (1984) § 5-201; Ross v. Hoffman, 280 Md. [172,] at 178-79, 372 A.2d 582 [(1977)].
Id. at 593, 535 A.2d 947. Newkirk is dispositive of the first issue.
2. The Trial Court's Application of the Standard
Appellant contends that we should reverse the trial court because neither the trial judge's order nor the record indicated that appellant was unfit or that exceptional circumstances existed that would make it harmful for Nicholas to be in her custody. According to appellant, the court erroneously applied the best interest of the child standard.
We disagree. Although the judge did state in his order that he did not think it would be in the child's best interests to remove him from the appellee's custody, that standard was correctly applied in that the trial court found that the parental presumption was overcome due to unfitress and exceptional circumstances. We note, first, that appellant's counsel ably presented the correct standard in his closing argument. Thus, the judge clearly was aware of the standard. We also believe the judge correctly found (1) that appellant was unfit to take custody of Nicholas, and (2) that exceptional circumstances existed which made custody detrimental to Nicholas's best interest.
We have found no precise definition of the term "fitness" in Maryland statutory or case law. In 67A C.J.S. Parent & Child § 23(b), at 241-42, however, we find the following discussion, which is instructive:
The factors used in assessing fitness for having custody of a child include such parental characteristics as age, stability, and the capacity and interest of a parent to provide for the emotional, social, moral, material, and educational needs of the child....
(Footnotes omitted.) Applying these factors to the trial judge's findings in the instant case, it is clear he found appellant unfit. With regard to appellant's stability, the judge found (1) that she always was in need of some kind of support and (2) that "the responsibility of taking on another child is more than she can handle." As for appellant's capacity to provide for Nicholas's social, moral, and educational needs, the judge stated that it was "cause for great concern" that appellant apparently persuaded Nicholas to say he did not like his day care center, and that the child learned an obscene gesture from her. The judge also clearly questioned appellant's honesty when he twice mentioned that her December 1986 petition to the New York court "was just not true in many important particulars." Regarding appellant's capacity to provide for the child's material needs, the judge found that she was "in a partial welfare program, renting a room barely large enough for herself and her other son," and "her plans for the future were vague at best." The record supports each of these findings.
On the issue of "exceptional circumstances," Maryland case law gives us very definite guidance. In Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582 (1977), the Court of Appeals stated:
The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third party custodian, the intensity and genuineness of the parent's desire to have the child, the stability and certainty as to the child's future in the custody of the parent.
As the Ross court noted, all of the factors do not have to be present to find exceptional circumstances. Id. at 192, 372 A.2d 582. We believe the trial judge found a number of the factors to exist and thus correctly found exceptional circumstances making custody detrimental to Nicholas's best interests. He found that Nicholas had been in appellees' custody, and thus separated from appellant, for "over two years," a long time when one considers that the child was not even five years old at the time of the hearing. The judge also found that, except for attempts to regain custody a month after she relinquished it, when "she was in no shape to accept it," and then again six months later, appellant did not seek custody or visitation until more than two years after she had given appellees custody of Nicholas. The judge also found that appellees had exercised "outstanding care for Nicholas" and had grown "extremely attached to him." And, finally, the trial judge clearly found that Nicholas's future would lack stability and certainty if he were placed with appellant. According to the judge, appellant's situation is "tenuous," her apartment is "barely large enough for herself and her other son," and "her plans for the future are vague at best." Again, there is ample evidence in the record to support these findings.
3. Recommendations of the Psychologist and the Social Worker
Appellant argues that the trial judge abused his discretion by choosing not to follow the psychologist and social worker's recommendations that custody be awarded to appellant. We disagree. As Chief Judge Gilbert stated for this court in Montgomery County Dept. of Social Serv. v. Sanders, 38 Md. App. 406, 423, 381 A.2d 1154 (1978), a court in a custody case "is entitled to weigh [evidence offered by social workers, psychologists, and psychiatrists] along with contradictory testimony and its own observations." Thus, the trial judge did not abuse his discretion by choosing not to follow the recommendations of the psychologist and the social worker where, as here, other evidence and the court's own perceptions dictated otherwise.
4. Appellant's Lack of Wealth
Finally, appellant contends that the trial court erred as a matter of law in basing its decision in part on appellant's receipt of public assistance and her lack of a large apartment. In support of this argument, appellant cites, inter alia, a footnote in Ross v. Hoffman, supra, in which the Court of Appeals stated that a "court may not, under the guise of the best interest standard weigh the material advantages offered by the adverse parties." 280 Md. at 191 n. 6, 372 A.2d 582. It is clear that the trial judge's decision was not predicated upon the mere weighing of the material advantages of the parties. In his opinion he did not mention appellees' income or three-bedroom home. When he mentioned appellant's receipt of public assistance and lack of a large apartment, he did so within a general discussion of "exceptional circumstances" and her fitness to have custody of Nicholas.
Material and environmental opportunities are factors that are appropriately considered and weighed along with other numerous factors. In Boothe v. Boothe, 56 Md. App. 1, 466 A.2d 58 (1983), a divorced couple's four children had been raised on a farm by their father and paternal grandparents. When the father died, the natural mother, who lived in a house trailer, sought custody of the children. In affirming the trial court's award of custody to the grandparents, we said,
When viewed in light of uprooting their presently customary and stable environment and rural freedom in exchange for the unaccustomed confinement of a trailer park, supervised by a mother who has been for two years a looked-forward-to-visitor, the transition cannot be said to be undetrimental as a matter of law.
Id. at 5, 466 A.2d 58.
Montgomery County Dept. of Soc. Serv. v. Sanders, supra, is another post-Ross case. There we stated that
the court examines numerous factors and weighs the advantages and disadvantages of the alternative environments.... The criteria for judicial determination includes, but is not limited to, ... 6) material opportunities affecting the future life of the child, Thumma v. Hartsook, [239 Md. 38, 210 A.2d 151 (1965)]; Butler v. Perry, [210 Md. 332, 123 A.2d 453 (1956)]; Cockerham v. The Children's Aid Soc'y of Cecil County, 185 Md. 97, 43 A.2d 197 (1945)....
While the court considers all the above factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor such as the financial situation ... or the length of separation.
38 Md. at 420-21, 381 A.2d 1154. According to the Sanders court, therefore, a trial court may consider the material opportunities offered by each party. The court simply must consider other factors as well. See also Thumma v. Hartsook, 239 Md. 38, 42, 210 A.2d 151 (1965) (trial court did not err in granting temporary custody to non-parents because situation of natural parents was "financially, with respect to housing, and otherwise ... completely unstable"); McClary v. Follett, Jr., 226 Md. 436, 442, 174 A.2d 66 (1961) (fact that father seeking custody of his son had not been a high wage earner did not, by itself, constitute unfitness); Butler v. Perry, 210 Md. 332, 341, 123 A.2d 453 (1955) (material advantages available in the home of one party in a custody dispute, "although important to be considered, are not decisive").
In Ross v. Hoffman, supra, the Court of Appeals explained that
[t]he ultimate conclusion as to the custody of a child is within the sound discretion of the chancellor. That conclusion is neither bound by the strictures of the clearly erroneous rule, that rule applying only to factual findings of the chancellor in reaching the conclusion, nor is it a matter of the best judgment of the reviewing court. It is not enough that the appellate court find that the chancellor was merely mistaken in order to set aside the custody award. Rather, the appellate court must determine that the judicial discretion the chancellor exercised was clearly abused.
280 Md. at 186, 372 A.2d 582. Under the totality of the circumstances, we conclude that the trial judge did not clearly abuse his judicial discretion in awarding custody of Nicholas to appellees. Newkirk v. Newkirk, supra, 73 Md. App. at 595-96, 535 A.2d 947.
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
ROBERT M. BELL, Judge, dissenting.
The majority affirms the judgment of the Circuit Court for Anne Arundel County continuing custody of the minor subject of this litigation in appellees, his paternal aunt and uncle. In so doing, it holds that the trial court applied the proper standard in deciding the issue and that its factual findings are supported by the evidence in the record. I believe that the majority is wrong on both counts. Consequently, I would reverse. It is for that reason that I dissent.
I agree with the majority that where the contest is between a natural parent and a third party, the proper standard is whether the natural parent is unfit or exceptional circumstances exist which make custody in the natural parent detrimental to the best interest of the child. See Newkirk v. Newkirk, 73 Md. App. 588, 593, 535 A.2d 947 (1988). I do not agree that the court applied the proper standard.
Relying on the fact that appellant's counsel "ably presented the standard in his closing argument", the majority concludes that "the judge clearly was aware of the standard" and, applying it, found both that appellant was unfit to have custody of her child and that exceptional circumstances militated against appellant having custody. Perusal of the trial court's written opinion belies these conclusions. First of all, the opinion does not explicitly state the correct standard. Moreover, nowhere in the opinion is it specifically stated that appellant is unfit to have the care and custody of the minor child.
When stating its disagreement with the Anne Arundel County Department of Social Services's recommendation that appellant be awarded custody, the court did state:
Although this case is a close and difficult one, we cannot agree. Mrs. Pastore's situation impresses us as a tenuous one. She is in a partial welfare program, renting a room barely large enough for herself and her other son. She is an intelligent woman, but her plans for the future are vague at best. As her mother-in-law pointed out, she was always in need of some support. Her church quite properly supplies it at the present time, but we think the responsibility of taking on another child is more than she can handle.
Later, after noting its concern about behavior exhibited by the child after visitation with appellant the child gave one of his nursery mates "the finger" and had been persuaded by his mother to say that he did not like his day care center the court opined:
While we applaud Mrs. Pastore's attempts at rehabilitation, we do not believe it would be in his [Nicholas] best interest to be removed from the custody of the Sharps. Unfortunately, all the damage done in twenty years cannot always be corrected in two.
While, in candor, it may be argued that, implicit in these comments, is a finding of unfitness, the evidence presented in the case is all to the contrary. The Anne Arundel County Department of Social Services recommended that appellant be given custody of the minor child. It did so after visitation, both here and on Long Island, and after interviewing all the parties. The evidence also reflected that appellant was drug free, and had been for two years, and was receiving support from her church. Furthermore, the evidence showed that appellant was adequately parenting her other son. On the opposite side of the ledger is only the court's "thought" and belief as to what appellant's situation is and what she can handle.
With regard to "exceptional circumstances", the majority focuses on the length of time that the minor child has been separated from his mother;[1] the limited attempts appellant made to regain custody of the minor child;[2] the "outstanding care" given the minor child by appellees; and the projected lack of stability and certainty that would ensue were the child placed with appellant. It maintains that the record, specifically the trial court's references to the appellant's situation as "tenuous", to her apartment as "barely large enough for herself and her other son", and to appellant's plans for the future as "vague at best", supports these findings. Again, I do not agree. As with the unfitness finding, the only support in the record for the existence of exceptional circumstances consists of the court's conjecture.
NOTES
[1] It is interesting to note that, as to this, appellees are largely responsible. They sought custody, on a temporary basis, in Maryland, without any effort to notify appellant, who was, as they knew, in New York, that they were doing so. As a result of that order, all of appellant's visitation rights were eliminated and not reinstated until more than a year later, when appellant first filed a counter complaint for custody in the Circuit Court for Anne Arundel County.
[2] The trial court acknowledges that appellant was "admittedly hampered by lack of funds" during the period during which she sought to rehabilitate herself. Therefore, it is somewhat misleading and unfair for the trial court to rely upon, and the majority to accept, the lack of effort on the part of appellant to seek custody or visitation until August 1988. I think it is to appellant's credit that she made the effort to obtain custody when she was best able to do so, especially after her initial efforts were unsuccessful. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918088/ | 101 B.R. 391 (1989)
In re Pedro ESTALELLA, Jr. S.S. # XXX-XX-XXXX Elena C. Estalella S.S. # XXX-XX-XXXX d/b/a Big Beautiful You, Debtors.
Bankruptcy No. 89-01920-BKC-AJC.
United States Bankruptcy Court, S.D. Florida.
June 7, 1989.
Edward J. Waldron, Coral Gables, Fla., for debtors.
Thomas Gary, Tarafa & Gary, Coral Gables, Fla., for 107th & 16th South, Ltd.
Robert L. Roth, Miami, Fla., trustee.
David D. Bird, Miami, Fla., Asst. U.S. Trustee.
ORDER DENYING OBJECTION TO PLAN AND MOTION TO DISMISS CHAPTER 13 PETITION FOR LACK OF GOOD FAITH
A. JAY CRISTOL, Bankruptcy Judge.
THIS CAUSE came on to be heard upon the OBJECTION TO PLAN AND MOTION TO DISMISS CHAPTER 13 PETITION FOR LACK OF GOOD FAITH filed by Creditor, 107TH & 16TH SOUTH, LTD., and a Hearing was held before this Court on May 30, 1989 and the Court having heard argument of counsel and being otherwise advised in the premises does hereby make the following Findings of Fact and Conclusions of Law:
*392 FINDINGS OF FACT
107TH & 16TH SOUTH, LTD., ("107TH") was the landlord of premises rented to BIG BEAUTIFUL YOU, INC. ("BBY") at 1667 S.W. 107 Avenue, Miami, Florida. BBY is a corporation owned 50% each by the Debtors, PEDRO ESTALELLA, JR. and ELENA C. ESTALELLA. 107TH has a personal guarantee of the lease from ELENA C. ESTALELLA but not from PEDRO ESTALELLA, JR. BBY vacated the premises on or about March 1, 1989, and on March 15, 1989 107TH filed a lawsuit against BBY in the Circuit Court of Dade County for $61,955.20 and joined both PEDRO ESTALELLA, JR. and ELENA C. ESTALELLA as Defendants in said action. The $61,955.20 Claim for damages consisted of $6,320.80 rents and other charges due through March 1, 1989; $48,240.00 as the accelerated balance due under the lease, and $4,500.00 for alleged conversion or civil theft of electrical fixtures and air conditioning equipment by BBY, PEDRO ESTALELLA, JR. and ELENA C. ESTALELLA. At the May 30, 1989 Hearing, the Debtors denied the alleged conversion or civil theft but this issue is not before this Court at this time. The Debtors did not engage an attorney to defend this lawsuit and as a result the Clerk entered a default against Defendants, PEDRO ESTALELLA, JR. and ELENA C. ESTALELLA on April 19, 1989.
The Debtors reside in their home located at 1900 S.W. 87 Avenue, Miami, Florida and this home is subject to two mortgages, both of which are in default and subject to foreclosure actions. On April 21, 1989 the Debtors filed a voluntary petition under Chapter 13 of the Bankruptcy Code, and their Chapter 13 Plan contained a provision to cure the default in the two mortgages pursuant to 11 U.S.C. § 1322(b)(5). 107TH alleged that the Debtors' petition should be dismissed as a bad faith filing because it was filed after 107TH had obtained a default, but before they were able to obtain a Judgment against the Debtors. If 107TH had been able to obtain a default Judgment against the Debtors a portion of the Judgment could possibly have been nondischargeable in Chapter 7, as representing damages for the alleged conversion/civil theft portion of the Complaint. 107TH alleged therefore that the "proposed Chapter 13 Plan seeks to discharge a debt that is nondischargeable in a Chapter 7 proceeding."
CONCLUSIONS OF LAW
The Discharge provisions for Chapter 13 are contained in 11 U.S.C. § 1328. 5 Collier on Bankruptcy (15 ed. 1988) ¶ 1328.1 at page 1328-4 states:
The discharge available in Chapter 13 is broader than the Chapter 7 discharge in that certain debts not dischargeable in Chapter 7 are dischargeable in Chapter 13. Such debts include for example, debts for willful and intentional torts. . . .
At page 1328-5, Collier states:
To date, most challenges to these broad provisions have concerned whether the presence of a debt which would not be dischargeable under Chapter 7 is evidence of lack of good faith in proposing a Chapter 13 Plan. . . . Generally, the Courts considering such issues have concluded that the presence of debts not dischargeable in Chapter 7 does not dictate a finding that the plan has not been filed in good faith. . . .
In a very recent case, In re Winthurst, 97 B.R. 457 (B.Ct.C.D.Ill.1989), objections were filed to a Chapter 13 that sought to discharge a debt that was nondischargeable under Chapter 7. The Court found that the Plan was filed in good faith and confirmed the Plan. The Court stated on page 458 of the decision:
The courts have recognized that a discharge under Chapter 13 is broader than a discharge under Chapter 7, and that the Bankruptcy Code allows a discharge under Chapter 13 of a debt that is not dischargeable under Chapter 7.
This court recognizes and adopts this concept and therefore finds that the Debtors' Plan was not filed in bad faith because it sought to discharge a debt, a portion of which might be nondischargeable under Chapter 7.
At the Hearing on May 30, 1989, the attorney for 107TH also objected because *393 the wife, ELENA C. ESTALELLA, had no income to allocate to the Plan payment and that the entire Plan payment would be coming from the husband, PEDRO ESTALELLA, JR.
11 U.S.C. § 302 permits the filing of a single petition by an individual and such individual's spouse. 11 U.S.C. § 109(e) defines who may be a Debtor under Chapter 13 and states that this individual must be an "individual with regular income." 11 U.S.C. § 101 defines this phrase to mean an "individual whose income is sufficiently stable and regular to enable such individual to make payments under a Plan under Chapter 13 of this title." The question raised by 107TH therefore is Does that mean that the regular income must come from both husband and wife? This question is discussed in 2 Collier on Bankruptcy (15 ed.1989) ¶ 302.03 at page 302-8 wherein it is stated:
Title 11 nowhere imposes the "regular income" requirement on the "spouse" in a joint case under Chapter 13.
This Court agrees with Collier and finds that the requirement of regular income under 11 U.S.C. § 109(e) does not impose the requirement of "regular income" on such individual's spouse.
CONCLUSION
The foregoing analysis leads the Court to the conclusion that the OBJECTION TO PLAN AND MOTION TO DISMISS CHAPTER 13 PETITION FOR LACK OF GOOD FAITH filed by 107TH is ill-founded and that the Chapter 13 petition of the Debtors was not filed in bad faith. It is therefore
ORDERED that the OBJECTION TO PLAN AND MOTION TO DISMISS CHAPTER 13 PETITION FOR LACK OF GOOD FAITH filed by 107TH & 16TH SOUTH, LTD., be and the same is hereby denied without prejudice.
DONE AND ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918181/ | 101 B.R. 582 (1989)
In re Otis BOLDEN, Debtor.
Bankruptcy No. 88-04410-BKC-J13.
United States Bankruptcy Court, E.D. Missouri, E.D.
June 27, 1989.
*583 John V. LaBarge, Jr., Trustee Kirkwood, Mo., Trustee.
Andrew Hardge, Edwards & Hardge, East St. Louis, Ill., for debtor.
Donald J. Sher, St. Louis, Mo., Attorney for Clayton Inv. Corp.
MEMORANDUM OPINION
JAMES J. BARTA, Chief Judge.
The holder of a second deed of trust on the Debtor's real property has filed an objection to confirmation of the Debtor's Chapter 13 Plan. At the Court's request, each party has submitted memoranda of law on undisputed facts which appear from the record.
The parties have not stipulated with respect to the specific issue to be determined by the Court. Therefore, this Memorandum Opinion will address only those matters which are essential to a grant or denial of confirmation.
This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(H). This Memorandum Opinion and accompanying Order constitute the Final Order of the Court.
The Debtor's Amended Chapter 13 Plan, filed on January 20, 1989, provides for the payment of $500.00 per month for sixty months. Secured claims other than the first deed of trust on the Debtor's principal residence are to be paid in full over the life of the plan. The first deed of trust note was current at the date of bankruptcy, and the payments are to be made outside the Plan as they become due. Unsecured creditors will be paid as follows:
"3. UNSECURED CREDITORS: To be paid on pro rata basis after payment in full to unsecured creditors". Apparently, this typographical error should provide for payment to unsecured creditors after payment in full to secured creditors.
The parties have agreed that the full amount of the debt owed to the holder of the second deed of trust, Clayton Investment Corporation ("Clayton"), became due or matured by its own terms prior to the commencement of this case. Clayton's foreclosure proceedings had been stayed by the operation of 11 U.S.C. § 362 upon commencement of this case. The Debtor's original note was dated March 22, 1981, and became fully due on May 5, 1987.
In the Chapter 13 Statement, the Debtor indicated that the total debt secured by liens against his real property is approximately $20,310.52. He listed the market value of the property at bankruptcy as $40,000.00. Therefore, the Court has concluded that the interests of Clayton Investment are protected by the value of the Debtor's real property.
Clayton has argued that the Plan should not be confirmed because of its inherent unfairness, and because it improperly modifies the rights of a creditor whose debt is secured solely by an interest in the Debtor's principal residence as prohibited by 11 U.S.C. § 1322(b)(2). The modification question will be addressed first.
Section 1322(b)(2) provides in part that a debtor's plan may modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence. This section was added to the Bankruptcy Code to protect the interests of lenders whose debts are wholly secured by home mortgages. Grubbs v. Houston First American Sav. Ass'n., 730 F.2d 236, 245 (5th Cir., 1984). Matter of LaPaglia, 8 B.R. 937, 940 (Bankr. E.D.N.Y., 1981).
This limitation at Section 1322(b)(2) must be considered balanced against the Congressional grant at Section 1322(b)(3), which authorizes a debtor to propose a plan which provides for the curing or waiving of any defaults. Section 1322(b)(5), which authorizes the curing of a default on a claim on which the last payment is due after the date on which the final plan payment is due is not applicable here because the debt to Clayton became fully due prior to the commencement of this case.
Although the parties have not submitted a stipulation of facts, the documents attached to the Proof of Claim No. 1 indicate that Clayton acquired the note and deed of trust in this matter by means of an assignment dated November 10, 1988 after maturity. *584 The parties have agreed that the deed of trust is junior to a deed of trust which secures payment of a note dated in July, 1979.
The question here is whether the Debtor's proposal to pay in full a note which matured prior to the commencement of this case, and which is secured solely by a second deed of trust on the Debtor's principal residence is a modification of the claimant's rights and, therefore, violative of Section 1322(b)(2). If the proposal modifies Clayton's rights, the Plan cannot be confirmed.
Although the courts have not been in agreement with respect to this question, many decisions have emphasized the rehabilitative purpose of Chapter 13 and have permitted debtors to cure the default even though the debt has fully matured prepetition and is secured only by a security interest in real property which is the debtor's principal residence. See, In re Spader, 66 B.R. 618, 620 (W.D.Mo., 1986); In re McSorley, 24 B.R. 795, 798 (Bankr., D.N.J., 1982); In re Larkins, 50 B.R. 984, 987 (W.D.Ky., 1985); In re Minick, 63 B.R. 440, 445, 14 B.C.D. 921, 924 (Bankr. D.D.C., 1986).
Generally, the decisions which have not recognized a debtor's right to cure a default under these circumstances have been based upon a strict interpretation of Section 1322(b)(2). See, In re Seidel, 752 F.2d 1382, 12 B.C.D. 1016 (9th Cir., 1985); In re Harlan, 783 F.2d 839, 14 C.B.C.2d 415 (9th Cir., 1986); In re Palazzolo, 55 B.R. 17 (Bankr. E.D.N.Y., 1985). These decisions have emphasized the nature of the security (as being a security interest in the debtor's principal residence), and minimized or disregarded two equally important considerations: that the plan must modify the claimant's rights, and that one purpose of Chapter 13 is to protect debtors' homes. See, In re Simpkins, 16 B.R. 956, 962, 6 C.B.C.2d 1081, 1087 (Bankr., E.D.Tenn., 1982).
It is the conclusion of this Court that a Chapter 13 Plan which proposes to pay the holder of a second deed of trust such as Clayton, the present value of its claim over a period which is not inconsistent with Section 1322(c), does not impermissibly modify the claimant's rights. This conclusion permits a debtor to cure a home mortgage default, and protects the interest of the lender which is secured only by an interest in the debtor's principal residence by paying the present value of its claim through the structure and with the protection of Chapter 13. In so concluding, the Court adopts the reasoning of the Court in the Spader decision cited above. Although the length of repayment of the Spader note was considerably shorter than the repayment term here, the reasoning of the Spader decision is equally applicable to the facts in this case.
By separate order, the objection of Clayton Investment Corporation to confirmation of the Debtor's Plan based upon an allegedly impermissible modification pursuant to Section 1322(b)(2) is denied. However, the Debtor has not established in this record that his Plan will pay Clayton the present value of its claim. Therefore, the parties are to meet and attempt to agree upon such value. If no agreement is reached, the Debtor is to otherwise prosecute his request to confirm a Chapter 13 Plan.
ORDER
Upon consideration of the record as a whole, and consistent with the Memorandum Opinion entered in this matter,
IT IS ORDERED that the objection of Clayton Investment Corporation to confirmation of the Debtor's Chapter 13 Plan, based upon an allegedly impermissible modification of a secured claim is overruled; and
That the hearing to consider confirmation of the Debtor's Plan be continued and reset to July 27, 1989 at 9:30 a.m. in Bankruptcy Court No. 1, United States Court House, 1114 Market Street, 7th Floor, St. Louis, Missouri; and that prior to said hearing, the parties are to meet and attempt to agree upon the present value of the claim of Clayton Investment Corporation; and that the Debtor is to thereafter give notice to all creditors and parties in interest of any amendments to his Plan as a result of this agreement; and that if no *585 such agreement is possible, the Debtor is to take such other action as may be required to prosecute his request to confirm a Chapter 13 Plan; and
That this Order is entered without prejudice to the right of Clayton Investment Corporation to request relief under 11 U.S.C. § 362(d). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918190/ | 101 B.R. 134 (1989)
In the Matter of Theodore V. OLSON and Sandra Ann Olson, Debtors.
The OVERLAND NATIONAL BANK OF GRAND ISLAND, a banking corporation, Plaintiff,
v.
Theodore V. OLSON, et al., Defendants.
Bankruptcy Nos. BK85-1085, A85-181.
United States Bankruptcy Court, D. Nebraska.
May 30, 1989.
*135 Robert Creager, Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, Neb., for debtors.
Frank Heinisch, Geneva, Neb., and William Needler, Ogallala, Neb., for law firm creditors.
Loren Mark and Tom Carlucci, Tax Div., U.S. Dept. of Justice, Washington, D.C., for the U.S.
Richard Anderl, Kutak, Rock & Campbell, Omaha, Neb., for Prudential Ins. Co. of America.
MEMORANDUM
TIMOTHY J. MAHONEY, Chief Judge.
This case concerns numerous issues with regard to tax liabilities and lien priorities. Trial of the issues was bifurcated with a memorandum filed on June 3, 1988, concerning some issues and trial on others which concern the extent and priority of liens attaching to a fund of money was tried for three days in June, 1988, and two days in September, 1988. Briefs and written final arguments were ordered. All materials were received by March 1, 1989. Robert Creager of Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, Nebraska, appeared on behalf of the debtors; Frank Heinisch of Geneva, Nebraska, and William Needler of Ogallala, Nebraska, appeared on behalf of Law Firm creditors. Loren Mark and Tom Carlucci of the Tax Division, U.S. Department of Justice, Washington, D.C., appeared on behalf of the United States. Richard Anderl of Kutak, Rock & Campbell, Omaha, Nebraska, appeared on behalf of Prudential Insurance Company of America.
The parties agreed and this Court finds that this matter is a core proceeding under 28 U.S.C. § 157. This memorandum constitutes findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 and Bankr.R. 7052.
This case has been tried in two parts, the first part concerned whether or not debtor, Theodore V. Olson, was a "responsible party" as that term is defined under the Internal *136 Revenue Code, making him responsible for a 100 percent penalty for his failure to assure that Olson Brothers Manufacturing, Inc., a corporation, paid the Internal Revenue Service "trust fund" taxes. A memorandum on the responsible party portion of the case was filed on June 3, 1988, 101 B.R. 128 (1988).
This memorandum concerns numerous issues regarding the priority of various parties to a fund of money resulting from the 1982 farming operations of Theodore V. Olson and Sandra Olson. Theodore V. Olson and Sandra Olson were debtors in 1982 under a Chapter 11 filing then pending in the United States Bankruptcy Court for the District of Nebraska. The Olsons' bankruptcy filing, No. BK82-379, filed on March 1, 1982, was eventually dismissed.
Findings of Fact
The Court will make findings of fact which apply to all parties. The Court will then make certain factual and legal findings with regard to each claimant.
General Findings
This case is before the Court because the debtors, Theodore and Sandra Olson, who were farmers in the Holt County, Nebraska, area, filed a Chapter 11 petition on March 1, 1982. They had several major creditors who objected to Olson farming during the crop season of 1982. However, after extensive litigation in the Bankruptcy Court, the debtors were able to plant, care for and harvest a crop in the farming year 1982. After orders were entered by the Bankruptcy Court authorizing payment from the proceeds of the crop to certain administrative claimants, a fund of money in the approximate amount of $294,000 remained. Numerous parties claimed an interest in that fund. By agreement of all the parties, the fund was placed in an escrow account with the Overland National Bank of Grand Island. Such procedure was approved by the Bankruptcy Court and the Bank was directed by court order to keep possession of the fund until further order.
During the pendency of the 1982 bankruptcy case, the Internal Revenue Service assessed against Theodore V. Olson a one hundred percent penalty under Section 6672 of the Internal Revenue Code. The assessment was the result of an evaluation by the Internal Revenue Service that Mr. Olson was a responsible party with regard to "trust fund taxes" owed by Olson Brothers Manufacturing, Inc., (OBM).
In January of 1984, the Bankruptcy Court dismissed the Chapter 11 case under Section 1112(b). The debtors' lawyers filed a motion to reconsider such dismissal and alleged that it was erroneously entered based upon the facts of the case. In addition, debtors' lawyers alleged that dismissal would prejudice the administrative claimants, including the lawyers, all of whom had fee applications pending or had provided services to the debtor or to the estate for which they should be compensated. The motion specifically alleged that the Court must have overlooked the pending fee requests and that it should reconsider its order to enable the Court to enter a comprehensive order which would preserve fee allowances to the attorneys.
The Bankruptcy Court overruled the motion for reconsideration. Debtors then appealed to the District Court which affirmed.
Following the January dismissal, the Internal Revenue Service on February 6, 1984, filed a "notice of federal tax lien under Internal Revenue laws" with the County Clerk of Holt County, Nebraska, the appropriate office for filing documents to perfect a lien against Theodore V. Olson's property based upon the assessment made, assuming such assessment was valid.
In March of 1984 the lawyers who had represented the debtors in the bankruptcy case obtained a state court judgment against Theodore V. Olson for attorney fees in an amount exceeding $300,000. In June of 1984, the lawyers attempted to execute against the fund held by Overland National Bank of Grand Island. In response to the garnishment, but after the appropriate answer to the garnishment had *137 been filed, the Bank filed a declaratory judgment action in the state courts against all claimants to the fund. That action was removed to the United States District Court for the District of Nebraska.
In the meantime, a creditor of the Olsons holding mortgages against real estate of the Olsons filed a foreclosure action in state court. The plaintiff in the main foreclosure action obtained an order of appointment of receiver in March of 1984. The receiver took possession of the property and managed it pursuant to state court order. The mortgage holders obtained a judgment of foreclosure and the debtors, rather than appealing the court decision, took the statutory nine-month stay of the order of sale. After the expiration of the state law stay and just prior to the sheriff's sale of the real estate, debtors filed this Chapter 11 petition on May 1, 1985.
During the pendency of this case, the land has been sold. But the proceeds of the sale have not been sufficient to pay the outstanding claim of one of the mortgagees, Prudential Life Insurance Company of America (Prudential).
After the current bankruptcy case was filed, the District Court referred the Overland National Bank case to the Bankruptcy Court. After notice and a hearing, Overland was permitted to pay into the registry of the Clerk of the Bankruptcy Court all funds which it held and it has been excused from this proceeding. The only parties to the proceeding now are the Internal Revenue Service (IRS), Prudential, the lawyers for the Olsons in the first bankruptcy case, and the Olsons as debtor-in-possession.
With that background, the following numbered items are a chronology of the activities during the 1982 case and the "lien perfection" activities following the dismissal of the 1982 case.
1. On October 4, 1978, Theodore V. Olson ("Olson") and Sandra A. Olson executed a $1,000,000 Installment Note (the "Note") in favor of the Prudential Insurance Company of America ("Prudential").
2. On October 4, 1978, the Olsons executed a Mortgage to Prudential (the "Mortgage") which was a first mortgage lien on 1,280 acres of real estate owned by the Olsons (the "Real Estate"). The Mortgage provides that, "the conveyance of the premises together with all the rents, issues and profits . . . is made to secure repayment of a loan . . . as evidenced by [the Note]. . . ."
3. On March 1, 1982, the Olsons filed a Voluntary Proceeding under Chapter 11: Joint Petition ("Olsons' Petition") in the United States Bankruptcy Court for the District of Nebraska.
4. As of March 1, 1982, the 1981 real estate taxes on the Real Estate in the amount of $5,764.36 were unpaid. The 1980 Nebraska real estate taxes due December 31, 1980 were paid half on May 29, 1981 and the second half on November 11, 1981. The 1981 real estate taxes were due December 31, 1981, and the first half became delinquent May 1, 1982 and the second half became delinquent September 1, 1982.
5. Heinisch & Bryan Law Offices, William L. Needler & Associates, Ltd. and Berry, Anderson, Creager & Wittstruck represented Theodore V. Olson and Sandra A. Olson in connection with their 1982 Chapter 11 proceedings.
6. On August 12, 1982, Prudential filed a Proof of Claim in the Bankruptcy Court asserting its secured claim against Olsons in the amount of $1,140,071.10 plus accruing interest, costs and attorneys' fees.
7. On September 3, 1982, Prudential filed a Motion for adequate protection in the Bankruptcy Court asserting a right to and seeking to sequester the rents, issues and profits of the Real Estate, which it renewed in subsequent pleadings filed on October 15, 1982, January 3, 1983, and February 23, 1983.
8. Olson produced the 1982 corn crop after the filing of the Chapter 11 proceedings, and Olson thereafter sealed the 1982 corn crop under a federal government farm stored feed grain reserve program pursuant to orders of the Bankruptcy Court.
9. The 1982 corn crop was produced on 3,348 irrigated acres on twenty-eight (28) quarters (three quarters were left idle under *138 a government set-aside program) of Holt County, Nebraska, farm ground in which the ownership, first liens and 1982 corn production in bushels computed from weight are as follows:
Percent
Lender Owner Production of total
Hancock Theodore V. and Sandra 159,683.741 36.37%
Hancock Theodore V. 82,338.262 18.75%
Prudential Theodore V. 117,982.699 26.87%
Engler Theodore V. 9,055.780 2.06%
Keidel Theodore V. 12,527.985 2.85%
Lange rental Theodore V. 38,478.079 8.76%
Vincent rental Theodore V. 19,031.261 4.33%
___________ _______
TOTAL 439,097.807 100.00%
10. The percentage of the 1982 corn crop produced from the Real Estate subject to the Mortgage held by Prudential was approximately 26.87%.
11. On January 27, 1983, the Bankruptcy Court ordered that, inter alia, the liens of all claimants to the 1982 corn crop be transferred to the proceeds of the 1982 corn crop (Interpleaded Fund); the 1982 corn crop proceeds be deposited in escrow with interest and any entity or individual with a claim to the 1982 corn crop proceeds make application for payment by February 25, 1983. Neither the Olsons' Lawyers nor the United States made a claim to the Interpleaded Fund on or before that date.
12. On February 24, 1983, Olsons executed an Escrow Agreement (the Escrow Agreement) with the Overland National Bank of Grand Island (Overland) requesting that Overland act as escrow agent to the 1982 corn crop proceeds. Prudential, O'Neill Production Credit Association (PCA), John Hancock Life Insurance Company were "consenting parties" and signatories to the Escrow Agreement. The Escrow Agreement provided that no distributions could be made, except by order of the Bankruptcy Court or as agreed by Olsons and the consenting parties.
13. On April 13, 1983, Bankruptcy Judge Stageman issued an order relating to claims to the Interpleaded Fund.
14. On May 5, 1983, Prudential filed a Motion to Dismiss Olsons' bankruptcy reorganization case.
15. On December 15, 1983, during the pendency of Theodore V. Olson's first bankruptcy case, the IRS assessed a 100% penalty under Section 6672 of the Internal Revenue Code against Theodore V. Olson.
16. On January 27, 1984, Bankruptcy Judge Stageman granted Prudential's Motion to Dismiss. Judge Stageman's Order dismissing Olsons' bankruptcy case was appealed to the United States District Court for the District of Nebraska and the Order was affirmed. No appeal was taken of the District Court's Order.
17. On February 6, 1984, the United States filed a Notice of Federal Tax Lien with the Register of Deeds of Holt County, Nebraska. At that time, Olson was a resident of Holt County, Atkinson, Nebraska.
18. On February 17, 1984, O'Neill PCA, a junior mortgagee, filed a Petition of Foreclosure and Application for Appointment of Receiver (Foreclosure Action) relating to the Real Estate in the District Court of Holt County, Nebraska. In this Foreclosure Action, a state court receiver was appointed.
19. On February 24, 1984, Prudential filed a Notice of Appearance in the Foreclosure Action.
20. On March 16, 1984, Olsons' Lawyers obtained a judgment against Theodore V. Olson in the District court for Filmore County, Nebraska in the amount of $359,030.33 plus $50.00 in costs and interest at fourteen percent and transferred the judgment to Hall County District court on June 18, 1984. A summons in Garnishment was issued against Overland National Bank on *139 or about June 20, 1984. No payment has been made on the judgment.
21. On April 2, 1984, Prudential filed its Answer and Cross Petition in the Foreclosure Action.
22. On June 20, 1984, a Decree of Foreclosure was entered in the Foreclosure Action and the Court determined that Prudential held a first mortgage lien on the Real Estate.
23. On July 27, 1984 Overland filed this interpleader action (Overland Interpleader Action) relating to the Interpleaded Fund which action was removed to the United States District Court for the District of Nebraska.
24. On September 20, 1984, Olsons filed an Answer in the Overland Interpleader Action acknowledging that other claimants held a valid claim to the Interpleaded Fund.
25. On October 10, 1984, Prudential filed an Answer and Cross Claim against Olsons in the Overland Interpleader Action affirmatively alleging a superior interest to Olsons in the Interpleader Fund.
26. On May 13, 1985, Theodore and Sandra Olson filed for relief under Chapter 11 of the Bankruptcy Code. Robert Creager represents the debtors in the present Chapter 11 proceedings. Olsons' Lawyers do not represent the debtors in this bankruptcy case.
27. On July 2, 1985, Olsons filed a Notice of Bankruptcy and Automatic Stay requesting the Overland Interpleader Action be stayed until disposition of his Chapter 11 bankruptcy case.
28. On July 8, 1985, the United States District Court for the District of Nebraska transferred the Overland Interpleader Action to the Bankruptcy Court for disposition as an adversary proceeding in Olsons' Chapter 11 bankruptcy case.
29. On July 31, 1985, after Relief From the Automatic Stay was granted, an Order Confirming Sale of four quarter sections from a total of eight quarter sections of Real Estate under the Mortgage held by Prudential was entered by the District Court for Holt County, Nebraska indicating a sale to Prudential in the amount of $368,000.
30. On January 17, 1986, an Order confirming sale of the remaining four quarter sections of the Real Estate under the Mortgage held by Prudential was entered, indicating a sale to Prudential in the amount of $464,000.
31. On November 6, 1986, the United States filed a Stipulation stating that Prudential's interest in the Interpleaded Fund is superior to the United States' claim and to all other claimants' interests in the Interpleaded Fund.
32. On August 21, 1987, Robert Creager filed a Stipulation stating that Prudential's interest in the Interpleaded Fund is superior to Creager's interest in the Interpleaded Fund.
33. The claim of the United States is based on its Federal Tax Lien as perfected by Notice of Federal Tax Lien filed with the Register of Deeds of Holt County, Nebraska on or about February 6, 1984. When the United States filed its Notice of Federal Tax Lien, the Debtor, Theodore V. Olson, was a resident of Holt County, Atkinson, Nebraska, and the Debtor continues to reside in Holt County as of the date of this Order. The Notice of Federal Tax Lien filed by the United States was filed in connection with a federal tax assessment made against Theodore V. Olson. The Internal Revenue Service entered an assessment against Theodore V. Olson in the amount of $184,220.96, exclusive of interest, pursuant to I.R.C. § 6672 (Section 6672 assessment). Such assessment was made in December, 1983, during the original bankruptcy case. The Section 6672 assessment was not made against Sandra Ann Olson.
34. The Section 6672 assessment relates to federal employment withholding taxes and the employees' portion of Federal Insurance Contributions Act (FICA) taxes owed by OBM. These taxes, which were required to be withheld by OBM and remitted to the United States, are referred to as "Trust Fund" taxes. The Trust Fund taxes owed by OBM are for the quarter periods April 1, 1980 through December 31, *140 1980. The issue of Theodore V. Olson's liability for the Section 6672 assessment has been tried to the Bankruptcy Court and by memorandum filed June 3, 1988, the Court found him to be a responsible person whose failure to require the company to pay the "Trust Fund" taxes was willful.
35. This Court has jurisdiction over the Interpleaded Fund and the competing lien claims of the parties as to those funds.
36. The Interpleaded Fund includes proceeds from a 1982 corn crop produced by Olson on the Real Estate.
37. The United States claims a superior lien interest in all the interpleaded funds remaining after satisfaction of Prudential's secured interest.
38. Prudential claims a superior lien interest in all the interpleaded funds arising from crops raised on the Real Estate.
39. Olsons' Lawyers claim a superior lien interest in all the interpleaded funds.
40. Olsons claim all of the interpleaded funds not otherwise subject to any other claim entitled to priority ahead of their interest.
Findings Regarding Specific Claims
A. Claim of Prudential
Prudential maintains that it has a valid claim against the fund because of its mortgage on the Olson property. The Prudential mortgage, as indicated in the agreed statement of facts recited above, contains a "rents and profits" clause. In September of 1982, Prudential filed a motion with the Bankruptcy Court requesting the Court to sequester rents and profits resulting from the use of the real estate upon which Prudential held a mortgage. The Bankruptcy Court denied Prudential's request on April 13, 1983. Prudential did not appeal that denial. Other secured parties had also requested sequestration pursuant to the terms of their mortgages. Their motions were also denied and on appeal to the District Court it was determined that the order denying sequestration of rents and profits was interlocutory in nature and the District Court would not entertain the appeal.
On March 1, 1982, the date the first bankruptcy case was filed, the Prudential mortgage was not in default. All annual payments had been made and the next annual payment was due on April 1, 1982. Taxes had been assessed but were not delinquent until May 1, 1982. The value of the real estate subject to the mortgage was, according to the schedules filed by the debtor, in excess of the debt due to Prudential. Such valuation was supported during this trial by testimony of Mr. Olson which was based on an appraisal he had obtained prior to March 1, 1982.
In this trial, Prudential presented evidence that in May of 1982 an appraisal was completed which determined that the "liquidation value" of the real estate was less than the debt. However, Mr. Shonka, the appraiser, also testified that he did not consider "liquidation value" to be the same as fair market value and he had no opinion of the fair market value in May of 1982 or at any other time. He did, however, testify that land values in 1982 were declining at the approximate rate of one percent per month.
Prior to bankruptcy, since there had been no default, Prudential had not commenced a foreclosure action in the state courts.
In August of 1982 Prudential filed a motion to sequester rents and profits. The Bankruptcy Judge made no findings of fact concerning the value of the real estate subject to the mortgage at the time the motion was filed. Instead, eight months later, the Bankruptcy Judge denied the motion as a matter of law. He determined that the "rents and profits clause" in a mortgage could be invoked outside of bankruptcy but only by a certain procedure and only under certain circumstances. Under Nebraska law, a mortgage holder has a lien upon the "rents and profits" only if a mortgage foreclosure action is started, a request for a receiver is made, a state court makes a determination that the value of the real estate is probably less than the amount of the debt and the state court then appoints the receiver. The lien of the mortgagee attaches to rents and profits from that day forward. Saline State Bank v. Mahloch, *141 834 F.2d 690, 693 (8th Cir.1987). The Bankruptcy Judge determined that since there had been no default prior to bankruptcy and no foreclosure proceeding commenced or receiver appointed prior to bankruptcy, under Nebraska law the mortgagee had no right to the rents and profits and the motion to sequester rents and profits did not perfect any lien in the rents and profits.
Subsequent decisions of the United States District Court for the District of Nebraska and of the Eighth Circuit attempt to clarify the law in this area. A district court decision, In re Anderson, 50 B.R. 728 (D.Neb.1985), determined that a post-petition motion to sequester rents and profits was appropriate to enable a mortgagee to maintain the equivalent of the rights it had prior to bankruptcy and could enforce in the state court system outside of bankruptcy. Then, the Saline State Bank v. Mahloch decision in 1987, 834 F.2d at 694 summarizes the procedure required before a lien is perfected in rents and profits:
An analysis of Nebraska cases to date clearly demonstrates that it is only upon default that the assignment clause of the security agreement becomes an equitable lien. Thereafter, Nebraska law requires affirmative action on behalf of the lienholder to perfect such lien.
Perfection of such equitable lien can occur only if the mortgaged property is insufficient to discharge the mortgage debt. Mahloch, 834 F.2d at 692.
The Mahloch court was dealing with a set of facts which left no doubt that the land secured by the mortgage was insufficient to pay the debt. It, therefore, had no problem in holding that "Saline did not have a lien until their interest was fully perfected, i.e., by filing a petition to sequester rents and profits. Id.
In this case, in contrast to the Mahloch case, there is a significant dispute about the value of the real estate in August of 1982. The Bankruptcy Judge, in 1982, relying upon Nebraska statutes and case law, made the decision that Prudential was not entitled to sequestration of rents and profits as a matter of law. He made no factual findings concerning the value of the property or the default. Prudential has, in this case, strenuously argued that the Anderson and Mahloch cases decided in 1985 and 1987 should be considered retroactive to 1982 and that this Court should apply the rule of law determined in those cases to the facts in this case. Assuming, without deciding, that the rule of law eventually articulated by the United States District Court and the Eighth Circuit Court of Appeals concerning this issue would somehow be retroactive to affect the rights of debtors and creditors in a 1982 bankruptcy case that was dismissed in 1984, this Court still finds Prudential's position unpersuasive.
First, the Bankruptcy Judge presiding over the case in 1982 declined to grant the motion sequestering rents and profits. Therefore, whether he was in error or not, Prudential, in that case, did not obtain a lien. The decision of the Bankruptcy Court was not appealed.
Second, there were no factual determinations made concerning the value of the real estate on the date the motion was filed or on the date the decision was filed. Therefore, it is only with the benefit of seven years' of hindsight that this Court could make a determination of the value of the property in August of 1982 or April of 1983.
Third, the case was dismissed in January of 1984. Assuming that Prudential is correct and that the recent federal court determinations of the perfection of a lien post petition by filing a motion to sequester rents and profits are retroactive, and assuming that the land value in 1982 was insufficient to pay the debt, Prudential obtained a lien on the rents and profits in August of 1982 or in April of 1983. When the case was dismissed in January of 1984, it is at least arguable that the post-petition lien granted in that case was dissolved by virtue of Section 349 of the Bankruptcy Code. Section 349(b)(3) states, in pertinent part: "Unless the court, for cause, orders otherwise, a dismissal of a case . . . revests the property of the estate in the entity in *142 which such property was vested immediately before the commencement of the case under this title." Such a revesting could have the effect of setting aside the post-petition lien and leaving Prudential to its state law remedies.
The legislative history of Section 349(b), according to the House and Senate Reports, is that "the basic purpose of the subsection is to undo the bankruptcy case, as far as practicable, to restore all property rights to the position in which they were found at the commencement of the case." H.R.Rep. No. 595, 95th Cong., 1st Sess. 337-38; S.Rep. No. 989, 95th Cong., 2d Sess. 48-49 reprinted in 1978 U.S.Code Cong. & Admin. News, pp. 5787, 5835, 6294.
Fourth, there is the legal issue which could be dispositive. Prudential has asked the Court to focus on the real estate aspects of this matter and to assume that it obtained a lien on this fund which represents proceeds of the 1982 corn crop, by moving to sequester "rents and profits." However, an analysis of the factual and legal situation based upon the Nebraska Uniform Commercial Code would result in a decision opposite that desired by Prudential. For example, in August of 1982 the property which Prudential claimed a lien upon was actually a growing crop. Growing crops are personal property under the Uniform Commercial Code in that they are defined as goods. Neb. U.C.C. 9-105(h). A security interest is not enforceable against the debtor, according to the Uniform Commercial Code, and does not attach unless the debtor has signed a security agreement which covers crops growing or to be grown. Neb. U.C.C. 9-203(1)(a).
It seems, therefore, that there is a tension between the rights of a mortgagee claiming a lien on "profits" and the rights of a debtor-in-possession with the powers of a trustee to avoid such lien under Bankruptcy Code Section 544. Outside of bankruptcy, there is authority that when such tension arises between an interest in real estate and an interest in crops or the proceeds of crops, the Uniform Commercial Code is applicable. United States v. Newcomb, 682 F.2d 758 (8th Cir.1982).
Finally, although some evidence was presented in this trial that the value of the real estate as of August of 1982 was insufficient to pay the debt, such evidence is unpersuasive. Mr. Shonka, Prudential's appraiser, testified that land values during the period were declining approximately one percent per month. He testifies with the benefit of hindsight. This Court is not convinced that Mr. Shonka's evidence would have been presented to Judge Stageman or would have been convincing to Judge Stageman in August of 1982. This Court does not believe it appropriate to use the benefit of hindsight to reach back to a date in 1982 and make factual findings concerning the value of real estate on such date, for the sole purpose of coming to a legal conclusion at odds with that of the presiding judge in 1982. Evidence from Mr. Olson, which was in the court file in 1982, including Mr. Olson's schedules which were based on a prepetition appraisal and his current testimony convince the Court that in August, 1982, the value, although declining, had not decreased below the debt.
For all of the legal and factual reasons recited above, this Court declines to find that Prudential has any lien interest in the proceeds in the 1982 corn crop.
B. Claim of the Lawyers
The Olson Lawyers claim an interest in the fund on the theory that during the 1982 case they performed necessary legal services which enabled the debtor to plant, maintain and harvest the 1982 corn crop. It is thus their position that the 1982 corn crop and its proceeds are the result of their efforts and under the Nebraska Attorney Lien Statute, Neb.Rev.Stat. § 7-108 (Reissue 1987), they should be compensated for their services from this fund. That Nebraska statutory section reads as follows:
An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; and upon money in *143 his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party.
During the fall of 1982 the corn crop was harvested and the debtor requested authority to seal the crop pursuant to the government farm program in effect at that time. Judge Stageman granted the authority to participate in the program and granted the ASCS a lien in the 1982 crop in consideration for a crop loan under the government program. The Judge also required that the money from the loan be deposited in an escrow account at interest. That escrow account which was set up by the debtor at Overland National Bank of Grand Island and consented to by Prudential is the source of the funds which are the subject of this litigation.
The escrow agent was independent from any of the parties to this case and, by agreement of the parties and order of the Court, was prohibited from distributing any of the funds unless ordered by the Court or unless all of the parties to the escrow agreed. The Internal Revenue Service was not a party.
The lawyers suggest that as a matter of fact the escrow agent was an adverse party to both the debtor and the lawyers because it was charged with holding funds resulting from the 1982 corn crop and was prohibited from permitting those funds to be distributed without unanimous agreement of the parties or order of the Court. Therefore, according to the lawyers, the various elements necessary for the lawyers to qualify under the Nebraska Attorney Lien Statute were satisfied.
The lawyers also claim an interest in the fund based upon a judgment lien. After the bankruptcy case was dismissed in January of 1984, the lawyers obtained a judgment against the debtor, Theodore V. Olson, for their fees. Following entry of the judgment, the lawyers attempted execution on the fund held by Overland National Bank of Grand Island by a garnishment proceeding. The lawyers thus argue that they have a judgment and a perfected lien against the fund as a result of following the statutory procedures.
There is no question that the lawyers acted vigorously in both an offensive and a defensive posture on behalf of the debtor/debtor-in-possession during the 1982 case. The Court finds as a fact that the 1982 corn crop would not have been even planted by the debtor-in-possession but for the efforts of the lawyers. Prudential and other creditors fought the debtor at every turn. They also fought the lawyers at every turn. They attempted to get the Bankruptcy Judge to prohibit the planting of the crop, to prohibit the obtaining of secured or unsecured credit to plant and maintain and harvest the crop. They moved to sequester rents and profits and they moved for relief from the automatic stay. They took action in the state courts to replevin the equipment which was necessary for the farming operation. The debtors, because of the legal efforts of the lawyers, were successful in producing a 1982 crop, paying the secured and unsecured suppliers and turning the crop into actual cash soon after harvest.
However, what the lawyers are asking this Court to do is determine that the fees which were incurred in the 1982 case, but never allowed by the Bankruptcy Court are reasonable, appropriate, of benefit to the estate, and allowable in support of a state law attorney lien or judgment.
The lawyers provided legal services to the debtor and were successful in aiding the debtor to stay in existence long enough to produce the 1982 crop. They also helped the debtor to get Court approval for participating in the government grain programs and obtaining a government loan which is the source of the fund. However, no matter how hard they worked and no matter what they did, the lawyers did not obtain either a judgment or a settlement nor did they create a fund to which an attorney lien could attach.
The debtors planted and tended the crops and harvested the crops. The debtors signed the appropriate loan forms with the government entity to obtain loan proceeds which are now the subject of this dispute.
*144 Neither at the time that the 1982 crop was produced nor at the time the loan funds were escrowed nor at the time the case was dismissed did the lawyers have a reasonable expectation that the fund should or could be used as a source of payment of their fees. At the time of harvest and escrow, the lawyer fees had not been allowed to the extent that the lawyers now desire to be paid. The lawyers did not file any claims against the fund at any time during the 1982 bankruptcy case. Upon dismissal of the case, the lawyers requested the Bankruptcy Judge to reconsider the dismissal and protect their fees. The motion to reconsider was lengthy and directly alerted the Bankruptcy Court to the problem the lawyers anticipated concerning their fees if the case was dismissed. They anticipated that there would be no fund available for payment and that all of the work that they had performed during the case would go unpaid because the debtor would have no source of payment. The Bankruptcy Judge overruled the motion to reconsider and the District Court affirmed the dismissal. Neither the Bankruptcy Judge nor the District Court made any provision for attorney fees nor did they acknowledge any lien in favor of the attorneys against property of the estate or this fund in particular.
The Overland National Bank of Grand Island was not an adverse party. It held funds pursuant to Court order, just as the Clerk of the Bankruptcy Court could be ordered to hold funds subject to contested claims. Such Court order does not create an adversarial relationship between the holder of the funds and the parties to the funds. Therefore, the Court concludes as a fact that the lawyers did not create the fund and that the lawyers were not in an adversarial posture with the escrow agent. Therefore, no attorney lien attaches under Nebraska law.
The lawyers then argue that as a matter of equity, their fees should be allowed a lien status against the fund. This Court rejects such argument. The lawyers may have had an administrative claim in the 1982 bankruptcy case. Upon dismissal of the case, their claim for fees simply becomes an unsecured claim against the debtor who promised the payment. The promising payor was Theodore V. Olson. Lawyers have an unsecured claim against Mr. Olson in the current case.
The lawyers do not have a perfected judgment lien against the fund, first of all because a good portion of the fund is property of Sandra Olson, against whom there is no judgment. Second, the lawyers' attempt to perfect the judgment lien against the fund was unsuccessful under Nebraska law. The garnishee bank answered the garnishment to the effect that it did not know if it held funds of Theodore V. Olson, because of the court-ordered escrow fund, IRS levy and other claimants. The Lawyers did not proceed further under the state statutes, Neb.Rev.Stat. § 25-1056, 25-1011, 25-1026 to 25-1031.01, for a determination of ownership. Instead, the bank filed this action. As a result, no judgment lien attached.
This Court has reviewed the attorney fee itemization of time, expense and services rendered. The Court has not been requested to make a determination of the allowability of the attorney fees as an administrative expense under Sections 327 through 330 of the Bankruptcy Code. The issue before the Court concerning the attorney fees is a result of the dispute between the Internal Revenue Service and the lawyers over the priority of liens, if any. Since the Court finds that the lawyers do not have a lien against the fund, the Court does not need to make any findings concerning the reasonableness of the fees or the benefit to the estate.
C. Claim of the United States
The United States claims a priority interest in the fund based on federal tax liabilities owed by Theodore V. Olson which were assessed pursuant to Section 6672 of the Internal Revenue Code. In an earlier trial on some of these matters, this Court, assuming the validity and efficacy of the assessment process, found that Mr. Olson was a "responsible person," pursuant to Section 6672 of the Internal Revenue Code *145 (26 U.S.C. § 6672) with respect to the trust fund liabilities of OBM for the quarter periods ending September 30, 1980, and December 31, 1980. See Memorandum Opinion dated June 3, 1988.
The matters before the Court now concern the merits and priority of the respective lien claims, including calculation of the tax liability. The lien status of the claim is based upon an assessment made in 1982 during the pendency of the first Olson bankruptcy case. During the trial, the Court requested the parties to brief the issue of the validity of the assessment which was made during the pendency of the first bankruptcy case. The United States has responded first that this Court has no jurisdiction to consider actions which took place during the 1982 bankruptcy case and which may have violated the automatic stay in that case because that particular case was dismissed and the Court did not retain jurisdiction to consider the effect of matters which occurred during the case. Second, the United States argues that since the case was dismissed, the assessment is still in place and should be recognized by the Court during this bankruptcy case. Third, the United States suggests that the assessment, although perhaps in violation of the automatic stay, is or was voidable during the 1982 case, but was not then and is not now void. Finally, the United States urges this Court to consider the validity of the assessment based upon the equities of the case. That is, no party had raised the issue of the validity of the assessment during the 1982 case and no party raised it during this 1985 bankruptcy case until the Court raised it on its own motion during the trial of these issues. Therefore, argues the United States, the Court should simply determine that the unchallenged status of the assessment makes it valid and provides the United States with a lien against the fund in question.
With regard to the first argument made by the United States, this Court believes that the dismissal of the 1982 case does not validate the assessment made during the case in violation of the automatic stay. As discussed earlier in this memorandum, the dismissal of a bankruptcy case puts the parties, to the extent possible, in the same position they were in prior to bankruptcy. Prior to the 1982 bankruptcy petition being filed, the Internal Revenue Service, although it had the right to assess the 6672 penalty, had not performed the assessment. Therefore, the dismissal, rather than validating and continuing the post-petition assessment, could have the opposite effect and put the parties in their pre-petition status, even assuming that an assessment made in violation of the automatic stay is not absolutely void.
The fact that Judge Stageman did not retain jurisdiction to deal with the actions of the Internal Revenue Service in violation of the automatic stay does not impact upon the assessment or its validity.
The next question is whether or not the assessment taken or made during the 1982 bankruptcy case in violation of the automatic stay is void or simply voidable and further, if it is voidable, should this Court exercise its equitable powers to ratify or validate the action of the Internal Revenue Service. There is authority for either position. The Bankruptcy Court in the case of In re Coleman American Cos., Inc., 26 B.R. 825 (Bankr.D.Kan.1983) and the Circuit Court concerning the bankruptcy case of In re Ward, 837 F.2d 124, 126 (3rd Cir.1988) both make very strong statements that violations of the automatic stay are void. Such position is supported by the editors of the noted commentary 2 Collier on Bankruptcy, ¶ 362.03. (15th ed. 1989). See also In re H & H Beverage Distribution, 850 F.2d 165 (3rd Cir.1988); In re Marine Pollution Service, Inc., 99 B.R. 210 (Bankr.S.D.N.Y.1989). To the opposite effect are cases such as In re Oliver, 38 B.R. 245 (Bankr.D.Minn.1984); Alegran, Inc., v. Advance Ross Corp., 759 F.2d 1421, 1424-1425 (9th Cir.1985); In re Albany Partners, Ltd., 749 F.2d 670, 675-679 (11th Cir.1984); In re Lee, 40 B.R. 123, 126-127 (Bankr.E.D.Mich.1984).
This Court believes that it is a better policy determination, considering the administration of bankruptcy cases, to interpret the automatic stay of Section 362 of *146 the Bankruptcy Code to mean that actions that are taken in violation of the stay are void, as the courts in Coleman and Ward and H & H and Marine Pollution Services have determined. If creditors believe that there is a legitimate possibility that their intentional actions post petition in violation of Section 362 may be ratified later by a court "weighing the equities," creditors will be encouraged to take the action and hope for the best result later.
There is no question in this case that the Internal Revenue Service made the Section 6672 assessment against Theodore V. Olson during his bankruptcy case and without requesting relief from the automatic stay. Such assessment is an act against the debtor that could have been commenced before the bankruptcy petition was filed. It is also an act to recover a claim against the debtor that arose before the commencement of the case. In addition, it is an act to create a lien against property of the estate or the debtor. Finally, it is specifically an act to assess a claim against the debtor that arose before the commencement of the case. Each of those types of actions are specifically prohibited by Section 362(a)(1), (4), (5) and (6). To permit such act to eventually be ratified or validated by the Bankruptcy Court either in the original case or in this case, would enable the United States to step ahead of all other creditors with the same pre-petition unsecured type of claim. It seems to this Court that the whole purpose of the automatic stay of Section 362 is to eliminate the "race to the courthouse" and to permit claimants to be treated according to the classification system and priority system incorporated into other provisions of the Bankruptcy Code, as their individual rights exist on the petition date.
Assuming the correctness of the position of the United States concerning the void versus voidability issue, the United States has given this court no reason to ratify the assessment which took place in violation of the automatic stay during the 1982 case. It appears that the assessment was made in violation of the automatic stay without any individual in the Internal Revenue Service intending to violate the Bankruptcy Code. However, as Judge Pusateri suggested in the Coleman decision, just because the Internal Revenue Service is a large administrative agency with employees in various parts of the nation and computers which operate without regard to the constraints imposed by the bankruptcy system, the court is not compelled to give special treatment to the actions by the Internal Revenue Service. In re Coleman American, 26 B.R. at 831.
The United States suggests that the assessment was not challenged in the 1982 case and was not challenged by any party during the 1985 case before this Court raised the issue of its validity. Therefore, the United States argues that it would somehow be prejudiced if this Court found that the assessment was improper and that the United States had no lien against this specific fund. The suggestions of the United States are without merit. If the assessment was made in violation of the automatic stay, it is void.
On the other hand, if the legal standard is not "void" but is "voidability," the United States has given no compelling reason for ratifying an act that the United States took in violation of the federal Bankruptcy Code. All parties to the 1982 case and to the 1985 case should assume or should be permitted to assume that the Bankruptcy Code is the statutory framework within which each of the claimants must operate. To permit the United States, by virtue of the illegal act of the Internal Revenue Service, to obtain a lien against a specific fund of money owned by the debtors to the detriment of all other creditors of the debtor, is simply not fair. If voidability is the legal standard, this Court declines to ratify the act of the Internal Revenue Service and hereby voids such act.
Without a valid assessment, the Internal Revenue Service has no lien and the filing of its lien documents in February of 1984 are of no effect. In conclusion, the Court finds that the Internal Revenue Service does not have a lien against the escrowed fund.
*147 The ownership of the fund is in the debtors because such fund is a result of their efforts in 1982 and the property is their property, now subject to use and disbursement in accordance with the Bankruptcy Code.
It was agreed by the parties and ordered by the Court that the decision rendered in the first part of this case concerning the validity and extent of the penalty imposed upon Theodore V. Olson would not be a final order for appeal purposes until the issue of priority in the fund was decided. With the filing of this opinion, the order of June 3, 1988, and the order in this matter are final and appealable. Since the Court has determined that the United States does not have a valid assessment and, therefore, no lien against the fund, some of the findings in the June 3, 1988, memorandum might be inapplicable. That order was entered on the assumption that the United States had a valid assessment and, therefore, had a valid reason to claim a priority in the fund.
However, other factual and legal issues concerning the right of the Internal Revenue Service to allocate corporate tax payments in a manner beneficial to the Government and adverse to the "responsible party" will now be addressed in this opinion.
Based upon the findings made above, the United States now has a claim against Theodore V. Olson based upon the Internal Revenue Service determination and this Court's finding that Mr. Olson was a responsible party for purposes of Section 6672 of the Bankruptcy Code and that his failure to ensure that the "trust fund" taxes of OBM were timely paid. One of the issues litigated was the amount of the claim of the United States and the validity of the process used by the United States to determine that amount. Prior to the first bankruptcy case filed by Theodore and Sandra Olson, Mr. Olson was the president of OBM. In 1980, OBM had employees and had incurred "trust fund" tax obligations. OBM paid to the Internal Revenue Service certain payments during the first three weeks of July, 1980. It did not make additional payments during the second quarter of 1980. It filed the official government report (Form 941) reflecting payments due and payments made during the second quarter. The report that it filed showed that it had paid to its employees a certain amount of wages during each pay period of the quarter and that during the first three weeks of July, it had deposited with the Internal Revenue Service an amount equivalent to the "trust fund" taxes due plus the matching amount due from the corporation relating to trust fund obligations. When an employer has employees, it is required to withhold from the employees' gross pay a certain amount for employee income taxes and a certain amount for social security and other federal employment taxes. The employer is required to match the amount withheld from the employee for social security and deposit the total with the Government on a regular basis.
The report filed for the third quarter of 1980 (July, August, September, 1980) appears on its face to show that the corporation complied with the law with regard to the first three weeks of the quarter. However, in late 1983 when the Internal Revenue Service was calculating the 6672 penalty to assess against Mr. Olson, it treated all of the payments made during July as if they were made by the employer to cover its matching obligation and none of the payments were made to cover the employee withholding or social security obligations. The effect of this treatment is to increase the penalty for which Mr. Olson is liable as a responsible person under the Internal Revenue Code.
OBM continued to operate outside of bankruptcy until December 10, 1980. From the middle of July until the first of December, 1980, it had employees and paid wages. However, it did not pay any withholding monies to the Internal Revenue Service nor did it pay any trust fund taxes or matching funds to the Internal Revenue Service. On December 1, 1980, the company was without funds to make any payroll payments. Some employees were still at work but all financing for the operations had been shut off by the lender. On December 10, 1980, the company filed Chapter *148 11 bankruptcy. Theodore V. Olson remained as president and the company operated as debtor-in-possession for a short period of time. During the last two weeks of December, 1980, the company had employees and paid wages for the employees. Mr. Olson personally funded the payroll amounts and the Form 941 which was eventually filed to report on the trust fund and matching payments indicates that during the last two weeks of December of 1980 all employment tax obligations were made by the company to the IRS.
Mr. Olson was removed as president of the company in early January, 1981. A trustee was appointed. The trustee completed the Form 941 and showed on that form that wages were actually paid during the first two weeks of December, 1980, and during the last two weeks of December, 1980, and that the appropriate tax payments were made for the last two weeks. The trustee did not indicate on the form that bankruptcy was filed on December 10, 1980, and did not file a separate Form 941 for the pre-petition and post-petition tax obligations.
In late 1983 when the Internal Revenue Service was determining that Mr. Olson was a responsible party and preparing for the assessment process, it applied the payments made to the Internal Revenue Service after bankruptcy to the pre-bankruptcy non-trust fund obligations of the company for the last quarter of 1980. In other words, it did the same thing with the last quarter as it did with the third quarter and, by so doing, increased the eventual obligation of Mr. Olson for all of the trust fund taxes. However, with regard to the fourth quarter, in addition to simply making the particular application of the payments in a manner favorable to the Internal Revenue Service, it applied taxes paid post petition to pre-petition obligations.
Mr. Olson had no control over the company after the trustee was appointed and had no access to the records and no ability to supervise, prepare, sign or object to the form which was filed by the trustee and which erroneously indicated wages were paid during the first two weeks of December of 1980. Mr. Olson's testimony that no wages were paid during the first two weeks of December, 1980, is unrebutted. It is also consistent with this Court's findings that the lender had shut down the cash flow as of the end of November, 1980. Those findings were made in the memorandum filed June 3, 1988.
Although there is no valid assessment, the United States has filed a claim which is prima facie evidence of its validity. See Bankr.R. 3001(f). It is the burden of the taxpayer to go forward with evidence and make a showing contrary to the validity of the claim. It is then the burden of the claimant to convince the Court that its claim is valid. Mr. Olson has met his burden. He has shown that during July of 1980 the company was in compliance with the law and paid all of the taxes it owed, whether trust fund or not, for the first three weeks. He has shown and the United States has not rebutted or presented any contrary evidence, that the company did not make any payroll during the first half of December, 1980. He has shown that the company filed bankruptcy on December 10, 1980, and that he personally loaned the company money to make the payroll for the last half of December, 1980, and to make the tax payments both for trust fund taxes and the company matching taxes.
The United States does not seem to dispute those facts that this Court has just found, but takes the position that even assuming all of those facts are correct, the Internal Revenue Service has a right to apply payments to its advantage to ensure that it will be able to collect trust fund taxes from the responsible person. This is a legal issue and will be discussed in two parts.
First, the analysis must focus upon the validity of the process of applying post-petition tax payments for payroll periods during the last half of December, 1980, to non-trust fund tax obligations of the company incurred prior to December 10, 1980, the bankruptcy petition date. The IRS has presented no evidence and no convincing legal argument that there is any statutory *149 or case law authority for such application. The bankruptcy trustee filed the quarterly report relied upon by the Government. The report did not break down payroll and taxes paid pre petition from payroll and taxes paid post petition. The IRS, when computing the penalty against Mr. Olson in 1983, paid no attention to the fact that the taxes paid after December 10, 1980, were taxes paid by a debtor-in-possession for post-petition payroll. It treated those tax payments as if they were made by the debtor company outside of bankruptcy and it, therefore, applied the payments as if no bankruptcy had occurred. This process significantly increases the claim of the Government against Theodore V. Olson for the trust fund taxes. This Court finds such a practice to be legally unjustifiable and factually unfair.
On December 10, 1980, when the bankruptcy petition was filed for OBM, a new entity came into existence. The Internal Revenue Service had no right to apply tax payments made post petition to pre-petition obligations, trust fund or otherwise. Since it could not do that with regard to the obligations of the company, it, therefore, follows that the taxes paid by the company for the last half of December, 1980, must be recognized by the Internal Revenue Service and applied in the manner in which they were reported. By doing so, the result is that the company owes no trust fund taxes for the post-petition time frame of December 10, 1980, through December 31, 1980. If the company owes no such trust fund taxes, neither does Mr. Olson, because his obligation is solely a function of the obligation of the company for such trust fund taxes.
The Court, therefore, finds that the claim of the United States against Mr. Olson for the amount of trust fund taxes allegedly due for payroll made between December 10, 1980, and December 31, 1980, is not allowed.
The United States has provided no evidence that payroll was actually made during the first ten days of December, 1980. This Court accepts as true the evidence presented by Mr. Olson that no payroll was made during the first ten days of December, 1980, and that the quarterly report filed by the trustee after December 31, 1980, is incorrect. Therefore, that portion of the claim of the United States which assesses trust fund taxes based upon payroll allegedly paid during the first ten days of December, 1980, is found to be invalid and not allowed.
The final question concerns the right of the Internal Revenue Service to apply the payments made by the company in July of 1980 to the company matching obligations rather than to the trust fund taxes for that period of the quarter. As legal authority for its application practice, the United States relies upon an Internal Revenue Service manual which was not admitted into evidence. A copy of such a manual is attached to the final argument and brief submitted by the United States.
The Internal Revenue Service recognizes the right of a taxpayer to designate the application of payments to specific tax obligations. However, when no designation is made, the Internal Revenue Service will almost always decide to apply the tax payment to a non-trust fund tax debt first. Revenue Ruling 79-284, 1979-2 C.B. 83, modifying Revenue Ruling 73-305, 1973-2 C.B. 43, superseding Revenue Ruling 58-239, 1958-1 C.B. 94, provides that
voluntary partial payments of assessed tax, penalty, and interest will be applied to withheld employment taxes and collected excise taxes as designated by the taxpayer. If no designation is made, the payments will be allocated to tax, penalty and interest in a manner serving the best interest of the service.
Based upon this Revenue ruling authority, the Internal Revenue Service manual provides a procedure for determining, in a step-by-step process, how much of the non-designated payment should be applied to non-trust fund taxes and how much of such payment should be applied to trust fund taxes. The United States presented the testimony of two Internal Revenue Service employees explaining the process by which the July payments were applied to the non-trust fund taxes first for the third quarter.
*150 In 1980, OBM did not designate the application of the payments that it made during July of 1980. Therefore, when the Internal Revenue Service was computing the amount of trust fund taxes still owed by OBM, it followed the Revenue ruling cited above and applied the July payments first to the non-trust fund portion of the tax obligations, leaving no money to be applied to the trust fund portion. This procedure has been discussed in several cases concerning the right of a debtor in bankruptcy to allocate tax payments made pursuant to a bankruptcy plan of reorganization to trust fund versus non-trust fund taxes. See In re DuCharmes & Co., 852 F.2d 194 (6th Cir.1988); In re Technical Knockout Graphics Co., Inc., 833 F.2d 797 (9th Cir. 1987); In re Ribs-R-Us, Inc., 828 F.2d 199 (3rd Cir.1987). These three cases ruled that a bankruptcy court could not confirm a plan which authorized the debtor to designate post-petition payments to be applied to certain types of taxes owed for other types of taxes. On the other hand, In re Energy Resources Co., Inc., 871 F.2d 223 (1st Cir.1989) decided that the bankruptcy court did have the power to confirm a plan providing for a designation of payments over the objection of the Internal Revenue Service.
However, each of those cases was dealing specifically with the attempt by a debtor in bankruptcy to override the Internal Revenue Service application policy concerning future payments. In the case before the Court, the Internal Revenue Service, dealing with a corporate debtor not in bankruptcy at the time the taxes became due, has applied payments previously made in a manner consistent with the Revenue Ruling. The company which actually owes the taxes is no longer in existence. It was not in existence in 1983 when the application was made. The party objecting to the application is the "responsible party" under the statute who will be subject to a higher claim by the Internal Revenue Service if the court upholds the application policy than if the court finds the policy to be unwarranted.
After considering the right and obligation of the Internal Revenue Service to collect taxes and to implement procedures beneficial to that collection activity, this Court does not find the procedures followed in this case to be unwarranted or an unreasonable interpretation of its duties. The Internal Revenue Service will be unable to collect trust fund taxes or non-trust fund taxes from OBM. It has no statutory authority to "pierce the corporate veil" and collect the non-trust fund taxes from the responsible officers in the corporation. However, it does have a statutory opportunity to collect the trust fund taxes from the responsible person.
In order to maximize its opportunity for collection of revenues, it has implemented a policy whereby payments made during a quarter are applied in a manner most beneficial to the United States. That means that it first applies payments to the non-trust fund aspects of the obligation of the company in order to maximize that collection process. It then looks to the responsible person for collection of the trust fund taxes. In this case it looks to Theodore V. Olson for collection of those trust fund taxes which accrued during the quarter July 1 through September 30, 1980.
This procedure is not unreasonable and the application of the payments on a quarterly basis rather than on a weekly basis in which they were paid is also not unreasonable. The evidence before the Court is that the weekly or monthly payments are simply deposited in a general account and are not applied to any particular portion of the tax obligation of the company until the quarterly report is filed or until it is determined that there is an inability to collect from the company all of the taxes due by the company.
The Court, therefore, concludes that the application by the Internal Revenue Service of payments made during July of 1980 first to non-trust fund taxes thereby maximizing the amount due from Mr. Olson for trust fund taxes is not unreasonable and the claim of the Internal Revenue Service with regard to such taxes is allowed.
For plan confirmation purposes and claim allowance purposes, the United *151 States should file an amended claim with specific numbers in conformance with this opinion.
In conclusion, the Court finds that Prudential does not, Olson Lawyers do not, and the United States does not have a lien on the interpleaded fund. The IRS assessment against Theodore V. Olson during his 1982 bankruptcy case is void. The application of taxes paid by OBM after its bankruptcy to non-trust fund prepetition tax obligations is invalid. The application of OBM tax payments in July, 1980, to third quarter non-trust fund taxes is appropriate. The United States may file an amended claim in conformance with this memorandum.
Separate journal entry to be filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3344382/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTION TO WITHDRAW APPEARANCE OFSPECIAL PUBLIC DEFENDER
I. FACTS
The petitioner, Burnest Freeney, was convicted of two counts of kidnaping in the first degree, two counts of sexual assault in the first degree, and one count of assault in the third degree by a six-person jury in the Superior Court of New Haven (Hadden, J., presiding). The petitioner was sentenced to a total effective sentence of thirty years.
On September 9, 1992, the petitioner filed a petition for writ of habeas corpus on two grounds: (1) that the petitioner was incompetent to stand trial in part due to his use of three prescription drugs; and (2) ineffective assistance of counsel, specifically naming trial counsel's advice that the petitioner not testify on his own behalf at trial.
A special public defender was appointed to represent the petitioner in this habeas matter on December 24, 1992.
The special public defender has concluded that no non frivolous argument exists to support the petitioner's claim. Consequently, the special public defender filed a motion to withdraw on December 6, 1996, accompanied by a supporting memorandum of law. To assist the court, the special public defender also submitted trial transcripts, a private investigator's notes and a letter by Dr. Kenneth M. Selig, which gives an opinion as to the competence of the petitioner during trial.
II. DISCUSSION
The right to appointed counsel is available only where there CT Page 3333 is a non frivolous claim. See Anders v. California, 386 U.S. 738,744-45 (1967); State v. Pascucci, 161 Conn. 382, 385,288 A.2d 408 (1971); Practice Book § 952. "[I]f [appointed] counsel finds [the petitioner's] case to be wholly frivolous, after a conscientious examination of it, [counsel] should so advise the court and request permission to withdraw." Anders v. California,
supra, 386 U.S. 744; State v. Pascucci, supra, 161 Conn. 385; Practice Book § 952. Such a request "must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders v. California, supra,386 U.S. 744; State v. Pascucci, supra, 161 Conn. 385. "The court . . . then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous."Anders v. California, supra, 386 U.S. 744. See also State v.Pascucci, supra, 161 Conn. 386.
"If [the court] finds any of the legal points arguable on their merits (and therefore not frivolous) [the court] must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Anders v. California, supra, 386 U.S. 744. See also State v. Pascucci, supra, 161 Conn. 387 (adopting Anders
requirements).
It is well established that habeas corpus cannot be used as an alternative to a direct appeal Payne v Robinson, 207 Conn. 565,569, 541 A.2d 504, cert. denied 488 U.S. 898 (1988); Galland v.Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987); Smith v.Barbieri, 29 Conn. App. 817, 819, 618 A.2d 567 (1993). "[H]abeas review of constitutional claims never raised in the trial court, in violation of [the] rules of practice, would thrust too great a burden on [the] criminal justice system." Johnson v.Commissioner, 218 Conn. 403, 417, 589 A.2d 1214 (1991).
III. ISSUES
The petitioner's two primary claims for habeas relief are: (1) his incompetence to stand trial; and (b) ineffective assistance of counsel during trial. These are discussed below.
A. Incompetence to Stand Trial
"The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. This rule imposes a constitutional obligation, on the trial court, to CT Page 3334 undertake an independent judicial inquiry, in appropriate circumstances, into a defendant's competency to stand trial." (Brackets omitted; citations omitted; internal quotation marks omitted.) State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345
(1987). "Competence to stand trial is a legal question which must ultimately be determined by the trial court." Id., 687. "The fact that the defendant was receiving medication . . . of itself does not render him incompetent." (Brackets omitted; citation omitted.) Id., 688.
A review of the transcript provides no indication that the petitioner was incompetent to stand trial. First, the petitioner's supervisor testified as to the petitioner's successful employment until the time of his arrest and that he would willingly hire the petitioner again. (See transcript of sentence hearing, p. 15 et seq.). The petitioner also understood that it was his option to testify on his own behalf. (See transcript, pp. 589-91.)
Upon independent review of the record, Dr. Kenneth Selig concludes that the petitioner was competent to stand trial. Dr. Selig, in coming to this conclusion, noted that: (1) the petitioner did not show any outward disturbance for the duration of the trial or sentencing disposition; (2) the petitioner was functioning well in full-time employment for the eight months prior to his incarceration; and (3) the decision of the petitioner's trial counsel not to order a competency evaluation. (See Letter of Dr. Selig to Attorney Dee, December 2, 1996, p. 2.) Dr. Selig was, however, unable to obtain any past medical or psychiatric records of the petitioner on which to base his decision, including those of the Department of Corrections for the time the petitioner was incarcerated during trial, January 1992. (See Letter of Dr. Selig to Attorney Dee, December 2, 1996, p. 1.)
Dr. Selig's opinion, upon which the special public defender relies, is compelling, even without a review of the petitioner's past psychiatric records or the records of the Department of Corrections. Dr. Selig has rendered an unequivocal expert opinion, based on all the information available to him from all sources. Petitioner has failed to provide any medical or psychiatric records to assist Dr. Selig in reaching a different conclusion. The Court agrees that no non-frivolous arguments can be made in support of this claim made by petitioner. CT Page 3335
B. Ineffective Assistance of Counsel
The petitioner's habeas claim asserted ineffective assistance of counsel. "[T]he right to counsel is the right to the effective assistance of counsel" McMann v Richardson, 397 U.S. 759, 771
n. 14 (1970). "The right [to the effective assistance of counsel] is firmly grounded in the mandates of the sixth amendment to the United States constitution, the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution . . . The right to counsel . . . is the right to effective assistance and not the right to perfect representation." Johnson v. Commissioner, 36 Conn. App. 695, 701,652 A.2d 1050 (1995). See also Commissioner of Correction v.Rodriguez, 222 Conn. 469, 478, 610 A.2d 631 (1992) (explaining that effective assistance need not be error free)
The Connecticut Supreme Court has adopted the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668
(1984); to evaluate ineffective assistance of counsel claims.Copas v. Commissioner of Correction, 234 Conn. 139, 154,662 A.2d 718 (1995); Ostolaza v. Warden, 26 Conn. App. 758, 761,603 A.2d 768 (1992).
The Strickland v. Washington test requires that the petitioner demonstrate, by a preponderance of the evidence, both that his counsel's performance was substandard and that there exists a reasonable probability that, but for counsel's deficiencies, the outcome of the proceedings would have been different. Strickland v. Washington, supra, 466 U.S. 694. "Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted). Fair v. Warden, 211 Conn. 398, 402,559 A.2d 1094, cert. denied 493 U.S. 981 (1989), quoting Strickland v.Washington, supra, 466 U.S. 687.
The petitioner has the burden of identifying "the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland v. Washington,
supra, 466 U.S. 690. "The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. See also Fair v. Warden, supra, 211 Conn. 402-03 (discussing Strickland v. Washington standard); State v. Talton,197 Conn. 280, 297, 497 A.2d 35 (1985). "Judicial scrutiny of CT Page 3336 counsel's performance must be highly deferential . . . the reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."1 (Internal quotation marks omitted.) Quintana vWarden, 220 Conn. 1, 5, 593 A.2d 964 (1991), quoting Stricklandv. Washington, supra, 466 U.S. 689.
The petitioner in his petition for writ of habeas corpus alleges ineffective assistance of counsel in that his trial counsel advised the petitioner not, (or did not allow the petitioner), to testify on his own behalf.
"While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the `if' and `when' of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." (Citation omitted; internal quotation marks omitted.) State v. Joyner, 225 Conn. 450, 482, 625 A.2d 791
(1993).
A review of the trial transcript clearly indicates that the defendant was given the opportunity to testify, but elected not to do so. Moreover, the court questioned trial counsel whether he had explained the possible benefits of personal testimony to the petitioner, with the court giving the petitioner the opportunity to interrupt the court if he disagreed with anything trial counsel represented to the court. (See transcript, pp. 589-91.) The petitioner did not dispute anything his trial counsel told the Court regarding his decision not to testify.
Accordingly, this ground raised by the petitioner to support his ineffective assistance of counsel claim is frivolous.
IV. ADDITIONAL ISSUES
In his interview with counsel's private investigator, the petitioner also raised concerns regarding trial counsel's (1) failure to investigate or call outside witnesses; in effect, the petitioner challenges trial counsel's failure to put on a defense; and (2) insufficient cross-examination of the state's witnesses, including allegedly "opening a door" to the introduction of the petitioner's past criminal record. Each of these claims is discussed below:
(1) Alleged failure to investigate; failure to call witnesses
CT Page 3337
The duty to investigate is defined as a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v.Washington, supra, 466 U.S. 691. "The reasonableness of a decision not to investigate is to be judged according to the circumstances of each case with great deference given to the attorney's decision." Id. Moreover, courts do not favor allegations that trial counsel failed to call certain witnesses because the presentation of testimonial evidence is a matter of trial strategy. Chace v. Bronson, 19 Conn. App. 674, 680-81,564 A.2d 303 (1989), citing Schwander v. Blackburn, 750 F.2d 494, 500
(5th Cir. 1985). "The failure of a defense counsel to call a potential defense witness does not constitute ineffective assistance of counsel unless there is some showing that the testimony would have been helpful in establishing the asserted defense." State v. Talton, supra, 197 Conn. 297.
Trial counsel's failure to call witnesses constitutes trial strategy, which should be given great deference by the reviewing court. The petitioner has not established the existence of such witnesses or whether they would be able to corroborate his story. There are no non-frivolous arguments to be made in support of this allegation.
(2) Alleged insufficient cross-examination
The trial transcript reveals that defense trial counsel attempted to challenge the complainant's credibility on cross examination and attempted to impeach the state's corroborating witnesses by eliciting inconsistencies in what the complainant told these witnesses. (See, e.g, transcript, pp. 211-219, 360.) Trial counsel also performed a reasonable cross examination of expert witnesses. (See, e.g., transcript, pp. 317-25, 371-72, 448.) Trial counsel would not have been able to conduct such cross examination without performing an adequate investigation.
Furthermore, trial counsel did not "open the door" to the admission of evidence on the petitioner's past criminal record. To the contrary, trial counsel fought to keep such evidence from the jury. (See, e.g., transcript, pp. 2-21, 104.) Trial counsel did question a police officer about whether the officer knew the defendant was on parole. (See transcript, p. 582.) During closing argument, trial counsel explained that the defendant's hiding from police after the incident was not indicative of guilt, but CT Page 3338 fear of coming before the police due to his parole status. (See transcript, p. 651. See also transcript, pp. 567 et seq.) This difficult issue was handled very ably, by trial counsel Trial counsel also tried to mitigate the impact of the petitioner's past criminal record during the sentencing phase of the trial by bringing in the petitioner's former employer as a character reference. (See transcript of sentencing hearing, pp. 15 et seq.)
Accordingly, the Court finds that the inadequate cross-examination basis of the petitioner's ineffective assistance of counsel allegation is frivolous.
CONCLUSION
The Court finds that there are no non-frivolous issues to pursue on behalf of the petitioner's Habeas Corpus case. Therefore the Motion to Withdraw, filed by the Special Public Defender is
GRANTED.
Since there appears to be no basis at all for any of petitioner's claims, the Habeas Corpus Petition is hereby
DISMISSED. P.B. § 529U.
BY THE COURT,
Honorable Jonathan J. Kaplan | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3344384/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
The plaintiff, Tyrene Lee, filed a claim for unemployment compensation benefits against her former employer, Hyatt Corporation, c/o Gates, of Columbus, Ohio. Lee contended that the termination of her employment at the employer's hotel in Old Greenwich was without just cause and that she was eligible for unemployment compensation. The employer claimed that Lee was terminated for unsatisfactory work performance as a switchboard operator on the 11 p.m. to 7 a.m. shift.
A fact finder for the administrator, Unemployment Compensation Act, General Statutes 31-222 et seq., approved the granting of unemployment benefits to Lee on the basis that she had been discharged for reasons other than repeated wilful misconduct.
The employer appealed this determination to the Employment Security Appeals Division pursuant to General Statutes 31-241, 31-242, where it was referred to an appeals referee. The referee made the following factual findings: the claimant, Lee, had been discharged on January 20, 1992. for failing to properly notify the employer on January 17, 1992, that she was not reporting for work at 11 p.m. that evening; the claimant had called about 8:00 p.m. to say that she was in New York City and was experiencing car trouble; the employer told her to call at 9:00 p.m. if she would be unable to report to work because of the employer's policy requiring a minimum of two hours notice of inability to report for work; and that the claimant did not call until 11:15 p.m. after the shift had commenced, thereby forcing her supervisor to attend to the claimant's switchboard.
In reversing the decision of the administrator and denying benefits to Lee, the referee relied on General Statutes 31-236(a)(2)(B), which provides that an individual is ineligible for unemployment benefits if discharged for, among other things, "repeated wilful misconduct in the course of his employment."
In accordance with General Statutes 31-249, Lee appealed this decision to the Employment Security Board of Review (Board), which affirmed the referee's decision that the plaintiff had not qualified for benefits. The Board determined that the findings of fact by the referee were supported by the record, and that the decision denying benefits was justified by those findings and the law regarding unemployment compensation.
The plaintiff appeals to this court, pursuant to General Statutes31-249b, contending that she did not commit wilful misconduct on January 17, 1992, but rather was terminated because of discrimination and harassment. The Board also concluded that there was no merit to Lee's claims of discrimination which surfaced for the first time during the appeal to the Board. CT Page 2775
The Regulations of Connecticut State Agencies, Sec. 31-236-26, describe wilful misconduct as an action done intentionally or deliberately, knowing that such conduct would be detrimental to the employer. In addition, for discharge under this provision, there must be a finding that the individual committed two or more acts of wilful misconduct, which do not have to be of the same nature, and that the prior act was committed within one year before the other and final act of wilful misconduct that caused the termination of employment.
The referee had found that approximately four months before her discharge Lee had been suspended for leaving the switchboard on September 30, 1991, at which time a night manager had rung the board over forty-five times without success.
Both the referee and the Board of Review concluded that the claimant's two acts of leaving her work station unattended and then failing to give proper notice of her inability to report for work fell within the definition of wilful misconduct as set forth in the statute and regulation.
It should be noted that this court's role in reviewing a decision of the Board is limited to determining whether that board's decision is unreasonable, arbitrary, illegal or an abuse of discretion. Acro Technology v. Administrator, 25 Conn. App. 130, 134, 593 A.2d 154 (1991). I certainly could not make such a finding under these circumstances.
Accordingly, the Board's decision is affirmed, and judgment hereby enters dismissing plaintiff's appeal.
So Ordered.
Dated at Stamford, Connecticut, this 22nd day of March, 1993.
William B. Lewis, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1918124/ | 28 Wis. 2d 22 (1965)
LA FAVOR, Appellant,
v.
INDUSTRIAL COMMISSION and others, Respondents.
Supreme Court of Wisconsin.
June 1, 1965.
June 25, 1965.
*24 For the appellant there was a brief by Goldberg, Previant & Uelmen of Milwaukee, and oral argument by Albert J. Goldberg.
For the respondent Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
For the respondents Jack Levings, Kenneth Levings, and Shelby Mutual Insurance Company there was a brief by Kivett & Kasdorf, attorneys, and Clifford C. Kasdorf of counsel, all of Milwaukee, and oral argument by Clifford C. Kasdorf.
GORDON, J.
The Industrial Commission determined that Mr. La Favor was functioning as an independent contractor at the time of his accident, and we believe that the record fully sustains such conclusion. The commission did not make an express finding that Mr. La Favor was not an employee at the time of the accident, but such determination is reasonably implicit in its order.
This appeal requires that we examine the nature of the services performed by the applicant in his two different capacities. In one he was an employee and in the other an independent contractor.
Mr. La Favor's duties as an employee related in part to his supervision of the construction of new homes for the Levings brothers. In this work he hired subcontractors, inspected the work, and generally expedited the whole project. As an employee, Mr. La Favor gave his attention to the contracts which were made between the company and various subcontractors. He kept track of payments and prepared waivers. He also concerned himself with construction loans. Another facet of Mr. La Favor's duties as an employee was to locate vacant property for future construction. As an employee of the Levings brothers, Mr. La Favor was paid $400 for each home that was constructed.
*25 As an independent contractor, Mr. La Favor engaged in the trade of carpentry. Primarily he performed this trade for the Levings brothers, but he also had a number of contracts to do carpentry work for the Masonite Company. In carrying on his carpentry work, Mr. La Favor hired carpenters and treated them as his own employees. He set their hours of work and paid them directly from his own sources. He also paid the social-security taxes and took withholding on the wages of his employed assistants. Mr. La Favor carried workmen's compensation insurance which covered the carpenters working for him.
In furtherance of his carpentry activities, Gordon La Favor had a truck with the name "Gordon Company" appearing upon it. His address and telephone number were also printed on the truck. He had a business checking account under the name of "Gordon Company." The magnitude of Mr. La Favor's carpentry business is suggested by the fact that a payroll audit by his compensation insurance carrier shows that between November, 1961, and May, 1962, Mr. La Favor paid wages in the amount of $2,688.
The appellant argues that he was in dual employment at the time of his injury; that he was doing carpentry work (as an independent contractor) and, in addition, that he was inspecting or supervising such work (as an employee). The facts disclosed by the record do not support the dual-employment argument. This is not an instance of dual service where at the time of the injury the two capacities of the workman are inextricably entwined. Murphy Supply Co. v. Industrial Comm. (1931), 206 Wis. 210, 239 N.W. 420; cf. Pinson v. Industrial Comm. (1955), 79 Ariz. 21, 281 Pac. (2d) 962; Vance v. Hut Neckwear Co. (1952), 281 A.D. 151, 118 N. Y. Supp. (2d) 327; Johnston v. International Freighting Corp. (1949), 274 A.D. 728, 87 N. Y. Supp. (2d) 297; Sweatt v. Board of Education (1953), 237 N. C. 653, 75 S. E. (2d) 738; 1 Larson, Law of Workmen's Compensation, p. 721, sec. 48.50.
*26 The commission's finding that Mr. La Favor was acting as an independent contractor at the time of the accident is well supported. We find no valid basis for concluding that Mr. La Favor was also serving as an employee of the Levings brothers at such time. His duties as an employee were broad, but it is not reasonable to say that at the time of the accident they were intertwined with the carpentry work which was being performed.
Under sec. 102.07 (8), Stats., an independent contractor may not qualify as an "employee" if he maintains a separate business and also holds himself out to and renders service to the public. In view of Mr. La Favor's activities in the carpentry business, he may not be considered a "statutory employee."
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918135/ | 27 Wis. 2d 490 (1965)
BIE and wife, Respondents,
v.
INGERSOLL and another, Appellants.
Supreme Court of Wisconsin.
April 26, 1965.
June 1, 1965.
*492 For the appellants there was a brief by Arnold, Arnold & Thorson of Elkhorn, and oral argument by Robert W. Arnold.
For the respondents the cause was submitted on the brief of Richardson & Hammett and R. G. Richardson, Jr., all of Delavan.
*493 HEFFERNAN, J.
The only question raised on this appeal is whether the trial court's findings, that the asphalt-plant's operation and the trucking in connection with it constituted a nuisance, is contrary to the great weight and clear preponderance of the evidence. Colson v. Salzman (1956), 272 Wis. 397, 401, 75 N. W. (2d) 421. The activity complained of must create more than an inconvenience,[1] and must be offensive to the person of ordinary and normal sensibilities.[2] The result is not to be measured by its effect upon those of extreme sensibilities.[3]
The following finding by the trial court is in accord with the above tests for determining whether or not certain activity is a nuisance:
"That the smoke given off from the hot mix plant is a nuisance to the plaintiffs herein, in that it carries onto the property of the plaintiffs dirt, dust, and other unpleasant particles, and that it contains an odor of a noxious nature resembling that of tar and asphalt, and that the dirt and odor referred to substantially interfere with the comfort and enjoyment of the plaintiffs in the use of their property, and injures the use of their property;
"That the operation of trucks to and from the pit upon the roadway constructed therefor is a nuisance in that it creates excessive dust and dirt which is carried upon the property of the plaintiffs, and that it substantially interferes with the comfort and enjoyment of the plaintiffs in the use of their property, and injures the use of their property."
What we said in holding a tanning business a nuisance is applicable here:[4]
*494 "A business necessarily contaminating the atmosphere to the extent indicated should be located where it will not necessarily deprive others of the enjoyment of their property, or lessen their comfort while occupying the same."
The appellants contend that findings are contrary to the great weight and clear preponderance of the evidence because the zoning authority has classified the property occupied by the asphalt plant as industrial. There are those cases that hold that if the local lawmakers have acted through a zoning ordinance, a court cannot[5] thereafter hold a conforming use to be a nuisance. Other jurisdictions reason that a zoning ordinance and a use permitted by it does not give the property owner immunity from the consequences of maintaining a nuisance. We conclude that though an industrial use is permitted by the ordinance, the property must be used in such way that it will not deprive others of the use and enjoyment of their property. The operation of the asphalt plant, within the purview of the zoning ordinance, is lawful, but as we said in Pennoyer v. Allen, supra, at page 512:
". . . such interruption [of enjoyment] and destruction [of comfort] is an invasion of private rights, and to that extent unlawful. It is not so much the manner of doing as the proximity . . . to the adjacent occupant which causes the annoyance."
In Dolata v. Berthelet Fuel & Supply Co. (1949), 254 Wis. 194, 36 N. W. (2d) 97, we held that a coal yard constituted a nuisance as to neighboring residential properties even though the yard itself is located on the fringe of an industrial-business district. Professor Jacob Beuscher of the Wisconsin Law School discusses that problem in an *495 extensive law review article.[6] We agree with the cases discussed there that hold that the zoning classification is not the controlling factor, though it is, of course, entitled to some weight. It is rather "the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance and ground for equitable relief."[7]
The appellants argue that if this court agrees with the trial court in finding a nuisance, that the judgment nevertheless must be modified because it is so broad in scope that all further operation of the plant is prohibited. The appellants contend that the release of "one minute particle" of dust would be violative of the order. We do not find the terms of the judgment to be that broad. The trial court abated the plant operation only to the extent that it constituted a nuisance. If the asphalt plant can be operated in a way that odors and dust are not present to such a degree as to constitute a nuisance, then the order does not prohibit the operation of the plant.
The appellants also contend that that part of the judgment which refers to B. R. Amon & Sons as the licensee should be reversed. The record shows that the defendant, B. R. Amon & Sons, is in fact a lessee. Therefore, the judgment should be modified to state that Ingersoll should be restrained from permitting his land to be used by a licensee or lessee in such a way as to cause the nuisance restrained by the judgment.
By the Court.The judgment is modified to provide that the defendant, John Ingersoll, be perpetually enjoined from permitting his land to be used by a licensee or lessee in such a way as to cause the nuisance herein restrained by the judgment and, as so modified, affirmed.
NOTES
[1] Schneider v. Fromm Laboratories, Inc. (1952), 262 Wis. 21, 25, 53 N. W. (2d) 737. See also Prosser, Law of Torts (2d ed.) p. 395, sec. 70, which states that a private nuisance requires a substantial interference with the interest involved.
[2] Cunningham v. Miller (1922), 178 Wis. 22, 29, 189 N.W. 531.
[3] Ibid.
[4] Pennoyer v. Allen (1883), 56 Wis. 502, 512, 14 N.W. 609.
[5] Robinson Brick Co. v. Luthi (1946), 115 Colo. 106, 111, 169 Pac. (2d) 171, 166 A. L. R. 655.
[6] Beuscher and Morrison, Judicial Zoning Through Recent Nuisance Cases, 1955 Wisconsin Law Review, 440.
[7] Scallet v. Stock (1952), 363 Mo. 721, 727, 253 S. W. (2d) 143. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918139/ | 135 N.W.2d 222 (1965)
LEW BONN COMPANY, Plaintiff,
v.
Alen HERMAN and Tony L. Ferrara, individually, and dba Calhoun Terrace Company, Appellant,
Virgil L. Hillstrom, dba F. N. Hurd Company, Hurd Electric Co., and F. N. Hurd, Respondents.
No. 39457.
Supreme Court of Minnesota.
April 30, 1965.
*223 Leonard Street & Deinard and Jeremy C. Shea, Minneapolis, for appellant.
Louis J. Moriarty and Irving Frisch, Minneapolis, for respondents.
MURPHY, Justice.
This is an appeal from a judgment in favor of Virgil L. Hillstrom, doing business as F. N. Hurd Company, F. N. Hurd, and Hurd Electric Company, Inc., against Alen Herman and Tony L. Ferrara, individually and as partners under the trade name of Calhoun Terrace Company, hereinafter referred to as the Calhoun Company. The action grows out of extended lien claim litigation following the construction of an apartment building in Minneapolis. On appeal here the issue is reduced to the question of whether the failure of Hillstrom to file plans and specifications with the city building inspector as required by ordinance is sufficient ground to deny to him recovery for work performed as an electrical contractor.
From the record it appears that the Calhoun Company entered into an agreement with Hillstrom to perform the electrical work in the construction of the building. The basic plans for the building drawn by architects for the owners did not contain plans and specifications for electrical installations. The Calhoun Company did not employ an electrical engineer. Hillstrom performed this function as best he could. He secured a copy of the architect's plans, *224 superimposed his proposed electrical layout on them, and had sepia copies made of the sheet as the electrical plans and specifications. The contract was entered into on the basis of a condensed bill of materials. It was agreed that the work was to be installed in accordance with the city and state building codes. Section 4½(a) and (c) of the Electrical Ordinance of the city of Minneapolis, in effect when the contract was made, required that plans and specifications for new electrical installations in new buildings "for which plans and specifications are required for obtaining a building permit shall be submitted to the Department of Buildings for checking in every case where there is a combined electrical load of 30 KVA or over, or when requested by the Department of Buildings" so as to enable the Department of Buildings to check them for "safety, adequacy, and code compliance."[1]
After Hillstrom began work on April 14, 1959, he applied for and was issued a building permit. It does not appear, however, that he filed the plans and specifications of the electrical installations as required by the ordinance. It is contended that this failure renders the contract illegal so as to deny Hillstrom and his associates recovery of the sum of $10,435.18, the amount awarded by the trial court.
We discussed at considerable length the general subject relating to the validity of agreements which involve failure to comply with provisions of law in In re Estate of Peterson, 230 Minn. 478, 42 N.W.2d 59, 18 A.L.R. 2d 910. It is unnecessary to again review that general subject since we conclude that the asserted breach relates entirely to a matter collateral to the agreement and that noncompliance under the circumstances of this case does not require that recovery be denied.
The trial court found that although the electrical plans and specifications were not filed, they were nevertheless available to the city electrical inspector and that the work was performed in full compliance with the electrical code and that the contract "was not an illegal contract." The record established that one of the city electrical inspectors was on the premises from time to time while the job was in progress for the purpose of inspecting the installations and that he had an opportunity to examine the plans and specifications. On examination, the inspector gave the following testimony:
"Q. Did Mr. Hillstrom invite you to inspect the prints of this building prior to his commencing work on it?
"A. Yes.
"Q. He did. And what did you tell him, Mr. Anderson?
"A. I told him that the Code would require a receptacle for every 12 feet of the perimeter of the room, and if that is what it had, it was all right.
"Q. And then you just refused to look at them?
"A. Well, I didn't take the time to look at them."
*225 The trial court was of the view that Hillstrom's failure to file plans and specifications did not under the circumstances deny to the other party benefits or protection which the ordinance was intended to give him and did not conflict with a public policy which would justify denial of recovery.
Although the general rule is that a contract entered into in violation of a statute which imposes a prohibition and a penalty for the doing of an act, such as the pursuit of a business, profession, or occupation without procuring a license or permit required by law for the protection of the public, is void, such rule is not to be applied without first examining the nature and circumstances of the contract in light of the applicable statute or ordinance. In construing such a statute or ordinance, courts will infer that the legislature did not intend that an instrument executed in violation of its terms should be void unless that be necessary to accomplish its purpose. 4 Dunnell, Dig. (3 ed.) § 1873. The general rule has been applied in this state with varying results. In Ingersoll v. Randall, 14 Minn. 400, Gil. 304, and Leuthold v. Stickney, 116 Minn. 299, 133 N.W. 856, contracts in violation of law were held to be unenforceable under circumstances where the violations offended important public policy with respect to health and safety of the public. However, in De Mers v. Daniels, 39 Minn. 158, 39 N.W. 98, and In re Estate of Peterson, supra, the holdings indicate that the breach of a provision of law as it bears upon the performance of a contract will not necessarily render the agreement unenforceable where the legislative intent to be found in the act would not indicate that its sanction should apply where the violation is slight, not seriously injurious to the public order, and where no wrong has resulted from want of compliance.
Appellants in their reply brief rely on 6 Williston, Contracts (Rev. ed.) § 1761, and Tocci v. Lembo, 325 Mass. 707, 92 N.E.2d 254. They neglect, however, to refer to the more recent Massachusetts decision of Buccella v. Schuster, 340 Mass. 323, 164 N.E.2d 141, in which both of the above authorities are discussed. The latter case, by which we are persuaded, involved an action to recover for labor performed and equipment rented pursuant to a contract for blasting a ledge on the defendant's premises. The plaintiff did the work without securing a permit or filing a bond as required by statute. There, as here, there was no evidence of the presence of evils which the statute or ordinance was intended to guard against, nor was there a possibility of damage from the happening of any event which the statute sought to prevent. There, as here, the failure to obtain the bond and permit was "only an incidental part of the performance of the contract." 340 Mass. 325, 164 N.E.2d 142. In holding that the failure to comply with the statute did not void the contract, the Massachusetts court said that the contractor's performance without the required bond and permit was not so repugnant to public policy "that the defendant should receive a gift of the plaintiff's services" and pointed out that the defendant "received all to which he was entitled under his contract." 340 Mass. 326, 164 N.E.2d 143.
The language of Mr. Justice Holmes, speaking for the Massachusetts court in Fox v. Rogers, 171 Mass. 546, 547, 50 N.E. 1041, 1042, is appropriate here. He said:
"We shall not trouble ourselves about the construction of the statute and ordinances, because it does not follow that the plaintiff cannot recover if he broke them. There is no policy of the law against the plaintiff's recovery unless his contract was illegal, and a contract is not necessarily illegal because it is carried out in an illegal way."
The contentions of appellants come down to the proposition that they are entitled to a windfall of more than $10,000 because of the failure of their creditor to comply strictly with the provisions of a *226 city ordinance. It could hardly be said that such a decision would be consonant with principles of justice where there is nothing in the record to indicate that when the contract was entered into there was any intention to violate the law, or to indicate bad motives or a design to deny the protection of law to one of a class for whose benefit the statute or ordinance was enacted. We do not think that the legislature intended that a slight violation relating to failure to comply with a collateral duty in the filing of plans and specifications should result in the forfeiture of a just debt. 4 Dunnell, Dig. (3 ed.) § 1873; 17 Am.Jur. (2d) Contracts, § 166. See, also, Annotation, 55 A.L.R. 2d 481. We fully agree with the trial court that the Calhoun Company has received the benefit of Hillstrom's contributions to the construction of its property, that the work was performed in "compliance with the code in all material respects," and that it should be required to pay the judgment.
Affirmed.
NOTES
[1] Minneapolis Code of Ordinances, §§ 141.080 and 141.100, now in effect, contain almost identical language.
Minn.St. 326.32, subd. 1, provides: "All electrical wiring, apparatus, and equipment for electric light, heat, and power shall comply with the rules and regulations of the railroad and warehouse commission, the commissioner of insurance, or the industrial commission, under the authority of the state statutes and in conformity with approved methods of construction for safety to life and property. The regulations as laid down in the national electrical code as approved by the American standards association, and in the national electrical safety code as issued by the United States bureau of standards, shall be prima facie evidence of such approved method; provided, that nothing herein contained shall prohibit any municipality from making and enforcing more stringent requirements than those set forth herein, and that such requirements shall be complied with by all licensed electricians working within the jurisdiction of such municipalities." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515680/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYAW SOE LIN, No. 18-70785
Petitioner, Agency No. A095-875-341
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 2, 2020**
Seattle, Washington
Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.
Petitioner Kyaw Soe Lin admittedly filed a frivolous asylum application
based on fraudulent allegations of persecution. The Immigration Judge (“IJ”)
determined Lin was given adequate notice of the consequences of filing a frivolous
application and was thus barred from any immigration relief. See 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1158(d)(4), (6). The Board of Immigration Appeals (“BIA”) affirmed the IJ’s
removal order. Lin petitions for review. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1) and deny the petition for review.
Lin claims he did not have adequate notice of the consequences of filing a
frivolous asylum application because he did not understand English and the
translator who helped him did not advise him of the consequences. Lin, however,
twice signed his name under the written notice provided on his immigration forms,
and the translator certified the written notice was properly translated. Printed
notice is adequate even where an applicant has limited English proficiency or
claims error by the translator. Cheema v. Holder, 693 F.3d 1045, 1046 (9th Cir.
2012); see Kulakchyan v. Holder, 730 F.3d 993, 995 (9th Cir. 2013). Because Lin
signed his name on the written notice and Lin’s translator signed the notice
indicating that he read the notice to Lin and that Lin “understood,” substantial
evidence supports the BIA’s conclusion that Lin had notice of the consequences of
filing a frivolous asylum application. See Kulakchyan, 730 F.3d at 995.
PETITION FOR REVIEW DENIED.
2 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1575139/ | 308 S.W.3d 635 (2009)
2009 Ark. App. 275
James McCUTCHEON, Appellant,
v.
Kathy McCUTCHEON (now Kougl), Appellee.
No. CA 08-566.
Court of Appeals of Arkansas.
April 15, 2009.
*636 Clark & Spence, by: George R. Spence, Bentonville, for appellant.
Keith, Miller, Butler, Schneider & Pawlik, PLLC, by: Kristin L. Pawlik, Rogers, for appellee.
JOSEPHINE LINKER HART, Judge.
Appellant, James McCutcheon, appeals from the circuit court's order finding him in contempt for failing to indemnify appellee, Kathy McCutcheon (now Kougl), as provided in the parties' settlement agreement incorporated by reference into the parties' divorce decree. Appellant argues that the court erred in holding him in contempt because the obligation was discharged in bankruptcy. We affirm the circuit court's order.[1]
On January 26, 2005, the parties entered into a settlement agreement providing in part that appellant would retain possession of a 2004 Honda TRX 450R Four Wheeler. Appellant agreed to be responsible for the debt on the vehicle, have it refinanced in his own name within sixty days, and hold appellee harmless for any debt on the vehicle. Further, the parties agreed "to keep the other free and harmless and indemnified of and from any and all debts, charges, or liabilities herein assumed by each...." Each party also agreed to pay the other's legal expenses if the party *637 wrongfully refused to comply with the agreement. The divorce decree was filed on January 28, 2005, and the decree incorporated by reference the settlement agreement.
On April 23, 2007, appellee filed in the circuit court a petition for contempt, alleging that appellant had failed to abide by the settlement agreement. The petition asserted that appellant had failed to refinance the Honda in his own name, that he had defaulted on the debt, and that the lienholder was seeking judgment against appellee.
At the December 4, 2007 hearing on the petition, exhibits admitted into evidence showed that on September 16, 2005, appellant filed a Chapter 7 voluntary petition for bankruptcy. Appellant listed the Honda as property subject to a purchase money security lien held by a bank, further listing appellee as a codebtor. Appellant, however, did not list appellee as a creditor. Appellant also signed a statement of intention to retain the Honda and make regular payments thereon. On December 20, 2005, appellant was granted a discharge. The discharge, however, did not indicate that appellant intended to make payments on the Honda.
At the hearing, appellee's attorney noted that on July 22, 2007, a civil judgment in favor of the Honda lienholder was entered against her for $5025.94, costs of $186.08, attorney's fees of $503.59, and interest. Appellee sought an award for these amounts as well as her attorney fees in the civil judgment and in the contempt proceeding. Appellant argued that the Honda debt had been discharged in bankruptcy and that appellee was aware of the bankruptcy filing.
In its written order, the circuit court stated in part that the "bankruptcy proceeding did not discharge [appellant] from any obligation to [appellee]." The court noted that appellee was "not named as his creditor in the bankruptcy proceeding." The court found appellant in contempt and ordered appellant to pay appellee the amounts listed above, as well as $300 in attorney fees that she expended in the civil judgment and $300 that she expended in the contempt proceeding. This appeal followed.
On appeal, appellant asserts that because he received a discharge in bankruptcy, the circuit court erred in ordering him to make payments to appellee. Appellant argues that the proper forum for challenging the discharge would have been in bankruptcy court. Appellant further observes that appellee was "clearly aware of the bankruptcy petition, as she helped pay the fee for it...."
Generally, under the statutes in effect at the time appellant filed bankruptcy, debts for spousal support and child support were not dischargeable. 11 U.S.C. § 523(a)(5). Other types of divorce-related debts, such as property settlements, were also not dischargeable unless the debtor could not afford to pay the debt or if the benefit to the debtor from discharging the debt outweighed the detriment to the other party. 11 U.S.C. § 523(a)(15). Further, a discharge did not discharge an individual debtor from any debt not listed or scheduled in time to permit,
(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor *638 had notice or actual knowledge of the case in time for such timely filing and request[.]
11 U.S.C. § 523(a)(3).
While appellant asserts that the circuit court did not have jurisdiction to determine whether a debt was discharged under section 523(a)(15), that is not the issue before the court. Here, the question on appeal involves section 523(a)(3) and concerns whether appellee "had notice or actual knowledge of the case." Appellant further asserts that it "is not an issue in this case" whether appellee received notice, as appellee "had notice of the filing of the bankruptcy," and thus the circuit court "was not determining whether the debt survived, but instead how far the discharge went," which is "appropriately the provision of the Bankruptcy Court."
We disagree with appellant's assessment. The circuit court specifically found that the bankruptcy proceeding did not discharge appellant from any obligation to appellee, noting that appellee was not named as a creditor in the bankruptcy proceeding. Further, state and federal courts have concurrent jurisdiction to determine whether a debt survived bankruptcy because of the debtor's failure to schedule or list the debt in the petition and the creditor's failure to obtain timely notice of the proceedings by other means. Heselton v. Maffei, 374 N.J.Super. 184, 863 A.2d 1100 (2005). The burden of establishing that a creditor received adequate notice rests with the debtor. Id.
In addressing whether she had notice or actual knowledge of the case, appellee cites a factually similar case, Heselton. There, the issue was whether the ex-husband's obligation to indemnify his ex-wife for any liability she might incur under a mortgage on the former marital home was discharged by his bankruptcy even though he only listed her as a codebtor and not as a creditor in his bankruptcy petition. The court concluded that the bankruptcy petition did not give the ex-wife reasonable notice that the indemnification obligation could be discharged in the bankruptcy proceeding, and therefore she could enforce the obligation notwithstanding the ex-husband's bankruptcy.
The court observed that although the ex-wife received a copy of the petition and was listed as a codebtor, the petition did not list the indemnification obligation as a debt the ex-husband was seeking to discharge or identify the ex-wife as a creditor. The court concluded that the ex-husband's bankruptcy petition did not afford the ex-wife reasonable notice that the indemnification obligation could be discharged in the bankruptcy proceeding. In reaching this conclusion, the court reasoned that the listing of the ex-wife as a codebtor did not give her reasonable notice that the ex-husband did not consider his indemnification obligation for that debt to be a component of his child-support obligation or in lieu of alimony and thus non-dischargeable under section 523(a)(5), but instead was some other kind of debt that was subject to discharge under section 523(a)(15). Moreover, the ex-husband's failure to give adequate notice that he considered the indemnification obligation subject to discharge deprived her of the opportunity to present evidence and legal argument to the bankruptcy court relevant to whether this obligation satisfied one of the two alternative conditions of dischargeability set forth in section 523(a)(15).
We acknowledge that appellee was listed as a codebtor and that appellee's attorney stated in his argument before the circuit court that "[b]ack in September of 2005 [appellant] did cause to be filed a Chapter 7 voluntary petition for bankruptcy, and my client assisted in paying the *639 filing and attorney fees for the petition...." Appellant, however, did not list the obligation as a debt he was seeking to discharge, nor did he identify her as a creditor. And most importantly, he signed a statement of intention to retain the Honda and make regular payments thereon. Together, these facts would have indicated to appellee that appellant was not seeking to discharge his obligations under the settlement agreement. Thus, like the ex-wife in Heselton, appellee was deprived of her opportunity to present evidence and legal argument to the bankruptcy court relevant to whether this obligation satisfied one of the two alternative conditions of dischargeability set forth in section 523(a)(15).
Appellant further argues that Heselton is distinguishable because it involved payments that were characterized as alimony, that such debts are always non-dischargeable, and that state and federal courts have concurrent jurisdiction to determine whether the debt is in the nature of alimony and therefore non-dischargeable. Heselton, however, was not decided on the basis of whether the debt was in the nature of alimony. Rather, the case addressed whether the ex-wife had notice or actual knowledge of the case under section 523(a)(3). Accordingly, we affirm the circuit court's decision.
Affirmed.
VAUGHT, C.J., and BROWN, J., agree.
NOTES
[1] We also note that appellant filed a motion suggesting that the circuit court's order may not be final because of outstanding issues regarding a visitation schedule as well as telephone visitation for the minor child. That motion is moot, because the parties subsequently supplemented the record with an order showing that those issues were addressed. Further, the parties did not appeal from that order. | 01-03-2023 | 10-30-2013 |
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